IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 RCRev..No. 574 of 2005 (C) ------------------------------- RCA.84/2005 of FIRST ADDL.DISTRICT COURT, KOZHIKODE RCP.94/1996 of ADDL.M.C.,KOZHIKODE-II .................... REVISION PETITIONER/APPELLANTR/ESPONDENT ------------------------------------------------------- SURENDRA BHASKARAN, S/O.BHASKARAN, AGED 46 YEARS, ANDATHOTTATHIL HOUSE, PANNIANKARA, KOZHIKODE. BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S RESPONDENT(S)/RESPONDENTS/PETITIONERS: ----------------------------------------------------- 1. MURALEEDHAR, AGED 48 YEARS, S/O.CHANDRAN, RESIDING AT MANAT HOUSE, IRINGALLUR AMSOM, DESOM, KOZHIKODE TALUK. 2. M.LATHIKA, W/O.CHANDRAN, AGED 65 YEARS, RESIDING AT MANAT HOUSE, IRINGALLUR AMSOM DESOM, KOZHIKODE TALUK. 3. M.MAHIDHAR, S/O.CHANDRAN, AGED 46 YEARS, RESIDING AT MANAT HOUSE, IRINGALLUR AMSOM DESOM, KOZHIKODE TALUK. 4. M.SHEEBA, AGED 44 YEARS, D/O.CHANDRAN, RESIDING AT MANATT HOUSE, IRINGALLUR AMSOM AND DESOM, KOZHIKODE TALUK. 5. M.SHEEJA, AGED 42 YEARS, D/O.CHANDRAN, RESIDING AT MANAT HOUSE, IRINGALLUR AMSOM, DESOM, KOZHIKODE TALUK. RCR.574/05 -2- 6. M.SASIDHAR, AGED 40 YEARS, S/O.CHANDRAN, RESIDING AT MANAT HOUSE, IRINGALLUR AMSOM DESOM, KOZHIKODE TALUK. 7. RADHIKA, AGE 30 YEARS, D/O.CHANDRAN, RESIDING AT MANAT HOUSE, IRINGALLUR AMSOM, DESOM, KOZHIKODE TALUK. ADV. SRI.R.SUDHISH FOR R1TO7 SRI.L.S.BHAGAVAL DAS FOR R1TO7 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.574 of 2005 ------------------------------------------------ Dated this the 4th day of August, 2010 ORDER Pius C. Kuriakose, J The tenant is the revision petitioner and he challenges in this revision the judgment of the Rent Control Appellate Authority ordering eviction against him on the ground under sub Section 3 of Section 11 after finding that the first proviso to sub Section 3 of Section 11 does not operate against the landlord. The landlord had sought eviction on the ground of arrears of rent also, but it is conceded by both sides that the issue of arrears of rent no longer survives. It is also conceded that in this revision we have to be R. C. R. No.574 of 2005 -2- seriously concerned with the question whether the Rent Control Petition is liable to be rejected by virtue of the first proviso to sub Section 3 of Section 11 and also the question whether the landlord's conduct in not occupying other building owned and possessed by him for accomplishing the need projected is not indicative of absence of bona fides. The need projected by the landlord under sub Section 3 of Section 11 is that the landlord is conducting business under the name and style “Builders Wearhouse” from a building situated almost opposite to the petition schedule shop room taken on lease from landlord's relative by name Jetheendran. Jetheendran demanded the landlord to vacate that room for his bona fide need of accommodating his son. Hence, it has R. C. R. No.574 of 2005 -3- become necessary for the landlord to shift from Jetheendran's building. Hence, the landlord needs the petition schedule building for shifting his business over to the same. Apart from disputing the bona fides it was contended by the tenant that the landlord is having buildings of his own in his possession reasonably sufficient for the landlord's requirement. The evidence in the case consisted of the oral testimony of landlord as PW1 and that of the tenant as RW1. The documentary evidence consisted of Ext.A1 to A3, B1 to B4 and C1 to C3. The Rent Control Court in the first instance disallowed eviction under Section 11(3). The landlord preferred appeal as RCA.18/01. The Rent Control Appellate Authority considering that RCA found that the need of the landlord is bona fide. R. C. R. No.574 of 2005 -4- However, remanded the issue of determining whether the tenant is entitled to the protection of the first proviso to Section 11(3) to the Rent Control Court. Pursuant to the remand the witnesses were recalled and examined. Additional evidence Ext.A1 A6(f), B1 to B8 were marked. The Rent Control Court by order dated 04/03/05 ordered eviction under Section 11(3). Against that eviction order the tenant preferred RCA.84/05 in which the impugned judgment of the Appellate Authority has been passed. The Appellate Authority noticed that it was on Ext.B1 that the tenant's defence based on the first proviso to Section 11(3) is founded. Ext.B1 refers to three buildings. Of these three two are in the first floor which are obviously not suited for the landlord's R. C. R. No.574 of 2005 -5- purposes. The only ground floor building covered by Ext.B1 is building having Door No.21/3775. The Appellate Authority would find on the basis of the evidence that the said building is in the possession of one Mr.A.Azeez since 1982. Yet another building, the possession over which was made serious issue before the Appellate Authority, was building having Door No.3773A. This building is shown shaded blue in Ext.C1 Commission Report. According to the Appellate Authority this building was also under the possessory control of Sri.Azeez. It was found by the Appellate Authority that the Azeez's wife Rukkia is holding licence for conducting City Hotel in that building. It was noticed that the tenant did not file any objection to the Commissioner's Report. It was also noticed R. C. R. No.574 of 2005 -6- that the tenant did not deny the suggestion that the above building is not one in which valuables can be kept. On the basis of all that the Appellate Authority held that at any rate the above building is unsuitable for the landlord's purpose. 2. It was very strenuous and persuasive submissions which were addressed before us by Sri.K.P.Balasubramanyan, the learned counsel for the revision petitioner. All the submissions of Sri.Balasubramanyan were resisted by Sri.R.Sudhish, the learned counsel for the respondent. Mr.Balasubramaniyan argued that the finding of the Appellate Authority that building having Door No.3773A was in the possession of Azeez or his wife is contrary to the admissions of the landlord in evidence. The landlord's action in R. C. R. No.574 of 2005 -7- letting out that building for conduct of City Hotel is indicative of absence of bona fides apart from being an event which makes RCP liable to be rejected in view of the first proviso. He submitted that as far as building No.3775 covered by Ext.B1 is concerned in view of Section 26 of Act 2 of 1965 it had to be found that the said building is vacant. This again will make the RCP liable for rejection in view of the first proviso to sub Section 3 of Section 11. 3. Opposing the above submission Sri.Sudhish submitted that it is very correct finding which has been entered by the Appellate Authority appreciating the evidence in the case. According to him, there is no warrant for invocation of the revisional jurisdiction under R. C. R. No.574 of 2005 -8- Section 20 for interfering with that finding. 4. We have considered the rival submissions. In deference to the seriousness with which the submissions were addressed before us by the learned counsel, we have made a re-appreciation of the vital aspects of the evidence particularly Ext.B1 and Ext.C4 Commission Report. Ext.B1 refers to three rooms. Two of the rooms are in the first floor. It was not even seriously argued before us by Sri.Balasubramanyan that the landlord should utilise the two rooms in the first floor. In the nature of the business which is proposed to be conducted by the landlord the rooms in the first floor are not suitable and could not have been used by the landlord. The only room in the ground floor is room No.3775. There is documentary R. C. R. No.574 of 2005 -9- evidence in the case which shows that the room despite entry to the contrary in Ext.B1 is in the actual possession of Sri.Azeez. According to us, even if the said room is vacant, the availability of that room cannot be a reason for rejecting the RCP under Section 11(3). This is because the said room does not enjoy direct frontage unlike the petition schedule room which seems to be ideal for the landlord's projected need. 5. The only other building which requires to be considered is room No.3775A shown shaded blue in Ext.C4 commission report. The argument of Sri.Sudhish was that even if that room was available with the landlord at the time of filing of the RCP, the landlord had special reasons for insisting of getting possession of the petition R. C. R. No.574 of 2005 -10- schedule room itself. According to the learned counsel, it was only the petition schedule building which had enough front yard for parking of the vehicles. 6. We are not very much impressed by the above submission. However, in our opinion, it is evident that Room No.3775A did not exist as a regular room at the time of filing of the RCP. It was actually converted as a room only during the pendency of the proceedings. The first proviso to sub Section 3 of Section 11 cannot have direct application. The remaining question is whether the conduct of the landlord in not occupying that room after its conversion during the pendency of the proceedings can be noticed by us as indicative of absence of bona fides. The same is the position R. C. R. No.574 of 2005 -11- regarding a room which was occupied previously by the watch repairer. That room fell vacant and is let out during the pendency of the proceedings i.e. during the pendency of the appeal before the Appellate Authority to another tenant. The question is whether the letting out of that room can be noticed by us as indicative of absence of bona fides. According to us, in view of the finality attained by the finding that the need is bona fide we cannot notice the subsequent events as indicative of absence of bona fides. Moreover, it is clear to our mind that these subsequent events are not fundamental enough to completely eclipse the bona fides of the need which is established in this case. 7. The result of the above discussion is that R. C. R. No.574 of 2005 -12- the RCR fails and will stand dismissed. However, considering the appeal of Sri.K.P.Balasubramanyan, the learned counsel for the revision petitioner, we are inclined, despite stiff opposition from the side of the learned counsel for the respondent to grant one year's time to the revision petitioner to surrender the premises. This will be on the following conditions:- a) The revision petitioner 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 on or before 01/08/11. It will be undertaken through the affidavit that arrears of rent if any will be discharged within one month. R. C. R. No.574 of 2005 -13- b) The rent of the building payable by the revision petitioner is re-fixed with effect from 01/09/10 at Rs.500/- per mensem. The revision petitioner shall be liable to pay rent (occupational charges) at the above rate with effect from that date till he surrenders the petition schedule building. The revision petitioner will get the benefit of time as granted above only if he files an affidavit on time. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-