IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 CRP.No. 526 of 2002(E) ---------------------- RCA.6/1996 of II ADDL. DISTRICT COURT, KOLLAM RCOP.1/1995 of MUNSIFF COURT, KOTTARAKKARA .................... REVN. PETITIONER(S): RESPONDENTS/PETITIONERS. --------------------------------------------- 1. RAMASWAMY, S/O. PONNAYYAN CHETTIYAR, RAM BHAVANIL, VALAKODE VILLAGE, VALAKODE MURI, PUNALUR. 2. JAYAGOURI, D/O.VALLIYAMMMAL, RAM BHAVANIL, VALAKODE VILLAGE, VALAKODE MURI, PUNALUR. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): APPELLANT/COUNTER PETITIONER. -------------------------------------------- P.N.SAGAR, SEENA MANZIL, HIGH SCHOOL WARD, VALAKODE VILLAGE, PUNALUR. ADV. SRI.T.RAJESH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/03/2009, ALONG WITH CRP NO. 1901 OF 2002 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ C.R.P. Nos.526 & 1901 of 2002 ------------------------ Dated this the 3rd day of March, 2009 ORDER Pius C.Kuriakose, J. C.R.P.No.526/2002 is filed by the landlords and C.R.P.No.1901/2002 is filed by the tenant. The landlords filed R.C.P.No.1/93 before the Rent Control Court, Punalur for evicting the tenant invoking the grounds under sub Section 3 of Section 11 of the Act 2 of 1965. On a petition filed by the tenant before this court, RC.P. was transferred to the Rent Control Court Kottarakkara and renumbered before that court as RCP No.1/95. The need projected by the landlords was that, for making improvements in the functioning of the cinema theatre owned by the landlords which is situated in the adjacent property by constructing garages/parking places and refreshment stall after demolishing the petition schedule building. The rent control petition was resisted by the tenant, who contended that the need is not bona fide. According to him, the building was let out to him for conducting an educational institution under the name and style of Bharat Technical College and Industrial Training Centre, Punalur affiliated to the National Council for Vocational C.R.P..Nos.526/2002 & 1901/2002 2 Training, which is an institution recognised by the Government of India and hence is not liable to be evicted in terms of Sub section (11) of Section 11. It was also contended that the landlords have other buildings of their own in their possession through which the projected need could be accomplished and hence the rent control petition was liable to fail by virtue of the first proviso to sub section 3 of Section 11. Alternatively, it was contended that the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11. The evidence on the side of the landlords consisted of Exts.A1 to A24 and the oral testimony of Pws 1 to 3, apart from Ext.C1 Mahazar, C2 report and C3 plan prepared by the Advocate Commissioner on the basis of a local inspection. On the side of the tenant, the evidence consisted of Exts.B1 to B5 and the testimony of CPW1. The Commissioner was also examined as CW1. The Rent Control Court considered the pleadings and the evidence by formulating the following points.; 1. Whether the petition schedule building is bona fide required by the petitioner for their own use and occupation? C.R.P..Nos.526/2002 & 1901/2002 3 2. Whether the petitioners have another building of their own in their possession in the same city , town or village? 3. Whether the counter petitioner tenant is depending for his livelihood mainly on the income derived from the business carried on by him in the petition schedule building and whether suitable buildings are available in the locality for him to carry on his business? 4. Whether the petition schedule building has been let for use as an educational institution recognized by the Government or any authority empowered by them? 5. Whether the eviction prayed for is allowable? 6. Reliefs and costs.? 2. On evaluation of the evidence, the Rent Control Court found that the petition schedule building and it's site are bona fide required by the landlords for their use and occupation for the development of 'Thailekshmi cinema house so that garages C.R.P..Nos.526/2002 & 1901/2002 4 could be constructed for the parking of the vehicles coming to the theatre and also for constructing a refreshment stall. Accordingly, point No.1 was answered in favour of the landlords. 3. Considering point No.2 whether the rent control petition was liable to fail because of the landlords possessing another building, the rent control court found that the need of the landlords is that the entire property on which the petition schedule building as well as the other buildings are standing, is required and hence the petition was not liable to fail in view of the first proviso to sub section 3 of Section 11. considering point No.3 relating to the tenant's eligibility for protection of the second proviso to sub section (3), the Rent Control Court found that the tenant is conducting educational institution in other buildings also and hence he has not succeeded in proving that the main income on which he is depending for his livelihood is derived from the petition schedule building. Similarly it was found on the basis of the documentary and oral evidence that the tenant has not succeeded in showing that other buildings are not available in the locality for him to shift, if it becomes necessary. Thus the Rent Control Court found that the tenant is not entitled C.R.P..Nos.526/2002 & 1901/2002 5 to the protection of the second proviso to sub section (3) of Section 11. Point No. 4 relating to the tenant's eligibility for protection of clause (ii) of sub section (11) of Section 11 was also found against the tenant and resultantly the rent control petition was allowed by the rent control court. 4. In the appeal filed by the tenant the appellate authority concurred with the rent control court in its findings on almost all points. However, on noticing that the landlords have three cents of property on the southern side of the petition schedule building upon which existed another building with three rooms, that authority found that no specific reason was stated by the landlords for not utilizing that property for the intended purpose. In other words, the Rent Control Appellate Authority relied on the first proviso to sub section (3) of Section 11 and would set aside the order of eviction. In the revision filed by the landlords the judgment of the appellate authority to the extent the same is against the landlord is impugned on various grounds and in the revision filed by the tenant he impugns the findings of the Rent Control Court and the Appellate Authority regarding the bona fides of the landlord's need and also regarding the findings C.R.P..Nos.526/2002 & 1901/2002 6 against the tenant in the context of the second proviso to sub section 3 of Section 11 and clause (ii) of sub section 11 of Section 11. 5. Extensive arguments were addressed before us by Sri.M.V.Thamban, learned counsel for the landlords and Advocate Sri.Rajesh M.R. Learned counsel for the tenant on the basis of the grounds raised in their respective revision petitions. The counsel relied on the various judgments including the judgment of the Division Bench of this court in Padmanabhan Nair and Another v. Thiruvangat Devaki Brhamani Ammai and Others (2009 (1) KHC 448 (DB), Simon v. Rappai (2008 (3) KLT 121), George Pylee v. Sabu K.K.(2007 (4) ILR Kerala), Jerry Joseph v. Selvaraj (2002 (2) KLT 129), Basheer v. Lona Chackola (2002 (3) KLT 155), Gupta v. Mohammed (1995 (1) KlT 701), Prasannan v. Haris (2005 (2) KLT 365) for the various propositions canvased before us. We have very anxiously considered the rival submissions made at the Bar. 6. The contours of this court's jurisdiction under Section 20 of the Act 2 of 1965 are well defined and under this jurisdiction this court is not expected to make a de novo reappraisal of the C.R.P..Nos.526/2002 & 1901/2002 7 evidence or to substitute findings on facts entered by the Rent Control Court and the Appellate Authority especially when they are founded on evidence and concurrently entered . It is not in dispute that Thailakshimi theatre, an ancient prestigious theatre house belonging to the landlords, is experiencing shortage of parking place and the absence of proper refreshment stall for the benefit of cinema viewers. The finding has been concurrently entered by the Rent Control Court and the Appellate Authority that the need of the landlords to provide parking place as well as a refreshment stall for the theater is bona fide one. So also it has been concurrently found by these two fact finding authorities that the tenant is not entitled for protection of the second proviso to section 11(3). Similarly it has been concurrently found that tenant's claim for protection of clause (ii) of sub section 11 of Section 11 is not allowable. We do not find any illegality irregularity or impropriety about these findings warranting intervention under the revisional jurisdiction of this court under Section 20 of the Act. 7. It is only in the context of the first proviso to Section 11 (3) that three is divergence between the findings of the Rent C.R.P..Nos.526/2002 & 1901/2002 8 Control Court and the Appellate Authority. But, in our view, the first proviso to sub section 3 of Section 11 cannot have direct application in this case where the need of the landlords is not to occupy the petition schedule building as such. On the contrary, the need is to demolish the petition schedule building and to occupy the site mainly as parking place and incidentally for putting up a refreshment stall. The availability of property on the southern side with three rooms building therein will not attract the first proviso to sub section 3. Of course the availability of that property if the same could be utilized for the avowed purpose especially since that property is contiguous to the existing theatre building can be of relevance in determining the bona fides of the claim. But, as already noticed by us, even the appellate authority has not interfered with the findings of the Rent Control Court regarding the bona fides of the need. 8. In deference to the submissions of the learned counsel for the tenant , we have examined the implications of the landlords' having possession of the southern property. The other property is certainly on the same level with the theater site unlike the site of the petition schedule building, which is at a C.R.P..Nos.526/2002 & 1901/2002 9 lower level. But, the extent of the southern property is far less and it is clear that the landlords' purpose of providing sufficiently extensive parking area can be accomplished only by demolishing the petition schedule building and paving way for user of the site of that building for the avowed purpose. Apprehension expressed by the tenant's counsel was that after obtaining the eviction,the landlord will let out the schedule building to others and is not going to demolish the schedule building. According to the tenant's counsel, the landlords are not going to embark upon the exercise of reclaiming the site of the petition schedule building to the level of the cinema theatre since the same will be a very costly affair. According to us, this apprehension can be alleviated by incorporating sufficient safeguards in our judgment in the context of sub section (12) of section 11. 9. The result of the above discussion is that ; The revision filed by the landlords will stand allowed and the revision filed by the tenant will stand dismissed. However, considering the facts and circumstances of the case, there will be a direction to the Execution Court not to order delivery of the petition schedule building for a period of nine months from today, C.R.P..Nos.526/2002 & 1901/2002 10 on condition that the tenant files an affidavit to the effect that he shall peacefully surrender the premises to the landlords before the expiry of nine months. It is made clear that in the event of the landlords not demolishing the petition schedule building and reclaiming the site of the petition schedule building to the level of Thailekshmi Theatre within one month of getting possession of the premises from the respondent/tenant and utilise the same for the purpose of parking ground and construction of refreshment stall, it will be open to the respondent/tenant to file an application under Section 11(12), in which case that application will be favourably considered by the Rent Control Court and appropriate orders will be issued permitting the respondent/tenant to re-enter the premises and also to reoccupy the same on such terms as may be fixed by the Rent Control Court. Parties will suffer their costs. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk C.R.P..Nos.526/2002 & 1901/2002 11 PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------ C.R.P. Nos.526 & 1901 of 2002 ------------------------------ O R D E R 3RD MARCH 2009 C.R.P..Nos.526/2002 & 1901/2002 12