IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 RCRev..No. 210 of 2007() ------------------------ RCA.91/2003 of DISTRICT COURT, THALASSERY RCP.270/1988 of PRL.MUNSIFF COURT, KANNUR .................... REVISION PETITIONERS - APPELLANTS - PETITIONERS: -------------------------------------------------------------------- 1. T.P. IBRAHIM KUNJI, S/O. ASSAINAR, AGED 47 YEARS, NO OCCUPATION, T.P. HOUSE, P.P. ROAD, KANNUR. 2. T.P. SAINABI, D/O. ASSAINAR, AGED 51 YEARS, RESIDING AT T.P. HOUSE, P.P. ROAD, KANNUR. 3. T.P. ABDUL MAJEED, S/O. ASSAINAR, AGED 40, HOTEL EMPLOYEE OF -DO- -DO-,REP. BY REG. POWER OF ATTORNEY HOLDER BROTHER T.P.IBRAHIMKUNJI, S/O.ASSAINAR, AGED 47 YEARS, NO OCCUPATION, RESIDING AT T.P.HOUSE, P.P.ROAD, KANNUR. 4. T.P. ASAMBAI, S/O. ASSAINAR, AGED 37 YEARS, NO OCCUPATION, RESIDING AT T.P.HOUSE, P.P. ROAD, KANNUR. BY ADVS. SRI.C.KHALID SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID vk RCRev..No. 210 of 2007() -------------------------------- RESPONDENTS/RESPONDENTS-RESPONDENTS: -------------------------------------------------------- 1. PONNEN AYISHABI, D/O. HAMZA HAJI, AGED 50 YEARS, NO OCOCUPATION, RESIDING AT HAJI MANZIL, MANNA, VALAPATTANAM. 2. PONNEN ZIYAD, S/O. ABDUL AZEEZ, AGED 41 YEARS, WESTERN INDIA PLYWOODS EMPLOYEES, RESIDING AT HAJI MANZIL, MANNA, VALAPPATTANAM. 3. PONNEN ANWAR, S/O. ABDUL AEEZ, AGED 39 YEARS, MERCHANT, RESIDING AT HAJI MANZIL, MANNA, VALAPATTANAM. 4. PONNEN SABIRA, D/O. ABDUL AZEEZ, AGED 32 YEARS, NO OCCUPATION, RESIDING AT HAJI MANZIL, MANNA, VALAPATTANAM. 5. PONNEN SHAKKEEL, S/O.ABDUL AZEEZ, AGED 29 YEARS, STUDENT, RESIDING AT HAJI MANZIL, MANNA, VALAPATTANAM. 6. K.P. SAIBUNISSA, D/O.LATE M.K.SUBAIR, AGED 49 YEARS, NO OCCUPATION, RESIDING AT KUNHIPURA HOUSE, NEAR SBI, KANNUR-1. 7. K.P. SAKKIATH, D/O.M.K. SUBAIR, AGED 27 YEARS, NO OCCUPATION, RESIDING AT KUNHIPURA HUOSE, NEAR SBI, KANNUR-1. 8. K.P. SEEBA, D/O. M.K. SUBAIR, AGED 25 YEARS, NO OCCUPATION, RESIDING AT KUNHIPURA HOUSE, NEAR SBI, KANNUR-1. 9. K.P. SAHID, S/O. SUBAIR, AGED 24 YEARS, STUDENT,RESIDING AT KUNHIPURA HOUSE NEAR SBI, KANNUR-1. vk RCRev..No. 210 of 2007() ---------------------------------- 10. K.P. SAHILA, D/O. M.K. SUBAIR, AGED 22 YEARS, STUDENT,RESIDING AT KUNHIPURA HOUSE NEAR SBI, KANNUR-1. 11. K.P. SABEENA, D/O.M.K. SUBAIR, AGED 21 YEARS, NO OCCUPATION, RESIDING AT KUNHIPURAM HOUSE, NEAR SBI, KANNUR-1. 12. T.P. MOHAMMED ASHRIF, S/O. ASSAINAR, AGED 28 YEARS, BUSINESS, RESIDING AT T.P.HOUSE, P.P. ROAD, KANNUR. R1-8 & 11 BY ADV. SRI.A.MOHAMED MUSTAQUE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ R. C. R. No.210 of 2007 ------------------------------------------------ Dated this the 18th day of November, 2011 O R D E R Pius C. Kuriakose, J Under challenge in this revision filed by the landlords is the judgment of the Rent Control Appellate Authority confirming the revised order passed by the Rent Control Court pursuant to an order of remand passed by this Court in CRP.50/93 declining eviction which was sought under sub Section 3 of Section 11. As the rival pleadings raised by the parties have been narrated almost accurately by the Rent Control Court as well as by the Rent Control Appellate Authority in their orders/judgments, we do not propose to narrate them here again. The need projected in the RCP which was instituted in 1988 was that the building in question, a fairly large double storied building having a total carpet area of 1316 sq. ft situated just opposite to the Kannur Railway Station is needed bona fide by one T.P.Ibrahim Kunhi, R. C. R. No.210 of 2007 the first petitioner in the Rent Control Petition instituted jointly by the above mentioned Ibrahim Kunhi, Smt.T.P.Zainabi (the 2nd petitioner), T.P.Abdul Majeed (3rd petitioner), T.P.Asmabi (4th petitioner). T.P.Mohammed Ashrif (5th petitioner), is required bona fide for occupation by Sri.T.P.Ibrahim Kunhi so that he can conduct business in stationery and plastics. The tenants according to the landlords where only respondents 1 to 6 and respondent Nos.7 to 11 were arrayed as the legal heirs of the said tenant. The eviction grounds which were invoked were apart from Section 11(3) grounds of arrears of rent and the grounds of subletting also. The grounds of arrears of rent and the grounds of subletting does not survive for consideration and we in this revision need have to be concerned only with the ground under sub Section 3 of Section 11. As already stated the need projected was that of Sri.T.P.Ibrahim Kunhi only. But it is seen that Sri.Ibrahim Kunhi is no more and through an amendment which was allowed the need which is presently projected in the amended Rent Control Petition is that of Sri.T.P.Abdul Majeed and Sri.T.P.Mohammed Ashrif for conducting the business which was originally proposed by Sri.T.P.Ibrahim Kunhi. The tenants disputed the bonafides of the need. In the first instance (while R. C. R. No.210 of 2007 Sri.T.P.Ibrahim Kunhi was alive and the Rent Control Petition had not been amended), the Rent Control held that the need projected by Ibrahim Kunhi was a bona fide one and that the RCP was not liable to fail by virtue of first or second proviso to sub Section 3 of Section 11. However, the Rent Control Appellate Authority which considered the appeal preferred by the tenants would allow the appeal and decline eviction. It was against that judgment of the Appellate Authority that the landlords instituted CRP 50/93 before this Court. The above CRP was allowed by this Court by passing an order of remand to the Rent Control Court directing a fresh consideration of the claim for eviction under Section 11(3) giving opportunity to both sides to adduce further evidence. The Rent Control Court by its revised order dt.17/02/05 would hold on the basis of the evidence adduced by the parties that the need is not bona fide. On the basis of that finding the RCP was dismissed straight away. RCA 91/03 was preferred by the landlords against the above order and the Rent Control Appellate Authority by its judgment dt.27/03/07 impugned in this revision has dismissed the RCA confirming the finding of the Rent Control Court that the need is not bona fide. However, the Appellate Authority found that the tenant was R. C. R. No.210 of 2007 unsuccessful in showing that he is entitled for the protection of the second proviso. 2. In this revision which is filed by the 5 landlords various grounds are raised assailing the judgment of the Appellate Authority. It is during the pendency of the revision that Sri.T.P.Ibrahim Kunhi passed away. The legal representatives of deceased T.P.Ibrahim Kunji have not been brought on record as parties in this revision. 3. Sri.T.P.Sajid, the learned counsel for the revision petitioner addressed very strenuous and persuasive submission before us based on the various grounds raised in the revision. At the very outset he drew our attention the judgment of the Hon'ble Supreme Court in Gaya Prasad Vs Pradeep Srivastava [2001(1) KLT 753 (SC)]. The learned counsel submitted that the learned Rent Control Court and the appellate authority have declined the reliefs to landlord mainly relying on the happenings during the pendency of the rent control proceedings. The rent control petition was instituted way back in 1988. The appellate authority takes decision in the rent control appeal in 2007, about two decades after the commencement of the R.C.P. It is only natural that there will be R. C. R. No.210 of 2007 several developments during the course of 20 long years. If decision on the cause is to be taken, taking into account the various happenings the same will result in denial of justice to the parties who seek reliefs. The counsel submitted that Sub Rule 8 of Rule 11 of Kerala Building Lease and Rent Control Rules obliges the statutory authorities to be governed by the principles of equity, justice and good conscious. It will be most inequitable to deny reliefs on the basis of events which have naturally taken place during the long period of two decades after commencement of the proceedings. True, T.P.Ibrahim Kunji is no more but rent control petition has been amended and the landlords have been allowed to project a fresh need of the 3rd and 5th petitioners in the rent control petition. Nobody challenged the above amendment. Therefore, the authorities could have examined the genuineness of the need projected in the amended rent control petition. Referring to the additional documents produced by the respondents along with I.A.No.747/2011 Mr.Sajid submitted that the availability of the room bearing door Nos.35/2442 and 35/2450 is not a subsequent event. This was raised as an issue under the first proviso to sub Section 3 of Section 11 even before the Rent Control Appellate R. C. R. No.210 of 2007 Authority. It is evident that those rooms are very small rooms in comparison with the petition schedule structure which is a double storied building having at least four rooms with total carpet area of 1316 Sq.ft. A building which is as big as the petition schedule building is absolutely necessary for accomplishing the need which was projected by late T.P.Ibrahim Kunji and presently projected by petitioners 3 and 5 in the rent control petition. The first proviso this cannot have any application. The counsel also pointed out that in expectation of getting possession of the building the 3rd petitioner in the rent control petition surrendered his passport Ext.A8 before the Rent Control Court and the passport has been remaining under the custody of the Rent Control Court from 2002 onwards. Mr.Sajid concluded his submissions by referring to the judgments of the Supreme Court wherein it is held that the rent control legislation is a legislation for the welfare of the landlord also. Incidentally Mr.Sajid submitted that even the fair rent of Rs.5,000/- which has been fixed by the Rent Control Court for this building is far below the market rent, this building will fetch as the same will let out today. 4. Mr.Mohammed Mustaque, learned counsel for the R. C. R. No.210 of 2007 respondents would resist all the submissions of Mr.Sajid. Mr.Mohammed Mustaque would draw our attention to the judgment of the Rent Control Appellate Authority. The learned counsel submitted that it is reasonable findings which have been entered by the learned appellate authority in confirmation of similar findings entered by the Rent Control Court in its revised order. There is no warrant for interference within the well delineated contours of this revisional jurisdiction under Section 20. Mr.Mohammed Mustaque would submit very forcefully that the very maintainability of the rent control petition is in doubt. He submitted that the evidence will show that a partition has been effected between the five petitioners in the rent control petition, in respect of all their common properties including the petition schedule building. He pointed out that on the terms of Ext.A10 the entire ground floor of the petition schedule building is allotted to the share of 3rd petitioner in the rent control petition while the first floor is allotted to the share of the 1st petitioner and the 5th petitioner. Now that different portions of the petition schedule building has come to the ownership of three of the petitioners, it is absolutely necessary that fresh pleadings are raised including in respect of dependency. This R. C. R. No.210 of 2007 event is an event of the landlord's own making and they have to take its consequences. As regards rent Mr.Mustaq submitted that the order of the Rent Control Court fixing fair rent at the rate of Rs.5,000/- per mensem has been challenged by the respondents and hence it was requested that any further fixation of the fair rent will be improper. However, it was submitted by Mr.Mustaq that in case the landlords are ready to withdraw all proceedings for eviction and allow respite to the tenant for a reasonably long period and if permission is given to the tenant for giving a face left to the building by removing the present wooden shutters and substituting them with rolling shutters, the respondents will be prepared to pay any reasonable rent demanded by the revision petitioners. 5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have very carefully gone through the impugned judgment of the appellate authority and the revised order passed by the Rent Control Court as well as the order initially passed by the Rent Control Court in favour of the landlord. We have considered the order of this Court in R.C.P No.50/1993. The submissions of Mr.T.P.Sajid fortified as they are by the judgment of the Supreme Court in Gaya Prasad Vs R. C. R. No.210 of 2007 Pradeep Srivastava 2001(1) KLT 753 (SC) do arouse some concern in our mind for the landlords who appear to have been victims of the maladies of our system of justice delivery. But we have to keep in mind the limits of the jurisdiction in which we are presently sitting. It is well known that the jurisdiction under Section 20 of Act 1965 is revisional in nature and in this jurisdiction we are not expected even to make a re-appraisal of the evidence when the findings of fact entered by the appellate authority which is the statutory final fact finding authority appear to be reasonable findings founded on evidence. On scanning the judgment of the appellate authority we find that all the findings therein including the findings that the tenants are not entitled to the protection of second proviso to sub Section 3 of Section 11, are findings founded on evidence including circumstantial evidence. 6. We do not find way to upset those findings. We find considerable force in the submissions of Mr.Mohammed Mustaq on the basis of Ext.A10 that on the present pleadings it may be difficult to sustain the rent control petition. The fact is that respondents 2 and 4 (petitioners 2 and 4 in the rent control petition) have ceased to have any interest in the building and the R. C. R. No.210 of 2007 further fact that absolute ownership over the ground floor of the building has become vested in the 3rd respondent herein and ownership over the first floor has become vested in the deceased 1st petitioner in the rent control petition and the 5th petitioner. We think that ideally the legal representatives of the deceased 1st petitioner and petitioners 3 and 5 in the rent control petition should file a fresh rent control petition if they want to evict the respondents incorporating all necessary pleadings including pleadings as to the mutual dependency in respect of the different portions of the building. There is no doubt in our mind that this is a case were permission should be granted those present owners of the building for filing a fresh rent control petition invoking ground under sub Section 3 of Section 11 and any other ground which may be presently available. 7. We could easily gather from the discussions we had at the Bar with the learned counsel appearing for the petitioner and the respondent that even the sum of Rs.5,000/- per mensum presently fixed as the fair rent is lesser than the market rent the building situated just opposite of the Kannur Railway Station will fetch if the same is let out today. Under the existing legal position it is open to the landlords and the tenants to apply for R. C. R. No.210 of 2007 re-fixation of fair rent in respect of a building, fair rent of which is already fixed. We permit the landlord to move before the Rent Control Court for re-fixation of the fair rent of the building. We record the submission of Mr.Muhammed Mustaq that the respondents will be advised to withdraw the Rent Control Appeal which they have preferred against the present order fixing fair rent at Rs.5,000/- per mensum. Subject to re-fixation of fair rent by the Rent Control Court in the prospective petition which may be filed by the landlord, we refix the rent payable by the respondents to the landlords with effect from 1.12.2011 at Rs.9,000/- per mensem. The result of the above discussions is as follows: i) The impugned judgment of the appellate authority is not interfered with. ii) The order declining eviction under sub Section 3 of Section 11 is confirmed, so also the findings that the tenant is not entitled for the protection of second proviso is confirmed. iii) The present owners of the building are permitted to institute a fresh Rent Control Petition seeking eviction of the tenants invoking all available grounds including the ground under sub Section 3 of Section 11. iv) The statutory authorities who come to consider the prospective rent control petition will not be influenced in any manner by the circumstance that the impugned judgment of the appellate authority declining eviction is R. C. R. No.210 of 2007 confirmed by us. The prospective rent control petition will be decided on its merits on evaluating the evidence adduced by the parties. v) If any fresh rent control petition is filed by the present landlords within two months from today it will be the obligation of the rent Control Court to dispose of that rent control petition within the statutory time frame of four months. vi) The rent payable by the respondents to the landlords is re-fixed with effect from 1.5.2011 at Rs.9,000/- per mensem. This re-fixation will be subject to regular re-fixation by the Rent Control Court in any proceedings which may be initiated by the landlord or by the tenant. vii) As far as the request of Mr.Mustaq that the tenant should be permitted to give a face left to the building by replacing the present wooden shutters with rolling shutters on condition that the tenants will not claim any value of improvements or any concession from the landlords and that the entire expenditure will be met by the tenants, we leave it to the parties to come to a settlement. If no settlement is arrived at it is open to the respondents to bring this aspect to the notice of the Rent Control Court which may come to consider the prospective rent control petition filed by the parties (whether it be for eviction or for fixation of fair rent) and that Court will try its best to have this issue settled. The Rent Control Revision is disposed of. Sd/- SSS PIUS C. KURIAKOSE, JUDGE K. HARILAL, JUDGE ab