IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 RCRev..No. 304 of 2009(B) ------------------------------ RCA.45/2008 of ADDL. RENT CONTROL APPELLATE AUTHORITY-I, TRIVANDRUM RCP.5/2008 of PRL.MUNSIFF COURT,NEDUMANGAD .................... REVISION PETITIONER/RESPONDENT/RESPONDENT --------------------------------------------------------- S.M.SALIM, S/O. SHAHUL HAMEED, SMS HOUSE, KOPPAM, THOLIKODE VILLAGE VITHURA PO, NEDUMANGAD. BY ADV. SRI.LATHEESH SEBASTIAN SRI.M.FATHAHUDEEN RESPONDENT(S)/APPELLANT/PETITIONER: ----------------------------------------------- KAMALUDEEN, S/O.SHAMSUDEEN BARKATH MANZIL, PERINGAMMALA PO, NEDUMANGAD THIRUVANANTHAPURAM. ADV. SRI.MILLU DANDAPANI SRI.MILLU DANDAPANI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/11/2010, ALONG WITH RCR NO.1 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.304 of 2009 & R. C. R. No.1 of 2010 ------------------------------------------------ Dated this the 8th day of November, 2010 ORDER Pius C. Kuriakose, J The tenant is the revision petitioner in both these revisions. He challenges the common judgment of the Rent Control Appellate Authority, Thiruvananthapuram under which the tenant's appeal was dismissed and the landlord's appeal was allowed. The landlord sought to evict the tenant on the ground of arrears of rent and the ground of bona fide need for own occupation. As for the ground of arrears of rent, eviction order has been passed concurrently by the Rent Control Court and the Appellate Authority and it was R. C. R. Nos.304/2009 & 1 of 2010 -2- agreed to at the Bar that it will suffice if time is given for getting that order formally vacated under Section 11(2)(c) as almost the entire arrears of rent is already discharged. In view of that stand, we confirm the order of eviction passed under Section 11(2)(b) giving to the petitioner/tenant six weeks time from today to make further deposits, if necessary, and to file application under Section 11(2)(c). 2. The need which was projected by the landlord who is none other than the co-brother of the revision petitioner/tenant under sub Section 3 of Section 11 is that he who was all long employed in a gulf country has retired from his job and has come back to Nedumangad, his home town and needs to conduct business in footwear in R. C. R. Nos.304/2009 & 1 of 2010 -3- the petition schedule building. Refuting the above need, it was contended by the tenant that the need is not bona fide; that the Rent Control Petition is instituted as a result of estranged relationship between the parties and the filing of a suit before the local Munsiff's Court by the tenant seeking an injunction against the landlord against forcible eviction. It was also pointed out that on 12/01/05 there was a fire in the petition schedule building resulting from electric short circuit as a result of which the petition schedule building got extensively damaged. The building was thoroughly renovated by the tenant expending huge amounts. No objection whatsoever was raised by the landlord when the tenant carried out the renovation of the building. If the need was R. C. R. Nos.304/2009 & 1 of 2010 -4- genuine, the landlord would have objected. It was also contended that the RCP is not maintainable as it was averred in the RCP that the tenant was not a building tenant but was only a trespasser. It was also contended that at any rate, the tenant is entitled to the protection of the 2nd proviso to sub Section 3 of Section 11. The Rent Control Court conducted enquiry and in the enquiry, landlord got himself examined as PW1 and the tenant was examined as CPW1. Apart from that, the evidence consisted of the oral evidence of CPW2, a witness on the side of the tenant and document Exts.A1 to A4(b) and B1 to B7 and C1 Commission Report. 3. The Rent Control Court on appreciating the evidence, came to the conclusion that the bona fides of the need did not stand established by the R. C. R. Nos.304/2009 & 1 of 2010 -5- oral evidence of PW1. The Rent Control Court doubted the bona fides but held that the tenant was unsuccessful in showing that he satisfies the ingredients of the second proviso. However, on the reason that the bona fides was not established the eviction sought for under Section 11(3) was declined and eviction was ordered only under Section 11(2)(b). The landlord preferred appeal against the order of the Rent Control Court declining eviction under Section 11(3) and the tenant preferred appeal against the order granting eviction under Section 11(2)(b). The Appellate Authority considered both the appeals together, made a thorough re-appraisal of the evidence. The Appellate Authority would conclude in reversal of the finding of the Rent Control Court that the need R. C. R. Nos.304/2009 & 1 of 2010 -6- is bona fide. The Appellate Authority concurred with the finding of the Rent Control Court regarding the tenant's eligibility for the protection of the second proviso. The Appellate Authority did not find any reason to interfere with the decision of the Rent Control Court on the ground of arrears of rent. The Appellate Authority, accordingly, allowed the landlord's appeal and dismissed the tenant's appeal by the impugned common judgment. 4. In these revisions, various grounds have been raised assailing the judgment of the Appellate Authority and we have heard the submissions of Sri.N.Sukumaran, learned senior counsel for the revision petitioner and those of the learned counsel for the respondent. R. C. R. Nos.304/2009 & 1 of 2010 -7- Sri.Sukumaran would submit that the Rent Control Appellate Authority was not at all justified in reversing the finding of the Rent Control Court, the trial court which had the advantage of seeing the witnesses and recording their testimonies that the bona fides of the need projected was doubtful. At the outset, the learned senior counsel submitted that the very fact that the landlord has described the petitioner as a trespasser and the circumstance that the tenant had to approach the civil court for an injunction for preventing forcible eviction by the landlord will show that the landlord was determined to evict the tenant by hook or by crook. It is only when the attempt of the landlord to evict forcibly failed, that the landlord instituted the RCP projecting a need under Section 11(3) R. C. R. Nos.304/2009 & 1 of 2010 -8- which is not genuine. The learned senior counsel submitted that when the building was extensively damaged in the fire which occurred in the building on 12/01/05, the tenant renovated the building substantially expending very huge amount. Going by the case of the landlord even at that time he was harbouring the need in his mind to occupy the building for own occupation. If it were so, the landlord would not have permitted the tenant to carry out extensive renovation of the building. According to Sri.Sukumaran, the finding of the Appellate Authority that the need is bona fide is illegal and improper as such a finding has been entered ignoring clinching circumstances brought out in evidence showing that the need projected is not bona fide, but is only an artificial need for R. C. R. Nos.304/2009 & 1 of 2010 -9- obtaining eviction. Sri.Sukumaran would assail the finding of the statutory authorities regarding the tenant's eligibility for protection of the second proviso also. He submitted that out of the 3.5 acres of rubber plantation owned by the tenant, over one acre, the tenant's parents from whom the tenant got the plantation are having life estate. The balance portion is under re-plantation and there is practically no income. The learned senior counsel submitted that there is no evidence to show that other buildings are available in the locality for the shifting of the Medical Shop which is being conducted in the petition schedule building. In Ext.C1 the Commissioner has clearly reported that there are no suitable buildings in the locality to which the business of the tenant can be R. C. R. Nos.304/2009 & 1 of 2010 -10- shifted. 5. All the submissions of Sri.Sukumaran were very stiffly opposed by the learned counsel for the respondent. According to the learned counsel for the respondent, the learned Appellate Authority is, under the statutory scheme, the final court on facts and this Court in revision is not expected to enter findings of fact by appreciating the evidence. The learned counsel also submitted that the evidence of PW1 is quite convincing and that despite searching cross examination nothing was brought out to doubt the veracity of PW1. Regarding the second proviso to sub Section 3, the learned counsel submitted that both the ingredients of the proviso are in the conjunctive and it is the tenant's burden to show by adducing R. C. R. Nos.304/2009 & 1 of 2010 -11- satisfactory evidence that both the ingredients are satisfied in his favour. 6. We have very anxiously considered the rival submissions addressed at the Bar. We cannot accept the submission of the learned counsel for the respondent that in the present jurisdiction under Section 20, this Court is not entitled to re- appraise the evidence at all. According to us, when the findings are divergent, it will become necessary to make a re-appraisal or at least a survey of the entire evidence on record as in such situation, the enquiry will be whether the Appellate Authority was justified in reversing the finding entered by the Rent Control Court on the available evidence. We have therefore, made a quick survey of the entire evidence on record. R. C. R. Nos.304/2009 & 1 of 2010 -12- 7. The all important question which arises is whether the finding by the Appellate Authority that the need projected by the landlord under sub Section 3 of Section 11 is a bona fide one warrants interference. We are of the considered view that the above question has to be answered in the negative. Bona fides is a state of mind which is normally to be manifested by the needy party by adducing oral evidence. For substantiating the case of PW1, the landlord has given convincing oral evidence. Despite cross examination, his testimony in chief examination that he has come back for good and wants to start footwear business was not shaken. He demonstrated by producing the original of the passport before the Appellate Authority that he has no present intention to go back to the country R. C. R. Nos.304/2009 & 1 of 2010 -13- where he was previously working. As rightly noticed by the Appellate Authority once there is nothing in the evidence to show that the Rent Control Petition is actuated by oblique motives or intention to deceive, the need of a retired man who was all along working in a foreign country and has come back for good to his home town to do some business of his own in his own building is presumed to be a bona fide one. We also feel that in the circumstances obtaining in this case there was justification for presuming the need to be bona fide. The circumstances highlighted by Sri.Sukumaran in his submissions, according to us, will not indicate that the need is a ruse. The suit for injunction, it is understood, was filed by the tenant when there was an attempt by the landlord to evict the tenant other than through R. C. R. Nos.304/2009 & 1 of 2010 -14- due process of law. This Court had occasion to hold that just because a landlord exerted some force on the tenant to get eviction prior to his commencing the Rent Control Proceedings, it cannot be held that the need which the landlord has projected in the Rent Control Proceedings is not bona fide. The exertion of force may have been indicative of the urgency of a genuine need. We are not impressed by the submission of the learned senior counsel for the revision petitioner that as the landlord has described the tenant as an encroacher even in the Rent Control Petition, the RCP should be found to be not maintainable. This is a case where the tenant constantly maintained that his jural status in the building is that of a tenant. The landlord also after describing the tenant as an encroacher approached the Rent R. C. R. Nos.304/2009 & 1 of 2010 -15- Control Court invoking Section 11 of Act 2 of 1965. The very action of the landlord in seeking relief from the Rent Control Court amounts to clear admission by the landlord regarding the jural status of the tenant as a tenant is governed by Act 2 of 1965. The finding that the tenant is not entitled for the protection of the second proviso is a finding concurrently entered by the Rent Control Court and the Appellate Authority. Admittedly, the tenant owns 3.5 acres of Rubber Plantation. We do not find any convincing evidence to support the argument of the learned senior counsel that income from 1 acre is taken by the parents of the tenant and that there is no income at all from the balance 2.5 acres of rubber plantation over which the parents of the tenant are not having any life estate. Interestingly, the tenant never wanted the R. C. R. Nos.304/2009 & 1 of 2010 -16- Commissioner to visit that portion of the Rubber Plantation. Even though the Appellate Authority has not discussed the second ingredient of the second proviso we notice that the Rent Control Court found even that ingredient against the tenant. We do not find any illegality, irregularity or impropriety as envisaged under Section 20 of Act 2 of 1965 on the above finding. The revisions, necessarily have to fail and will stand dismissed. 8. As a last plea Sri.Sukumaran requested that at least 18 months' time be granted as according to him, it will be very difficult for the tenant to identify a suitable building for shifting the medical shop business conducted by the petitioner. The above request was very stiffly opposed by the learned counsel for the respondent. However, we feel that on the totality R. C. R. Nos.304/2009 & 1 of 2010 -17- of the circumstances attending on this case, there is justification for granting an unusually long period of time to the revision petitioner, subject to certain conditions. Accordingly, even as we dismiss the RCRs, we direct the execution court to keep all proceedings for delivery in abeyance till 31st December, 2011 subject to the following conditions:- The revision petitioner shall file an affidavit within three weeks from today before the Rent Control Court or the execution court, as the case may be, undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 31st December, 2011 and undertaking further that he will pay occupational charges to the respondent with effect from 01/12/10 at the rate of Rs.1,250/- per mensem without fail. We R. C. R. Nos.304/2009 & 1 of 2010 -18- make it clear that the revision petitioner will get the benefit of time as granted above only if the affidavit is filed on time and the undertakings in the affidavit are honoured. As for the eviction order passed under Section 11(2)(b), we grant the revision petitioner six weeks' time from today for getting the same vacated under Section 11(2)(c). PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-