IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 RCRev..No. 50 of 2010(B) ----------------------- RCA.123/2007 of ADDL.DISTRICT COURT, KOZHIKODE RCP.113/2006 of PRL.M.C.KOZHIKODE-I .................... REV.PETITIONER/APPELLANT/RESPONDENT/TENANT -------------------------------------------------------------- C.ABDUL AZEEZ, AGED 53, S/O.LATE MAMMU HAJI, PULARI SWEETS, MELAPALAYAM, NAGARAM AMSOM DESOM,KOZHIKODE. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): RESPONDENT/PETITIONER/LANDLORD --------------------------------------------- THAYADATH SREEDHARAN, AGED 82 YEARS, S/O.LATE PERACHUNNI, KATACHERI AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/11/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------- R.C.R. No.50 of 2010 ------------------------------------------- Dated this the 3rd day of November, 2011 O R D E R ---------------- Pius C. Kuriakose, J. The tenant is the revision petitioner. He challenges in this RCR the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him concurrently by the Rent Control Court and the appellate authority on the grounds under Section 11(3) and Section 11(2)(b) of Act 2 of 1965. The need projected by the landlord, who is an octogenarian, was that he wants to occupy the building after evicting the tenant for conducting stationery shop. Bonafides of the need was disputed and the tenant claimed protection of the second proviso. It was also contended that the landlord's title to the building is under challenge in a partition suit and that E.P.354/99 is pending before the Ist additional Sub Court, Kozhikode. But no specific contention of denial of the landlord's title was raised. The Rent Control Court on evaluating the evidence adduced by the parties came to the conclusion that the need is bonafide. It appears that the oral evidence adduced by the landlord was very much inspiring. It was accordingly held RCR.50/10 -2- that the need is bonafide and that the tenant was unsuccessful in proving that he is entitled for the protection of the second proviso to Section 11(3). Accordingly order of eviction was passed under Section 11(3). Similarly the defence raised by the tenant to the claim under Section 11(2)(b) was turned down and the Rent Control Court passed an eviction order under Section 11(2)(b) also. But it appears that the tenant readily got eviction order passed under Section 11(2)(b) vacated by making requisite deposits. The tenant appealed to the appellate authority against the eviction order passed under Section 11(3). In the appeal memorandum as many as 26 grounds were raised challenging the eviction order passed under Section 11(3). Ground No.5 reads as follows. “The Lower Court failed to take notice of the fact that ownership of the property is in dispute and litigations are now pending before the Ist Additional Sub Court in E.P.354/1999 in respect of the title of the Landlord.” All the other grounds touched the merits of the eviction order passed under Section 11(3). Even though the above quoted ground was raised in the appeal memorandum, it appears that no serious arguments were raised before the appellate authority at the time of hearing the appeal based on the above ground. But the tenant filed an application for the reception of certified copy of the Assessment Register pertaining to certain buildings of the RCR.50/10 -3- landlord situated in the Calicut city itself and also certain other documents which would show that the landlord had sold one or two buildings belonging to him after evicting some other tenants. He filed the application under Order XLI Rule 27. The learned appellate authority however, dismissed the above application and refused to admit the documents on the reason that no sufficient reasons had been stated by the tenant for not producing these documents before the trial court itself. Accordingly after making reappraisal of the evidence the Rent Control Appellate Authority confirmed the findings of the Rent Control Court under Section 11(3) and dismissed the RCA. 2. In this revision under section 20 the tenant has raised various grounds assailing the judgment of the Rent Control Appellate Authority. It is urged that the judgment of the appellate authority is vitiated by various illegalities, irregularities and improprieties. Interestingly the revision petitioner has gone to the extent of formulating question of law, which according to him arises for decision in this RCR. Ground No.C in the RCR is as follows. “The court below ought to have found that it is admitted case that the title is decided by the Sub Court, Kozhikode in O.S.No.8/1945. The Decree Holder in the said suit has filed Execution Proceedings as EP. No.354/1999 to effect delivery of the properties including the schedule property. The respondent herein has not challenged the RCR.50/10 -4- decree in the suit passed against his right over the property. When Amin came to take delivery of the property, the petitioner obstructed delivery and filed claim petition as EA No.944/2002 before the sub court claiming tenancy rights over the property which is still pending. Therefore the respondent who does not have any right, title or interest in the property cannot legally sustain an application for eviction. The courts below failed to appreciate these aspects.” Question of law No.iii formulated in the RCR is as follows: “Whether eviction order in the instant case can be construed bonafide under Section 11(10).” 3. Even though service of notice on the respondent was completed by this court, the respondent has not chosen to enter appearance for resisting the RCR. We have heard the submissions of Sri.Sunil Nair, Palakkat, learned counsel for the revision petitioner. Sri.Sunil Nair would submit based on various grounds. Though Mr.Sunil Nair addressed arguments on the basis of all the grounds, in his submissions he gave more thrust to the following submissions. (1) Eventhough the need projected by the landlord under Section 11(3) has been found to be bonafide, the landlord's claim to occupy the building for satisfying the above need cannot be said to be bonafide in terms of Section 11(10). This is because the landlord will not be able to occupy the building as he stand the immediate risk of being deprived of the ownership of the building in RCR.50/10 -5- execution proceedings, EP.354/1999 in OS.8/1945 of the Sub Court, Kozhikode. Mr. Sunil Nair pointed out that EA.944/2002, a claim petition, filed by the revision petitioner claiming tenancy rights over the building is kept pending. According to him, as the EP was not prosecuted further the execution court closed the claim petition. (2) Another point which was stressed by the learned counsel in his submissions was that the appellate authority was not justified in dismissing the application filed under Order XLI Rule 27 for reception of additional evidence. According to the learned counsel, the documents produced along with the above application will establish to the very hilt that the landlord is in vacant possession of 5 other rooms. He also submitted that another document produced along with the above application will show that at a time when the petitioner was harbouring this need he has evicted another tenant. This shows that the need is bereft of bonafide. 4. We have given our anxious consideration to the submissions of Mr.Sunil Nair. We are not prepared to accept his submission that the need under Section 11(3) and the claim under Section 11(10) for the purposes of the present case are different. RCR.50/10 -6- According to us, on the facts which obtained in the present case, his need which is to start stationery business shop is the same as his claim that he will conduct stationery business in the building upon getting eviction. Therefore according to us, on the facts of this case a finding positive to the effect that the need is bonafide should inevitably lead to a further finding that the claim is also bonafide. Our above view notwithstanding in deference to the submission of the learned counsel that the situation is likely to arise where the landlord will not occupy the building even after the tenant is evicted, we propose to incorporate sufficient safeguards and riders which will protect the interest of the tenant which is already well protected by Section 11(12) of the Act. 5. We shall now deal with the submission of the learned counsel that the first proviso to Section 11(3) operates against the landlord. We have gone through the statement of objections filed by the tenant. We have also gone through the questions asked to the landlord in cross-examination. It is seen that there was no plea that the Rent Control Petition was liable to fail by virtue of the first proviso nor was any question asked to the landlord as to why he is not occupying other vacant buildings possessed by him for accomplishing his need. The learned appellate authority cannot be blamed for having dismissed the application under Order XLI Rule 27. We do find force in the submission of the RCR.50/10 -7- learned counsel for the revision petitioner that the Rent Control Court as well as the appellate authority have co-equal powers in the matter of conducting enquiry and permitting adduction of evidence. But significantly the petitioner had invoked Order XLI Rule 27. When Order XLI Rule 27 is invoked, he was bound to explain as to why in spite of exercise of due diligence he could not produce the documents sought to be produced before the appellate authority. The technicality in our above view notwithstanding, we are convinced that no useful purpose could have been served from the tenant's point of view even if the documents sought to be admitted before the appellate authority had been admitted. The Assessment Register pertaining to the 5 rooms will show that those rooms did not belong absolutely to the landlord. Those rooms belonged in common to the landlord and his brother. The ruling in Asher Vs. Hassankutty Hajee (2004 (2) KLT 446) will have to be applied against the tenant. The other document produced was much earlier to the commencement of the Rent Control Petition. That document also would not have been of any avail to the tenant. The revision necessarily will have to fail and will stand dismissed. However, we order that if the landlord does not occupy the building after getting eviction within a period of one month, or if the landlord becomes compelled to vacate the above building within a period RCR.50/10 -8- of six months thereafter on account of an order passed by the execution court in EP.354/1999 or any subsequent order in OS.8/1945 then the revision petitioner will have the right to invoke the provisions of re-induction into the building as a tenant in terms of Section 11(12). Considering the fervent appeal of Mr.Sunil Nair for grant of time to surrender the building we are inclined also to order that if the revision petitioner files an affidavit before the execution court or the Rent Control Court, as the case may be, within 3 weeks from today undertaking to give peaceful possession of the building to the respondent on or before 30.9.2012 and undertaking further through the same affidavit that he will pay occupational charges with effect from 1.12.2011 at the rate of Rs.900/- (Rupees Nine hundred only) per mensem, the execution court will keep in abeyance all proceedings for delivery till 30.9.2012. It is made clear that the revision petitioner will get the benefit of time as allowed above only if he files the affidavit and honours the undertakings therein. PIUS C. KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb