IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 RCRev..No. 127 of 2008() ------------------------ RCA.13/2007 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.13/2004 OF RENT CONTROL COURT, KOZHIKODE .................... PETITIONER/APPELLANT/RESPONDENT -------------------------------------------- K.S.DASAN, S/O.VELAYUDHAN, RESIDING AT KOTHANGAD VAYAL, 5/2588, KALATHINKUNNU AMSOM DESOM, KOZHIKODE BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SMT.V.DEEPA RESPONDENT(S)/RESPONDENTS/PETITIONER & ADD.RESPONDENTS 2 TO 5: ------------------------------------------------------------------------------------ 1. K.V.JANARDHANAN, S/O.BAPPUTTI, BAPPUTTI, MANDIRAM,, KALATHINKUNNU AMSOM DESOM KOZHIKODE TALUK, KOZHIKODE 2. RAGHU, S/O.VELAYUDHAN, 5/2588, KOTHANGAD VAYAL, KALATHINKUNNU AMSOM DESOM, KOZHIKODE 3. SASI, S/O.DO. IN DO.DO. 4. BALAN, S/O. DO. DO. 5. THANKAMANI, D/O.DO. IN DO.DO. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.K.M.FIROZ, CAVEATOR SRI.K.M.FIROZ FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 127 OF 2008 ----------------------------------------------- Dated this the 27th day of February, 2009 O R D E R Pius C.Kuriakose, J. A tenant against whom an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 ('the Act' for short) is passed concurrently by the Rent Control Court and the Appellate Authority is the petitioner in this revision under Section 20 of the Act. 2. The parties will be referred to for convenience as the landlord and tenant. The need projected by the landlord in the Rent Control Petition is that he has two sons by name K.V.Arun Kumar and K.V.Anek. Both of them are married and have children. Differences of opinion cropped up between them through their wives. The landlord is suffering from heart diseases and is undergoing treatment at Kovai Medical Centre, Coimbatore. To avoid bickerings in the RCR. N0. 127/08 -2- family, the landlord needs to accommodate his son Anek and his family in the petition schedule building. Sri.Anek is a dependent of the landlord for the purpose of getting accommodation. 3. The landlord's claim was resisted by the tenant who contended that the need projected was only a pretext for eviction. The averment that there were differences of opinion between the wives of the sons or between the sons was disputed. It was contended that the landlord has several other buildings belonging to him and if at all he needs, he can provide his son with any of those buildings. The evidence at trial consisted of the oral testimonies of P.W.1, the landlord himself and P.W.2 Anek, the son for whom the building was claimed by the landlord and the oral testimony of the tenant as R.W.1. The documentary evidence on either sides consisted of Exts.A1 to A6 and B1 to B6. Apart from that, there was Ext.C1 Commission report. RCR. N0. 127/08 -3- The Rent Control Court on evaluation of the evidence found that the need put forward by the landlord was a bona fide one. That court also found that there was no evidence to hold that other suitable vacant buildings were available with the landlord for accommodating his son Anek and family. Accordingly order of eviction was passed under section 11 (3). The Rent Control Appellate Authority on re- appreciating the evidence would agree with all the conclusions of the Rent Control Court and accordingly confirmed the order of eviction passed by the Rent Control Court. 4. Elaborate submissions were addressed before us by Sri.K.Jayakumar, learned counsel for the revision petitioner. Sri.Jayakumar drew our attention to the statutory definition of the term 'building'. Counsel submitted that going by the statutory definition, the petition schedule building is to be construed as a building and not as portion of a larger RCR. N0. 127/08 -4- building. Learned counsel submitted that in the instant case both the Rent Control Court and the Appellate Authority have proceeded as if the petition schedule building is only part of a structure and it does not qualify as a building for the purpose of Section 11(3) of the Act. Learned counsel pointed out that the larger structure which has been wrongly conceived by the authorities below in this case as the building for the purpose of the Rent Control Petition has two other identical portions which also qualify as buildings. Counsel submitted that during the pendency of the Rent Control Petition those two buildings had fallen vacant and the landlord had come back to possession of those two buildings. The event of the landlord coming back to possession of those two buildings was a subsequent event having a fundamental impact on the landlord's right to evict the revision petitioner on the ground under Section 11(3) of the Act. In the teeth of that subsequent event, the first RCR. N0. 127/08 -5- proviso to Section 11(3) of the Act came into operation and it was obligatory for the landlord to plead and establish special reasons as envisaged by the first proviso to Section 11(3) of the Act justifying the order of eviction. Mr.Jayakumar would refer to the judgment of the Supreme Court in Hasmat Rai and another v. Raghunath Prasad (AIR 1981 SC 1711) and argue that when possession is sought for personal requirement the requirement pleaded by the landlord must not only exist on the date of the action, but it must subsist till the final order of eviction is made. Mr.Jayakumar submitted that inasmuch as the landlord came into possession of two buildings adjacent to the building which is the subject matter of the Rent Control Petition, by the time the Rent Control Petition was considered by the Rent Control Court for decision, the need of the landlord to accommodate his son separately accomplishes by accommodating him in those two buildings. RCR. N0. 127/08 -6- In other words, according to the learned counsel, to the extent the landlord came into possession of those two buildings, the landlord's need for the petition schedule building in this case came to an end. Reliance was placed by Mr.Jayakumar also on the judgment of the Supreme Court in Charan Dass Duggal v. Brahma Nand [(1983) 1 SCC 301] to argue that if the landlord has any premises in his possession he must allege and prove that such premises are not sufficient for his personal use or why he has to shift to the premises for which he seeks possession. On the authority of the above decision, the learned counsel would submit that when it was shown that the landlord had come into possession of two other buildings, it was the landlord's duty to allege and prove that the other two buildings are not adequate. Counsel argued that no evidence was adduced by the landlord in this direction. Mr.Jayakumar also relied on the judgment of a Division Bench of this Court in Raghavan RCR. N0. 127/08 -7- v. Govindan Nambiar (1995 (1) KLT 596) to argue that once it is shown that the landlord is in possession of another building of his own in the same city, town or village the burden is on the landlord to establish special reasons. Counsel submitted that this burden has not been discharged in this case at all. Mr.Jayakumar also pointed out that apart from the two buildings which the landlord had admittedly come into possession during the pendency of the Rent Control Petition, there was evidence to show that the landlord was having large number of other buildings in his possession. The tenant filed I.A.No.3459 of 2004 before the Rent Control Court for issuance of a Commission to inspect the site and file a report regarding the availability of the other vacant buildings. That commission application was straightaway dismissed by the Rent Control Court. This grave procedural illegality committed by the Rent Control Court was endorsed by the Appellate Authority. This Court RCR. N0. 127/08 -8- in revisional jurisdiction is expected to set at naught such illegalities and irregularities, according to Mr.Jayakumar. 5. Sri.V.Chitambaresh, learned senior counsel for the respondent, could resist all the submissions of Mr.Jayakumar effectively. Learned senior counsel submitted that the landlord cannot be blamed for not having pleaded special reasons in the Rent Control Petition. Admittedly, the landlord did not have possession of the so-called two buildings at the time when the Rent Control Petition was filed, which he came into possession only during the pendency of the Rent Control Petition. Counsel submitted that nevertheless, implicitly, special reasons had been indicated in the Rent Control Petition itself inasmuch as the need projected in the Rent Control Petition was the need to accommodate his dependent son Anek in the entire two storeyed structure consisting of the building which is the subject matter of the present Rent Control Petition and the RCR. N0. 127/08 -9- other two buildings in respect of which two other Rent Control Petitions had been simultaneously filed by the landlord. The senior counsel would read over to us the Advocate Commissioner's report as well as the deposition of R.W.1 and highlight that the building which is the subject matter of the present Rent Control Petition has left to itself just two small rooms. Counsel submitted that it was admitted that the landlord and his children belong to a financially upper middle class family and therefore, P.W.2 is entitled to have his residence in a decent accommodation having sufficient space and convenience. Counsel submitted that the landlord is the master of his requirement and it is not for the tenant to dictate to the landlord as to what all facilities and conveniences should there be in the premises to be occupied by his son. As regards the complaint of Mr.Jayakumar that the commission application was rejected, Mr.Chitambaresh, learned senior counsel, would place RCR. N0. 127/08 -10- before us a copy of the memorandum of appeal submitted before the Rent Control Appellate Authority and point out that not even a formal ground had been raised before the Rent Control Appellate Authority regarding the dismissal of the application for issuance of a Commission. Counsel submitted that none of the other buildings in respect of which the Commission application was filed, were vacant buildings and it has been so found concurrently by the Rent Control Court and the Appellate Authority. Counsel submitted that at any rate those buildings which are portions of line buildings are smaller even than the petition schedule building which itself has only just two rooms. Learned senior counsel reminded us of the contours of our jurisdiction under Section 20 of the Act and submitted that this Court is not expected to reappraise the evidence and substitute the conclusions of the Rent Control Appellate Authority which is the final court on facts. RCR. N0. 127/08 -11- 5. In reply Mr.Jayakumar would submit that dismissal of an application for issuance of Commission which had been filed for the purpose of bringing on record very valuable evidence which would have enabled the authority to decide the case correctly was a glaring illegality. Such an illegality is not to be condoned by this Court for the reason that the party condoned the same by not raising a specific ground against the same in the appeal. 6. We have considered the rival submissions addressed by both the learned counsel in the light of the relevant statutory provisions as well as the relevant judicial precedents including those cited at the Bar. Sri.K.Jayakumar is certainly right when he contends that going by the statutory definition of the term 'building' part of a building is also building and in that way the building which is subject matter of the RCP has an identity distinct from the entire double storied structure of which the petition RCR. N0. 127/08 -12- schedule building and the buildings which came back to the possession of the landlord during the pendency of the RCP are parts. The landlord in the present case has certainly considered the buildings forming subject matter of the three rent control petitions as buildings with distinct identity and that should be why he chose to file three separate rent control petitions. But at the same time it cannot be gainsaid that the three 'buildings' forming subject matter of the three rent control petitions together constitute a large double storied residential building suitable for residential accommodation by a family of higher financial and social status than families which would be content with accommodations of the size of the petition schedule building or for that matter smaller sizes. It was specifically pleaded by the landlord in the rent control petition that his need is to accommodate his son Anek and family not in the petition schedule building alone, but also in the buildings which were RCR. N0. 127/08 -13- subject matter of the rent control petitions filed against the other tenants viz. Narayanan Nair and Jayanandan. In other words, the need projected was the need to accommodate son Anek, PW-2 in the larger building (or structure as Mr.Jayakumar prefers to call the same) consisting of three smaller buildings forming subject matter of the three rent control petitions. It is pleaded in the rent control petition itself that eviction petitions are simultaneously instituted against the other tenants Narayanan Nair and Jayanandan also. The other rent control petitions were disposed of earlier. Perhaps in those petitions the contest was not this stiff and there is evidence to hold that in the rent control petition filed against Sri.Narayanan Nair, eviction could be secured earlier by assigning to him three cents of land. Whatever that be, the event of the landlord coming into possession of the buildings which were subject matter of those two rent control petitions is an event subsequent to RCR. N0. 127/08 -14- the commencement of the rent control proceedings. Admittedly, at the time when the present rent control petition was instituted the landlord did not have possession of the other two buildings. The first proviso to section 11(3) comes into operation only when the landlord is in possession of another building of his own in the same city, town or village. Once it comes into operation, eviction cannot be ordered unless the Rent Control Court is satisfied that there are special reasons to order eviction in spite of such possession by the landlord. The first proviso obviously did not operate at the time of commencement of the rent control petition. Question to be considered is whether it came into operation subsequently. On a reading of the first proviso, it appears that the point of time at which the Rent Control Court becomes concerned with that proviso is the point of time when the court takes up the petition for decision. This would mean that if it becomes evident in the RCR. N0. 127/08 -15- case at the time the Rent Control Court comes to take decision in the rent control petition that the landlord has another building of his own in his possession in the same city, town or village, the Rent Control Court shall not order eviction unless the court is satisfied that there are special reasons in the case to justify such order of eviction despite landlord's possession of the other building. We cannot agree that it is obligatory on the part of the landlord in a case like the present one where another building of the landlord's own came to the landlord's possession subsequent to the institution of the rent control petition to plead special reasons by raising additional pleadings. But at the same time, as indicated by Division Bench of this Court in Raghavan v. Govindan Nambiar, (1995 (1) KLT 596) unless the Rent Control Court finds the existence of special reasons justifying an order of eviction landlord's possession of vacant building notwithstanding, order of RCR. N0. 127/08 -16- eviction cannot be passed. Special reason, according to us, can be any reason which appeals to the Rent Control Court's sense of justice, equity and good conscience since that court is governed by the principles of justice, equity and good conscience as provided under the statutory rule 11(8) of Buildings (Lease and Rent Control) Rules while taking decision. The Division Bench in Raghavan's case (supra) has stated that special reasons can be found by the Rent Control Court from the oral or other evidence adduced by the landlord or even from the evidence adduced on the side of the tenant. We have gone through the evidence adduced by PW-1. It is seen that in his affidavit in lieu of chief examination the landlord has very clearly stated that two other tenants Jayanandan and Narayanan Nair on realising the genuineness of the landlord's need, have vacated those buildings and that once the petition schedule building is also got vacated it will be possible for the landlord to RCR. N0. 127/08 -17- accommodate his son Anek and family in the entire building (structure). We find that in cross-examination not even a single question is asked to PW-1 as to why the landlord cannot accomplish the need of providing separate residence to PW-2 immediately by utilising the buildings which were in occupation by Jayanandan and Narayanan Nair. Ofcourse, Mr.Jayakumar had an intelligent explanation when we drew his attention to this aspect of the matter. He would say that in as much as the landlord had no case in chief examination that there was some special reasons as to why those two buildings are not occupied, the tenant was not expected to probe the issue further through cross examination. But according to us, though not in so many words, it is stated by the petitioner not only in the rent control petition but also in his chief examination that his son PW-2 will require the entire structure for commencement of independent residence. The tenant's own evidence is to the effect that RCR. N0. 127/08 -18- PW-1 belongs to the upper middle class and one of the contentions of the tenant is that the petition schedule building is too small for a person like PW-2 to reside in. It has become evident that the petition schedule building by itself has just two small rooms and only when the entire structure formed of the three buildings which were subject matter of the three rent control petitions is taken as one unit does it become an accommodation befitting the social and financial status of PWs.1 and 2. It is in evidence from the mouth of the tenant himself that the family house in which PW-2 is presently residing is a palatial one. If that be so, the nonavailability of the petition schedule building also, itself is a good reason – a special reason for PW-2 in not occupying the buildings which were being occupied by tenants Narayanan Nair and Jayanandan though they are already available to him. 7. It has been settled by the judgment of the Supreme RCR. N0. 127/08 -19- Court in Pasupuleti Venkateswarlu's case (1975 SC 1409) and a line of subsequent decisions including the judgment in Hasmat Rai's case (AIR 1981 SC 1711) that in rent control proceedings the court can and at times shall take conscious cognizance of subsequent events. But it is not as though each and every subsequent event happening during the pendency of the proceedings is relevant for adjudication. It is only those subsequent events which have a fundamental impact on the right or liability of the parties to secure or suffer an order of eviction which are relevant. In the instant case, the subsequent event of the buildings previously occupied by Jayanandan and Narayanan Nair coming to the possession of the landlord, in our opinion, does not obliterate or eclipse the need projected by the landlord under section 11(3). On the contrary it only strengthens the need which all along was to accommodate PW-2 in those buildings along with the subject building. RCR. N0. 127/08 -20- 8. Rejection of an application for issuance of commission for a real purpose of elucidating matters in dispute by bringing forth relevant evidence is certainly an illegality, which if not corrected in appeal, can be corrected in revisional jurisdiction under section 20. But what we find is that the tenant who had raised a large number of grounds in the appeal filed by him had not raised any ground challenging the order rejecting the commission application. It is clear to our mind that the tenant chose not to challenge the order on the commission application because he knew very well that even if a commissioner was deputed the information which could be collected was regarding portion of line building which was smaller in size than even the petition schedule building and hence of no relevance in deciding the rent control petition. Having chosen not to challenge the correctness of the order on the commission application before Appellate Authority the revision petitioner RCR. N0. 127/08 -21- cannot now rake up the issue in this revision. At any rate, we are of the firm view that the evidence sought to be collected by deputing commission will be of no relevance in the case. 9. Result of the above discussion is that the RCR fails and will stand dismissed. However, in deference to the very able and learned submissions addressed before us by Mr.Jayakumar and his fervent appeal for grant of a fairly long period to vacate and taking into account the circumstances highlighted before us by him regarding the difficulties of the petitioner to vacate immediately we direct that the petition schedule building will not be delivered over to the landlord till 14-9-2009 subject to the following conditions: The revision petitioner files an affidavit before the Execution Court within two weeks from today undertaking to peacefully surrender the petition schedule building to the RCR. N0. 127/08 -22- respondent on or before 13-9-2009 and undertaking further to discharge arrears of rent if any and to pay the rent which falls due subsequently, promptly and regularly. Once the execution court notices such an affidavit that court will adjourn the E.P. to 14-9-2009. In the circumstance, both sides will suffer their respective costs in the revision. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) vns/ksv/-