IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 RCRev..No. 252 of 2006(C) ------------------------------ RCA.67/2001 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.181/1997 of MUNSIFF/RENT CONTROL COURT, THALASSERY .................... REVISION PETITIONER/APPELLANT --------------------------------------- PARAGANTAVIDA VELANDI NANU, S/O.GOVINDA, AGED 63 YEARS, KODIYERI AMSOM AND DESOM, THALASSERY TALUK. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): RESPONDENT ----------------------------------- KUNIYIL PARAYI VISWANATHAN, S/O.KUNHIRAMAN, AGED 421 YEARS, BUSINESS, RESIDING NEAR EINGALE PEEDIKA BAZAR, KODIYERI AMSOM AND DESOM, POST KODIYERI, THALASSERY TALUK. ADV. SRI.C.KHALID FOR R1 SMT.VIDHYA. A.C FOR R1 SRI.T.P.SAJID THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ RCR. No. 252 of 2006 ------------------------------------------- Dated this the 18th day of November, 2009 O R D E R Pius C. Kuriakose, J. The landlord is in revision being aggrieved by the decision concurrently taken by the Rent Control Court and the Appellate Authority to dismiss the petition for eviction filed by him. The parties will be referred to hereinafter as the landlord and the tenant. The landlord sought to evict the tenant on the ground of arrears of rent (under section 11(2)(b), bona fide need for own occupation (under section 11(3) and on the ground of user of the building in such a manner as to reduce the value and utility of the building materially and permanently (under section 11(4)(ii). It was agreed to by both sides that in this revision we need be concerned only with the landlord's eligibility for eviction on the ground of bona fide own occupation. We are therefore referring to the pleadings only so far as the same pertain to RCR. No. 252/06 - 2 - that ground. 2. The need projected by the landlord was that the building is needed bona fide for the occupation of his son Pradeep who does not have any avocation and is dependent on the landlord. The need projected was that Pradeep should conduct business in stationery in the building. It was stated that the landlord does not have any other building of his own in his possession for accommodating Pradeep. Anticipating a contention in the context of the second proviso to subsection (3), it was averred in the RCP itself that other suitable buildings are available in the locality for the tenant to shift his business to and that the tenant is not dependent on the business carried on in the building for his livelihood. The tenant resisted the claim contending that Pradeep is carrying on business in Madras and is fully engaged in that business. It was contended that Pradeep will never give up his business at Madras and come over to RCR. No. 252/06 - 3 - Thalassery for starting stationery business in the petition schedule building. It was also contended that the landlord is having possession of other buildings belonging to him. Alternatively it was contended that the tenant is entitled to the protection of the second proviso to sub section (3) of section 11. At trial the landlord and his son Pradeep were examined as PWs.1 and 2 and documents Exts.A1 to A19 were marked on their side. The tenant was examined as RW1 and documents B1 to B17 were marked on his side. The Rent Control Court came to the conclusion that Pradeep, PW2 is carrying on business at Chennai under the name and style “Kavitha Cool Bar”. To arrive at such a conclusion the court relied on the circumstance that the mother of PW2 belongs to Chennai and her brothers are settled down at Chennai. Exts.B11 and B13 photographs showing the picture of PW2 standing inside the shop where “Kavitha Cool Bar” is conducted as well as Ext.B10 letter sent by PW2 to RCR. No. 252/06 - 4 - RW1 from /Chennai were relied on in this context. Ext.B15 postal acknowledgement card relating to a letter sent by the tenant's advocate to PW2 in his address in Chennai was also relied on. The circumstance that PW2 had got married is also highlighted by the learned Rent Control Court to take the view that unless PW2 was having some avocation the parents of PW2's wife could not have given their daughter in marriage to PW2. Ext.A17(a) and A17(b) ration cards and A18 election identity card showing that PW2 is residing in Kerala were not relied on by the Rent Control Court for the reason that the entries in the ration card cannot be relied on. Thus, it was concluded that the bonafide need urged was not true. Hence, in view of the finding that the need is not bona fide, the RCP was dismissed to the extent it relates to the ground under sub section 3 of section 11. 3. The landlord preferred an appeal, against the order of the Rent Control Court. The Appellate Authority reversed RCR. No. 252/06 - 5 - the finding that the RCP was liable to be defeated by virtue of the first proviso to sub section 3 of section 11. The Appellate Authority relied on Exts.A4 to A7 documents produced by the landlord and held that the building pointed out by the tenant as being under the vacant possession of the landlord was already let out by the landlord to one Jayaprakash. The Appellate Authority also concurred with the finding of the Rent Control Court that the tenant is entitled to the protection of the second proviso to sub section 3 of section 11. The Appellate Authority concurred with the finding that the need is not bona fide. This is done by adopting the reasoning of the Rent Control Court except in the context of the inference drawn by the Rent Control Court from the circumstance that PW2 had got married. The Appellate Authority found that just because PW2 got married, it cannot be inferred that PW2 was having source of income. At the same time, highlighting the circumstance RCR. No. 252/06 - 6 - that documents have not been produced by the landlord to show that Kavitha Cool Bar in Madras stands in the name of PW1's brother-in-law, the Appellate Authority endorsed the finding of the Rent Control Court that the need is not bona fide. Accordingly, the appeal was dismissed. 4. In this revision filed under section 20, the landlord has raised various grounds assailing the judgment of the Rent Control Appellate Authority and we have heard the submissions of Sri.O.V.Maniprasad, the learned counsel for the revision petitioner who addressed extensive arguments on the basis of all those grounds. All the submissions of Sri.Maniprasad were resisted by Sri.T.P.Sajid representing Sri.C.Khalid, the learned counsel for the respondent. Sri.Maniprasad submitted that the appreciation of evidence including circumstantial evidence by the Rent Control Court and the Appellate Authority was erroneous. It was the contention of the tenant that PW2 is conducting his own RCR. No. 252/06 - 7 - Cool Bar by name Kavitha Cool Bar at Madras. Apart from producing photographs which will only show that PW2 is standing in front of the Cool Bar, no document showing ownership of the Cool Bar with PW2 have been produced. It is the case of the landlord that the Cool Bar belongs to Kanakaraj, the brother-in-law of PW2. The photo of Kanakaraj is also seen along with that of PW2 in Exts.B11 to B14. Burden of proof has been wrongly cast by the courts below on the landlord in this case. Mr.Maniprasad submitted that it was a rash inference drawn by the learned Appellate Authority that the Cool Bar belongs to PW1's wife. PW1's wife is a lady hailing from Madras and Kanakaraj is her brother. But, after PW1 married her, she is in Kerala and is permanently settled down in Kerala. Ext.A17 ration card and Ext.A18 voter's identity cards bear ample testimony to this fact also. Exts.A17(a), A17(b) and A18 will show that PW2 is permanently residing at Kodiyeri in Thalassery thaluk and RCR. No. 252/06 - 8 - not in Madras as wrongly presumed by the authorities below. 5. After hearing the counsel for some time, we enquired of Mr.Maniprasad as to what was the difficulty for the landlord in producing some document which may show that Kavitha Cool Bar in Madras belongs to brother-in-law of PW1 and not to PW2. Mr.Maniprasad submitted that it may be possible for the landlord to produce such documents. Accordingly, we adjourned the case to 13/11/09. Pursuant to that Annexures- 1 and 2, true copies of lease agreement dt.10/12/99 and 10/12/04 were produced by the landlords marking them as Annexures-1 and 2. After hearing both sides, we have received Annexures-1 and 2 as items of evidence on the side of the landlord and marked them as exhibits A20 and A21. Those documents give prima facie support to the contention of the landlord that the building in which Kavitha Cool Bar is being conducted was taken on RCR. No. 252/06 - 9 - lease by Kanakaraj, the brother-in-law of PW1 from none other than his own brother-in-law one Sri.M.K. Purushothaman. Exts.A20 and A21 will certainly indicate that Kavitha Cool Bar is being conducted by Kanakaraj. It is true that the landlord was unable to produce any document issued by the local authority i.e. the Chennai City Corporation which will show that the Corporation has issued licence to Kanakaraj for conducting Kavitha Cool Bar. But, the explanation of Mr.Maniprasad is that for bunk shops (pan shops, beetle nut shops, “pettikkadas”), licences are not issued by the Corporation though it is common that beetle nut shops sell all types of other things also. We feel that the explanation can be accepted and Exts.A20 and A21 can be relied on by court that Kavitha Cool Bar is being conducted by Sri.Kanakaraj and not by PW2. There is yet another circumstance which persuade us to take the view that Kavitha Cool Bar belongs to Kanakaraj and not to PW2. RCR. No. 252/06 - 10 - Kanakaraj is a person having his own family and admittedly permanently settled down at Madras for years. It is not the case of the tenant that Kanakaraj is having any other business of his own. The probabilities are more that Kanakaraj who is the maternal uncle of PW2 owns and conducts Kavitha Cool Bar assisted by his nephew PW2 whenever PW2 visits Madras. Even going by the photographs relied on by the tenant Kanakaraj also stands inside the Kavitha Cool Bar along with PW2. 6. The finding of the Rent Control Court that the Rent Control Petition is liable to fail by virtue of the first proviso to sub section 3 of section 11 has been reversed by the Appellate Authority on the basis of documents produced before the Appellate Authority by the landlord. Having re- appreciated the evidence, we are in agreement with the Appellate Authority in its finding in the context of the first proviso to sub section 3 of section 11. We confirm that RCR. No. 252/06 - 11 - finding. 7. Both the Rent Control Court and the Appellate Authority concurrently found that the tenant is entitled for the protection of the second proviso to sub section 3 of section 11. But this finding, according to us, has been entered into by the authorities below without regard to the judgment of the Full Bench of this Court in Francis v. Sreedevi Varassiar (2003(2) KLT 230). It is trite that the burden to show that he satisfies both the ingredients of the second proviso to sub section 3 is on the tenant. It is seen that the Appellate Authority thought that the burden to prove that the tenant does not satisfy the ingredients to the second proviso to sub section 3 of section 11 is on the landlord. We are, of course, able to approve the findings of the authorities below that the tenant is depending mainly on the income that is derived from the business which he is carrying on in the petition schedule building. However, we RCR. No. 252/06 - 12 - cannot approve the finding that other suitable buildings are not available in the locality. The evidence of the tenant will reveal that no serious enquiry has been conducted by the tenant to find out whether other buildings are available in the locality. Even the usual practice of examining the Accommodation Controller is not resorted. It was the landlord who tried to adduce some evidence in the context by producing certified extracts of the Property Tax Assessment Registers. What the Rent Control Court does is to appreciate those documents and say that those documents will reveal that buildings are not available. On an aspect on which the burden is that of the tenant, it was for the tenant to have adduced evidence. Both the ingredients of the second proviso are in the conjunctive. Since the tenant has not adduced any convincing evidence in the context of the second ingredient, tenant will not be entitled for the protection of the second proviso. RCR. No. 252/06 - 13 - 8. The learned counsel for the respondent expressed an apprehension that after evicting the tenant PW2 will not come down and occupy the building for conducting business. The apprehension was that the buildings will be let out or even sold to somebody else. We are of the view that the above apprehension can be taken care of by incorporating appropriate safeguards. We alert the landlord and PW2 of the consequences which may follow from the circumstance of the building not being occupied by PW2 after eviction is obtained as provided under sub section 12 of section 11. PW2 is directed to personally come down to Kodiyeri and start business in the petition schedule building failing which the consequences as envisaged by sub section 12 of section 11 will follow. 9. As a last request the learned counsel for the respondent sought for time till 31/10/10. We are inclined to grant such time subject to certain conditions. The result of RCR. No. 252/06 - 14 - the above discussion is that the RCR will stand allowed. The orders of the Rent Control Court and the judgment of the Appellate Authority to the extent the same declines eviction under section 11(3) are set aside. Order of eviction under section 11(3) is passed against the respondent. PW2 is directed to start the proposed business in the petition schedule building within one month of his obtaining possession. He is reminded of the consequences provided by sub section 12 of section 11 of Act 2 of 1965 and we are sure that if the Rent Control Court is moved under sub section 12 of section 11 that court will pass effective orders for ensuring that the statutory mandate is complied with. 10. We restrain the revision petitioner by an order of injunction from letting out the petition schedule building to any body for a period of three years from today. We also restrain him from selling the petition schedule building or otherwise parting with the ownership of the petition RCR. No. 252/06 - 15 - schedule building for a period of three years from today. We re-fix the rent/occupational charges payable for the building in question prospectively with effect from 01/12/09 at Rs.250/- and subject to the re-fixation, we grant time to the respondent till 31/10/10 to surrender the premises subject to the following conditions:- 1) The respondent would file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to give peaceful possession of the petition schedule building to the landlord on or before 31/10/10. The affidavit will be filed on or before 28th February, 2010. The respondent will get the benefit of time granted as above only if the petitioner files the affidavit in time. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE dpk/ksv/kns