IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 RCRev..No. 27 of 2009() ----------------------- RCA.31/1999 of RENT CONTROL APPELLATE AUTHORITY( DISTRICT COURT), KOLLAM RCP.18/1997 of RENT CONTROL COURT(MUNSIFF COURT), KOLLAM .................... REVISION PETITIONERS/ADDL RESPONDENTS 2 TO 6LLRS. OF COUNTER PETITIONER -------------------- 1. ARIFA BEEVI, W/O.IBRAHIM KUTTY R/AT.KADIYAKKOLITHEKKETHIL NJARAKKAL CHERI, THRIKKADAVOOR VILLAGE. 2. NAZEEMA BEEVI, D/O.IBRAHIMKUTTY, DO. 3. NAZEER, S/O.IBRAHIMKUTTY OF DO. 4. NAJEEB, S/O.IBRAHIMKUTTY, DO.DO. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT/APPELLANT/PETITIONER: --------------- HARILAL, S/O.PARAMESWARAN, CHAKKANTAZHIKATHU, PUTHEN VEEDU, NJARAKKAL CHERRY, THRIKKADAOOR VILLAGE SRI.P.B.SURESHKUMAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ----------------------------------------------- RCR. No. 27 OF 2009 ----------------------------------------------- Dated this the 17th day of March, 2009 O R D E R Pius C.Kuriakose, J. The tenants being the legal heirs of the deceased tenant against whom order of eviction has been passed by the Rent Control Appellate Authority on the grounds under section 11(4)(iii) and section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 are the petitioners in this revision petition. The parties will be referred to as tenant and landlord respectively. The landlord sought eviction of the tenant from the building in question on the grounds under section 11(3) and 11(2)(b). The relevant allegations in the rent control petition were that the petition schedule building which forms part of a larger building belonged to one Parameswaran Nair, the father of the landlord, on the demise of the father a deed of partition was executed and the petition schedule building consisting of four shop rooms separated by wooden walls was allotted to RCR. N0. 27 of 2009 -2- the share of the landlord. Late Parameswaran Nair was conducting business in pottery in one of the rooms and the other rooms were let out to strangers. On 8-5-1978 the petition schedule room was let out to the tenant for doing stationary business. The tenant does not have regular business in the petition schedule room. He has obtained another shop room about 50 metres away and is conducting a tea shop therein. The tenant has business in milk also and his elder son is gainfully employed in a Gulf country and his second son is working as a painter. The landlord is presently conducting business in the remaining portion of the whole building and the area in his possession is insufficient for stocking pottery items. Due to insufficiency of space the landlord is stocking pottery items in the residence of his brothers and is experiencing difficulties since the stock in trade is kept away from the business premises. Hence the landlord needs the petition schedule room for additional accommodation for his personal use. RCR. N0. 27 of 2009 -3- 2. The tenant resisted the application disputing the bona fides of the need for additional accommodation and contending that the landlord's business has no importance over the years as claimed. It is further contended that the landlord can utilise the vacant shop room in his possession for the purpose of additional accommodation if the same is necessary. The landlord's allegation that the tenant has another building where to the business can be shifted is denied. The allegations that the tenant is conducting milk business and tea shop is also denied. The allegation that the tenant's elder son is employed in Gulf is denied. The allegation that the tenant is not doing business is denied and it is contended that the income derived from the business carried on in the schedule premises is the sole means of livelihood. The landlord, it is contended that the RCP has been instituted to wreak vengeance on the tenant who was unwilling to oblige to the landlord's demand for steep increase in the contract rent. On the above pleadings RCR. N0. 27 of 2009 -4- the learned Rent Control Court raised four points and the evidence consisted of documents Exts. A1 to A6 series and witnesses PWs. 1 to 3 on the side of the landlord. On the side of the tenant, the evidence consisted of documents Exts.B1 to B6 series and witness CPW-1. Apart from that there was C1 Commissioner's report and C2 mahazar. 3. The Rent Control Court in the first instance dismissed the rent control petition. The landlord preferred appeal RCA. No. 31 of 1999 against the said order and the Appellate Authority set aside the order of the Rent Control Court and remanded the rent control petition for considering the landlord's case for eviction under clause (iii) of subsection (4) of section 11. A revision was filed before this Court as RCR No. 75 of 2004 against the above judgment of the Rent Control Appellate Authority and this Court would set aside the judgment of the Rent Control Appellate Authority and remit the RCA back to the Appellate Authority for considering the landlord's case for eviction on the ground RCR. N0. 27 of 2009 -5- of clause (iii) of subsection (4) of section 11 and subsection (8) of section 11 of the Rent Control Act. The Appellate Authority after remand would make a thorough re- appreciation of the entire evidence on record and find that the tenant is liable to be evicted under section 11(4) (iii) and also section 11(8) and accordingly passed orders of eviction under both those subsections. This revision petition is directed against the above judgment of the Rent Control Appellate Authority and we have heard the submissions of Sri.K.Subashchandra Bose, learned counsel for the revision petitioner tenant and also those of Sri.P.B.Suresh Kumar, learned counsel for the landlord who had lodged a caveat in anticipation of the revision. 4. Sri.Subashchandra Bose would assail the judgment of the Rent Control Appellate Authority very strongly on the basis of the various grounds raised in the memorandum of revision. The learned counsel would submit that the only eviction grounds which had been quoted in the rent control RCR. N0. 27 of 2009 -6- petition were sections 11(2)(b) and 11(3). He submitted that apart from the fact that section 11(4)(iii) was not quoted in the RCP, there was no proper pleading in the rent control petition regarding the existence of the ground under clause (iii) of subsection (4) of section 11. According to the learned counsel, the order of remand passed by this court was misread by the Rent Control Appellate Authority resulting in prejudice to the tenant. The learned counsel submitted that the requirement of additional accommodation for the purpose of expanding the landlord's business was not at all bona fide and that there has been no material change in the volume of business transacted by the landlord after Ext.B4 order was passed against the landlord in RCP No. 31 of 1991 unsuccessfully filed by the landlord. According to the counsel, the same was easily discernible from the evidence and circumstances available in the case. Mr.Bose submitted that what the landlord had done was to purchase and stock one lorry load of pottery just before RCR. N0. 27 of 2009 -7- inspection of the premises by the advocate commissioner and thus collect artificial evidence regarding the need for additional accommodation which in truth did not exist. Learned counsel submitted that the Commissioner visited the property on 14-9-1998, but took time till 3-10-98 for preparing the mahazar, as a result of which the report does not contain anything about the vacant room situated on the southern side of the petition schedule room admittedly possessed by the landlord. According to the learned counsel, Exts. C1 and C(2) should have been rejected by the Appellate Authority. Mr.Subashchandra Bose submitted that it was relying only on the self serving oral evidence given by the landlord that the Rent Control Court found that the landlord needs additional accommodation for expanding the business. No documentary material had been placed by the landlord so as to discharge his burden of proving the existence of the ground under section 11(8). Mr.Subashchandra Bose submitted that the Appellate RCR. N0. 27 of 2009 -8- Authority did not bother to discharge its appellate function of examining the legal and factual correctness of the decision taken by the Rent Control Court. The Appellate Authority does not say as to how and why the Rent Control Court's order is wrong. Learned counsel highlighted that the availability of a vacant room, the third room in the four room building with the landlord was an aspect which was taken note of by the Rent Control Court for deciding to dismiss the RCP. The Appellate Authority's judgment is silent regarding the availability of this vacant room by the landlord. The learned counsel submitted that the finding of the Appellate Authority that tea shop business is carried on by the tenant was contrary to the fact. It was submitted that the tea shop business belongs to Shamsudheen, a son of the tenant who has been living separately with his wife and children even before the original tenant had passed away. 5. All the submissions of Mr.Subashchandra Bose were RCR. N0. 27 of 2009 -9- resisted by Sri.P.B.Suresh Kumar who would support the judgment of the Appellate Authority on the basis of the reasons stated therein and various judicial precedents including the judgment of this court in Rajesh v. State of Kerala, 2007(4) ILR (Kerala) 342. 6. We have very anxiously considered the rival submissions addressed at the Bar and have carefully gone through the pleadings and the evidence in the case particularly the testimonies of witnesses PWs. 1 to 3 and CPW-1, C1 commission report and C2 mahazar and documents Exts.A6 and A6(a) to which our attention was specifically drawn by the counsel in their submissions. It is true that the eviction grounds quoted in the cause title portion of the rent control petition are sections 11(2)(b) and 11(3) only. But the essential pleadings in the rent control petition do contain requisite averments regarding existence of grounds under sections 11(4)(3) and 11(8). Moreover a reading of the judgment of this court in RCR. RCR. N0. 27 of 2009 -10- No. 75 of 2004, pursuant to which only the appeal was remanded to the Rent Control Appellate Authority, shows that this court after opining that the Appellate Authority should have considered the case for eviction under section 11(4) (iii) and section 11(8) and the matter was “remitted to the Appellate Authority for rendering a fresh decision on the ground under section 11(4)(iii) and section 11(8) in accordance with law”. It is therefore too late in the day for the revision petitioners to contend that the rent control petition is not maintainable on grounds under section 11(4) (iii) and section 11(8) and that the Appellate Authority should not have considered the petition under those grounds. 6. Now coming to the challenge of the judgment of the Appellate Authority on its merits, we will first proceed to consider the order passed under section 11(4)(iii). The ground for eviction under that subsection is made out where the tenant “already has in his possession a building or RCR. N0. 27 of 2009 -11- subsequently acquires possession of or puts up a building reasonably sufficient for his requirements in the same city, town or village”. The building pointed out by the landlord in the context of the ground under section 11(4)(iii) is the building which is situated 50 metres away from the petition schedule building. It is under point No.2 that the Appellate Authority discusses the tenant's liability to suffer eviction order under section 11(4)(iii). The discussions under point No.2 are cryptic and at first blush it would appear as though the complaint of Mr.Subashchandra Bose that there is no separate consideration of the ground under section 11 (4)(iii) by the Appellate Authority, has some merit. But when we consider the discussions under point No.1 along with those under point No.2, it will be seen that the appellate authority has found that the above building situated 50 metres away from the petition schedule building wherein presently a tea shop business and stationary business are simultaneously conducted, is reasonably RCR. N0. 27 of 2009 -12- sufficient for the tenant's requirement. The prominent defence regarding this building was that the above building is not in the possession of tenant, but is in the possession of Shamsudheen, a son of the tenant who is living separately with his wife and children in another building. Somebody who was present at the time of inspection by the commissioner told the Advocate Commissioner who inspected the said building having door No.579 that the tea shop business carried on there belongs to Shamsudheen. Ext.A6(a) indicates that the licence for the tea shop has been taken in the name of Shamsudheen. But it should be remembered that the inspection of the tea shop building was done in the presence of the original tenant Ibrahimkutty. Ext.A6 is the property tax register maintained by the local authority and A6 enjoys presumptions regarding the correctness of the statement therein by virtue of section 26 of Act 2 of 1965. No evidence has been adduced by the revision petitioners to rebut the said presumption. The trial RCR. N0. 27 of 2009 -13- of the case took place during the lifetime of the original tenant and the taking out of licence by Shamsudheen will not be of much consequence since in all probabilities the original tenant, father of Shamsudheen only permitted Shamsudheen his son to take out licence. A6 reveals that Ibrahimkutty, the original tenant is in possession and the commissioner's report is to the effect that it is not tea shop business alone which is being conducted therein but also stationary business. Stationary business significantly is the business to do for which the tenant had taken out the petition schedule building. The petition schedule building is a very small building having a plinth area of 40 sq.ft. and the tea shop building which presently accommodates stationary business also, is certainly large enough to enable the revision petitioners to conduct the business carried on by the original tenant in the petition schedule building. The revision petitioners have acquired the status of tenants only in their capacity as legal heirs of the deceased tenant. They RCR. N0. 27 of 2009 -14- cannot aspire to have independent contentions of their own in this case where tenancy right has devolved upon them jointly upon demise of the tenant. The legislative objective underlying clause (iii) of subsection (4) of section 11 is that at a time when there is acute accommodation shortage, the tenant should not be allowed the luxury of having more buildings than what is necessary for his purpose at his disposal. Extra accommodations available with the tenants should be made available for the needy landlord or for other needy tenants. We do not find any reason to vacate the finding of the appellate authority in the context of the ground under clause (iii) of subsection (4) of section 11. 8. We will now examine the order of eviction passed under subsection (8) of section 11. It is by now settled that the standards of bonafides required for establishing the ground under subsection (8) of section 11 are not so rigorous as in the case of a ground under subsection (3) of section 11. It is true that the earlier rent control petition RCR. N0. 27 of 2009 -15- was dismissed on the ground that the landlord did not produce documentary evidence to prove the volume of business which he was having, and also his requirement for additional space. But the merchandise dealt with by the landlord is mainly handmade pottery items. The total area available in the entire larger building, a part only of which is the petition schedule building, is not more than 200 sq ft. The Advocate Commissioner inspected the premises with notice to the tenant and in the presence of the tenant. The Commissioner reported that due to inadequacy of space, stock of pottery is seen stored in the residential houses of the tenant's siblings situated at some distance from the petition schedule building. Under the statutory scheme Appellate Authority is the final court on facts. In view of the divergence in the findings entered by the Rent Control Court and the Appellate Authority in the context of the ground under section 11(3) we went through the oral evidence passed by PWs- 1 to 3 and CPW-1. We RCR. N0. 27 of 2009 -16- have gone through the Commissioner's report also. Significantly, the Commissioner was not cited and cross- examined and the objections raised to the Commissioner's report stands unsubstantiated. We do not think that much dent could be made by the cross-examiners on the evidence given by PWs. 1 to 3 and in the absence of cross- examination of the commissioner we are unable to say that the finding of the Appellate Authority that the claim of the landlord that he needs additional accommodation for expanding his business in pottery by collecting more stock in the business premises itself and by providing more standing space for the customers is vitiated by any illegality, irregularity or impropriety. Having regard to the nature of business – retail business in handmade pottery where the customers will be mostly from domestic households, the non-production of documentary evidence to show the escalation in business is fatal. 9. Once the requirement of additional accommodation RCR. N0. 27 of 2009 -17- is proved the question which survives is whether the first proviso to subsection (10) of section 11 applies. The finding of the Appellate Authority regarding the advantages which will inure to the landlord by getting eviction is founded on evidence. The landlord will be relieved of the difficult situation of storing his goods elsewhere. He will be provided with sufficient space for storage of goods in the premises itself and also for his customers to stand and bargain. As for the hardships which will be caused to the tenant, obviously, the petition schedule building is a very small building having an area of just 40 sq. ft. It is in evidence that the tea shop building which was under the possession of the tenant at the time when the RCP was being enquired into is being used also for conducting stationary business. The licence issue register relied on by the tenant will only show that the tea shop business is being conducted on the strength of a licence taken in the name of Shamsudheen. No evidence is forthcoming RCR. N0. 27 of 2009 -18- regarding the licence in respect of the stationary business. The fact that stationary business is being conducted in that building itself will show that not much of a hardship will be caused to the tenant by the eviction order. The result of the above discussions is that the rent control revision will stand dismissed. However, the revision petitioners are granted time till 17-12-2009 to vacate the premises, provided the following conditions are satisfied by the revision petitioners. 1) The revision petitioners shall file a joint affidavit before the execution court undertaking to give peaceful surrender of the petition schedule building on or before 17-12-2009 and undertaking further to continue to pay the rent for the subsequent months as and when which falls due subsequently till the date of surrender. Affidavit, as directed above, shall be filed within three weeks from today. RCR. N0. 27 of 2009 -19- 2) Once the execution court notices such an affidavit, that court will adjourn the execution petition to 18-12-2009. (PIUS C.KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) ksv/-