IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 RCRev..No. 306 of 2008() ------------------------ RCA.79/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.48/2006 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ M/S.VIJAYAKUMAR AND EASWARAN, CHARTERED ACCOUNTANTS, CHERUVILAKAM, T.C.NO.9/2284, SASTHAMANGALAM, THIRUVANANTHAPURAM - 10 REP. BY ITS PARTNER, K.EASWARAN PILLAI, S/O.P.K.NAIR. SRI.P.V.SREENIJIN SMT.K.B.SONY SRI.SANU.S.PANICKER RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ ARJUN MATHAI, S/O.DR.BINOY MATHAI, NEDUMCHALIL HOUSE, MUVATTUPUZHA, ERNAKULAM. ADV. SRI.ANIL GEORGE SMT.V.A.SARITHA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No.306 OF 2008 ------------------------ Dated this the 25th day of March, 2009 ORDER Pius C.Kuriakose, J. The tenant, a partnership firm of Chartered Accountants, against whom an order of eviction has been concurrently passed by the Rent Control Court and the Appellate Authority on the ground under sub section 3 of Section 11 is the revision petitioner. The petition schedule building is a residential apartment on the top floor of a three storeyed building situated on the Mullassery Canal Road in Cochin. The case of the respondent/landlord is that he owns the petition schedule building and the first floor of the three storeyed building and that he is a final year student of computer engineering at the time of filing of the rent control petition and that after passing out, he intends to carry on out sourcing office in Information Technology related business in the first floor of the three storeyed building and that since he and his staff will have to work late into the night, second floor of the building is needed to be used as a RCR.No.306 of 2008 -2- resting place for himself and his employees during late hours of night. Along with the present rent control petition, he filed RCP 47/2006 against the tenant in occupation of the first floor portion. That tenant did not contest that rent control petition. The result was that R.C.P.No.47/200 was allowed ex-parte and by the time this rent control petition went for trial, the landlord was able to take possession of the building which was subject matter of RCP No.47/2006. 2. The tenant contended that the need and the claim of the landlord are not bona fide and that the landlord had not passed the semester examination in his engineering course and that the landlord has other buildings of his own in his possession in the city, which disentitles him to order of eviction in view of the first proviso to sub section 3 of Section 11. It was also contended that the tenant is entitled to the protection of the second proviso to sub section 3 of Section 11. The rent control petition was enquired into and on the side of the landlord the evidence consisted of oral testimony of landlord as PW1 and Ext.A1- copy of the lawyer notice, which had been sent as a prelude to the rent control petition. On the side of the revision RCR.No.306 of 2008 -3- petitioner tenant, the evidence consisted of his own evidence as RW1. The Rent Control Court, on evaluation of the evidence, concluded that the need projected by the landlord under sub section 3 of Section 11 is a bona fide one and the rent control petition is not liable to fail in view of the first proviso to sub section 3 of Section 11. That court rather found that the landlord was not in possession of any building of his own at the time of filing of the rent control petition and that the only building which the landlord came into possession during the pendency of the rent control petition was the first floor of the three stored building and also that there was justification for the landlord in retaining vacant possession of that floor. Considering the question of benefit of second proviso to sub section 3 of Section 11, the Rent Control Court found that the revision petitioner firm was having a branch in Thiruvananthapuram also and that no evidence had been adduced by the tenant to show that the income derived from their activities in the petition schedule building accounts for their main source of livelihood. As regards the second limb of the second proviso, it was found that the tenant had not conducted any serious enquiry regarding RCR.No.306 of 2008 -4- the availability of the building and answered that ingredient also is against the tenant. 3. The Rent Control Appellate Authority made a reappraisal of the entire evidence and concurred with all the conclusions of th rent control court. 4. We have heard the submissions of Sri.Sanu.S.Panicker, the learned counsel for the revision petitioner and those of Sri.Anil George, learned counsel for the respondent. Sri.Sanu S.Panicker would argue that the respondent landlord is guilty of suppressing the material fact of his owning and possessing vacant premise from the Rent Control Court and hence he is dis- entitled for order of eviction. The learned counsel further submitted that absolutely no evidence had been adduced by the landlord to establish his case that he is learned in engineering and that he intends to do out sourcing business in Information Technology. He would further submit that the landlord was in vacant possession of a portion of the second floor of the three stored building and that only the remaining portion is under the occupation of the tenant. The learned counsel would assail the findings of the authorities below regarding the second proviso to RCR.No.306 of 2008 -5- sub section 3 of Section 11. He submitted that there was no effective challenge to the tenant's version, as RW1, that the income derived from the petition schedule building accounts for his main source of livelihood and that other buildings are not available in the locality. The learned counsel would fortify his submission by the judgment of the Supreme Court in Mattulal v. Radhelal (1974 (2 Supreme Court Cases 365). Lastly, the learned counsel also submitted, on the basis of Annexure-I produced in this revision petition, that the revision petitioner is having another three storeyed building within the Cochin City not far away from the petition schedule building and that even that material fact also was suppressed by the respondent landlord. 5. All the submissions of Sri. Sanu.S.Panicker were resisted by Sri.Anil George, learned counsel for the respondent, who read over to us the findings entered by the Rent Control Court and the Rent Control Appellate Authority. As regards Annexure-I, he submitted that it is the revision petitioner, who is guilty of suppressing material facts. He submitted that the case of the revision petitioner in the affidavit filed by him in support of the application to receive Annexure I was that Annexure-I is a RCR.No.306 of 2008 -6- building permit issued in respect of the petition schedule building, where as it is clear from Annexure – I that it pertains to another building situated on another road in the city. As regards that building, he submitted that the said building does not belong to the landlord alone. The said building is a go down building and belongs jointly to the landlord, his father and his brother and that the said building is, at any rate, is occupied by the tenants. This aspect of the matter had been conceded by the tenant himself in his testimony as RW1, so submitted by the learned counsel. Sri.Anil George would support the judgment of the Rent Control Court and the Appellate Authority on the various reasons stated in the judgments. 6. We have very anxiously considered the rival submissions addressed at the Bar. The learned counsel for the revision petitioner is certainly right in submitting that a mere desire or a mere assertion by the landlord that he needs the building, which is occupied by the tenant, will not be sufficient to constitute a ground under sub section 3 of Section 11 and what is required is that the Rent Control Court finds, on the basis of an objective enquiry, that the need projected involves an element of RCR.No.306 of 2008 -7- necessity. It has come out in evidence that the landlord, a graduate in engineering is presently working in an I.T.company in Bangalore, is drawing salary which cannot be said to be a very attractive when considered in the light of the salaries that are being offered by major I.T. Companies world over to engineers. The landlord belongs to a substantially rich family and dent has not been made on his version in chief examination that he himself and also with the assistance of his father is capable of investing in the proposed business. The need projected by the landlord, according to us, can be presumed to be a bona fide one and can be accepted to be bona fide one in the absence of any specific oblique motive attributed by the tenant. The oblique motives attributed to the landlord, so far as we can seen from the submissions of the learned counsel for the revision petitioner, are the landlord will let out the building on a much higher rent and that the landlord and his father were provoked by some earlier suit filed by the tenant for injunction against the forceful eviction. Any order under sub section 3 of Section 11 will be subject to sub section 12 of Section 11 and we, in this judgment, are providing sufficient safeguards to the tenant for RCR.No.306 of 2008 -8- ensuring that the landlord does not let out the building to any other tenant on receiving higher rent after obtaining eviction. As for previous litigation between the parties, it is now trite that previous litigation between the parties and the strained relationship between them cannot be much relevance while determining the bona fides of a present claim under Section 11 (3). In the present case the previous litigation and the estrangement between the parties were admittedly in the context of the tenants failure to accede to the landlord's request to vacate immediately. Therefore, the previous litigation and estrangement between the parties cannot be a reason for holding that the need projected is not bona fide. 7. The first proviso to sub section 3 of section 11 comes to have application only when the landlord has another building in the same city or town or village of his own in his possession through which it will be possible for the landlord to accomplish the need projected in the present rent control petition. It has become clear that at the time of filing the rent control petition, the landlord did not have vacant possession of any other building. RCR.No.306 of 2008 -9- The submission of the learned counsel for the tenant before us that the landlord is having a portion of the second floor does not have proper foundation in the pleadings. No evidence has been produced before the rent control court by the revision petitioner to show that the landlord owns and possess any portion of the second floor. The landlord's version is that he owns only the premises actually occupied by the revision petitioner in the second floor of the three storied apartment and also its first floor. It is true that the landlord came to have possession of the first floor pursuant to the ex-parte order of eviction obtained by the landlord in R.C.P. 47/2007. It is conceded by the revision petitioner that the said portion is kept vacant. The landlord has a cogent explanation for keeping it vacant. According to the landlord he is keeping the first floor vacant without letting out to anybody, so that after the petition schedule building is also got vacated, he can accomplish the need of doing the proposed business. Therefore, the circumstance that the landlord is keeping vacant the first floor portion cannot be of any adverse consequence in deciding the bona fides of the landlord's claim. As regards the Annexure I, we notice that the tenant's version RCR.No.306 of 2008 -10- before this court through his affidavit in support of the petition to receive Annexure I was that Annexure 1 pertains to the petition schedule building. We are convinced that Annexure -I does not pertain to the petition schedule building at all. It pertains to a building jointly owned by the landlord, his father and brother on another road in the city. That building is not vacant. That is a tenanted building. Hence the availability of that building, a godown building under the joint ownership of the landlord cannot be of any consequence on the genuineness of the landlord's claim. 8. It is true that it is the tenant's burden to establish that he satisfies both the ingredients of the 2nd proviso to sub section 3 of Section 11 if he is to get the protection of that proviso. In the instant case, the tenant who have a branch in Thriuvananthapuram has miserably failed in establishing the first ingredient of the proviso as rightly concluded by the courts below. Same is the position regarding the second ingredient also. We do not find any warrant for interfering with the concurrent findings entered in this context by the fact finding RCR.No.306 of 2008 -11- courts below. The result is that the RCR fails and will stand dismissed. However, without costs. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk