IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 RCRev..No. 139 of 2003() ------------------------ (RCA.88/1994 OF THE RENT CONTROL APPELLATE AUTHORITY (PRL.DISTRICT COURT,) THALASSERY RCP.166/1992 OF RENT CONTROLLER (MUNSIFF COURT), THALASSERY ) .................... REVISION PETITIONERS/RESPONDENTS 4 TO 9 -------------------------------------------------- 1. ILLIKKAL KALATHIL SUHARA, D/O.KADEESSU, MEHARBAN, PALISSERI, THALASSERY AMSOM, VADIKKAKAM DESOM, P.O.THALASSERY, DISTRICT KANNUR. 2. DO. ABIDA, DO. DO. 3. DO. SEENATH, DO. DO. 4. DO. ISMAIL, S/O. KADEESSU, DO. 5. DO. RUKSANA D/O. KADEESSU, DO. 6. DO. THASEERA, DO. DO. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID SMT.NAMITHA JYOTHISH RESPONDENT(S): APPELLANTS/RESPONDENTS ------------------------------------- 1. KIZHAKKAYIL SUHARA, D/O. MAYAN, SHABINA MANZIL, S.S.ROAD, CHIRAKKARA, THALASSERY. 2. DO. AMINA D/O. SUHARA, DO. 3. DO. AYISHA, DO. DO. 4. DO. HAJIRA, DO. DO. 5. DO. SUBAIDA, DO. DO. 6. DO. SHABINA, DO. DO. 7. DO. NAJMUDEEN, S/O. SUHARA, DO. 8. DO. NASSAR, DO. DO. ADV. SRI.P.S.USUPH FOR R1,2,3,5 & 6 SRI.P.U.ZIYAD FOR R1,2,3,5, & 6 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R..No. 139 OF 2003 ------------------------ Dated this the 30th day of October, 2009 O R D E R Pius C.Kuriakose, J. Under challenge in this revision petition filed under Section 20 of Act 2 of 1965 by the landlords is the judgment of the Rent Control Appellate Authority dismissing the petition filed by them on the ground of bona fide own occupation on the reason that the first proviso to sub section (3) of Section 11 applies and, therefore, order of eviction cannot be passed despite the finding that the need is bona fide. The litigation has had a chequered career. In the first instance the Rent Control Court found that the need is bona fide and that the same is not hit by any of the provisos to sub section (3) of Section 11. Accordingly, order of eviction was passed against the respondents under Sub Section (3) of Section 11. The tenants carried the matter in appeal before the Appellate Authority. The Appellate Authority concurred with all the conclusions of the Rent Control Court and dismissed the appeal. The tenants did not leave the battle RCR.No.139/2003 2 there. They filed a revision before this court and this court also concurred with the Rent Control Court and the Appellate Authority and dismissed the revision. The tenants preferred a civil appeal to the Supreme Court. One of the questions which came up for consideration by the Supreme Court was whether the daughter of the landlords Smt.Suhara, for whose need eviction was sought for under sub section (3) of Section 11, was a dependent of the landlords. The Supreme Court did not permit the tenants to urge that the daughter was not dependent of the landlords on the ground that such a plea was never urged before the trial court, the Appellate Authority or even the High Court. Thus the Supreme Court concluded that the daughter of the landlords Smt.Suhara was a dependent of the landlords/petitioners. Yet another point, which was seriously urged before the Supreme Court and considered by that court, was that the Rent Control Petition was liable to be fail by virtue of the first proviso to sub section (3) of Section 11 of the Act. The Supreme Court did not become inclined to entertain this argument also in view of the reason that such an argument was never urged before the Authorities and the Courts below. The RCR.No.139/2003 3 only question, which survived before the Supreme Court, was whether the need was bona fide. The Supreme Court did not specifically set aside the finding of the Authorities below that the need of the landlords was bona fide. But the Supreme Court observed that in the present case where the need was for the occupation of the dependent daughter it had to be examined whether on the facts of the present case where the landlords' daughter and son in law who were shown to be owning residential as well as non residential buildings, the need of such a dependent daughter was bona fide. The Supreme Court relegated the matter to the Rent Control Appellate Authority giving opportunity to both sides for adducing the question whether the need of the dependent family member (married daughter), who owned residential and non residential building, to occupy the petition schedule building was bona fide. Before the Rent Control Appellate Authority neither side adduced further evidence after remand. The Appellate Authority under the impugned judgment found that the point which arises for consideration is - can the respondents be said to need the building bona fide if it is meant for the own occupation of their RCR.No.139/2003 4 dependent married daughter who owns residential and non residential buildings. But thereafter, the Appellate Authority formulated three sub points for deciding the above formulated point. i). Whether the claim of own occupation raised is bona fide. ii). Whether dependent married daughter can be termed to be a dependent as contemplated under Section 11(3) of the Act. Iii). Whether the landlords are entitled to get an order of eviction by virtue of first proviso to section 11 (3). According to us, sub points 2 and 3 formulated by the learned Appellate Authority in the impugned judgment were absolutely unwarranted in view of the judgment of the Supreme Court. 2. We have heard the submissions of Sri.C.Khalid, (assisted by Sri.T.P.Sajid) learned counsel for the revision petitioners and those of Sri. P.U.Ziyad Learned counsel for the respondents. We have made a quick survey of the evidence on record and we have scanned the impugned judgment as well as the order of the RCR.No.139/2003 5 Supreme Court pursuant to which the Rent Control Appellate Authority came to reconsider the appeal. 3. It can be discerned from the order of the Supreme Court that it was on the basis of the oral evidence given by PW1 in cross examination, that his daughter Suhara owns buildings at Muzhappilangad and Dharmadam and also near to the Thalassery Bishop House, that the court came to feel that Suhara, the married daughter of the landlords, owned and possessed buildings of her own. But a careful scanning of PW1 testimony will show that it was not admitted by the landlords that the buildings owned by Smt.Suhara were in her possession. Of course this is an aspect which could have been got clarified in re- examination by the counsel for the landlords who examined PW1 in chief. The one issue, which came up for serious discussion at the Bar before us, is whether at any relevant point of time Smt.Suhara daughter of the landlords or her husband possessed any building belonging to her. In order to settle this controversy once and for all, we directed the respondents to produce before us certified copy of the Property Tax Assessment Register maintained by the local authority in respect of the various RCR.No.139/2003 6 buildings allegedly owned by Smt.Suhara or her husband. keeping in mind Section 26 of the Act 2 of 1965, which provides that certified copies of the Property Tax Assessment Register issued by the Local Authority shall be received as evidence of the facts recorded therein. Pursuant to that direction, certified copies of the Property Tax Assessment Register showing the buildings having Door Nos.10/536, 10/531, 10/533, 10/534 and 10/535 pertain to the years 1990 – 1 to 1994 – 95 are produced before us. Interestingly, the ownership of those buildings continue to be with one Illikkal Kalathil Suhara, the original Rent Control Petitioner. What is important is that the respondents were not able to produce before us the Property Tax Assessment Register pertaining to any building belonging to Smt.Suhara for proving the allegation that Suhara is possessed of any vacant building belonging to her. Sri.P.U.Ziyad, learned counsel for the respondents submitted that when it is admitted that Suhara herself owns buildings even if those buildings are under possession of tenants, Smt.Suhara is to seek eviction of those tenants rather than persuading her mother to file eviction petition against the tenants in occupation of the buildings RCR.No.139/2003 7 belonging to the mother. We are unable to accept this argument in view of the finality attained by the findings of the Hon'ble Supreme Court that the Rent Control Petition is maintainable since Suhara is a dependent of the landlords. 4. It is unfortunate that the Rent Control Appellate Authority while conducting the enquiry pursuant to the judgment of the Supreme Court did not keep itself within the confines of the remand judgment passed by that court. The scope of the remand judgment was only to enquire whether the need projected in the RCP, which was in fact the need of Smt.Suhara (dependent daughter) could be said to be bona fide in view of Smt.Suhara or her husband owning or possessing buildings. It has become clearly evident that neither Smt.Suhara nor her husband possessed any building anywhere in the town or village. The buildings owned by Smt.Suhara were under the possession of the tenant. 5. The result of the above discussion is that the the impugned judgment is set aside and order of eviction is passed against the respondents under sub Section (3) of Section 11. However, considering the last plea of Sri.P.U.Ziyad, that the RCR.No.139/2003 8 respondent is an old lady doing business in the petition schedule building and she may be granted a reasonable time for surrendering the premises, we are inclined to direct the Execution Court not to order eviction till 31/3/2010 subject to the following conditions; The respondents shall file an affidavit before the Execution Court or the Rent Control Court, as the case may be within one month from today undertaking to give peaceful surrender of the petition schedule building to the revision petitioners on or before 31/3/2010. The respondents shall also undertake through the same affidavit that the arrears of rent, if any will be discharged within one month and will continue to pay occupational charges at the current rent rates as and when the same falls due till they make actual surrender. RCR.No.139/2003 9 It is made clear that the respondents will get the benefit of time granted under this judgment only if the affidavit is filed on time. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk