IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 RCRev..No. 155 of 2010 --------------------------- RCA.69/2008 of II ADDL.DISTRICT COURT(RENT CONTROL APPELLATE AUTHORITY),ERNAKULAM. RCP.110/2005 of III ADDL.M.C. (RENT CONTROL COURT), EKM. ............................. REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------ SHAIJAN, S/O LATE THOMAS, AGED 35, M/S NEW TOM JOSE, C.C. NO.40/661, MAHALAKSHMI BUILDING, SOUTH JUNCTION, CHITTOOR ROAD, ERNAKULAM, KOCHI - 18. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SRI.K.SANEESH KUMAR SRI.SOJO J.KALLIDUKIL RESPONDENT(S)/RESPONDENT/PETITIONER: -------------------------------------------------- K.R.PURUSHOTHAMA PAI, AGED 58, S/O LATE K.N.RAMACHANDRA PAI, KADALIKANDATHIL HOUSE, MARKET ROAD, NORTH END, ERNAKULAM, AT PRESENT RESIDING AT GODAVARI, THIRUVAMBADY ROAD, THRISSUR. ADV. SRI.S.B.PREMACHANDRA PRABHU FOR CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/06/2010, A/W RCR NOS.156 & 157 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. Nos.155, 156 & 157 of 2010 ------------------------------------------------ Dated this the 14th day of June, 2010 ORDER Pius C. Kuriakose, J Three tenants are in revision challenging orders of eviction concurrently passed against them by the Rent Control Court and the Appellate Authority on the ground of bona fide need for own occupation under Sub Section 3 of Section 11. In fact, the landlord had invoked the grounds of arrears of rent under Section 11(2)(b) and the ground under Section 11(4)(iii) i.e. the tenant has other buildings reasonably sufficient for their requirements in the same city, town or village. But, it is conceded before us that presently the R. C. R. Nos.155, 156 & 157 of 2010 -2- only ground that survives is the ground under sub Section 3 of Section 11 and that we, in these revisions need be concerned with the landlord's eligibility for getting eviction on that ground only. 2. The buildings which are subject matter of these revisions are portions of the ground floor of a three storied commercial building situated at the junction where Swami Chinmayananda Road and Chittoor road meet. The landlord is a Chartered Accountant by profession but he belongs to a family which is traditionally engaged in textile business. His father is the founder of K.N.G textiles who have been conducting business as premier textile dealers both in Cherthala as well as in Cochin. The need projected in the RCP is in R. C. R. Nos.155, 156 & 157 of 2010 -3- the following terms:- “The petitioner intends to start a textile business in the entire building owned by him namely Mahalakshmi building”. 3. However, at the time of evidence it was stated by the landlord as PW1 that he intends to demolish an old residential building which is situated on the back side of the larger building of which the petition schedule buildings are part and to re-construct the same so that he can use the re-constructed building also along with the petition schedule buildings after they are renovated for the purpose of conducting the proposed business. The evidence adduced by the landlord inspired the Rent Control Court which R. C. R. Nos.155, 156 & 157 of 2010 -4- would hold that the need projected is bona fide. Even though the tenants had contended that they are entitled for the protection of the second proviso, the court found that the evidence adduced by them was insufficient for holding that they are so entitled. Accordingly, upholding the claim under Section 11(3) the Rent Control Court ordered eviction under Section 11(3). Even though, the eviction order passed by the learned Rent Control Court was appealed against before the Appellate Authority highlighting various circumstances, the Appellate Authority despite re- appraisal of the evidence would concur with all the conclusions arrived at by the Rent Control Court. That Authority accordingly, dismissed the appeals. R. C. R. Nos.155, 156 & 157 of 2010 -5- 4. In these revisions filed under Section 20, the tenants have raised identical grounds challenging the eviction orders passed by the Rent Control Court and the Appellate Authority to the extent they relate to the ground under Sub Section 3 of Section 11. 5. We have heard the submissions of Sri.A.Balagopalan, the learned counsel for the revision petitioners and also those of Sri.S.B.Premachandra Prabhu, the learned counsel for the respondent who had lodged a caveat in anticipation of this revision. Sri.Balagopalan would draw our attention to the landlord's pleadings regarding the need projected under Sub Section 3 of Section 11 and also to the evidence adduced by R. C. R. Nos.155, 156 & 157 of 2010 -6- him. According to him, there is marked deviation between the pleaded case of the landlord and also the case that he pursued in evidence. The learned counsel submitted that it is not the case that was pursued in evidence which the tenants were called upon to defend. As a result of this, legal prejudice has been occasioned to the tenants. This deviation of the case in evidence from the pleaded case is reflective of absence of bona fides. Sri.Balagopalan submitted that not even a scrap of paper and much less building permit and plan approved and issued by the local authority, were produced by the landlord to support his case in evidence that the residential building situated on the back side will be demolished and re- R. C. R. Nos.155, 156 & 157 of 2010 -7- constructed. 6. Mr.Balagopalan would then submit referring to Exts.B14 and B15 that in the first floor of the larger building apart from G.K.Pharma on whose behalf PW2 gave evidence there are two more tenants including one C.D.Varghese. No action has so far been initiated by the landlord for evicting them. Even though PW2 stated that G.K.Pharma was the only tenant in occupation of a portion of the first floor he had no convincing answer when he was confronted with Exts.B14 and B15. Without evicting C.D.Varghese and the other occupants of the first floor, the landlord's present proposal of starting textile business in the entire building is incapable of being implemented. R. C. R. Nos.155, 156 & 157 of 2010 -8- 7. Sri.Balagopalan would then refer to sub Section 12 of Section 11 and submit that the statutory authorities have proceeded to accept the landlord's newly developed case of commencement of the proposed business after the residential building situated on the back side is re- constructed. It is quite possible that the landlord delays the commencement of the proposed business on one excuse or another and this will result in the statutory remedy provided for evicting the tenants under Sub Section 12 of Section 11 being rendered nugatory in this particular case. Sri.Balagopalan also submitted that concurrent though they may be, the findings entered by the authorities below regarding the R. C. R. Nos.155, 156 & 157 of 2010 -9- tenants' eligibility for protection of the second proviso are not correct. Sri.Balagopalan submitted that the revision petitioners reasonably apprehend that after evicting them the landlord may sell off the buildings and will never commence the proposed business. 8. All the submissions of Sri.Balagopalan were resisted by Sri.S.B.Premachandra Prabhu. Sri.Prabhu reminded us of the attenuated nature of our present jurisdiction under Section 20. According to him, the findings entered by the Statutory Authorities in these cases are reasonable findings which are founded on evidence which was available on record. There is no illegality, irregularity or impropriety as R. C. R. Nos.155, 156 & 157 of 2010 -10- contemplated by Section 20. The apprehensions voiced by the learned counsel for the revision petitioner are all without basis. The landlord has no objection in this Court imposing any suitable safeguard for ensuring that the landlord does commence the proposed business and if he does not do so the remedy provided by the statute under sub Section 12 of Section 11 becomes really available to the tenant. 9. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the order of the Rent Control Court as well as the judgment of the Appellate Authority. We have also gone through the pleadings, copies of which were supplied to us by the learned R. C. R. Nos.155, 156 & 157 of 2010 -11- counsel at the Bar. We have considered the oral evidence of PW1, to the extent our attention was drawn to the same by the learned counsel. 10. The jurisdiction in which we are presently sitting is revisional in nature. In this jurisdiction ordinarily this Court is not expected to re-appraise the facts and evidence and substitute factual conclusions arrived at by the statutory authorities especially when they are concurrent and are based on evidence. Having scanned the judgment of the learned Appellate Authority which under the statutory scheme is the final court on facts, we are of the view that the findings entered therein that PW1 who belongs to a family which has been traditionally engaged in textile business and has R. C. R. Nos.155, 156 & 157 of 2010 -12- been successfully conducting the said business needs the buildings for conducting the same business is a reasonable finding which does not suffer from any illegality, irregularity or impropriety as envisaged by Section 20. The same is the position as regards the findings entered in the context of the tenants' eligibility for the protection of the second proviso to sub Section 3 of Section 11. We find that it is keeping in mind binding judicial precedents including the decision of a Full Bench in Francis v. Sreedevi Varassiar (2003(2) KLT 230) that the statutory authorities have rendered the findings in the context of the second proviso. 11. We shall now deal with the arguments R. C. R. Nos.155, 156 & 157 of 2010 -13- specifically addressed before us by Sri.Balagopalan. It is true that no pleadings were raised by the landlord regarding his proposal to demolish the residential building situated on the back side of the larger building and re-construct that building for the purpose of conducting the proposed business. But we are of the view that the version of the landlord in evidence is only a development of the pleaded case and does not conflict with the pleaded case. Exts.B14 and B15 apparently gives some support to the argument of Sri.Balagopalan that somebody other than, G.K.Pharma is in occupation of a portion of the first floor. It is seen that it was relying mostly on the Commission Report which was to the effect R. C. R. Nos.155, 156 & 157 of 2010 -14- that G.K.Pharma is only one occupant of a portion of the first floor of the larger building that the authorities brushed aside Exts.B14 and B15. Whatever that be, we are of the view that if it is ensured that the entire first floor comes to the vacant possession of the landlord before the revision petitioners are evicted from their respective premises, there cannot be any legitimate grievance for the revision petitioners. 12. The apprehension voiced by the revision petitioners through their learned counsel before us that the respondents will dispose of the buildings once the tenants are evicted and will not occupy the building for conducting the proposed business is not founded on any legal evidence available in R. C. R. Nos.155, 156 & 157 of 2010 -15- the case. Nevertheless, we feel that in view of the apprehension which was voiced before us with all seriousness by the learned counsel for the revision petitioner, necessary safeguards can be provided in this judgment so that such apprehensions will not also come true. 13. The submission of Sri.Balagopalan that the landlord had not produced any document and much less building permit issued by the local authority for proving his newly developed case of requiring the residential building situated on the back side after re-construction for conducting the proposed business, were certainly attractive. But as we scan the evidence, we find that what the landlord has stated is that the existing larger R. C. R. Nos.155, 156 & 157 of 2010 -16- building, parts of which are the petition schedule buildings are only to be renovated and not to be re-constructed. Sri.Premachandran's submission was that if a situation arises under which the landlord is unsuccessful in obtaining a valid building permit for re-construction of the residential building, the landlord will be utilising the site of the residential building as a parking ground. We are therefore of the view that it will suffice if we ensure that the residential building is demolished before the revision petitioners are evicted. 14. The Sub Section 12 of Section 11 provides that if the landlord who has obtained possession of a building in pursuance of an order R. C. R. Nos.155, 156 & 157 of 2010 -17- of eviction under Sub Section 3 of Section 11 does not occupy the building without reasonable cause within a period of one month of the date of obtaining possession or having so occupied it vacates building without reasonable cause within a period of six months, the evicted tenant will be entitled to restoration of possession. The submission of Sri.Balagopalan that in the present case there is likelihood of the landlord delaying commencement of the proposed business on various reasons thereby rendering the statutory remedy available to the tenant under Sub Section 12 of Section 11 being rendered nugatory has some appeal to us. The answer of Mr.S.B.Premachandra Prabhu to the argument R. C. R. Nos.155, 156 & 157 of 2010 -18- based on sub-section (12) of Section 11 was the judgment of this Court in Balachandran and others v. P.N.K.Pillai and others, 2001(1) ILR Kerala 83. The above decision in our opinion cannot be a convincing answer. That decision only lays down that sub-section (13) of Section 11 does not prescribe a period of limitation for making an application under Section 11(12) and that so long as the application submitted by the tenant under sub-section (12) of section 11 is not unreasonably delayed the tenant's right to file an application will not be lost to him. But as indicated in the above decision itself, unless the tenant acts promptly, he takes the risk of the Accommodation Controller stepping in and using his authority in terms of R. C. R. Nos.155, 156 & 157 of 2010 -19- Section 4 read with Section 11(13) of the Act. The legislative intendment underlying sub-section (12) of Section 11 is that a tenant who has been evicted under sub-section (3) of Section 11 on a ground which did not really exist, should be restored to possession. According to us, a tenant who is entitled to be restored to possession in terms of sub-section (12) of Section 11 should be so restored to possession at the earliest, if possible within the time frame set by the statute itself. We therefore, are inclined to set a time frame to the landlord for commencement of business. 15. As a last plea Sri.Balagopalan requested that at least one year's time be granted to the R. C. R. Nos.155, 156 & 157 of 2010 -20- revision petitioners who had been conducting business in these buildings for about half a century. We feel that to a certain extent the above request can be accepted subjecting them to certain conditions. The result of the above discussions therefore is as follows:- 16. The revision petitions are dismissed confirming the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(3). However, the execution court is directed to ensure before delivery warrant is issued for effecting delivery of the petition schedule buildings in favour of the landlords that the entire first floor portion of the three storied building of which the petition schedule premises R. C. R. Nos.155, 156 & 157 of 2010 -21- are parts has come to the vacant possession of the landlords. It will also be ensured that the residential building situated to the back side of the three storied building is completely demolished. 17. The respondent is restrained by an order of injunction from disposing of any portion of the larger building of which the petition scheduled building are parts by sale, lease or otherwise for a period of three years of their obtaining possession of those buildings pursuant to this judgment. The execution court is directed to defer ordering and effecting delivery till 31/01/11 subject to the following conditions:- 1) The revision petitioners file separate affidavits before the execution court in their R. C. R. Nos.155, 156 & 157 of 2010 -22- respective cases undertaking to give peaceful surrender of the petition schedule building subject to conditions set out in this judgment on or before 31/01/11 and undertaking further to discharge arrears of rent, if any due in respect of their buildings within one month and also to pay occupational charges at the current rent rates till such time as they give actual surrender. Affidavit as directed above will be filed by them within one month from today. Considering the apprehensions voiced by the revision petitioners in the context sub Section 12 of Section 11, we direct the respondent to commence his proposed textile business within six months of getting actual possession of the petition R. C. R. Nos.155, 156 & 157 of 2010 -23- scheduled buildings failing which sub Section 12 of Section 11 will operate against him. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-