IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 RCRev..No. 19 of 2009 ------------------------- RCA.15/2004 of I ADDL. RENT CONTROL APPELLATE AUTHORITY (1ST ADDL. DISTRICT COURT), KOLLAM O.P.(RCP).3/2003 of RENT CONTROLLER/MUNSIFF COURT, KOTTARAKKARA .................... REVISION PETITIONER/RESPONDENT/PETITIONER -------------------------------------------------------- OMMEN MATHEW, PULAMON VEEDU KIZHAKKEKKARA VILLAGE, KOTTARAKKARA MURI KOTTARAKKARA TALUK. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENT(S)/APPELLANT/RESPONDENT: ------------------------------------------------ DEVADATHAN, S/O.DAMODHARAN, DEVABHAVAN, ASRAMAM CHERRY KOLLAM VILLAGE, KOLLAM TALUK. ADV. SRI.V.VV.RAJAVIJAYARAGHAVAN FOR R1 SRI.R.RANJITH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R No.19 of 2009 ------------------------------------------------ Dated this the 16th day of November, 2010 ORDER Pius C. Kuriakose, J The landlord is the revision petitioner. He challenges in this revision under Section 20 the judgment of the Rent Control Appellate Authority setting aside the order of eviction which was passed by the Rent Control Court in his favour and against the respondent on the ground under sub Section 3 of Section 11. Even though the landlord had invoked the ground of arrears of rent under Section 11(2)(b) also, and the Rent Control Court passed the order of eviction under that ground, it is submitted by both sides that the above ground R. C. R No.19 of 2009 -2- no longer survives as the eviction order passed under Section 11(2)(b) stands vacated in view of the deposits subsequently made. We, therefore, in this revision are concerned only with eviction sought on the ground under sub Section 3 of Section 11. 2. The need projected by the landlord was that the tenanted premises were needed bona fide for the own occupation of himself and his elder son who is an unemployed engineering graduate for starting a hardware shop and trade in electrical motor pumps. It was averred that the landlord is not in possession of any other building for starting the above business. Anticipating the contention from the side of the tenant that he is entitled for the protection of the second proviso it R. C. R No.19 of 2009 -3- was averred in the RCP itself that the tenant owns a multi-storeyed building at Kadappakkada junction and that he does not depend on the income from the demised premises for his livelihood. The tenant resisted the claim. It was contended that the need is not bona fide. It was contended that the RCP is liable to fail by virtue of the first proviso to sub Section 3 of Section 11. The tenant claimed the protection of the second proviso also. The evidence before the Rent Control Court consisted of Exts.A1 to A10, B1 to B6 and oral evidence of PW1 the landlord and CPW.1 to 4. The Rent Control Court on evaluating the evidence came to the conclusion that both the eviction grounds invoked by the landlord stood established in the case. Accordingly, order of eviction was R. C. R No.19 of 2009 -4- passed on both the grounds. The tenant preferred appeal as RCA.15/04. One of the contentions raised by the tenant in the appeal was that as the evidence of the landlord was to the effect that the need is really that of his dependant son, the non- examination of that son is fatal to the claim. The Appellate Authority was not impressed by this ground. But, however, the Appellate Authority on reappraisal of the evidence noticed that the landlord was in possession of two shop rooms in the upstair portion of the petition schedule building. According to the Appellate Authority, the non-disclosure of the availability of the two shop rooms by the landlord in the RCP was mala fide. Appellate Authority noticed that it was only through an affidavit filed in the Appellate R. C. R No.19 of 2009 -5- Authority that the landlord disclosed the availability of the two shop rooms in the upstair portion. Mainly on the reason of the conduct of the landlord in not disclosing the availability of the two rooms in the first floor in the RCP itself the Appellate Authority would conclude that the claim is a mala fide one. The Appellate Authority also noticed that the pleadings in the RCP give room for some confusion as to who is going to occupy the building after eviction is obtained. However, it was found on the basis of the evidence that the really needy person was the son. However, as already indicated the non-examination of the son was found to be not fatal to the landlord's play. The Appellate Authority would re-consider the question whether the tenant is entitled for the R. C. R No.19 of 2009 -6- benefit of the second proviso to sub Section 3 of Section 11. That Authority would reverse the finding of the Rent Control Court in this regard and conclude that the tenant is entitled for the protection. As for the building at Kadappakkada in Kollam Corporation it was found by the Appellate Authority that it was the tenant's mother who owns that building and that the business conducted in that building also stood in the name of the mother. In that view of the matter, the Appellate Authority concluded that the rental and business income from the Kollam building cannot be taken into account at all for the purpose of deciding the source of livelihood for the tenant. The Appellate Authority accordingly, allowed the appeal and dismissed the RCP. R. C. R No.19 of 2009 -7- 3. In this revision under Section 20 various grounds have been raised assailing the judgment of the Appellate Authority and it was very extensive arguments which were addressed by Sri.G.Ram Mohan, the learned counsel for the revision petitioner and Sri.Rajavijayaraghavan, the learned counsel for the respondent. While Sri.Ram Mohan assailed the judgment of the Appellate Authority on the various grounds raised in this revision memo, Sri.Raja would support the impugned judgment on the various reasons stated in the same. According to Sri.Ram Mohan, the judgment of the Appellate Authority is vitiated by illegalities, irregularities and improprieties. But according to Sri.Raja limits of the jurisdiction under Section 20 stood in the way of our invoking R. C. R No.19 of 2009 -8- revisional jurisdiction for correcting the impugned judgment. 4. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the order of the Rent Control Court and we have scanned the judgment of the Appellate Authority. One of the arguments which was addressed before the Appellate Authority on behalf of the tenant was that in the present case where it has become evident that it was the son of the landlord who was going to occupy the building after obtaining eviction, the non-examination of the son as a witness is fatal. We are surprised to find that the above argument did not find favour with the Appellate Authority. We feel that in the present case where it has become evident that it R. C. R No.19 of 2009 -9- is the son of the landlord who is going to occupy the building and conduct business therein after obtaining eviction should have given evidence for manifesting the genuineness of his decision to occupy the building and conduct business in the building. We are equally surprised to notice that the Appellate Authority which was not impressed by that strong argument raised by the tenant has over emphasized the conduct of the landlord in not disclosing the availability of two rooms in the first floor of the demised premises. According to us in the nature of the business proposed to be conducted, the non-disclosure of the availability of two rooms in the first floor ought not have been viewed this seriously by the Appellate Authority. It is a hardware business which is proposed to be R. C. R No.19 of 2009 -10- conducted in the petition schedule building. It goes without saying that for conducting such a business ground floor premises will be ideal and first floor premises will be practically unsuitable. 5. We find it very difficult to approve the view of the learned Appellate Authority that the rental and business income from the building at Kollam cannot be reckoned with at all for considering the question whether the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11. True, the building at Kollam may be standing in the name of the mother of the tenant. True, the business at Kollam also may be standing in the name of the mother. But the fact remains that the tenant is the only son of the mother and that the mother and the R. C. R No.19 of 2009 -11- son are residing together sharing the same house and mess. While considering the first ingredient of the second proviso to sub Section 3 of Section 11, the consideration is only whether the tenant is depending mainly on the income which he derives from the scheduled premises for his livelihood. The emphasis of the statute is on the source of income and not upon the ownership of the sources. Under Indian social conditions where the mother and her only son are residing together and when it is shown that the mother has rental and business income of her own the initial presumption to be drawn is that the income of the mother is pooled with the income of the son and the mother and the son depend for livelihood on the income of each other. We feel that in this R. C. R No.19 of 2009 -12- case, cogent evidence should have been adduced by the tenant to show that his mother is appropriating the entire income from Kollam and that the son does not depend for his livelihood at all on that income. On the whole, we are of the view that the judgment of the Appellate Authority is unsatisfactory. According to us, the issue should be re-considered by the Rent Control Court. We are hence, inclined to pass an order of remand. 6. Result of the above discussion is that the RCR is allowed. Order of the Rent Control Court and the judgment of the Appellate Authority are set aside. The RCP is remanded to the Rent Control Court. The findings entered by the Appellate Authority under the provisos 1 and 2 of sub Section 3 of Section 11 are also satisfied. If R. C. R No.19 of 2009 -13- the landlord is desirous of amending pleadings, the Rent Control Court will consider application in that regard filed by the landlord. If the RCP is amended, tenant will be afforded opportunity to raise counter pleadings. The Rent Control Court will afford opportunity to both sides to adduce further evidence and take a fresh decision on the evidence already on record and evidence to be adduced further. 7. We notice another aspect of the matter. The monthly rent which is presently being paid by the revision petitioner is Rs.4,600/-. According to us, the same is far below the rent which the building may fetch, if let out today. We, therefore, re-fix the rent payable by the respondent tentatively with effect from 01/12/10 at R. C. R No.19 of 2009 -14- Rs.8,000/- per mensem. We make it clear that it is open to both sides to move the Rent Control Court for regular fixation of fair rent under Section 5. Till such time as fair rent is fixed respondent shall pay rent at the rate of Rs.8,000/- per mensem. 8. Sri.G.Ram Mohan complained that the tenant is a chronic defaulter in the matter of payment of rent. According to him, the rent which fell due subsequently, during the pendency of the proceedings is kept in arrears. We make it clear that Section 12 of Act 2 of 1965 is always available to the landlord. 9. We set a time frame of four months of the parties entering appearance before the Rent Control Court for final disposal of the RCP. The R. C. R No.19 of 2009 -15- parties will enter appearance before the Rent Control Court on 10/12/10. Transmit the LCR forthwith to the Rent Control Court. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/- The word “satisfied” occurring in line 7 of paragraph 6 at page 12 of the Final Order dated 16/11/2010 in R.C.R.19/09 is corrected as “set aside”, as per order dated 08/12/10 in I.A.3039/10 in R.C.R.19/2009. Sd/-Registrar (Judicial)