IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 RCRev..No. 164 of 2007() ------------------------ RCA.12/2006 of ADDL. DISTRICT COURT, VADAKARA RCP.25/2005 of MUNSIFF COURT, NADAPURAM .................... REVISION PETITIONER/RESPONDENT/PETITIONER: ------------------------------------------ VANNATHIKUNIYIL PARKUM KOKKANDIYRI ANDRU HAJI BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL) RESPONDENT(S): APPELLANT/RESPONDENT: ------------------------------------ POTTATHAREMMAL HANEEFA, "MODERN FURNITURE", VATAKARA ROAD, NADAPURAM P.O., VATAKARA. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.164 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February, 2009 ORDER Pius.C.Kuriakose, J. Landlord is the revision petitioner. He sought for an order of eviction on the ground under section 11(3), section 11(4) (iii) and also under Section 11(4)(v) of the Kerala Buildings ( Lease and Rent control) Act 1965, Act 2 of 1965. The eviction which was sought for under Section 11(4)(v) was declined by the rent control court and that order has become final. 2. The rent control court on evaluating the evidence which consisted of Exts.A1 to A6, testimony of PW1, Exts.B1 and B1(A), testimony of RW1 and the Commissioner's report Ext.C1 concluded that the landlord's need for own occupation under Section11(3) was bona fide and that the tenant was unsuccessful in establishing that he satisfies the two ingredients of the second proviso to Section 11(3). As for the ground for eviction under Section 11(4)(iii), that court found that it was evident that the tenant was having possession of other rooms RCR.No.164/07 2 belonging to Dars committee and in the absence of any evidence adduced by the tenant to show that those rooms are not sufficient for the tenant's requirements, the landlord was eligible for an order of eviction under Section 11(4)(3). In this context, the rent control court also noticed that the tenant had admitted in his testimony as RW1 that he was having custody of the registered lease deed which he had executed in favour of Dars committee and other documents like licence fee receipt which will support his contention that the building belonging to Dars committee was under his possession even at the time when he took out the schedule building on lease. The tenant was not prepared to produce those documents and on that basis there was justification for drawal of adverse inference against the tenant. 3. The rent control appellate authority however considering the appeal preferred by the respondent would hold that the landlord's claim for own occupation under Section 11(3) was not bona fide. On a reading of the appellate authority's order, it would appear that the circumstance that the landlord was not prepared to give a smaller room, which was shown to be in the possession of the landlord, to the tenant RCR.No.164/07 3 in exchange for the petition schedule room weighed much with that authority. That authority would interfere with the findings of the learned court in the context of Section 11(4)(3) also purporting to rely on the commission's report Ext.C1. 4. Though the respondent was served with notice of this revision petition, he has not entered appearance before this court and we have heard Sri.P.A.Augustine, learned counsel for the petitioner at length. Sri.Augustine would assail the conclusions of the rent control appellate authority. He would submit that as an appellate authority under Section 18, the learned District Judge was expected to say how and why the conclusions of the rent control court are vitiated. In the instant case, that essential appellate function has not been discharged by the rent control appellate authority. Learned counsel would submit that the learned appellate authority became very much antagonised since the revision petitioner landlord was not inclined to accept the suggestion that a smaller room in the ground floor noticed by the rent control court to have been in possession of the landlord should be given to the tenant in exchange for petition schedule building. Our RCR.No.164/07 4 attention was drawn by the learned counsel to Annexure A1 which is the photocopy of the registered lease deed which the landlord had entered into in respect of the smaller room which was directed by the learned appellate authority to be given to the tenant in exchange for the petition schedule room. Learned counsel would submit that the lease deed will show that the said room was not in the possession of the landlord at the time when the suggestion was made by the appellate authority and therefore it was not possible for the landlord to accede to the suggestion. The counsel would refer to Ext.A5 and the observations made in the judgment of the learned appellate authority that even the identity of the holder of Ext.A5 is not established and argue that such observations were absolutely unwarranted. Learned counsel would submit that the learned appellate authority was prejudiced against the revision petitioner landlord and hence the appellate authority's decision has become tainted to a certain extent. Learned counsel would draw our attention to the conclusion of the rent control court in the context of ground for eviction under Section 11(4)(iii) and submit that those conclusions are quite sound and the RCR.No.164/07 5 appellate authority was not justified in interfering with those conclusions without showing how those conclusions are bad. 5. We have anxiously considered the submissions of the learned counsel for the revision petitioner. Despite strenuous and persuasive submissions of the learned counsel, we are not inclined to feel that within the contours of our jurisdiction under Section 20, we will be justified in interfering with the findings of the learned appellate authority entered in the context of the landlord's claim for eviction under Section 11(3), unless we remand the matter back to the rent control court and facilitates collection of more evidence. But in the nature of the decision we are going to take in the landlord's case for eviction under Section 11(4)(iii), we are of the view that an order of remittance to consider the case for eviction under Section 11(3) is not necessary. 6. Section 11(4)(iii) of Act 2 of 1965 would read as follows: “ The landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,- RCR.No.164/07 6 if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirements in the same town or village. 7. The legislative intendment underlying under Section 11(4) (iii) is that the tenant should not be allowed the luxury of having more buildings in his possession than what is necessary for his requirements so that the extra accommodation at the disposal of the tenant will be made available either to the needy landlord or to the other needy tenants. It is trite that when it is admitted by the tenant that he has other accommodations in his possession than the accommodation which is subject matter of the eviction petition, it is for the tenant to plead and prove that such extra accommodation is not sufficient for his requirements. The best evidence which could have been adduced by the tenant to establish that the rooms belonging to Dars committee which are admittedly under his possession are not sufficient for the tenant's requirements, in our opinion, will be the report of an Advocate Commissioner on the basis of local inspection of both the RCR.No.164/07 7 accommodations. The tenant for reasons best known to him, has not chosen to have a Commission's report made available before the court. The tenant's contention is that even at the time when he took the schedule building on lease, he was having possession of the room belonging to the Dars committee. Admittedly, a registered lease deed was executed by the tenant in favour of the Dars committee. The best evidence to show as to when exactly the tenant had taken the Dars committee rooms on lease from the Dars committee was the lease deed itself. The tenant in his testimony as RW1 admitted that he is having custody of that lease deed. He also admitted that he is having other documents including the licence fee receipt issued by the local authority in respect of the business carried on by him in the Dars committee showing that he was having possession of that building at the time when he took the building which is the subject matter of the RCP on lease. In the light of such admissions, the landlord filed I.A.No.1167/05 for directing the tenant to produce the copy of the lease deed and also the documents like the licence fee receipt. When this application is filed the tenant does a volte-face and takes the stand that RCR.No.164/07 8 he does not have the custody of the lease deed and that the custody of the lease deed is presently with the local Panchayat before whom it has been submitted in connection with the renewal of the licence. The lease deed in question is admittedly a registered lease deed. Nothing prevented the tenant from producing the certified copy of the lease deed or atleast from disclosing the registration number of the lease deed. According to us, the rent control court was perfectly justified in drawing adverse inference against the tenant due to his non-production of the lease deed. As noticed by the rent control court, the tenant had no explanation at all in his affidavit for his inability to produce the documents relating to the licence fee payment. We agree with the rent control court and draw adverse inference against the tenant on account of his non-production of the lease deed and the licence fee receipt pertaining to the Dars committee rooms. As already noticed by us, the tenant upon whom the burden was has not chosen to bring on record the best evidence which as already indicated is a Commission's report based on local inspection and has thus withheld crucial evidence at his command. According to us, the rent control appellate authority was not RCR.No.164/07 9 at all justified in interfering with the eviction order passed by the rent control court on the ground under Section 11(4)(iii). 8. Apart from the aspects already pointed out by us, even the Advocate Commissioner's report available in the case will justify a conclusion that the other accommodation available with the tenant is sufficient for his requirements. Going by the pleadings, he took the schedule buildings on lease for the purpose of conducting business in furniture. The tenant admitted in evidence that sale of furniture is presently conducted by him in the building belonging to Dars committee and not in the schedule building. The Commission's report reveals that not even a single piece of furniture is kept in the schedule building. It is only other items like toy cycles and toys which are seen collected in the schedule building. This means that the petitioner has sufficient facility in the Dars building for storing his stock of furniture. We set aside the order of the rent control appellate authority to the extent it relates to order of eviction under Section 11(4)(iii). Revision petition is allowed to the above extent. Order of eviction under Section 11(4)(iii) is passed against the respondent. Respondent RCR.No.164/07 10 shall put the revision petitioner landlord back in possession of the building within two months from today. PIUS.C.KURIAKOSE JUDGE M.C.HARI RANI JUDGE sv. RCR.No.164/07 11