IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 RCRev..No. 461 of 2005(A) ------------------------------ RCA.89/1997 of ADDL. DISTRICT COURT, THALASSERY RCP.274/1995 of ADDL. RENT CONTROL COURT (ADDL. MUNSIFF COURT), KANNUR .................... REVISION PETITIONERS/RESPONDENTS/PETITIONERS ------------------------------------------------------------ 1. M.SULAIKHA, D/O.LATE AHAMMED UNNI MOOPPAN, AGED 57 YEARS, NO OCCUPATION, RESIDING AT MALROSE, KANNUR. 2. DR.M.NAZAR, S/O.LATE DR.ZAINUDHEEN, AGED 39 YEARS, RESIDING AT MALROSE, KANNUR-6, REPRESENTED BY GENERAL POWER OF ATTORNEY HOLDER M.NAUSHAD, S/O.LATE DR.M.ZAINUDHEEN, AGED 31 YEARS, RESIDING AT DO. DO. 3. M.NASEEM, D/O.DR.M.ZAINUDHEEN, AGED 35 YEARS, NO OCCUPATION, RESIDING AT DO. DO. 4. M.NAUSHAD, S/O.LATE DR.M.ZAINUDHEEN, AGED 31 YEARS, RESIDING AT DO. DO. BY ADV. SRI.N.NAGARESH SRI.K.BABU RESPONDENT(S): APPELLANTS/RESPONDENTS ---------------------------------------------------- 1. K.MOHAMMED IQBAL, S/O.MUHAMMED SALI, AGED 39 YEARS, "MARVA", THANA, KANNUR-12, KANNUR DISTRICT. RCR.461 OF 2005 -2- 2. K.MOHAMMED ALI, S/O.MOHAMMED SALI, AGED 41 YEARS, DO. DO. ADV. SRI.V.RAMKUMAR NAMBIAR FOR R1 & R2 SRI.P.M.MOHAMMED SHIRAZ FOR ADDL.R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.461 of 2005 ------------------------------------------------ Dated this the 14th day of December, 2009 ORDER Pius C. Kuriakose, J The landlords are in revision being aggrieved by the judgment of the Rent Control Appellate Authority vacating the order of eviction under sub section 3 of section 11 which was passed in their favour by the Rent Control Court. The respondents are the legal heirs of the deceased tenant by name Muhammed Sali. We will be referring to the parties hereinafter as the landlords and the tenants. 2. The landlords sought to evict the tenants on the ground of bona fide need for own R. C. R. No.461 of 2005 -2- occupation and the ground that the tenants have other buildings reasonably sufficient for their requirements in the same city, town or village. Thus, eviction was sought on the ground under section 11(3) and 11(4)(iii) of the Rent Control Act. 3. Even though grounds have been raised challenging the decision to decline eviction on the ground under section 11(4)(iii) which was concurrently declined by the Rent Control Court and the Appellate Authority, on going through the judgment of the Rent Control Appellate Authority and the order of the Rent Control Court, we notice that the finding that the tenant are not liable to be evicted under that ground has been entered on the basis of evidence i.e. oral, documentary and R. C. R. No.461 of 2005 -3- circumstantial, by the Rent Control Court and the Appellate Authority. We are therefore, of the considered view that having regard to the contours of the revisional jurisdiction of this Court under section 20, there is no warrant for upsetting the decision to decline eviction on the ground under section 11(4)(iii). We therefore, are of the view that we need be concerned in this revision only with the landlord's case for eviction on the ground of bona fide need for own occupation. 4. The petition schedule building is a fairly large building situated very close to the municipal bus stand in Kannur town. The need projected by the landlords in the context of the ground under sub section 3 of section 11 was that the landlords want to conduct a super bazaar in Kannur town. R. C. R. No.461 of 2005 -4- The scheduled building is suitable for conduct of a super bazaar. No other super bazaar is there in the locality where the scheduled building is situated. The petitioners require the petition schedule building for starting a super bazaar. The need of the petitioners is highlighted as bona fide, genuine and urgent. 5. Strongly disputing the above need projected in the RCP, the tenants contended through the statement of objections filed by them that the need was bereft of bona fides and that the same is a mere ruse to evict them. Reiterating that the landlords have no need to start a super bazaar in the petition schedule building, it was pointed out that each of the landlords is well settled in life. It was stated that the first R. C. R. No.461 of 2005 -5- petitioner/landlady owns a large number of properties both in Kannur town as well as in her native village; that she has a cinema house and has sufficient income from the cinema house and from her properties. It was contended that the second petitioner/landlord is a medical practitioner having lucrative practice conducting a nursing home by name Moopan's Hospital. It was contended that the third petitioner landlady is married to a specialised medical practitioner who is permanently settled down at Koothuparamba some 50 kilometres away from Kannur. It was also contended that the fourth petitioner/landlady is a person having sufficient other business and source of income including income from properties. It was also contended that the real R. C. R. No.461 of 2005 -6- objective of the petitioners in seeking eviction is to let out the building on higher rent after evicting the tenants. 6. Both sides adduced evidence before the Rent Control Court. On behalf of the landlord/ petitioners the solitary witness was the fourth petitioner in the RCP. On the tenants' side other four witnesses were examined. Documentary evidence on the side of the landlords consisted of Exts.A1 to A16, on the side of the tenant the same consisted of Exts.B1 to B36. The report submitted by the Advocate Commissioner was marked as Ext.C1 and C2 and the sketch plans submitted by him were marked as Exts.C3 to C7. The Rent Control Court on evaluating the evidence came to the conclusion that the landlords were already R. C. R. No.461 of 2005 -7- having several sources of income including income from business, from their respective professions and properties. That court also found that the tenants were also well placed in life since they were also having other sources of income than the restaurant business which is permanently being conducted in the petition schedule building. However, the Rent Control Court did not find anything in evidence to suspect the bona fides of the need projected. According to that court it was only natural that persons who were conducting business successfully and were having income from businesses and professions and from other sources like properties think in terms of augmenting their income by going in for fresh business. The Rent Control Court noticed that the R. C. R. No.461 of 2005 -8- evidence was to the effect that the petitioners/ landlords belong to traditionally business families and with their family background they can be expected to successfully conduct the proposed super bazaar business. Accordingly, it was held that the need projected under section 11(3) was bona fide. Analysing the evidence it was also found that the tenants were unsuccessful in showing that they were entitled for the protection of the second proviso to sub section 3 of section 11. Accordingly, order of eviction was passed against the tenants under sub section 3 of section 11. 7. The tenants preferred appeals to the Rent Control Appellate Authority. The Appellate Authority thoroughly re-appreciated the evidence. R. C. R. No.461 of 2005 -9- An argument which was addressed before the Appellate Authority was that the Rent Control Petition was bad for non-joinder of a necessary party namely legal heir of Mr.Abu who was a joint tenant along with Sri.Mohammed Sali, the predecessor in interest of the respondents in the RCP. The Appellate Authority accepted this argument and held that the RCP was bad for non- joinder of necessary parties. Notwithstanding the above finding, the Appellate Authority went on to consider the merits of the grounds raised in the appeal. The Appellate Authority made a thorough re-appraisal of the evidence. The Appellate Authority noticed that the case projected by the landlords was that they wanted to conduct the proposed super bazaar for the purpose of eking R. C. R. No.461 of 2005 -10- out a livelihood. The Appellate Authority noticed that the finding of the Rent Control Court that most of the landlords/petitioners were already well off in life having several sources of income including business, properties and professions was a finding well founded on evidence. According to the Appellate Authority though there is nothing unnatural or unreasonable in persons with income thinking in terms of augmenting the income, in the present case where the landlord petitioners come to the Rent Control Court with a case that they want to do super bazaar business for sustaining themselves in lives and the evidence reveals that they are having substantial income already it will not be fair and just to order eviction. In other words, the Appellate Authority R. C. R. No.461 of 2005 -11- thought that it was inequitable to order eviction believing the evidence of the landlord which was not rooted in their pleadings or was rather contrary to their pleadings. 8. Under the statutory scheme the final court on facts is the Rent Control Appellate Authority. As already noticed by us, the Rent Control Court itself found on the basis of the evidence that all the landlords were very well placed in lives with several source of income. This finding was quite contrary to their pleaded case. The authorities under the Rent Control Act are expected to take a decision in accordance with the principles of equity, justice and good conscious [see statutory rule 11(8) of the Kerala Buildings (lease and Rent Control) Rules]. We do not find any infirmity R. C. R. No.461 of 2005 -12- about the decision taken by the Appellate Authority applying the equitable principles enshrined in Rule 11(8) of the Statutory Rules. 9. We feel that the Appellate Authority was not justified in finding that the RCP is bad for non- joinder of necessary parties. In fact, such a contention was never specifically taken either in the statement of objections or in the memorandum of appeal. We vacate that finding and hold that the RCP was maintainable in law. 10. We notice another thing. The building in question is situated in a prime commercial area of Kannur Municipal town. According to us, the monthly rent of Rs.200/- which is being paid by the tenants is ridiculously low. It was practically agreed before us that if a building like the petition R. C. R. No.461 of 2005 -13- schedule building is let out today the same will fetch 15 to 20 thousand rupees per mensem. We are also informed that the respondents are doing brisk business in the petition schedule building very profitably. Taking all these aspects into account, we tentatively re-fix the rent payable by the respondents for the building at Rs.15,000/- per mensem with effect from 01/01/10. We make it clear that such re-fixation is tentative and will be subject to regular fixation of fair rent by the Rent Control Court on an application by either of the parties. The result, therefore, is as follows:- 11. The RCR is allowed to the limited extent of vacating finding of the Rent Control Appellate Authority that the RCP is bad for non-joinder of necessary parties. The judgment of the Appellate R. C. R. No.461 of 2005 -14- Authority declining order of eviction is confirmed. Rent payable by the respondent is tentatively re- fixed with effect from 01/01/10 at Rs.15,000/- per mensem. Liberty is given to the revision petitioners to file fresh RCP on all available grounds including the ground under sub section 3 of section 11 if change of circumstances warrant the same. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-