IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 RCRev..No. 84 of 2006(A) ------------------------ RCA.18/2002 of RENT CONTROL APPELLATE AUTHORITY/ DISTRICT COURT, PATHANAMTHITTA RCP.8/1998 of RENT CONTROL COURT/M.C.,PATHANAMTHITTA .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ 1. LAKSHMI VELAYUDHAN, SANTHIBHAVAN, KOZHENCHERY MURI & VILLAGE. 2. SHANMUGHAN RAJAN, SANTHIBHAVAN, KOZHENCHERRY MURI & VILLAGE. 3. SANTHIMOL, SANTHIBHAVANAM, KOZHENCHERRY MURI & VILLAGE. BY ADV. SRI.PHILIP M.VARUGHESE SMT.NAJI LONAPPAN RESPONDENT(S): TEANANT/PETITIONER --------------------------------- VARGHESE, S/O.SAMUEL, AGED 36 YEARS, PALLIYATHU HOUSE, KOZHENCHERRY MURI, KOZHENCHERRY VILLAGE. ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ R. C. R. No.84 of 2006 ------------------------------------------------ Dated this the 10th day of August, 2009 ORDER Pius C. Kuriakose, J The tenants who have suffered order of eviction on the ground of additional accommodation at the hands of the Rent Control Appellate Authority are the revision petitioners. The Rent Control Petition was filed by the respondent/landlord without specifying the sub section of Section 11 under which eviction was sought for. However, it was clear from the pleadings raised in the RCP that the need projected by the landlord was to do business in the petition schedule building which was only one room in a larger building belonging to the landlord. The landlord himself was doing business in the other two rooms. The need projected was that he wants to alter the three rooms so that he can R. C. R. No.84 of 2006 -2- expand his business. The Rent Control Petition was sought to be maintained by the landlord on the basis of rental arrangement evidenced by the lease deed dt.30/04/1997. A lawyer notice was issued prior to the RCP to which Ext.B1 reply was sent. The bona fides of the need and the claim was denied. It was even contended that the building is not situated within the limits of Kozhencherry conservancy town and therefore, the Rent Control Court, Pathanamthitta does not have jurisdiction to try the RCP. The RCP was enquired into by the Rent Control Court. It appears that the tenant did not pursue his contention that the building was not situated within the limits of the Kozhencherry conservancy town and therefore, the contention that the Rent Control Court, Pathanamthitta does not have jurisdiction was not specifically considered by the Rent Control Court. It appears as if the said contention was waived by the tenant who participated in the trial court adducing R. C. R. No.84 of 2006 -3- counter evidence to the evidence adduced by the landlord. 2. The Rent Control Court on evaluating the evidence which consisted of Ext.A1 and the oral testimonies of PWs.1 and PW2 on the side of the landlord; Exts.B1 to B12 and the oral testimonies of CPWs.1 to 3 on the side of the tenant apart from Exts.C1 Commissioner's Report, Ext.C1(a) Mahazar submitted by the Commissioner and Ext.C1(b) Rough Sketch submitted by the Commissioner, concluded that the landlord's need for additional accommodation is not bona fide. It was also concluded that the advantages which the landlord may gain by getting eviction will not outweigh the hardships which will be sustained by the tenant due to the order of eviction. The Appellate Authority, however, would make a thorough re-appraisal of the evidence in the case and reverse the finding of the Rent Control Court on all points. The Appellate Authority specifically considered R. C. R. No.84 of 2006 -4- the question as to whether Pathanamthitta Rent Control Court was having territorial jurisdiction to entertain and try the RCP. That question was answered against the tenant. Reversing the finding of the Rent Control Court, it has held that the need for additional accommodation is a bona fide one and that the advantages which the landlord may gain by getting eviction will outweigh the hardships which will be sustained by the tenant due to the order of eviction. 3. In this revision under Section 20, the judgment of the Rent Control Appellate Authority is assailed on various grounds and it is prayed that the order of the Rent Control Court be restored. 4. We have heard the submissions of Mr.Philip M. Varughese, the learned counsel for the revision petitioners and those of Mr.B.Premnath, the learned counsel for the respondent/landlord. Though Mr.Philip M. Varughese addressed us extensively on all the grounds raised in the revision petition, he would give R. C. R. No.84 of 2006 -5- thrust to the following points in his submissions:- 1) There is bona fide denial of the landlord's title by the tenant through his objections. The first thing to do on the part of the Rent Control Court and the Appellate Authority was to formulate a point as to whether this denial of title is bona fide. In not doing so and in not answering the point of bona fide denial of title, serious prejudice has been occasioned to the tenant. In this context, the learned counsel took us to that part of the evidence of PW1 where PW1 has stated that he obtained title to the petition schedule building by virtue of a will executed by his father and the further evidence that the father is even now alive. According to the learned counsel, the above part of the landlord's evidence itself will show that the landlord does not have any title over the building in question. In order to fortify the submission, the learned counsel relied on the judgment of the Full Bench of this Court in Parthakumar v. Ajith R. C. R. No.84 of 2006 -6- Viswanathan (2006(2) KLT 250). The learned counsel also relied on the judgment of the Division Bench of this Court in Devammadas v. Ramachandran Nair (2005 (3) KLT 647). 2) The proposal of the landlord is to effect alterations to the petition schedule building and also to the buildings which are presently possessed by the landlord. Due to the old age and physical condition of the building, the said proposal is not technically feasible. The Appellate Authority has not given any reason for interfering with the finding of the Rent Control Court that it is not technically feasible to carry out the alterations proposed by the landlord in this building. 3) The question of comparative advantages and hardship to the landlord/tenant has been wrongly decided by the Appellate Authority. 4) Along with the Rent Control Petition a statement showing particulars envisaged under Rule R. C. R. No.84 of 2006 -7- 12 of Kerala Buildings (Lease and Rent Control) Rules has not been filed by the landlord and this has resulted in serious prejudice to the tenant. 5. As his last submission, the learned counsel sought for one year's time to vacate the premises. 6. All the submissions of Mr.Philip M. Varghese, the learned counsel for the revision petitioners were stiffly resisted by Mr.B.Premnath, the learned counsel for the respondent/landlord. He pointed out by reading over to us the statement of objections filed by the tenant that the tenant had not denied the landlord-tenant relationship which had been pleaded. According to him, the tenant had actually admitted that there exists a landlord-tenant relationship between him and the petitioner in the RCP. He submitted that it was not even contended by the respondent that the proposal of the landlord to convert the existing three rooms in the larger building as one hall is not technically feasible. The Rent Control R. C. R. No.84 of 2006 -8- Court's findings that it is not technically feasible is a finding on an issue to which the parties never joined. Mr.B.Premnath further, submitted that the building is situated in the central portion of Kozhencherry town and is definitely within Kozhencherry conservancy town. It is not disputed that the area of Kozhencherry conservancy town which was originally part of Kollam Revenue District is an area coming within the limits of the Pathanamthitta Rent Control Court. This according to the learned counsel was the reason why the tenant did not pursue the contention that the Pathanamthitta court had no jurisdiction. 7. Mr.B.Premnath also submitted that no prejudice whatsoever has been occasioned to the tenant due to the non-furnishing of the particulars envisaged under Section 21 of Act 2 of 1965. Counsel submitted that it is again an aspect which it should have been pointed out to the Rent Control Court in the earliest possible opportunity. R. C. R. No.84 of 2006 -9- 8. Counsel further submitted that there cannot be any dispute regarding the bona fides and the need. Landlord is a person who on a previous occasion got eviction of one room in the larger building on the ground of additional accommodation and demonstrated by his conduct in occupying the room that the need which has been projected in the earlier RCP was a bona fide one. The landlord will demonstrate by his conduct this time also, that the need projected is a bona fide one. The landlord is doing bricks business and if additional space is given his business will flourish. Thus, the advantages which he will gain will be considerable. Other buildings are available in the locality and therefore, the hardship which may be sustained by the tenant due to eviction will not be much. 9. We have considered the rival submissions addressed at the Bar. It has been held by this Court in Lekshmana Naikan v. Gopalakrishna Pillai (1981 KLT R. C. R. No.84 of 2006 -10- 167) and in Arjunan v. Eranu (1991(2) KLT 279) that eviction on the ground of additional accommodation can be allowed by authorities under the Rent Control Act even when it amounts to luxury. The only consideration for the court is whether in seeking the additional accommodation, the landlord's petition is actuated by any oblique motives. We do not think that it is by way of luxury that the landlord is seeking additional accommodation. The landlord started business in one of the rooms in the three rooms of the larger building. When it was noticed that the said business was flourishing, he sought for evicting the adjacent room on the ground of additional accommodation by filing RCP.12/97. The Rent Control Court found that need to be bona fide one and ordered eviction. True to his words, he occupied that room and expanded his business into that room also. He now comes forward with a case that his business has flourished further and he requires the petition schedule R. C. R. No.84 of 2006 -11- room also for additional accommodation. According to us, the Appellate Authority has correctly appreciated the evidence adduced by the landlord and rightly concluded that the need is bona fide. 10. We are surprised to notice that the Rent Control Court has gone into the question whether the landlord's proposal to convert the existing three rooms as one hall for the purpose of conducting his business is technically feasible. In fact, the tenant had not raised any contention regarding the technical feasibility of the proposed room. In the absence of any contention by the tenant in that regard, it was unnecessary for the Rent Control Court to have probed into the question of technical feasibility of the proposal. After all, the building belongs to the landlord and he should be more conscious about the safety and continued existence of the building than anybody else. There is no reason to think that the landlord will carry out alterations in the building in such a manner as to R. C. R. No.84 of 2006 -12- endanger the existence of the building. We are not impressed by the argument of Mr.Philip M. Varughese though raised before us with utmost seriousness that the pleadings involved a question of denial of landlords title bona fidely. It is in paragraph-1 of the Rent Control Petition that the landlord makes a requisite averment for maintaining the Rent Control Petition. It is stated therein that the counter petitioner/tenant has taken the building under lease on 30/04/97 for a period of 11 months on executing a lease deed in favour of the petitioner. In paragraph-3 of the statement of objections, it is admitted by the tenant answering paragraph-1 of the RCP that he is a lessee of the building. The argument of Mr.Philip M. Varughese is that what is admitted is only his status as a tenant. The landlord-tenant relationship is not admitted. We do not agree, in fact, we find in the evidence to a specific question as to whether he can deny the averment of the landlord that a lease deed R. C. R. No.84 of 2006 -13- was executed on 30/04/97 in favour of the landlord. The answer of CPW1/the son of the tenant, the principal witness was in the negative. On the pleadings raised by the parties there is no warrant for formulating the question as to whether the denial of title is bona fide. Of course, in cross examination of CPW1, the tenant was able to bring out from the mouth of PW1 that he claims proprietary title over the building in question by virtue of a will executed by his father and that the will has not become operative. But it is trite that in the Rent Control Proceedings the question of proprietary or paramount title is not relevant. What is relevant is only the landlord-tenant relationship between the parties. In the instant case, where such a relationship is specifically pleaded and not expressly denied, the question of denial of title cannot arise. This was why the tenant never wanted the point to be raised as a preliminary issue. If it had been raised as a preliminary issue, answer should R. C. R. No.84 of 2006 -14- have been against the tenant. 11. It is trite by now that the standard of proof required for establishing a need for additional accommodation under section 11(8) is not so rigorous as those for establishing a need for own occupation under sub-section (3) of section 11. In the present case, the Rent Control Appellate Authority, which under the statutory scheme is the final court on facts, concluded on appreciating the evidence adduced by the landlord that the need for additional accommodation stood established on that evidence. Same is the position as regards the question of comparative advantages and hardships as envisaged by the proviso to subsection (10) of Section 11. In fact, on that aspect of the matter, the finding of the Rent Control Court and the Appellate Authority is concurrent. Since the finding on the question as to whether the need for additional accommodation is bona fide is divergent, we have made a reappraisal of R. C. R. No.84 of 2006 -15- the evidence and we are of the view that the Appellate Authority has appreciated the evidence properly and come to the right conclusion. 12. The result is that, the RCR fails. However, considering the last request of the learned counsel for the revision petitioners, we are inclined to grant time to the revision petitioner till 31/03/2010 to vacate the premises subject to the following conditions:- 1) The revision petitioners shall file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender of the petition schedule building to the respondent/landlord on or before 31/03/2010. It shall also been undertaken through the same affidavit that he will discharge the arrears of rent, if any, within a month and will continue to pay occupational charges at the current rent rates till they made actual surrender of the building. It is made clear that the R. C. R. No.84 of 2006 -16- revision petitioners will be eligible for the benefit of time granted under this order only if the affidavit is filed on time within a month. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-