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 17TH MARCH 2011 / 26TH PHALGUNA 1932 RCRev..No. 121 of 2011() ------------------------ RCA.118/2003 of RENT CONTROL APPELLATE AUTHORITY , THRISSUR RCP.71/2001 of PRL.MUNSIFF COURT,THRISSUR .................... REVISION PETITIONER/APPELLANT & 1ST RESPONDENT (S): -------------------- PAUL, AGED 50, S/O. THARAYIL OUSEPH, KOTTEKKAD DESOM, KUTTUR VILLAGE, THRISSUR. BY ADV. SRI.M.R.VENUGOPAL SRI.ALAN PAPALI SMT.DHANYA P.ASHOKAN RESPONDENT(S)/RESPONDENTS/PETITIONER & 2ND RESPONDENT: --------------- 1. GEORGE, S/O. PULIKKOTTIL VARIYATH, UDAYA NAGAR, MYLIPADAM DESOM, THRISSUR VILLAGE, THRISSUR - 680 586. 2. C.A. MOIDEEN, ROOM NO. 1291, WARD NO.26, KUTTUR VILLAGE KOTTEKAD DESOM, THRISSUR - 680 589. ADV. SRI.V.K.BALACHANDRAN FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 121 OF 2011 ------------------------ Dated this the 17th day of March, 2011 O R D E R Pius C.Kuriakose, J. The tenant is the revision petitioner. He challenges in this revision, the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him by the Rent Court Court on the grounds under sub section (3) of Section 11 and under clause(i) of sub section (4) of Section 11 (bona fide need for own occupation and subletting). 2. In this revision, various grounds are raised challenging the eviction orders passed on both the above grounds. Sri.Alan Papali, learned counsel for the revision petitioner, would assail the judgment of the Appellate Authority on the various grounds raised in this revision. As regards eviction order passed under Sub Section (3) of Section 11, the learned counsel highlighted that it has come out in evidence through the mouth of PW1 himself that on the Post office Road, Thrissur, the landlord is having another building of his own in possession and that he is RCR.No.121/2011 2 already conducting the business therein under the name and style of Padipurakkal Agencies. The landlord had a duty to disclose the availability of the above room on the Post office Road in the rent control petition itself and offer special reason as to why the above building cannot be utilised for accomplishing the proposed need. Mr.Papali then submitted that the rent control petition has been instituted by the landlord in a wake of refusal by the tenant to oblige to the persistent demands of the landlord for enhancement of the rent. Even just prior to the filing of the rent control petition, the landlord made a demand for enhancement of rent. This, according to Mr.Papali, will show tht the need is not bona fide. 3. As regards the ground for eviction under Section 11 (4)(i), Mr. Papali submitted that the landlord conceded in his evidence that he came to know that the relationship between the revision petitioner and the second respondent in the rent control petition was that of lessee an sub lessee only through Ext.A4. There is no reference to Ext.A4 at all in the rent control petition. Ext.A4 does not mention even the door number of the petition schedule building. The decision concurrently taken by the two RCR.No.121/2011 3 authorities to order eviction on the ground of sub letting based on Ext.A4 is not sustainable. Mr.Papali submitted that passage to the building in question has width of 6 ½ feet only and the landlord submitted in his evidence that he has other buildings which are more convenient for conducting the proposed business and further that landlord intends to evict the tenants one by one. This according to the learned counsel, will show that the proceedings presently initiated is an experimental one. 4. Sri.V.K.Balachandran, learned counsel for the respondent, who had lodged a caveat in anticipation of the revision, would resist all the submissions of Mr.Papai. The learned counsel reminded us of the contours of our jurisdiction under Section 20 and submitted that in the above jurisdiction we will not be justified in making reappraisal of the evidence and substituting our own conclusions on facts for those arrived at by the statutory fact finding authorities. Just because of the landlord had demanded enhancement of rent, the need cannot be found to be bona fide so submitted Mr.Balachandran, who referred to the judicial precedents governing the issue. The learned counsel submitted that present monthly rent of RCR.No.121/2011 4 Rs.2,500/-, which is being paid by the revision petitioner, is ridiculously low when it understood that the extent of the building is 850 sq.ft and the building is situated in commercially one of the important areas of the Thrissur town situated on the southern eastern portion of the Swaraj round itself. Mr.Balachandran then submitted that nothing has been brought out in the cross examination of PW1 to doubt the veracity of the need. Evidence of PW1 inspired the two facts finding authorities under the statute. There is no reason why this court should make reappraisal of the evidence and arrive at a different conclusion. Mr.Balachandran conceded that the landlord had not disclosed the availability of the room on the Post office Road. According to him, that room was not vacant. That room was actually being used as an office for Padipurakkal Agencies. 5. The learned counsel was more forceful in his defence of the eviction order passed under Section 11(4)(i). Mr.Balachadran submitted that definite defence is that the jural relationship between the petitioner and C.A.Moideen, the second respondent whose name is mentioned in Ext.A4, is that of employer and manager. If this defence is true, the same is to be RCR.No.121/2011 5 proved by the tenant by documentary evidence. Not even a scrap of paper was produced by the tenant to show that the relationship between him and Moideen is that of manager and employer. If salary is being paid, at least the account books will reveal the same. Not even account books are produced. The learned counsel submitted that it is not a small time business that is being conducted by the revision petitioner. He is engaging 4 or 5 workers and it is idle for the revision petitioner to contend that he does not keep accounts. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court. It is true that the evidence of PW1 that he wants to conduct business in automobile spare parts in the petition schedule building inspired the Rent Control Court and the Rent Control Appellate Authority, the two fact finding authorities under the scheme of the Rent Control Act, and those authorities were justified in concluding that the need projected was bona fide. Even in cases where the need projected is found to be bona fide, the landlord will have to RCR.No.121/2011 6 surmount the hurdle of the first proviso to sub section (3) of Section 11. It came out in evidence that the landlord was having another room on the Post Office Road. When he was asked about the above building, he would state in the first instance that the same is an office. Later, he would state that in the said room business of Padipurakkal Agencies (an enterprises of which the landlord himself is the proprietor) is being conducted. Whatever that be, we are of the view that when at least one room on the Post Office Road was at the disposal of the landlord, he had a duty to disclose the availability of that room and offer explanation if not special reason as to why the landlord is insisting on getting eviction of the petition schedule room itself. The explanation offered by the landlady in evidence and by Mr.Balachandran at the Bar may be satisfactory. But, since the landlord had not disclosed the availability of the room and had not offered the explanation through his pleadings we feel that the question whether the rent control petition is liable to be rejected by virtue of the first proviso to Sub Section (3) of Section 11 needs to be re examined by the Rent Control Court. 7. We shall now deal with the order of eviction concurrently RCR.No.121/2011 7 passed by the two authorities on the ground of sub letting. In a situation where somebody other than the tenant is found to be in possession or at least occupation of the building, which is subject matter of the rent control petition, it is for the tenant to explain as to what is the jurial relationship between him and the person found to be in occupation of the premises. In the instant case, it is contended by the tenant/revision petitioner that Moideen, the 2nd respondent, is the manager of the revision petitioner. If Moideen is actually the manager of the revision petitioner, the same is an aspect which should be borne out by documents at the disposal of the revision petitioner. In the instant case, the above aspect was sought to be proved by the tenant by his own oral evidence only and not even Moideen was examined. The total absence of documentary evidence to show that jural relationship between the revision petitioner and Moideen is that of employer and manager, according to us, will justify the concurrent conclusions arrived at by the Rent Control Court and the Appellate Authority that order of eviction under Section 11 (4)(i) is liable to be passed in this case. We do not find any illegality, irregularity or impropriety about the order of RCR.No.121/2011 8 eviction and accordingly, we confirm the order of eviction passed under Section 11 (4)(i). Though we will not normally be justified in granting time to the tenant who has sublet the petition schedule building for the purpose of surrendering the premises, we feel that in the present case there is some justification for granting time. 8. The result of the above discussion is as follows; i). The order of the Rent Control Court and the Judgment of the Appellate Authority to the extent the same pertain to the ground under Section 11(3) is set aside. The order of eviction passed concurrently on the ground of sub letting is confirmed. The Rent Control Petition is remanded to the Rent Control Court for holding further enquiry and taking fresh decision regarding the sustainability of the eviction order under Section 11(3) with reference to the first proviso to Section 11(3). If the landlord is desirous, it is open to him to amend his pleading. If pleadings are amended by the landlords, the tenant will be permitted to raise counter pleadings. The Rent Control Court will complete the enquiry and pass revised orders within four months of the parties entering appearance pursuant to this RCR.No.121/2011 9 remand. ii). We notice that the rent which is being paid by the revision petitioner for the building is ridiculously low when we taken into account the commercial importance of the locality. We are therefore inclined to refix the rent tentatively with effect from 1st April 2011 at Rs.10,000/- per month. If either party is aggrieved, it will be open to them to move the Rent Control Court under Section 5 for regular fixation of the fair rent. Till fair rent is fixed, the revision petitioner shall pay the rent to the respondent at the rate of Rs.10,000/- per month. Iii). The parties will enter appearance before the Reference Court on 25/5/2011. iv). In view of the above order, there will be a further direction to the Execution Court to keep in abeyance proceedings for delivery in execution of the eviction order passed under Section 11(4)(i) till 31/12/2012 subject to the following conditions; i). The revision petitioner will file an affidavit before the execution court undertaking to give peaceful surrender of the building on or before 31/12/2012 and undertaking further that RCR.No.121/2011 10 with effect from 1-4-2011 occupation charges will be paid at the rate of Rs.10,000/- per month. We make it clear that the revision petitioner will get benefit of time allowed as above, only if affidavit is filed on time and undertakings therein are honoured. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk The date "31/12/2012" occurring in paragraph 8(iv) and in condition No.(i) of paragraph 8(iv) on page 9 of the order dated 17/3/2011 in RCR 121/2011 is corrected as "31/12/2011" vide order dated 29/03/2011 in I.A. 839/2011 in RCR 121/2011. Sd/- Registrar (Judicial)