IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 RCRev..No. 113 of 2009() ------------------------ RCA.8/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM RCP.132/2005 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONS/APPELLANTS/RESPONDENTS ------------------------------------------------------------- 1. REETHA GEORGE,AGED 66,W/O.P.X.GEORGE (LATE),M/S.VIMALA STUDIO,M.G.ROAD,ERNAKULAM,KOCHI- 35,RESIDING AT PUTHEZHATH HOUSE,VATTAKKAT ROAD, KALOOR,KOCHI-17,ERNAKULAM DISTRICT,PIN:682017. 2. ROY GEORGE, AGED 45 YEARS,S/O.LATE P.X.GEORGE, PUTHEZHATH HOUSE, VATTAKKAT ROAD, KALOOR,KOZHI-17,ERNAKULAM DIST.PIN-682017. 3. NEETHA GEORGE, AGED 43 YEARS, D/O.LATE P.X.GEORGE, PUTHEZHATH HOUSE, VATTAKKAT ROAD, KALOOR,KOCHI-17, ERNAKULAM DISTRICT, PIN:682017. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.K.S.BABU SMT.N.SUDHA SRI.GEEN T.MATHEW RESPONDENT(S): RESPONDENTS/PETITIONER ------------------------------------- 1. BABU PHILIP,AGED 59 YEARS, S/O.LATE M.C.PHILIPOSE, M/S.MINERVA CORPORATION, M.G.ROAD,ERNAKULAM DIST PIN:682035. 2. NINI GEORGE @ MINI IVAN JOSEPH, AGED 39, D/O.LATE P.X.GEORGE,W/O.IVAN JOSEPH VARGHESE, PUTHEZHATH(H),VATTAKKAT ROAD, KALOOR,KOCHI-17. ERNAKULAM DIST.PIN:682017,NOW AT MABRAZ ELECTRONICS COMPANY, POST BOX NO.4108 ABU DHABI, U.A.E. RCR.113/2009 2 ADV.SRI.KURIAN GEORGE KANNANTHANAM SRI.TONY GEORGE KANNANTHANAM FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.R. No. 113 of 2009 ``````````````````````````````````````````````````````` Dated this the 26th day of November, 2009 O R D E R Pius C. Kuriakose, J. The tenants are the revision petitioners. They challenge in this revision under Section 20, the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against them by the Rent Control Court on the grounds of additional accommodation under sub-section (8) of Section 11 of Act 2 of 1965. The parties will be referred to as the tenant and the landlord. 2. The landlord filed the RCP seeking eviction of the tenant on the ground of additional accommodation under Section 11(8) and the ground that the tenant has acquired possession of another building reasonably sufficient for the tenant's requirements in the same city, town or village under Section 11(4)(iii). Eventhough the Rent Control Court ordered eviction under Section 11(4)(iii), the appellate authority interfered with that eviction order considering an appeal filed by the tenant. RCR 113/2009 : 2 : 3. In this revision filed by the tenant we are concerned only with the order of eviction granted under Section 11(8). We, therefore, propose to refer to the pleadings of the parties only to the extent they pertain to the ground under sub-section (8) of Section 11. 4. The case of the landlord was that the petition schedule premises occupied by the tenant form part of the first floor of a three storied building by name Minerva Building. The landlord has become the absolute owner of the petition schedule premises by virtue of a partition deed executed amongst the heirs of his father, who was the original owner. One P.X.George was the original tenant and he is no more. After the demise of Sri.P.X.George, the first respondent in the RCP, his wife, attorned to the landlord and the other respondents in the RCP are children of Sri.P.X.George. The tenant is conducting a photo studio by name Vimala Studio in the petition schedule premises. The landlord is an active partner of Minerva Corporation, which is conducting business in sale of automobile spare parts and accessories in the ground floor of Minerva Building. The landlord's family members are the other RCR 113/2009 : 3 : partners of the Minerva Corporation. Due to the advent of new generation vehicles, the landlord's business in the ground floor of the building is not lucrative enough. Hence, the landlord and the other partners of the Minerva Corporation have decided to expand their business and for that purpose, additional area is required for stocking the articles. The landlord bonafide needs the petition schedule building for additional accommodation. The landlord has no other vacant space available for accomplishing his need for additional accommodation. The 4th respondent in the RCP remained ex parte. The other respondents filed a joint statement of objections. It was admitted that the petition schedule building was owned by the landlord's father. It was also admitted that the building was taken on lease in the year 1963 by Sri.P.X.George and that upon demise of Sri.P.X.George, his leasehold rights over the building devolved upon the respondents in the RCP. The photo studio business is being conducted by respondents 1 and 2 in the RCP. Answering the need projected by the landlord, it is contended that what is proposed to be stocked is spare parts of new generation vehicles, which are available only with the RCR 113/2009 : 4 : manufacturers at the authorised service centres. Accordingly, it is contended that there is no necessity for expansion of the business of the landlord. The landlord's need for additional accommodation was disputed. It was contended that the landlord is having his own vacant rooms in the same building with all facilities and hence there is no necessity to evict the tenant for expansion of the business. It was also contended in the context of the proviso to sub-section (10) of Section 11 that the hardship, which will be occasioned to the tenant due to the order of eviction, will be heavy in comparison to the advantages that the landlord may get. 5. The Rent Control Court formulated the requisite points for consideration and at trial, the evidence in the case consisted of Exts.A1 to A10, B1 to B10 series, C1 Commission report, PW1, the landlord and RW1, the second respondent in the RCP and RW2, the Advocate Commissioner who submitted Ext.C1. The Rent Control Court, on evaluating the evidence, came to the conclusion that the petition schedule building is required bonafide by the landlord for additional accommodation. It was also found that the advantages, which will be gained by the landlord due to RCR 113/2009 : 5 : eviction, will outweigh the hardship which may be sustained by the tenant due to the order of eviction. That court also found as already stated that an order of eviction is liable to be passed against the tenant on the ground under Clause (iii) of sub-section (4) of Section 11 also. Accordingly, the Rent Control Court allowed the petition on both grounds. The 4th respondent in the RCP, Smt.Mini George, daughter of the first respondent in the RCP and sister of the other respondents in the RCP, filed RCA No.82/2008 and respondents 1 to 3 in the RCP filed RCA No.8/2007 against the order of the Rent Control Court. The Rent Control Appellate Authority would, by the impugned common judgment, dismiss RCA No.82/2008 and allow RCA No.8/2007 in part to the extent of setting aside the order of eviction passed under Clause (iii) of sub-section (4) of Section 11. The appellate authority thus confirmed the order of eviction, which was passed by the Rent Control Court on the ground of additional accommodation. 6. This revision under Section 20 is filed by the tenants (respondents 1 to 3 in the RCP) urging various grounds, RCR 113/2009 : 6 : challenging the order of eviction passed under sub-section (8) of Section 11. 7. We have heard the submissions of Sri.O.Ramachandran Nambiar, learned counsel for the revision petitioners, and also those of Sri.Kurian George Kannamthanam, learned senior counsel for the respondents. After hearing Sri.Ramachandran Nambiar in full and Sri.Kurian George Kannamthanam in part, we noticed that a point which was seriously urged before us by Mr.Nambiar was that the northern portion of the second floor of the Minerva building was under the occupation of the landlord and that the non-occupation of such vacant premises was a circumstance indicative of absence of bonafides. We, therefore, on 23-11-2009, appointed Smt.Nisha John as Advocate Commissioner for conduct of local inspection by passing the following order:- “ Heard Shri.O.Ramachandran Nambiar, learned counsel for the revision petitioners in full and Shri.Kurian George Kannanthanam, learned counsel for the respondents in part. 2. One of the issues which seriously came up, is whether the northern portion of the RCR 113/2009 : 7 : second floor of the larger building of which the petition schedule building is a part (the portion shown to the northern side of the portion occupied by Peninsular Capital Market, Mony & S. Madhu and Associates) is under the vacant possession of the landlord? The Commissioner in Ext.C1 report in the last sentence of paragraph No:2 on page No:2 seems to indicate that the above portion is permanently closed. According to Shri.O. Ramachandran Nambiar, the said portion is under the vacant possession of the landlord while according to Shri.Kurian George Kannanthanam the said portion is already let out by the landlord and at any rate is not under the vacant possession of anybody. 3. We feel that it is necessary that an immediate local inspection of the second floor portion of the building is conducted by an Advocate Commissioner. Adv. Smt.Nisha John of this Court be appointed as Commissioner. She will conduct an immediate local inspection today itself and report on the following matters:- i) Whether any portion in the second floor of the three storied building of which the petition schedule building is a part (under the ownership of the petitioners in the RCP) is a part, remaining vacant? 4. The Commissioner is directed to identify RCR 113/2009 : 8 : the building with reference to the rough sketch submitted by the earlier Commissioner along with Ext. C1 report. The remuneration payable to the Commissioner is fixed at Rs.10,000/- (Rupees ten thousand only), which will be paid by the respondents in the R.C.R to the Commissioner immediately by cash, against receipt. The Commissioner will conduct inspection and submit report at the earliest and at any rate by 25.11.2009.” 8. The Advocate Commissioner conducted inspection and filed detailed report and sketch. We marked the same as Ext.C2 and C2 will form part of the records in the RCP. It will be noticed immediately that Ext.C2 is very clearly in favour of the landlord and C2 can be relied on safely to come to the conclusion that the petitioner/landlord does not have possession of any other building by which he can accomplish his projected need of additional accommodation. 9. It was very extensive submission which was addressed before us by the learned counsel for the parties, namely Sri.O.Ramachandran Nambiar, Advocate and Sri.Kurian George Kannamthanam, senior Advocate. Mr.Nambiar submitted that the RCR 113/2009 : 9 : finding of the authorities below that the landlord has got bonafide need for starting the business of new generation car spare parts has been entered without considering crucial evidence on record. The appreciation of the evidence on record by the courts below, according to the learned counsel, was grossly erroneous. Production of price list of new generation cars' spare parts by the landlord ought not have been given much importance, since it is a matter of common knowledge that anybody could get price list of any commodities from the dealers or manufacturers of a product. According to the learned counsel, it was noticed by the Commissioner that the landlord was stocking old unserviceable spare parts in the vacant rooms belonging to the landlord. It is the case of the tenant that old unserviceable spare parts of Ambassador and Fiat cars, which cannot be sold at all, are all dumped in the rooms, just before the visit by the Commissioner for the purpose of creating artificial evidence for showing that all the rooms were full of goods and there is no vacant space to stock the spare parts of new generation cars. This vital aspect of the matter was not noticed by the courts below. According to the learned RCR 113/2009 : 10 : counsel, whether there is shortage for space for the landlord to stock his goods is a matter which can be proved by producing documents including stock registers. The non-production of stock registers was a material circumstance which will justify drawal of adverse inference against the landlord. Mr.Nambiar also submitted that the authorities below went wrong in finding that the question of comparative advantage and hardship is to be answered in favour of the landlord. According to the learned counsel, these findings are the result of misreading of evidence. According to the learned counsel, the appellate authority, having found that the eviction ground under Section 11(4)(iii) (tenant having other building in possession reasonably sufficient for the tenant's requirements) is liable to be vacated ought not have relied on the availability of that building with the tenant for defeating the tenant's case for protection of the proviso to sub-section (10) of Section 11. Mr.Nambiar drew our attention to the pleadings in the case and also to the evidence. Mr.Nambiar placed reliance on a large number of decisions for the various propositions canvassed by him. Inter alia, he relied on the judgments of this Court in RCR 113/2009 : 11 : Bonny Vs. Koshy P.John [2005 (1) KLT 114], Lakshmi Vs. Labbah Kunju Ameer Hamsa [2005 (3) KLT 627], Simon Vs. Rappai [2008 (3) KLT 121], Muhammed Vs. Pathummakutty Umma [1992 (2) KLT 736] and Purushothaman Vs. Radhakrishnan [2004 (3) KLT 121] in support of his argument that the decisions of the authorities below are vitiated to the extent of warranting invocation of revisional jurisdiction under Section 20 and also that the revisional jurisdiction is wide enough to justify interference when there is misreading of evidence by the courts below. 10. Mr.Nambiar relied on the judgments of this Court in Lekshmana Naikan Vs. Gopalakrishna Pillai [1981 KLT 167], Joseph Vs. Rent Controller [2001 (2) KLT 538], Pakran Vs. Kunhiraman Nambiar [2004 (1) KLT 824] authored by one among us (PCK(J)) and the judgment in Ratnakaran Vs. Rosy [2004 (3) KLT 154] to argue that the eviction ground under sub-section (8) of Section 11 is not made out in this case and that, at any rate, order cannot be passed in view of the proviso to sub-section (10) of Section 11. The learned counsel relied on the judgments of the RCR 113/2009 : 12 : Supreme Court in Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others [AIR 1968 SC 1413], Shakir Hussain Vs. Administrator, Nagar Palika, Mandsaur [AIR 1999 SC 2872] and in Patel Naranbhai Marghabhai and others Vs. Deceased Dhulabhai Galbabhai and others [AIR 1992 SC 2009] to support the argument that adverse inferences are to be drawn when the best evidence for proving a particular aspect is not produced. 11. All the submissions of Mr.Nambiar were stiffly resisted by Sri.Kurian George Kannamthanam, learned senior counsel for the landlord. He submitted that the jurisdiction of this Court under Section 20 is revisional in nature and this Court is not expected to re-appraise the evidence, when the findings entered by the statutory authorities are founded on evidence on record. He also submitted that the standards necessary for establishing bonafides in the context of need for additional accommodation are not so rigorous as is expected in a case for need for own occupation under sub-section (3) of Section 11. He would support the judgment of the Rent Control Appellate Authority and the order of the Rent Control Court on the various reasons stated in the above RCR 113/2009 : 13 : judgment and order. 12. We have very anxiously considered the rival submissions addressed at the bar. We have made a quick glance at those items on evidence to which our attention was drawn by the learned counsel for the revision petitioners. We have gone through the pleadings raised by the parties. 13. We have kept in mind the ratio emerging from the various decisions cited before us by the counsel on either sides, particularly Sri.Ramachandran Nambiar, learned counsel for the revision petitioners. 14. It cannot be in dispute that the jurisdiction of this Court under Section 20 of Act 2 of 1965 is revisional in nature. This Court does not sit in appeal over the judgment of the Rent Control Appellate Authority, which under the statutory scheme is the final court on facts. This Court's concern under Section 20 is only to find out whether the judgment of the appellate authority is vitiated by any illegality, irregularity or impropriety, warranting invocation of the revisional jurisdiction under Section 20. The word propriety appearing in Section 20 will certainly show that the scope of the RCR 113/2009 : 14 : jurisdiction under Section 20 is wider than the civil revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure, nevertheless the jurisdiction is revisional in nature. This Court in revision is not expected to re-appreciate the evidence and substitute factual conclusions for the conclusions arrived at by the statutory authorities, especially when those conclusions are founded on evidence. Despite the revisional nature of the jurisdiction, being impressed by the submission of Mr.Nambiar that the landlord is having vacant possession of premises belonging to him at his disposal, we deputed a Commissioner for verification. The Commissioner has reported that the landlord does not have vacant possession of any area in the larger building by name Minerva building, the only commercial building belonging to the landlord as per the evidence. In fact, the first proviso to sub-section (3) of Section 11, which says that even though the need of the landlord under sub-section (3) of Section 11 is found to be bonafide, the RCP shall be rejected, if the landlord is in possession of vacant building belonging to him in the absence of special reasons, does not apply to need for additional RCR 113/2009 : 15 : accommodation under sub-section (8) of Section 11. However, we thought that the non-user of the vacant buildings, if actually available with the landlord, can be a circumstance telling upon the bonafides of the need for additional accommodation. Now that the Commission report Ext.C2 is on record, we have no difficulty in endorsing the concurrent findings entered by the Rent Control Court and the appellate authority on appreciating the evidence that came on record that the landlord's need for additional accommodation for the purpose of expanding his business by selling spare parts of new generation automobile spare parts is a bonafide one. 15. We will notice in this context that it is trite by the decision of this Court that the standards for establishing bonafides in a case for eviction on the ground of additional accommodation are more liberal than the standards for establishing bonafides in case for own occupation under sub-section (3) of Section 11. This Court has held that additional accommodation can be allowed even when the same amounts to a luxury provided it is found that in seeking additional accommodation the landlord is not actuated RCR 113/2009 : 16 : by any oblique motives. We do not find any oblique motives established by the revision petitioners, for the landlord in seeking to evict them. 16. Now the only question which remains to be considered is whether the advantages, which will enure the landlord by getting eviction, will outweigh the hardships, which will be sustained by the tenant by virtue of the order of eviction passed against him. Even according to the tenants, the landlords have been successfully carrying on business in automobile spare parts mostly of old type vehicles like Ambassador and Fiat etc. for decades. These are the times of new generation vehicles and the evidence adduced by the landlord that in order that the business flourishes in the modern days, spare parts of such new generation vehicles also are to be stored inspired the Rent Control Court and the appellate authority. It has come out in evidence that the landlord will be able to gain much more profits by expanding their business in the manner proposed. Thus, it cannot be in dispute that the advantages to be gained by the landlord due to the order of eviction will be considerable. Now, coming to the question of RCR 113/2009 : 17 : hardship to be sustained by the tenant; though the eviction order under Section 11(4)(iii) was declined by the appellate authority, the fact remains that the revision petitioners are having another place of business where from also they should be gaining income. No convincing evidence has been adduced by the tenant to show that other buildings are not available in the locality for them to shift their business carried on in the petition schedule premises. It is a photo studio which is being conducted by them in the petition schedule premises. Having regard to the reputation, which the revision petitioners have gained in photography, a portion of their income will be from outdoor business that they conduct. The finding of the authorities below that the hardship to be sustained by the tenant will not outweigh the advantages that the landlord may get is again founded on evidence. That being so, we do not find any warrant for interference under Section 20. 17. The result of the above discussion is that the RCR fails and will stand dismissed. However, having regard to the fact that the revision petitioners have been carrying on photo studio in the petition schedule premises for quite a long period of time, there RCR 113/2009 : 18 : will be a direction to the execution court not to order and effect delivery of the petition schedule building in favour of the respondents till 31-03-2010 subject to the following conditions:- (i) The revision petitioners shall discharge arrears of rent, if any, within one month from today and shall pay occupational charges at the current rent rate as and when the same falls due till the day they surrender the building to the landlord. (ii) The revision petitioners shall file an affidavit within two months before the execution court undertaking to give peaceful surrender of the building to the respondents on or before 31-10- 2010. It is made clear that the revision petitioners will be entitled to the benefit of time granted only if an affidavit is filed on time. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks