IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 RCRev..No. 315 of 2008(Y) ------------------------- RCA.10/2005 of DISTRICT COURT, KALPETTA RCP.9/2001 of MUNSIFF MAGISTRATE, SULTHAN BATHERI .................... REVISION PETITIONER/ APPELLANT/RESPONDENT(FIRST) ----------------------------- EDAVANNA MAMMOTTY, S/O. IBRAHIMKUTTY, AGED 58 YEARS, BUSINESS, CHOKLI AMSOM DESO, THALASSERY TALUK. BY ADV. SRI.BASIL MATHEW RESPONDENT(S)/RESPONDENTS/PETITIONERS/RESPONDENT(SECOND): --------------- 1. DR.K. ABDULLA, AGED 62 YEARS, S/O. KUNHIMOHAMMED, SULTHAN BATHERY AMSOM DESOM, SULTHAN BATHERY TALUK. 2. MINU MUMTHAS, D/O.K. ABDULLA, SWASTHAM, AGED 38, SULTHAN BATHERY AMSOM, DESOM, SULTHAN BATHERY TALUK. 3. JASMINE, AGED 36, D/O.K. ABDULLA, SWASTHAM, SULTHAN BATHERY AMSOM, DESOM, SULTHAN BATHERY TALUK. 4. NISHA ROSE, D/O.K. ABDULLA, AGED 34, SWASTHAM, SULTHAN BATHERY AMSOM, DESOM, SULTHAN BATHERY TALUK. 5. NASREENA, D/O.K. ABDULLA, AGED 32, SWASTHAM, SULTHAN BATHERY AMSOM DESOM, SULTHAN BATHERY TALUK. 6. ABDU RAHIMAN, S/O. IBRAHIMKUTTY, AGED 57, EDAVAKA HOUSE, CHOKLI, THALASSERY TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & HARUN-UL-RASID JJ. ------------------------ R.C.R.No. 315 OF 2008 ------------------------ Dated this the 14th day of January, 2009 O R D E R Pius C.Kuriakose, J. The tenant is the revision petitioner. The original landlady, who is survived by respondents other than respondent No.6, filed the rent control petition invoking grounds of arrears of rent under Section 11(2)(b), bona fide own occupation under Section 11(3) and user of the building in such a manner as to reduce its value and utility materially and permanently under Section 11 (4). During the pendency of the rent control petition, it was noticed that the premises were sub let by the tenant to the 6th respondent and that the tenant had seized to occupy the premises. Accordingly, the Rent Control Petition was got amended so as to incorporate the additional grounds under Section 11(4)(i) sub letting and under Section 11(4)(v) cessation of occupation. The Rent Control Court ordered eviction on the grounds under Sections 11(3), 11(2)(b), 11(4)(i) and Section 11 R.C.R..No.315/2008 2 (4)(v). The order of eviction under Section 11 (2)(b) was got set aside by making requisite deposits under Section 11 (2)(c) and that ground no longer survives. The appellate authority would reappraise the evidence and confirm the orders of eviction passed under Section 11(3) and 11(4)(i). That authority, however, set aside the order of eviction passed under Section 11 (4) (v) taking the view that occupation by a sub tenant will also amount to occupation of the tenant for the purpose of Section 11 (4) (v). There is no revision filed by the landlady against the order of the appellate authority and we feel that the view taken by the appellate authority in the context of the ground under Section 11(4) is correct. In this Rent Control Revision, therefore, we are concerned with the order of eviction granted under Section 11(3) and 11 (4) (i). 2. The need projected by the landlady in the context of Section 11(3) is that the landlady's husband (first respondent), a Doctor, is running a hospital by name 'Bathery Nursing Home' and that his Nursing Home has a passage having a width of 3 feet only proceeding from Kozhikode-Mysore road to its casuality section. The passage lies between the petition schedule room R.C.R..No.315/2008 3 and another shop room. Vehicles could not be taken through this passage and therefore, patients could not be easily taken to the casuality section. The need, therefore, is that the walls of the petition schedule room be demolished and the existing 3 feet wide passage be widened, so that vehicles bound to the casualty section of the Hospital will have an easy access. The defence of the revision petitioner to the above ground was that the landlady already has a motorable way leading to the hospital from the main road since the entire property lying in between the main road and the police station road belongs to the landlady. The further contention was that the demolition of the petition schedule shop room alone will not be sufficient for facilitating a passage to the hospital. The tenant in occupation of the adjacent room also will have to be evicted and that room also will have to be demolished. The tenant claimed the protection of the second proviso to Section 11(3) also. 3. The allegation of the respondents in the context of the ground under Section 11(4(i) was that the revision petitioner tenant sub let or transferred the possession of the entire petition schedule room in favour of the 6th respondent the alleged R.C.R..No.315/2008 4 sub lessee and that it is the 6th respondent who is presently conducting the business therein. There was an ancillary allegation that the revision petitioner tenant has set up his own textile business in a shop at Thalassery. The defence of the revision petitioner and the 6th respondent was that there is no sub lease. The presence of the 6th respondent was explained by contending that the 6th respondent had been authorised by the partners of the partnership business, which the revision petitioner was carrying on in the petition schedule building, to conduct business on behalf the partners, since the revision petitioner tenant had gone abroad. 4. The first respondent - landlady's husband, the Doctor who is conducting the Bathery Nursing Home, testified regarding the need projected in the R.C.P. The documentary evidence consisted of Exts.A1 to A13 on the side of the respondents. The revision petitioner as well as the alleged sub lessee got themselves examined as RW1 and RW2. Ext. B1 power of attorney and Ext.B2 deed of cancellation of Ext.B1 were the principal items of documentary evidence adduced by the revision petitioner in the context of ground under Section 11(4) R.C.R..No.315/2008 5 (i). Apart from that, the documents Ext.B3 to B8 were also produced. Ext.B8 was a copy of an application given by the respondents to the Sulthan Bathery Panchayat for canceling the Panchayat's licence which stood in the name of the alleged sub lessee. Exts.C1 ,C2 and Ext.C7 Commissioner's report were also in evidence. We have gone through Exts.C3 to C6 sketches, Exts.C8 report, Ext.C9 and C9(a) plans submitted by Architect. It is on evaluating and re-evaluating the above evidence that the Rent Control Court and the Appellate Authority came to the conclusions as already indicated. 5. Before us Sri.Basil Mathew, learned counsel for the petitioner would make extensive submissions. The learned counsel argued that the need for own occupation projected by the landlady was only a ruse. He submitted that demolition of the petition schedule building without endangering the remaining portion of the larger building, of which the petition schedule building is only a part, was technically impossible. The learned counsel would assail the order of eviction passed under Section 11 (4) (i) also. According to the him, the authorities below misconstrued the case of the tenant. The case, according to the R.C.R..No.315/2008 6 learned counsel, was that at an earlier point of time business used to be conducted in partnership and presently business, which is being conducted in the petition schedule building, is the propriety business of the revision petitioner himself. The revision petitioner has not parted with possession of the petition schedule building in favour of the sub lessee or any other person. As for Ext.B1, he submitted that Ext.B1 power of attorney was executed at a time when the partnership was in existence and the same has been canceled by Ext.B2. 6. We have gone through the orders passed by the Rent Control Court and the Appellate Authority. We have anxiously considered the submissions addressed at the Bar. We reminded ours of the contours of the jurisdiction under Section 20 which is revisional in nature. We are not expected ordinarily to reappraise the evidence under Section 20. Even if reappraisal of the evidence is warranted, the same will be confined to the extent of considering whether the orders passed by the authorities below is vitiated by illegality, irregularity or impropriety. Having gone through the orders of the courts below, particularly that of the Appellate Authority, which under R.C.R..No.315/2008 7 the statutory scheme is the final court of facts, we are of the view that the findings entered by that authority that the building in question is bona fide required by the respondents for the purpose of demolition so as to widen the existing 3 feet width passage bound to the causality section of the first respondent hospital is a perfectly correct one. The revision petitioner failed miserably in establishing that the respondents already have another passage to the hospital. The revision petitioner's case that the need could be accomplished by demolishing the eastern room was also rightly repelled by the Rent Control Appellate Authority since adopting such a course will result in the existing passage of 3 feet becoming waste. Though the tenant claimed protection of the second proviso to Section 11 (4)(iii), it was found by the authorities concurrently that the tenant has failed miserably in establishing that he satisfied either of the ingredients of that proviso. Before us, the learned counsel did not address any arguments in the context of second proviso of section 11 (3). As for the order of eviction passed under Section 11 (4) (i), it was the argument of the learned counsel that the respondents should have been relegated to a fresh R.C.R..No.315/2008 8 proceeding rather than being permitted to amend the rent control petition. But, we find that the sub letting/transfer of the premise was done by the revision petitioner during the pendency of the proceeding and it is after issuing statutory notice under section 11 (4) (i) and after giving 30 days time to the revision petitioner to terminate the sub lease that the respondent applied for amendment of the rent control proceeding. The order allowing the amendment has attained finality. Of course, it may be possible for the revision petitioner to impugn that order through an appeal preferred against the final order. But, the learned counsel fairly conceded that the revision petitioner did not challenge the legality of the order allowing the amendment in the Rent Control appeal. We find that no prejudice whatsoever has been the occasioned to the Revision Petitioner on account of the amendment granted. The revision petitioner was permitted to raise additional pleadings in the context of the amendment. Defence, which was attempted to be pursued against the ground of sub letting was based on Exts.B1 and B2. The appellate authority rightly found that the Ext.B1 power of attorney has not been executed and Ext.B2 revocation, which purports to cancel R.C.R..No.315/2008 9 Ext.B1 is not of consequence. Obviously, the revision petitioner has started his own new textile business in Thalassery. It is for the revision petitioner to explain the presence of the 6th respondent. The explanation offered is that the 6th respondent was permitted to manage the business during the absence of the revision petitioner, who had gone abroad, by not only revision petitioner, but also his partners. There was not an iota of evidence to show that at any time business has been conducted by the revision petitioner and others in partnership. We do not find any warrant for interfering with the concurrent findings of the court below under Section 11 (3). Those findings are based on evidence and are quite reasonable. In short, we do not find any reason to admit this Revision. The Rent Control Revision will stand dismissed. 7. Sri.Basil Mathew, learned counsel for the petitioner would make a last submission for grant of time to surrender the premises. We feel that the delivery of the building has already been taken place. If delivery of the building has not taken place, the Execution Court will put off delivery by one month from today on the condition that the revision petitioner files an R.C.R..No.315/2008 10 undertaking before the Execution Court in the form of an affidavit stating unconditionally that he will peacefully surrender the petition schedule building to the respondents, other than respondent No.6, on or before 15/2/2009 and that he will discharge the entire arrears of rent which are already fallen due and which falls due till 15/2/2009. The affidavit, as directed above, will be filed by the revision petitioner within three days. It is clarified once again that the above directions will not operate if delivery has already taken place. PIUS.C.KURIAKOSE,JUDGE HARUN-UL-RASID, JUDGE. dpk