IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 RCRev..No. 245 of 2003(B) ------------------------- RCA.65/1993 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.89/1990 OF RENT CONTROL COURT, KOZHIKODE-I .................... RVN.PTR./APPELLANT IN RCA/PETITIONER IN RCP. ---------------------------------------------------------------- KUTTANPOYIL VELAYUDHAN , AGED 73 YEARS, S/O.CHANDRAN, RESIDING AT KATCHERI AMSOM, KURUMPRAKKATTUSSERY DESOM. KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): RESPONDENT IN RCA/RESPONDENT IN R.C.P. ----------------------------------------------------- KELOTHMEETHAL VASU, AGED 56 YEARS, S/O.KELAPPAN, RESIDING AT EDAKKAD AMSOM, PUTHIYANGADI DESOM OF KOZHIKODE. ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 9-07-2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------------------------------------------------------ RCR. No. 245 of 2003 ----------------------------------------------- Dated this the 9th day of July, 2009 O R D E R Pius C. Kuriakose, J. The landlord is in revision against the judgment of the Rent Control Appellate Authority. Eviction was sought for invoking the ground of arrears of rent and own occupation. Order of eviction was passed under Section 11(2)(b) and that decision was not challenged by the tenant. We are therefore, not concerned in this revision with the correctness of the order of eviction passed under Section 11(2)(b). We will only observe that an order under Section 11(2)(b) is only a tentative order which is liable to be vacated at the instance of the tenant depositing the entire arrears of rent with statutory interest and cost invoking the provisions of Section 11(2)(c). RCP. No. 245 of 2003 -2- 2. The case of the landlord was that the building in question which appears to be a three room apartment portion of a larger building, is needed bonafide for the residential occupation of the landlord's daughter Lalitha, son-in-law, PW2 and their children. It is specifically alleged in the R.C.P. that the daughter and son-in-law are put up in the family house of the son in law where apart from them, the son in law's brothers and sister are also residing. It was urged that considerable inconvenience is being experienced by the daughter and son-in-law due to paucity of space in the son-in-law's family house. It was also alleged in the Rent Control petition that the son-in-law's family house is situated at a distance of some 10 Kms. away from the son-in-law's place of employment namely Krishna Oil Mills. It was accordingly urged that if the son-in-law and family are able to reside in the petition schedule RCP. No. 245 of 2003 -3- building, it will be more convenient for the son-in-law to work at Krishna Oil Mills. Before the Rent Control Court apart from the landlord, the son in law was examined as PW2. He gave evidence in the context of the inconvenience experienced by him due to scarcity of space in his family house. He also deposed regarding the inconveniences caused to him in the matter of the employment with M/s. Krishna Oil Mills if he does not reside in the petition schedule building. Rent Control Court however did not become inclined to pass an order under Section 11(3) on the reason that no special reasons have been made out by the landlord under the first proviso to Section 11(3) of Act 2 of 1965 for getting order of eviction, despite the landlord possessing larger portion of the petition schedule building. The Rent Control Appellate Authority however, by judgment dated 08.07.1996 held that the need is bonafide and RCP. No. 245 of 2003 -4- possession of the portion of the building with the landlord is in fact a special reason justifying an order of eviction under Section 11(3) of Act 2 of 1965. Accordingly, the Appellate Authority ordered eviction under sub-section (3) of Section 11. A revision was preferred by the tenant before this Court against the judgment of the Rent Control Appellate Authority as C.R.P. 628 of 1997. At the time of hearing of the C.R.P., it appears that the parties were at issue on the question whether PW2 was actually employed at M/s. Krishna Oil Mills. This Court noticing that controversy was inclined to pass an order of remand of the case to the Rent Control Appellate Authority permitting the landlord to produce evidence to show that the landlord's son-in-law was actually employed with M/s. Krishna Oil Mills. Pursuant to the order of remand, the landlord produced Ext.A1 certificate. The certificate is RCP. No. 245 of 2003 -5- issued not by Krishna Oil Mills, but by the Managing Partner of a firm by name Krishnan and Sons. It is stated in the certificate that PW2 is working with Krishna Oil Mills since 1986 and that PW2 is a man of good character. Ext.A5 was proved through PW2 only. The Appellate Authority however, did not become inclined to place reliance on Ext.A5 inter alia on the reason that PW2 was incompetent to prove Ext.A5 since he is not the author of Ext.A5. The Appellate Authority therefore found that the evidence was not sufficient for holding that PW2 was employed with M/s. Krishna Oil Mills and accordingly dismissed the appeal as well as Rent Control petition. 3. In this revision under Section 20, the revision petitioner landlord assails the judgment of the Appellate Authority on various grounds and particularly on the ground that the appreciation of Ext.A5 by the learned RCP. No. 245 of 2003 -6- Appellate Authority was erroneous. It is urged very seriously in the memorandum of revision that PW2 was at all times employed with Krishna Oil Mills. 4. We have heard the submissions of Sri. P.A.Harish learned counsel for the revision petitioner and those of Mr. Jacob Abraham, learned counsel for the tenant. In this Court, the respondent tenant has filed an affidavit on 08.07.2009 wherein it is stated in Paragraph 2 that Krishna Oil Mills, West Hill, Kozhikode was closed down two years ago and that the building in which the mill was functioning was demolished and the machinery was sold off. It is also stated that all the employees who were working in the mill were retired by the employer and the mill has ceased to exist. According to the affidavit, this subsequent event of closure of the mill has a fundamental impact on the landlord's right to get order of eviction under Section RCP. No. 245 of 2003 -7- 11(3). 5. Sri. P.A.Harish would refer to the judgment of the Supreme Court in Gaya Prasad v. Pradeep Srivastava (AIR 2001(1) SC 803) and argue that the normal rule is that all causes are to be decided on the basis of the state of affairs which exist at the time of commencement of the litigation. According to him, decisions of the Supreme Court and this Court which take the view that subsequent events could be taken note of and relief can be moulded on the basis of subsequent events, did not lay down that all subsequent events which take place during the pendency of the litigation are to be taken note of. Counsel submitted that in the instant case, the R.C.P. was instituted way back in 1990. The landlord is not responsible for the long period of about 20 years which was passed since then. The delay caused in the matter has been RCP. No. 245 of 2003 -8- contributed more by the tenant than by the landlord, so submitted Mr.Harish. Mr.Harish, also submitted that the ground of own occupation raised in the R.C.P. was independent of PW2's employment at Krishna Oil Mills. In fact, PW2 was employed in Krishna Oil Mills situated at a distance of just 2 Kms from the schedule building. That petition schedule building will be convenient for PW2 to pursue his employment with Krishna Oil Mills was highlighted only as an additional factor which strengthens the projected need for own occupation. The main reason on which the landlord wanted possession of the petition schedule building was that his daughter and son in law who were experiencing much difficulties due to scarcity of space in the Tharavad house of the son-in-law were to be accommodated separately in the petition schedule building. It is cogent evidence which has been given by PW1 as well as PW2 RCP. No. 245 of 2003 -9- in support of that reason and it is accepting that evidence that the Rent Control Appellate Authority passed the order of eviction under Section 11(3) in the first instance. Mr. Harish, referred to the statement of objections filed by the tenant in the R.C.P. and submitted that the tenant has actually admitted in the statement of objection that the landlord's son-in-law is working near to the petition schedule building. According to the counsel, the remand order passed by this Court to enquire into the question whether the landlord's son-in-law is working in Krishna Oil Mills was unnecessary in view of that admission. Even now, the landlord's daughter and son-in-law and their family are put up in the tarwad house of the son-in-law. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have made a thorough re-appraisal of the pleadings and the evidence RCP. No. 245 of 2003 -10- in this case. We find merit in the submission of Mr. Harish that the order of remand by this court for the purpose of considering whether PW-2 was employed at Krishna Oil Mills was unnecessary. Actually it has been admitted by the tenant in his statement of objections that PW-2, the son-in-law of the landlord is working near to the petition schedule building. This aspect of the matter unfortunately was not brought to the notice of this Court while deciding the earlier CRP. A careful reading of the pleadings and the evidence will show that the need of the landlord was that his daughter and son-in-law who are experiencing inconvenience in the tarwad house of the son-in-law should be allowed to have their independent residence in the petition schedule building. The nearness of the petition schedule building to Krishna Oil Mills where PW-2 son- in-law of the landlord was working at the relevant time RCP. No. 245 of 2003 -11- was highlighted as an additional factor strengthening the need projected in the RCP. It is true that the above additional factor is no longer in existence since Krishna Oil Mills has been closed down. But then the question is whether the closing down of Krishna Oil Mills is a subsequent event which frustrates the need projected by the landlord. We have no difficulty to answer that question in the negative. Regard should be had to the principles laid down by the Supreme Court in Gaya Prasad v. Pradeed Srivastava (AIR 2001 (1) SC 803). Even if the need of PW-2 and his wife, the daughter of the landlord was fully dependent on PW-2's continued employment with Krishna Oil Mills, then also it will be possible to order eviction on the basis of the principles laid down in Gaya Prasad's case since the landlord is not to blame for the long delay which has been occasioned in the matter of the final disposal of the rent RCP. No. 245 of 2003 -12- control petition which was filed about two decades ago. But as already stated, in the instant case, the need was to provide the daughter and the son-in-law with an independent residence and that need even now survives. The submission of Mr.Harish that PW-2 and his wife the daughter of the landlord continues to be put up in the tarwad house of PW-2 is not disputed. 7. The facts emerging from the evidence adduced in the case is that the landlord's daughter, wife of PW-2 is dependent on her father for an independent residence. Neither the landlord's daughter nor her husband PW-2 have got any other building for their independent residential occupation. The daughter and PW-2 are put up in the tarwad house of PW-2 which is occupied by many other members of PW-2's family. The need of the father that his daughter and her family should have independent residence is natural, honest RCP. No. 245 of 2003 -13- and bona fide. No oblique motives have been established by the tenant to hold that the need is not bona fide. The Appellate Authority's decision rests on Ext.A5. According to us, even ignoring Ext.A5 the need of the landlord can be held to be a bona fide one. 8. The result of the above discussion is that the RCR will stand allowed setting aside the order under revision. We allow the RCR and order eviction on the ground under Section 11(3). 9. As his last submission Sri.Jacob Abraham, learned counsel for the revision respondent sought for one year's time to surrender the building. This request is opposed by Mr.Harish. However, we feel that there is justification for granting time till 31-3-2010 in the facts and circumstances obtaining in the case. Accordingly, even as we allow the revision and order eviction under Section 11(3) there will be a direction to RCP. No. 245 of 2003 -14- the execution court not to order or effect delivery of the petition schedule building in favour of the revision petitioner landlord subject to the following conditions. i) The respondent shall file an affidavit within one month from today undertaking to peacefully surrender the petition schedule building to the revision petitioner on or before 30-3-2010. It will be undertaken by the respondent through that affidavit that discharge the arrears of rent, if any, due as of now to the revision petitioner within two months from today and to pay occupational charges at the current rent rates promptly and regularly till 31-3-2010. (PIUS C.KURIAKOSE, JUDGE) (P.Q.BARKATH ALI, JUDGE) KKMS/KSV RCP. No. 245 of 2003 -15-