IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 RCRev..No. 200 of 2009() ------------------------ RCA.27/2008 OF RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM RCOP.55/2004 OF RENT CONTROL COURT, KOTTAYAM .................... REVN.PETITIONER/APPELLANT --------------------------------------------- A.C.JOSEPH, AGED 59 YEARS, S/O.CHERIYAN, MANIAMKERI HOUSE, LICENSEE RATION SHOP NO.96, CHAMAPPALLIL BUILDINGS, MUTTAMBALAM KARA AND VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): RESPONDENTS -------------------------- 1. LALITHAMMA GEORGE, AGED 59 YEARS, CHAMAPPALLIL HOUSE, MUTTAMBALAM KARA & VILLAGE, KOTTAYAM TALUK. 2. ANILA GEORGE, -DO- -DO- 3. SUNILA GEORGE, -DO- -DO- 4. PRAMILA GEORGE, AGED 30 YEARS, -DO- -DO- 5. ANISH GEORGE, AGED 28 YEARS, -DO- -DO- ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 SRI.SAJU JOHN FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ RCR. No. 200 of 2009 ------------------------------------------- Dated this the 23rd day of September, 2009 O R D E R Pius C. Kuriakose, J. This revision petition under Section 20 of Act 2 of 1965 filed by the tenant who was appellant in RCA. No. 27 of 2006 before the Rent Control Appellate Authority, Kottayam and the respondent in RCP. No. 55 of 2004 of the Rent Control Court, Kottayam, arises out of common judgment in RCA Nos. 27 and 37 of 2006. RCA. No. 37 of 2006 arose out of the order of the Rent Control Court, Kottayam in RCP. No. 53 of 2004. The parties will be referred to for sake of convenience as landlord and tenant. 2. The need of the landlord as alleged was that he needs the buildings which were subject matter of the two rent control petitions for the purpose of providing accommodation to his widowed (divorcee) daughter Sunila George who was residing along with him and was RCR. 200 of 2009 - 2 - dependent on him for the purpose of commencing the conduct of a Beauty Parlour and Lady Store. It was contended by the tenants that the rent control petitions are barred by the principles of res judicata as envisaged by Section 15 of Act 2 of 1965. It was pointed out that RCP. Nos. 10 of 1992 and 11 of 1992 had been filed by the landlord earlier on the ground that the two rooms were needed for the landlord's own occupation, but eventually dismissed by the Rent Control Court. Apart from that, it was also contended that after the earlier RCP was instituted, the landlord had constructed two storeys more in the petition schedule building and had thereby converted the building as a three storeyed building with several rooms in the upstairs. It was contended that if the landlord's daughter wanted to start Beauty Parlour or Ladies Store any of the rooms which were in the possession of the landlord in the upstairs could have been made use of. The bonafides of the need and the claim were disputed and it was contended RCR. 200 of 2009 - 3 - that the petitioner's daughter had employment and had other sources of income. It was also contended that the place where the petition schedule building is situated is not suitable for starting Beauty Parlour as the same was a commercial area. Alternatively the tenant claimed the protection of the second proviso to sub-section (3) of Section 11 of Act 2 of 1965. 3. The evidence at trial by the Rent Control Court consisted of Exts.A1 to A5 and the oral evidence of PW1 and PW2 on the side of the landlord while the same consisted of Ext.B1 and the oral evidence of CPW1, tenant on the side of the tenant. It became evident that the landlord's daughter PW2 was a divorcee who had some experience as a beautician and that she is presently without any independent source of income of her own. The Rent Control Court on evaluating the evidence and on considering the rival contentions raised would come to the conclusion that the need projected by the landlord was a bona fide one, that RCR. 200 of 2009 - 4 - in the nature of the business and activity proposed to be done by the landlord's daughter, a divorcee, the landlord was justified in insisting the petition schedule room and the room which was subject matter of the other rent control petitions which were in the ground floor with immediate frontage of the road. It was also found that the tenant did not adduce any evidence to prove that he is depending mainly for his sustenance on the income derived from the business carried on by him in the petition schedule building. It was also found that he was unsuccessful in proving that other suitable buildings are not available in the locality. Thus it was held that the tenant is not entitled for the protection of the second proviso to sub-section (3) of Section 11. Accordingly eviction was ordered under Section 11(3). Before the Rent Control Court the two rent control petitions were tried separately and were allowed by separate orders. But the Appellate Authority considered the appeal preferred by the tenants simultaneously and by the RCR. 200 of 2009 - 5 - impugned common judgment dismissed both of the appeals. The Appellate Authority made a reappraisal of the evidence in both the cases and concurred with all the conclusions of the Rent Control Court. Impugning the judgment of the Appellate Authority on the various grounds raised in the memorandum of revision the tenant has filed the present revision petition. 4. Sri.Vinod Madhavan, learned counsel for the revision petitioner addressed us very strenuously when the RCR came up for admission. However, having regard to the contours of this Court's revisional jurisdiction under Section 20 we were not persuaded to admit the revision petition. Mr.Vinod Madhavan, however, asserted referring to paragraph 7 of the judgment of the Appellate Authority that the residential apartment situated just behind the petition schedule building continues to be under the vacant possession of the landlord. Since the impression which we gathered on reading the judgment was otherwise, we RCR. 200 of 2009 - 6 - requested the learned counsel on 8-9-09 to seek instructions from his party specifically as to whether the above residential apartment is under the vacant possession of the landlord and posted the case to 9-9-09. On 9-9-09 Mr.Vinod Madhavan submitted after seeking instructions from his party that it is after the disposal of the rent control petition that the above residential apartment, which according to him was also suitable for conduct of Beauty Parlour, was let out by the landlord to the present occupant. Accordingly we issued notice to the landlord by special messenger for answering the question as to whether the building referred to in paragraph 7 of the judgment of the Appellate Authority as residential apartment situated behind the petition schedule building was let out to the present tenant. It was also ordered that in the meanwhile, the proceedings for delivery of the building to the landlord should be deferred. On receiving notice, the landlord entered appearance through Advocate Saju John. It was RCR. 200 of 2009 - 7 - submitted by Mr.Vinod Madhavan that though it is true that the apartment just behind the petition schedule building is presently occupied by one Anilkumar, the letting in favour of Sri.Anilkumar, the present tenant was only in February, 2008 (at the time when the rent control appeal was pending). Sri.Saju John submitted that even in November, 2004 when the rent control petition was instituted, the above apartment was in the possession of another tenant by name of Smt.Meenu Mary Cyriac and that Sri.Anilkumar came into occupation on the basis of an arrangement between him and Smt.Meenu Mary Cyriac. Accordingly, by order dated 15-9-09 we directed Sri.Saju John to make available for perusal any document which will reveal that in November, 2004 the apartment just behind the petition schedule building was in the possession of a tenant. Today, Sri.Saju John has made available for our perusal the original of the lease deed executed by Smt. Meenu Mary Cyriac on 1st September, 2004 and we are convinced there from that RCR. 200 of 2009 - 8 - at the time of commencement of the rent control proceedings the the above apartment situated just behind the petition schedule premises was under the occupation of another tenant. 5. On going through the impugned judgment of the Rent Control Appellate Authority and the order of the Rent Control Court which was confirmed by the judgment of the Appellate Authority we notice that all the contentions raised by the revision petitioner found properly considered and decided by those authorities. The bar under section 15 of the Rent Control Act will not apply to the present case since in the earlier rent control petitions the need which was projected by the landlord was an entirely different one, his own need to have an office for himself as agent of LIC of India. But the need projected in the present rent control petition is the need to provide accommodation for his divorced daughter. The circumstances had changed considerably during the period between the disposal of the RCR. 200 of 2009 - 9 - previous rent control petitions and the institution of the present rent control petitions. The oral evidence adduced by the landlord as PW1 and that of his dependent daughter as PW2 inspired confidence in the minds of the two fact finding authorities under the Rent Control Act, viz., the Rent Control Court and the Appellate Authority. In fact, before the Appellate Authority which is the final court on facts under the statutory scheme, the bonafides of the need was not even challenged. Stress was given to the contention that the present proceedings are barred under section 15, that the RCP is liable to fail by virtue of the first proviso to sub-section (3) of Section 11 and also by virtue of the second proviso to sub-section (3) of Section 11. It has come out in evidence that the petition schedule premises situated as they are in the ground floor enjoying direct frontage are ideal for the business proposed by the landlord and his daughter. It also became evident in the case that the tenant was unsuccessful in proving that he satisfies RCR. 200 of 2009 - 10 - either of the ingredients of the second proviso to sub- section (3) that he is depending for his livelihood mainly on the income derived from the business carried on in the building and that other suitable buildings are not available in the locality for him to carry out business. This being the position, we are unable to say that the judgment of the Rent Control Appellate Authority is vitiated by any illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction under section 20. 6. The revision petition is liable to fail and we dismiss the same without any order as to costs. However, in view of request of Mr.Vinod Madhavan that time be granted at least till 30-6-2010 to the revision petitioner to surrender the premises (the request was very stiffly opposed by Mr.Saju John) we are inclined to grant time to the revision petitioner to surrender the premises till 30-6-2010 subject to the following conditions: The revision petitioner shall file an affidavit before the RCR. 200 of 2009 - 11 - execution court or the rent control court as the case may be, undertaking to peacefully surrender the petition schedule premises to the respondent landlord on or before 30-6-2010 and also to discharge the entire arrears of rent which has fallen due in respect of the building within two months from today and undertaking to pay occupational charges at the current rent rate as and when the same falls due till such time the actual surrender is made. It is made clear that the revision petitioner will be entitled for the benefit of the time granted under this order only if the above conditions are complied with. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-