IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 RCRev..No. 129 of 2011() ------------------------ AGAINST THE JUDGMENT IN RCA.1/2009 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY, MAVELIKKARA AND JUDGMENT IN R.C.P. NO.9/2005 of THE RENT CONTROL COURT,KAYAMKULAM .................... REVISION PETITIONER (S): APPELLANT ----------------------------- K. RAMESHENOY, S/O. KRISHNA SHENOY, NAGENDRA DEVASWOM PURAYIDOM, ERUVA MURI, PATHIYOOR VILLAGE, KAYAMKULAM. BY ADV. SRI.K.HARILAL RESPONDENT(S): --------------- P.V. KURIYAN, S/O. NINAN VARGHESE, PADINJARETHADACKAL PARAMBIL, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. PIN 690 502 ADV. SRI.R.RAJAN FOR R1 SRI.R.KRISHNA RAJ THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/08/2011, ALONG WITH RCR NO. 181 OF 2011THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. Nos.129 & 181 of 2011 ----------------------------------------- Dated this the 17th day of August 2011 O R D E R Pius C. Kuriakose, J. Under challenge in these revisions filed by the tenants in occupation of a 5 room building belonged to the respondent landlord is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court mainly on the ground under sub section (3) of Section 11. We notice that the eviction order under Sec.11(2) (b) has also been concurrently passed against the revision petitioner. But as no eviction order was passed under Sec.11 (2)(b), the tenants are liable to be evicted by invoking the provisions of Sec.11(2)(b). We in these revisions are concerned only with the legality, regularity and propriety of the order of eviction concurrently passed under Sec.11(3). The need projected by the landlord, who at the time of commencement of the RCP was a Chemical Engineer employed in Bombay is that he is about to retire and that R.C.R. Nos.129 & 181 of 2011 -: 2 :- upon his retirement, he wants to come down to Kayamkulam where the buildings are situated and to utilise the building which are subject matter of these 5 RCPs for the purpose of conducting a multi agency of cement, fertilizer and building material business that is when the landlord's governs etc. etc. The tenant in all the 5 cases disputed at the bonafides of the needs and they claimed protection of the 2nd proviso to sub sec.(3) of Sec.11. 2. The Rent Control Court tried all the five RCPs jointly and the evidence consisted of Exts.A1 to A20 and oral evidence of PW1 from the side of revision petitioners, Exts.B1 to B13 series and that of CPW1 to CPW4, the tenants in four of the five RCPs. The Rent Control Court on evaluating the evidence was very much impressed by the oral evidence given by PW1 and the other items of evidence and held that the need projected by the landlord was bonafide need. It was also held that the tenants are not entitled to the protection of 2nd proviso to sub sec.(3) of Sec.11 and further that the RCPs were not liable to fail by virtue of the first proviso to Sec.11 R.C.R. Nos.129 & 181 of 2011 -: 3 :- (3). Accordingly the order of eviction was passed under Sec.11(3) against all the tenants. The revision petitioners alone preferred appeals and the respondents in other RCPs surrendered the buildings. The Rent Control Appellate Authority reappraised the evidence and concurred with all the findings entered by the Rent Control Court. Accordingly all the appeals were dismissed. 3. We notice that the findings entered by the Rent Control Court have attained finality to the extend they were directed against those tenants who have vacated the buildings after the Rent Control Court passed its order. Sri.K.Harilal, the learned counsel for the petitioner in RCR No.129/2011 and Sri.S.Mohanan, the learned counsel for the petitioner in RCR No.181/2011 addressed elaborate submissions on the basis of various grounds raised in the respective memoranda of revisions. Sri.Harilal in particular submitted that the RCP was instituted by the respondent with a definite claim that he is the absolute owner in possession of the buildings which are the subject matter of the five RCPs. But in cross examination R.C.R. Nos.129 & 181 of 2011 -: 4 :- he had to concede that he is only a co-owner with his sister Smt.Rachel. Suppression of this material fact that the respondent is only a co-owner along with his sister should dis- entitle the respondent to relief at the hands of the authorities under the Rent Control Act which are expected to be governed by the principles of equity and justice vide Rule 11 sub rule 8 of the Kerala Building Lease and Rent Control Rules. The learned counsel further submitted that the respondent does not have a consistent case as to his date of retirement. If the pleadings in the RCP were correct he should have retired from the service by the time he mounted the witness box for justifying his need. But his explanation in the box was that he has received an extension. It is quite probable that he will be successful in securing further extensions and that he will never occupy the petition schedule building at all. The learned counsel submitted that the respondent's wife is employed in Bombay and his two sons are settled down in Bombay. The respondent does not have a place of residence at Kayamkulam. All these circumstances R.C.R. Nos.129 & 181 of 2011 -: 5 :- according to the learned counsel will show that the need projected is not a bonafide one but only a ruse for eviction of the revision petitioners. The appreciation of evidence by the Rent Control Court and the appellate authority has not been proper and this has resulted in prejudice to the revision petitioners. The learned counsel also highlighted that despite getting possession of three rooms from out of five rooms which are subject matter of the proceeding, the landlord has not taken any steps for starting the proposed business. 4. Per contra Sri.R.Krishna Raj, the learned counsel for the respondent would resist all the submissions of Sri.Harilal. According to Sri.Krishna Raj there is no warrant for interference with the concurrent findings entered by the Rent Control Court in the context of the ground under sub section 3 of section 11. Sri.Krishna Raj reminded us of the contours of our revisional jurisdiction under section 20. According to Sri.Krishna Raj within the present jurisdiction this Court is not expected to make a re-appraisal of the evidence for arriving at a different conclusion of fact when the R.C.R. Nos.129 & 181 of 2011 -: 6 :- conclusions of fact arrived at by the two authorities are based on evidence. The non-utilization of the three rooms possession of which were surrendered by the tenants during the pendency of the proceedings is not fatal. The need projected is such that the same can be accomplished only if all the 5 rooms are obtained. The very fact that the 3 rooms already obtained are being kept idle without being let out or alienated will demonstrate that the need projected is bona fide. The appreciation of pleadings and evidence by the statutory authorities has been quite proper and hence, there is no illegality, irregularity or impropriety about the findings of those authorities. The apprehensions voiced by the revision petitioners can be well taken care of by incorporating suitable conditions in the judgment. The landlord is ready to suffer reasonable conditions. Even a co-owner can maintain a petition under sub section 3 of section 11. The tenant did not have a contention that the landlord's sister is in any way opposed to the idea of the landlord occupying the building. 5. We have very anxiously considered the submissions R.C.R. Nos.129 & 181 of 2011 -: 7 :- addressed at the Bar. We have carefully gone through the judgment of the Appellate Authority and the order of the Rent Control Court. We have applied our mind to those items of evidence to which our attention was drawn by the counsel in their submissions. 6. We do not find any warrant for interference. The argument that the RCP is liable to fail due to the non-junction of a co-owner is not founded on pleadings. True the landlord came with a case that he is the absolute owner. It came out in evidence that the sister has got a fractional right. It is further in evidence that the entire power of disposal over the buildings is with the landlord only and that his sister who is married and settled down in Bangalore does not exercise any power of disposal over the building. 7. The oral evidence adduced on the side of the landlord inspired the two fact finding authorities namely the Rent Control Court and the Appellate Authority. The landlord's evidence given as PW1 was not shaken in cross examination. We do not find any warrant for interfering with R.C.R. Nos.129 & 181 of 2011 -: 8 :- the finding concurrently entered by the two authorities that the need projected by the landlord is bona fide. The apprehensions of the revision petitioner voiced by his counsel Sri.K.Harilal that the revision petitioner will never come down from Bombay and will after obtaining eviction dispose of the entire building can be taken care of by incorporating sufficient safeguards in this order itself. The result of the above discussion is that the RCRs fail and will stand dismissed. Before ordering delivery the execution court shall ensure that the revision petitioner has retired from his service from Bombay. Revision petitioner shall before the execution court orders delivery file an affidavit before the execution court stating that he does not have any employment or avocation in Bombay and that he will occupy the scheduled buildings for conducting the proposed business within the statutory limit provided under sub section 12 of Section 11. He shall also state in the affidavit that if he fails to do so he is ready and willing to suffer the statutory consequences provided under sub section 12 of section 11. He R.C.R. Nos.129 & 181 of 2011 -: 9 :- shall undertake through the affidavit that he will not alienate the buildings which are subject matter of the RCPs for a period of three years of the filing of the affidavit by him. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt