IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 7TH NOVEMBER 2007/16TH KARTHIKA 1929 RCRev..No. 276 of 2006() ------------------------ RCA.10/2003 of ADDL.DISTRICT COURT, THRISSUR RCP.42/1998 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONERS:Respondents/Respondents:- ------------------------------------------------------ 1. SIMON, AGED 68, S/O. PONNOKARAN KUNJIVAREED, RESIDING AT KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK. 2. SUNNY, S/O. KONNIKKARA MATHUNNY, PARAVATTANY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK. 3. PALU, AGED 64, S/O. KUTTIKKADAN THOMAS KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK. 4. STANELY, AGED 64, S/O. KARALIKKAL JOHN, KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.HARISH R. MENON SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENT: Appellant/Petitioner:- ------------------------------------------------ RAPPAI, AGED 55, S/O. KALLRAKKAL OUSEPH, MISSION QUARTERS, CHEMBUKKAVU VILLAGE, THRISSUR TALUK. BY ADV. SRI.JIJO PAUL THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/10//2007, THE COURT ON 07/11 /2007 , PASSED THE FOLLOWING: K.BALAKRISHNAN NAIR & T.R. RAMACHANDRAN NAIR, JJ. ====================== R.C.R.No. 276 OF 2006. ====================== Dated this the 7th day of November, 2007. O R D E R T.R.Ramachandran Nair, J. This Revision Petition is filed by the tenants challenging the judgment rendered by the Rent Control Appellate Authority. The respondent herein is the landlord. The landlord filed RCP.No.42/1998 to evict the tenants under Sections 11(2), 11(3) and 11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1956. The rent control court dismissed the eviction petition, and on appeal by the landlord the appellate authority has allowed eviction under Sec.11(3) and 11(4)(v) of the Act. 2. The facts of the case which are necessary for disposing of the revision petition are the following: The tenanted premises is a shop room in the ground floor of a multi storeyed building. The landlord is occupying a similar shop room adjacent to it on the northern side of the petition schedule room. The same is owned by his wife, and the landlord is conducting jewellery shop named “Maharani R.C.R.No. 276 OF 2006. 2 Jewellers” in the said shop room. The petition schedule shop room was purchased by the landlord from its previous owner in the year 1997 as per Ext.A1 sale deed. The premises is required for own use of the landlord to expand his business. Apart from the plea of bonafide need, eviction was sought also on the ground that the tenant has ceased to occupy the room in question for more than 1 ½ years. The tenant resisted the eviction sought contending that the need put forth is not bonafide, that the tenant was conducting gold business earlier and is now planning to start textile business. It is also averred that the tenant is a conducting business as commission agent in the schedule room. 3. Both parties adduced evidence, PW1 was examined and Exts.A1 to A3 were produced on the side of the landlord. RW1 was examined on the side of the tenant and they produced Exts.B1 to B5. Exts.C1 and C2 are commissioner’s reports. 4. The rent control court found that the need alleged by the landlord is not bonafide. To enter such a finding the rent control court noted that even though the landlord when examined as PW1 stated that there are other jewellery shops namely, “Ayodhya”, “Chiriyankandath” and “Alukkas” which are conducting business on a large scale it was not specified by him that the said shops are in the same street and he did not refer to any tangible evidence to show that the aforesaid jewellery shops are run in a R.C.R.No. 276 OF 2006. 3 bigger scale and are getting more business and income. It was also observed that the evidence of PW1 that the said jewellery shops which are conducted in bigger spaces have affected the business of the smaller jewellery shops, was not really substantiated by any documentary evidence. Accordingly, a finding was entered against the landlord on the bonafide need urged. As regards the ground urged under Sec.11(4)(v) of the Act also the rent control court found in favour of the tenants. It was also found that the only source of livelihood of the respondent is the income from the business conducted in the petition schedule shop room. In fact, the rent control court found in favour of the tenant on the grounds urged under Section 11(4)(v) after noticing that there was telephone connection in the said room and that the room was being used for commission agency business as spoken to by RW1. 5. The above findings have been reversed by the appellate authority. It was found that the need put forth by the landlord for expanding his business is genuine. As regards the other plea that the tenant has ceased to occupy the room, the appellate authority found that the evidence clearly established that the tenant had ceased to occupy the room and the report of the commissioner Ext.C1 supported the above conclusion. 6. Heard learned counsel for the parties. The learned counsel for the petitioners Sri.P.B.Krishnan contended that the approach made by the appellate authority is clearly faulty and the findings are totally perverse. The R.C.R.No. 276 OF 2006. 4 learned counsel contended that going by the pleadings of the landlord in the petition, he actually wanted the petition schedule building for expansion of his business by annexing the room. It is pointed out that the room in which the landlord is conducting business is owned by his wife and the circumstances do not justify any possibility to demolish the common wall for joining the rooms for expanding the business. It was argued that the appellate authority did not properly assess the evidence to reverse the findings rendered by the rent control court. The report of the commissioner relied upon by the appellate authority was also accepted without examining the commissioner. It is also submitted that the finding by the rent control court under Sec.11(4)(v) was upset by the appellate authority even without referring to Exts.B1 to B5 produced by the tenant. It is, therefore, pointed out that if this Court finds errors on the approach made by the appellate authority then the matter will have to be remitted back to the said authority, as in exercise of the powers of revision under Sec.20, the jurisdiction of this Court cannot be extended to that of an appellate court, to arrive at its own conclusion on the facts and evidence in this case. The jurisdiction of the revisional court under Sec.20 is limited and unlike Sec.107 of the CPC, there is no provision in the Rent Control Act allowing the revisional court to consider the matter on merits. The learned counsel also relied on the additional materials produced before this Court along with an affidavit, to contend that in view of the facts revealed R.C.R.No. 276 OF 2006. 5 therein the eviction petition can only be dismissed. The additional materials produced are the copies of the plaint in OS.No.502/1994 on the file of the Subordinate Judge’s Court, Thrissur, the written statement and the additional written statement, affidavit dated 7/4/1994 filed by the plaintiff who is the wife of the landlord herein, and the copy of the sale deed in favour of the wife of the landlord. It is contended that the room wherein the landlord is presently doing business is owned by his wife and the wife is not having a clear title over it or at any rate it is clouded, which is clear from the averments made by her in OS.No.502/1994 filed by her. It is also submitted that the landlord had suppressed these facts in the pleadings and therefore the landlord has played fraud on the court which disentitles him from claiming any relief. 7. These arguments were disputed by the learned counsel for the respondent Sri.Jijo Paul. It was argued that the rent control court went at a tangent while approaching the entire issues and the appellate authority has correctly reversed the said decision. The report of the commissioner going by Order 26, Rule 10 forms part of the records and evidence and therefore it was rightly relied upon by the appellate authority and one of the tenants was present during the inspection. It was also submitted that the argument that Exts.B1 to B5 were not considered by the appellate authority is not correct and the tenants have not discharged their burden to prove that they were R.C.R.No. 276 OF 2006. 6 conducting business in the petition schedule room. Relying upon Rule 27 of Order 41 CPC it is further pointed out that the additional materials sought to be relied upon by the landlord cannot be accepted by this Court especially in the exercise of revisional jurisdiction. 8. We will now consider the arguments raised by the learned counsel for the petitioners against the findings rendered by the appellate authority. This is a case where the landlord is occupying the immediate northern room of the petition schedule building and is conducting business therein. The need put forward is for expanding the said business. It is averred that there are jewellery shops being conducted on large scale and therefore the landlord propose to expand his business by making use of the tenanted premises also. The genuineness of the said need has to be assessed in the light of the circumstances and evidence available in this case. The petition schedule room was purchased in the year 1997 by the landlord. He is already in the jewellery business which is being conducted in the adjoining room. The evidence tendered by PW1 shows that he has stated that after he started his business other jewellery shops namely, “Ayodhya”, “Chiriyankandath” and “Alukkas” who are conducting jewellery business on a larger scale have come into existence. These shops are large in size by two fold or three fold than that the shop room occupied by the landlord. The oral evidence tendered by the landlord further shows that his wife has got another shop in Kannur and R.C.R.No. 276 OF 2006. 7 his younger brother has got another shop in Kasargode. There is no challenge in the cross examination as to the coming into existence of large scale businesses named by the landlord. In spite of the same the rent control court disbelieved the version given by the landlord by finding that he did not adduce no further evidence to show that the aforesaid jewellery shops are run in bigger places and are getting more business and income. It was also observed by the rent control court that he did not adduce evidence to show that because of the coming into existence of larger shops the business in smaller jewellery shops have come down. The said approach made by the rent control court has been found against by the appellate authority, according to us rightly. The fact that the landlord wants the petition schedule room for expanding the present business in the adjoining room is clearly pleaded in the eviction petition and has also been spoken to by PW1. It is well settled that the tenant cannot dictate as to how the landlord should adjust his requirements. Judged in the light of the above facts, it is clear that the rent control court had gone wrong in finding that the claim made by the landlord is not bonafide. The appellate authority has considered the plea raised in the eviction petition and the evidence of PW1. It was found that the true test should be whether the need pleaded by the landlord can be said to be natural, real, sincere and honest in the light of the tests laid down by the Apex Court. The appellate authority was of the view that the landlord purchased the room R.C.R.No. 276 OF 2006. 8 as per Ext.A1 and the purpose for purchase was spoken to by PW1 as expansion of his business run by him, and since it is clear from the evidence that there are several other big business in the field as “Ayodhya”, “Chiriyankandath”, “Alukkas” etc., the desire pointed out by the landlord cannot be said to be not genuine. 9. In the light of the facts pleaded by the landlord and in the light of the deposition of PW1, we find that the approach made by the appellate authority cannot be said to be perverse. We have referred to the findings rendered by the rent control court on this aspect to show that the said Court did not approach the question in the right perspective. The rent control court negatived the plea based on considerations which are totally irrelevant to the purpose of the statute. So, the said findings required reversal at the hands of the appellate authority who is equally competent to reverse such findings on the facts and evidence of the case. Being a fact finding authority, the appellate authority is fully empowered to enter its own findings, after appreciating the facts and evidence adduced in this case. Therefore, the argument of the learned counsel for the petitioner on this score cannot be accepted. 10. The learned counsel further pointed out that the landlord can expand his business only by demolishing the common wall between the two rooms. The requirements of such modification have not been pleaded in the R.C.R.No. 276 OF 2006. 9 petition and whether that is possible also has not been spoken to or established by cogent evidence. It is, therefore, contended that if the common wall cannot be demolished, the question of expansion does not arise at all and hence on that score itself the plea raised by the landlord has to be rejected. We find no force in the above argument also. Once it is found that the need is genuine it is up to the landlord to decide as to how the room in question should be utilized to his best advantage. The details regarding expansion can be worked out by the landlord after getting vacant possession of the room and it cannot be said to be an impossibility as pointed out by the learned counsel for the petitioner and in view of the facts reported by the Commissioner in Ext.C1. 11. The learned counsel for the petitioners then contended that in fact, the appellate authority has not considered the entire evidence in the right perspective and as the finding of facts rendered by the rent control court are reversed in Appeal this Court cannot re-appreciate the evidence as provisions like Section 107(2) of the CPC are not available in dealing with in a revision petition under Sec.20 of the Act. It is also pointed out that Rule 24, Order 41 which allows the appellate court to determine the case finally on other grounds is also not available to the revisional court under Sec.20 and in the absence of such specific powers, this Court can only remand the matter to the appellate authority, if it is found that the approach made by the appellate R.C.R.No. 276 OF 2006. 10 authority is faulty. Reliance is placed on the decisions of the Apex Court reported in Santosh Hazari v. Purushottam Towari (2001(3) SCC 179) and in Madhukar v Sangram (2001(4) SCC 756). In fact, these arguments have been raised to sustain the contention that the evidence adduced by the petitioners and the documents produced by them have not been referred to or discussed in the judgment of the appellate authority. We will examine the question in the light of the vehement argument made by the learned counsel for the petitioner in respect of the finding on the ground under Sec.11(4)(v) of the Act. The landlord clearly pleaded that the tenant is not conducting any business in the petition schedule room. Ext.C1 is the report of the commissioner. The materials reported by the commissioner have been referred to by the appellate authority in para.30 of the judgment. The commissioner visited the site on 4/4/1998 ie. on the next day of filing of the eviction petition. It was reported that the commissioner that he found the premises in an unused condition. He found that even though the room was open, inside the same there were seven chairs and he could not find any evidence of them being used. On the western corner of the room, he found that old waste materials like boxes, paper packets etc., were remaining piled up. At a separate portion, an old closet and a broken flush tank was also found. This portion was covered with dust, cobwebs etc. It was found by the commissioner that the cupboards were found filled with dust. The same is the R.C.R.No. 276 OF 2006. 11 position as regards the inside portion of the counter also. By verifying with the neighbouring shop owners he got the information that even though the room was being opened no business was being conducted for the last more than 1 ½ years. A reading of the judgment of the appellate authority shows that, apart from the report of the commissioner, the evidence of PW1 was also relied upon. It was also found by the appellate authority that apart from the telephone there and that some people were engaged in conversation sitting on the floor of the petition schedule room, the commissioner has not noticed the existence of the conduct of any business there. The appellate authority referred to the evidence of RW1 that they were not maintaining any accounts of the business also. Thus by relying upon the evidence as above the appellate authority entered a clear finding that the respondents were not doing any business in the petition schedule room. It was also found that, if actually they were doing business they could have very well produced the accounts relating to the same and the absence of the same is a strong circumstance to establish that the respondents were not using the petition schedule room for running any business. 12. Here, the argument of the learned counsel for the petitioner, as we pointed out already, is that Exts.B1 to B5 have not been discussed by the appellate authority at all. It is, therefore, submitted that the matter requires remand to that court again. On a reading of Exts.B1 to B5 we notice that the R.C.R.No. 276 OF 2006. 12 same are not helpful to support the claim of petitioners. Ext.B1 has been produced to show that the tenant had started garment business in the year 1999, after the filing of the eviction petition. The other documents are also produced by the tenant mainly to show that he is presently doing business therein. Ext.B2 is the sales tax assessment order in respect of Vanitha Jewellery which was being run by the tenant and Ext.B3 is a notice of assessment issued for the period 1997-'98 of Vanitha Jewellery. A reference to the evidence of RW1 is relevant here. He admits that Vanitha Jewellery has not been remitting any income tax and the sale of gold ornaments in the shop was stopped for nearly five to ten years. As regards the garment business also the deposition shows that presently he is not paying salary to the Manager Mr.Suresh and he is being paid only commission on the sales for which there are no documents and he is not maintaining any day book also. In fact, the landlord had stated that the materials of the footpath vendors were being placed in the shop room and this is also admitted by the RW1 in his evidence. The evidence of RW1 thus do not inspire any confidence to show that business was being run in the schedule room even as commission agent. The appellate authority has clearly considered this evidence and has therefore concluded that the evidence shows that the tenants were found not doing any business in the petition schedule shop room. A reference to Exts.B1 to B5 would show that they will not establish the fact that any business was R.C.R.No. 276 OF 2006. 13 being done in the petition schedule room for six months prior to the date of the eviction petition, which is the requirement of Section 11(4)(v). 13. We will now refer to the decisions relied on by the learned counsel for the petitioners to contend for the position that while reversing the finding of fact the appellate court is bound to assign its own reasons for arriving at a different finding. The Apex Court in para.15 of Santosh Hazari v. Purushottam Tiwari (2001(3) SCC 179) held that, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. The same principle has been restated in the decision of the Apex Court reported in Madhukar v. Sangram (2001(4) SCC 756). It was held that, first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. Relying upon the above decisions it is submitted that the findings rendered by the appellate authority are far from satisfactory. We find that the appellate authority has considered the whole aspects in the right perspective and there is no fault on its duty while appreciating the contentions of the parties and assessing the evidence. Therefore, the said R.C.R.No. 276 OF 2006. 14 argument is only to be rejected. 14. As rightly pointed out by the learned counsel for the respondent, the report of the commissioner and the evidence taken by him shall be evidence in the case and shall form part of the record going by Order 26 Rule 10(2). We also notice that the commissioner had given notice to the 2nd respondent Sunny who arrived there within 15 minutes of the arrival of the commissioner. His signature in token of acceptance is there in the notice annexed with Ext.C1. He has clearly stated in the report that the inspection was done after giving notice to him. Therefore, it cannot be contended that it was an ex parte commission. Going by the decision of a Division Bench of this Court in Achuthan v. Kunhipathumma (1967 KLT 326), notice to the parties is made compulsory only before the investigation is done by the Commissioner and under Order 26 Rule 9 it is open to the court to pass an ex parte order for the issue of a commission for investigation even before the defendant has entered appearance. It was also pointed out by the learned counsel for the respondent that the objections to the report of the commissioner filed by the petitioners show that they have not raised any serious dispute regarding the facts made available by the commissioner. In fact, the report Ext.C1 will show that one of the respondents was present at the time of inspection and he did not make any request to the commissioner to notice any particular fact in support of the plea that they are doing business R.C.R.No. 276 OF 2006. 15 in the scheduled room. In fact, in para.12 of the judgment of the appellate court a reference is made to the argument of the learned counsel for the tenant relying upon Exts.B1, B3 and B5. Therefore, it is not a case where the appellate authority failed even to refer to Exts.B1, B3 and B5, as rightly pointed out by the learned counsel for the respondent. 15. As far as the ground available under Sec.11(4)(v) is concerned, it is well settled by various decisions of this Court that if the landlord has discharged the initial burden it is upto the tenant to lead evidence in the matter to show that he has been conducting business in the premises. A learned Single Judge of this Court in the decision report in Abbas v. Sankaran Namboodiri (1993(1) KLT 76) while examining