IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 RCRev..No. 45 of 2011() ----------------------- RCA.79/2004 of RENT CONTROL APPELLATE AUTHOIRTY THRISSUR RCP.99/1999 of PRL.MUNSIFF COURT,THRISSUR .................... REVISION PETITIONERS/APPELLANTS & RESPONDENTS 2 to 6 : ------------------------------------------------------------------ 1. MARIYAM OUSEPH, AGED 85 YEARS, W/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 2. JOY, AGED 47 YEARS, S/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 3. JOSE, AGED 47 YEARS, S/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 4. JOSHY, AGED 41 YEARS, S/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 5. ASUDHA, AGED 50 YEARS, W/O.KALAMPARAMBIL SUNNY, PARAVATTANI DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK. 6. ANOOP, AGED 26 YEARS, S/O.KALAMPARAMBIL SUNNY, PARAVATTANI DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK. 7. NEETHU, AGED 24 YEARS, D/O.KALAMPARAMBIL SUNNY, PARAVATTANI DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK. 8. ELSY, AGED 58 YEARS, D/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 9. ALICE, AGED 54 YEARS, D/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 10. VARGHESE, AGESD 50 YEARS, S/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 11. SANTHA, AGED 48 YEARS, D/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. 12. JINA, AGED 38 YEARS, D/O.KALAMPARAMBIL JOSEPH @ OUSEPH, SUBASH NAGAR, MANNUTHY, THRISSUR. BY ADV. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT(S): PETITIONER: -------------------------- K.R.SURENDRAN, S/O.KOCHATH RAMANKUTTY, ANTHIKAD, PADIYAM VILLAGE, THRISSUR TALUK. ADV. SRI.NIRMAL SAJEENDRAN FOR COMMISSIONER SRI.K.S.BHARATHAN FOR R1 ADV.T.KRISHNANUNNI (SR.ADV.) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 7/04/2011, ALONG WITH RCR NO. 145 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.Nos. 45 & 145 OF 2011 ------------------------ Dated this the 7th day of April , 2011 O R D E R Pius C.Kuriakose, J. Both these revisions are filed by the tenants. Under challenge in these revisions is the common judgment passed by the Rent Control Appellate Authority, Thrissur in RCA Nos.79/2004 & 80/2004. RCR No.45/2011 corresponds to RCA No.79/2004 which in turn pertains to RCP No.99/1999. RCR No.145/2011 pertains to RCA No.80/2004 which arose out of RCP No.35/2002. In RCP No.99/1999 the landlord had invoked various grounds including the ground of bona fide need for own occupation under Sub Section (3) of Section 11. It is only the above ground under Section 11(3) which survives for consideration in RCR No.45/2011. RCP No.35/2002 leading to RCR No.145/2011 was filed invoking the ground of sub letting. In that RCR we have to be concerned with the above ground. RCR.Nos.45 & 145/2011 2 2. We shall deal first with the ground of sub letting which is subject matter of RCR No.145/2011. The allegations of the landlord in the context of the above ground are made in paragraph 4 of RCP No.35/2002 which we are extracting hereunder: “4. The respondents were also attempting to make material alterations in the premises and also to further sublet the premises to different persons. The petitioner then filed a suit in the Munsiff court Thrissur as O.S No.699/2001 against the 1st respondent and another for a prohibitory injunction against making alterations in the premises and from further subletting the premises. But, the respondents vacated the earlier sub tenant and again sub leased the premises to one Gafoor and the room is now in the possession of Gafoor. He is conducting a lottery business under the name “ New Ganesh Lotteries”. He is paying a still higher rent than Basher to the RCR.Nos.45 & 145/2011 3 respondent.” 3. The above allegations were disputed and it was contended by the tenants that there is no sub lease or transfer. In particular it was contended that Gafoor, the alleged sub lessee, is the brother of Basher, the original sub lessee and that Basher is colluding with the landlord with the objective of evicting the tenants. It was also contended that long before the rent control petition seeking eviction on the ground of sub letting was instituted, the tenants had filed a suit for injunction (O.S. No.42/2002) restraining the landlord and Gafoor from trespassing into the petition schedule building and also from evicting the tenants other than in due process of law. The statutory authorities on evaluating the evidence would come to the conclusion that the eviction ground under section 11 (4)(i) stood established and accordingly ordered eviction. 4. Sri.Alan Papali, learned counsel for the revision petitioners addressed arguments on the basis of the grounds raised in RCR No.145/2011. The learned counsel drew our attention to the evidence which came on record particularly to the oral evidence of PW1, during the course of which, PW1 RCR.Nos.45 & 145/2011 4 stated that business in plastic goods and flowers is presently being conducted in the petition schedule room by the legal heirs of Ouseph, the original tenant. According to Mr.Papali, above admission from the mouth of PW1 demolishes the very foundation of the landlord's case for eviction on the ground of sub letting. Mr.Papali would further argue that at any rate petition for eviction on the ground of sub letting is not maintainable in law for want of statutory notice under the proviso to section 11 (4)(i). The learned counsel submitted that the statutory notice Ext.A3 gives intimation regarding alleged sub lease in favour of Basher an not regarding the present sub lease which is in favour of one Gafoor. It was argued that as the alleged sub lease in favour of Basher stood terminated, it was necessary that a fresh notice was issued to the tenants before eviction was sought on the ground of sub letting. 5. The submissions of Mr.Papali in the context of the ground of sub letting were opposed by Sri.K.S.Bharathan, learned counsel for the landlord. According to him, the apparent admission in PW1's evidence that business in the petition schedule building is being conducted by the legal heirs of Ouseph RCR.Nos.45 & 145/2011 5 was a slip of the tongue and when the evidence of PW1 is appreciated as a whole, it will be seen that PW1 consistently maintained that there is unauthorised sub lease or transfer in favour of Basher and then in favour of Gafoor. 6. Having considered the submissions addressed by the learned counsel for the parties and also Sri.T.Krishnanunni learned senior counsel who also addressed arguments on behalf of the landlord before us, we are of the view that the finding concurrently entered by the statutory authorities regarding the existence of unauthorised sub letting/transfer is justifiable on the evidence available on record. When the oral evidence of PW1 is appreciated as a whole, it will be seen that he maintained consistently in his evidence that there is objectionable sub letting or transfer. We are not impressed by the argument that RCP is liable to fail for want of statutory notice under the proviso to section 11 (4)(i). A careful reading of Ext.A3 will show that through Ext.A3 itself intimation is given to the tenants regarding unauthorised sub lease in favour of Gafoor. Admittedly and evidently the sub lease in favour of Gafoor was not terminated by the tenants and the only sub lease which was terminated by RCR.Nos.45 & 145/2011 6 him was the sub lease in favour of Basheer. Ext.A3, we are convinced, pertains to the present sub lease also and hence the same will be sufficient for maintaining RCP No.35/2002. 7. The result of the above discussion is that we do not find any illegality, irregularity or impropriety against the order of eviction concurrently passed by the statutory authorities. RCR No.145/2011 will necessarily fail. We dismiss the same without any order as to costs. 8. We shall now deal with RCR No.45/2011. The need has been projected by the landlord in paragraph 4 of RCP No.99/1999. The above paragraph is extracted hereunder; “The petitioner wants to conduct a business in automobile spare parts. The position of the building facing the High Road is extremely congenial for the conduct of a business in automobile spare parts. The petitioner therefore bona fide needs the room. The petitioner has the capacity, resources and aptitude for conducting such a business. He also intends to utilize the adjoining room also RCR.Nos.45 & 145/2011 7 as and when vacant possession of the room is obtained for the purpose of the business. The need advanced by the respondent is genuine and bona fide. “ 9. The tenants, apart from disputing the bona fides, contended that they are entitled to the protection of the second proviso to sub section (3) of Section 11. The Rent Control Court on appreciating the evidence which consisted of Exts.A1 to A11, Exts.B1 to B3, Ext.X1 and oral evidence of PWs 1 to 3 and RW1 would come to the conclusion that the bona fides of the need projected in the RCP stood established and that the tenants were unsuccessful in proving that they are entitled for the protection of the second proviso to sub section (3) of Section 11. The court would also repel the contention of the tenanst that the RCP was liable t0 fail by virtue of the first proviso to sub section (3) of Section 11. Accordingly, the order of eviction was passed under sub section (3) of Section 11. The learned Appellate Authority would reappraise the evidence and would concur with all the conclusion of the Rent Control Court and dismiss the appeal preferred by the tenants. In RCP No.45/2011 various RCR.Nos.45 & 145/2011 8 grounds are raised assailing the eviction order passed under Section 11 (3) and Sri.Alan Papali learned counsel for the revision petitioner addressed arguments based on those grounds. While considering the above RCR for admission, we had occasion to pass the following order on 30/1/2011 at 10.15 AM. “ Sri.Alan Pallali would during the course of his submission assert before us that the building covered by Ext.A7 allegedly let out to Smt.Lisiy is not so let out and the same is even now under the vacant possession of the landlord. When we enquired of the learned counsel as to whether the revision petitioner is prepared to take out an urgent commission to have a local inspection, he sought for time till 1.45 PM today. Call at 1.45 p.m. today. “ 10. At 1.45 p.m. on the same day, we passed the following order; Today when the case is taken up at 1.45 p.m., Mr.Alan Pappali, learned counsel for the petitioner submitted that the petitioner is ready RCR.Nos.45 & 145/2011 9 to take out a commission for an immediate inspection of building bearing Thrissur Municipality Door No.X/1837 (building situated adjacent to the petition schedule building on its western side). According to Mr.Pappali, the inspection will reveal that the above building is remaining vacant under the possession of the landlord. Under the above circumstances, we are inclined to favourably consider Mr.Pappali's oral application for issuance of commission. 2. Accordingly, Sri.Nirmal Sajeendran, an advocate of this Court is appointed as Commissioner to inspect the petition schedule building having Door N0.X/1838 of the erstwhile Thrissur Municipality and also building on its western side bearing Door No.X/1837 of Thrissur Municipality and file a report before this Court immediately on the following aspects; 1. Whether the building on the western side of RCR.Nos.45 & 145/2011 10 the petition schedule building with Door No.X/1837 of Thrissur Municipality is remaining vacant ? 2. If not, who is having possessory control over such building. The Commissioner will give details regarding the measurements of the above building so that controversies will not arise regarding the identity of the building later. Inspection will be conducted by the Commissioner Sri.Nirmal Sajeendran at least by tomorrow, after giving notice to Sri.N.K.Vijayan, Advocate, Thrissur who was appearing for the landlords before the Rent Control Court and the Appellate Authority. If, at the time of inspection, a contention is raised on behalf of the landlords that the above building is in the possession of somebody else, the Advocate Commissioner can call for documents, if any, showing such possession. RCR.Nos.45 & 145/2011 11 3. It is open to the Advocate Commissioner to submit report as to the details of the goods or things, if any found inside the above building. 4. The remuneration for the Advocate Commissioner is fixed at Rs.10,000/- which will be paid to the Commissioner by cash against receipt by the petitioner. The expenses to be incurred by the Commissioner on his travel and incidentals will also be incurred by the petitioner. Handover copy of this order to Mr.Alan Pappali, learned counsel for the petitioner and to Sri.Nirmal Sajeendran, appointed as Commissioner. “ 11. Accordingly, Sri.Nirmal Sajeendran conducted inspection and filed a report. On considering the above report, we on 8/3/2011 passed the following order; “We are convinced on going through the report submitted by Sri.Nirmal RCR.Nos.45 & 145/2011 12 Sajeendran, the Commissioner appointed by us. Room having Door No.X/1837 is presently under the vacant possession of the landlord. Sri.Bharathan, the learned counsel for the landlord will seek instructions from his party as to whether he is ready to let out the above room to the revision petitioner on attractive conditions regarding monthly rent. Post on 15/3/2011.” 12. It was thereafter (after Sri.Bharathan had obtained instructions from his client in the light of our order dated 8/3/2011) that we heard final arguments in the revision petitions. Sri.Papali referred to a plan submitted by the Advocate Commissioner in this court. It is submitted that room having door number X/1836 shown in the plan occupied by Sri.Jayakumar of Kairaly Roofings was also got vacated by the landlord by filing a separate RCP invoking the same ground. The above submission of Mr.Papali could not be effectively repudiated by the learned counsel for the respondents. While we are able to accept the argument of the learned counsel for the landlord RCR.Nos.45 & 145/2011 13 that the vacancy of Room No.X/1837 on the immediate southern side of the petition schedule building cannot be of any consequence in this case in the light of the specific pleadings in this case that the need is to occupy not only the petition schedule building but also the building having Door No.X/1837, we are of the view that the circumstance that the room presently occupied by Sri.Jayakumar, of Kairaly Roofings was also got vacated by invoking the same ground is an aspect which can have a bearing on the bona fides of the need projected in this RCP. We, therefore, strongly feel that issue as to whether the need projected by the landlord under sub section (3) of Section 11 is a bona fide one and as to whether the availability of the room presently occupied by Kairaly Roofings will operate against the landlord in view of the first proviso to sub section (3) of Section 11 should be reconsidered by the Rent Control Court. 13. RCR No.45/2011 therefore will have to be allowed by way of a remand order. At the same time we state immediately that we did not notice any illegality, irregularity or impropriety in the findings concurrently entered to the effect that the tenants have been unsuccessful in proving that they are RCR.Nos.45 & 145/2011 14 eligible for the protection of the second proviso to Section 11(3) of the Act. 14. When we informed the learned counsel of our decision in these revision petitions, Sri.Alan Papali would request that at least two years' time be given to the tenants for surrendering the premises. The above request was opposed by Mr.Bharathan learned counsel for the landlord. Yet, we feel that there is justification for granting one year's time to the tenants subject to certain conditions. 15. Final result of the RCR will therefore be as follows; RCR No.145/2010 is dismissed confirming the order of eviction passed on the ground of sub letting. ii). RCR No.45/2011 is allowed by way of remand. RCP No.99/1999 to the extent it seeks eviction on the ground of sub letting is remanded to the Rent Control Court, Thrissur for the purpose of deciding the question of bona fides of the need and applicability of the first proviso to sub section (3) of Section 11 afresh. iii). The finding in favour of the landlord under the second proviso to sub section (3) of Section 11 is confirmed. The Rent RCR.Nos.45 & 145/2011 15 Control Court will afford opportunity to both sides for adducing evidence and take a fresh decision in RCP No.99/1999 at its earliest. Parties will enter appearance before the Rent Control Court, Thrissur on 4/6/2011. iv). It is also further ordered that order of eviction passed under Section 11 (4)(i) will not be executed till 7/4/2012 subject to the following conditions; The revision petitioners shall file affidavits on or before 30/5/2011 undertaking to give peaceful surrender of the building to the respondent/landlord on or before 7/4/2012 and undertaking further to pay occupational charges for the building with effect from 1/6/2011 at the rate of Rs.500/- per month. It is made clear that the time as allowed above will be given to the revision petitioners for surrender only if the affidavit is filed on time and the undertakings therein are honoured without fail. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk RCR.Nos.45 & 145/2011 16 The words "sub letting" occurring in clause (ii) of paragraph 15 (page No.14) of the common final order dated 7/4/2011 in RCR 45/11 and RCR 145/11, are corrected as "bona fide need of own occupation" as per order dated 14/6/2011 in I.A. No.1230/11 in RCR 45/11 and in I.A. No.1218/11 in RCR No.145/11. Sd/- Registrar (Judicial) RCR.Nos.45 & 145/2011 17 RCR.Nos.45 & 145/2011 18