IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 RCRev..No. 220 of 2007() ------------------------ RCA.23/2003 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.7/2000 of MUNSIF COURT, KUTHUPARAMBA .................... (S): REV.PETITIONER/APPELLANT NO.1/RESPONDENT ------------------------------------------------------------ KARAYI GANGADHARAN, S/O.BHASKARAN, AGED 74 YEARS, RESIDING AT KUTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK. BY ADV. SRI.P.P.RAMACHANDRAN RESPONDENT(S): RESPONDENT & APPELLANT NO.2/PETITIONER ----------------------------------------------------- 1. M.HARIDASAN, S/O.P.C.BALAKRISHNAN NAMBIAR, AGED 57 YEARS, WORKING AS PROFESSOR AT UNIVERSITY OF BRAZILIA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, M.RAVINDRAN. 2. M.RAVINDRAN, S/O.P.C.BALAKRISHNAN NAMBIAR, AGED 55 YEARS, WORKING IN GENERAL INSURANCE CORPORATION OF INDIA, RESIDING AT STAFF QUARTERS 4/7, INTERNATIONAL INSTITUTE OF POPULATION SCIENCES, DEONAR, MUMBAI - 400088. 3. REMA.S. NAMBIAR, D/O.P.C.BALAKRISHNAN NAMBIAR, AGED 49 YEARS, RESIDING AT D-314, VADANIWALA, CHINCH BUNDER ROAD, MALAD (WEST), MUMBAI - 400064. 4. KUTHUPARAMBA MANDAL CONGRESS COMMITTEE REPRESENTED BY ITS PRESIDENT, A.P.ACHUTHAN, S/O.KUNHIKANNAN, AGED 65 YEARS, DOCUMENT WRITER, RESIDING AT KUTHUPARAMBA AMSOM, MOORIYAD DESOM, THALASSERY TALUK. ADV. SRI.K.V.PAVITHRAN FOR R1 TO 3 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ R.C.R.No.220 OF 2007 ------------------------ Dated this the 22nd day of May, 2009 ORDER Pius C.Kuriakose, J. The revision petitioner is the 1st respondent in the Rent Control Petition and respondents 1 to 3 are the petitioners therein. The 4th respondent is the 2nd respondent in the RCP. The 4th respondent is the Kuthuparamba Mandal Congress Committee and the revision petitioner, then an office-bearer of the Kuthuparamba Mandal Congress Committee, is the person who executed the lease deed in respect of the petition schedule building. Respondents 1 to 3 are referred to hereinafter as the landlords. 2. The case of the landlords in the RCP is that the revision petitioner and the 4th respondent (hereinafter referred to as the tenants) are liable to be evicted on the ground of arrears of rent under sec.11(2)(b) and bona fide own occupation under sec.11 (3). It is conceded that the ground under sec.11(2)(b) does not survive any longer. The courts below have concurrently passed an order of eviction under sec.11(3) which is impugned in this R.C.R..No.220/2007 2 RCR. The need projected by the landlords under sub-sec.(3)(a) of sec.11 was that landlord No.3, a lady presently put up at Bombay with her family, belongs to Kuthuparamba and wants to come back from Bombay to Kuthuparamba upon completion of the studies of her second child, so that she can reside in her tarwad house which is kept vacant and start a tuition centre in the petition schedule building. The petition schedule building is the first floor portion of a double storied building presently occupied by the tenants for the conduct of the office of the Kuthuparamba Mandal Congress Committee. The bona fides of the need and the claim were resisted by contending that landlord No.3 is having her own flat in Bombay, that her son being employed in Bank of America is permanently settled in Bombay and that she herself is conducting tuition classes in a portion of her flat in Bombay. On that basis it was contended that the need projected in the RCP is only a ruse to get the tenant evicted so that the building can be let out to somebody else on a rent which will be much more attractive than the sum of Rs.25/- p.m. which is presently paid by the tenant. In the Rent Control Court, the 3rd petitioner in the RCP, the de facto claimant, got R.C.R..No.220/2007 3 herself examined as PW.1. Another witness, PW.2, tenant of the landlords in another building belonging to them, was also examined. Documents Exts.A1 to A6 and Ext.C1 report submitted by an advocate-commissioner on a local inspection also formed part of the evidence. Counter oral evidence was given by the revision petitioner as DW.1. The documentary evidence on the side of the tenant consisted of Exts.B1 to B17. The Rent Control Court on evaluating the evidence, and particularly the oral evidence of PW.1, regarding her need and intention to come back to Kuthuparamba for good, found that the claim is bona fide. Accordingly order of eviction was passed under sec.11(3) which was confirmed by the Rent Control Appellate Authority on a re-appreciation of the entire case. 3. We have heard the submissions of Sri P.P. Ramachandran, learned counsel for the petitioner and Sri K.V. Pavithran, learned counsel for respondents 1 to 3. 4. Sri Ramachandran submits that there is no bona fides whatsoever in the need projected by the landlady. He submitted R.C.R..No.220/2007 4 that the tarwad house of the landlady is kept vacant for years and the landlady has no intention whatsoever to come back to Kuthuparamba. According to the learned counsel, if the landlady really wanted to come and occupy the house, she could have already come back. Sri.Ramachandran submitted that studies of the second child of the landlady was completed in 2002 and that if she really needed to come back to Kuthuparamba she could have done so and occupied the tharavad house for her residence. If the landlady wanted to conduct tuition classes, she was having another vacant building at her possession. Sri.Ramachandran would assail the finding of the rent Control court and the appellate authority, that the other vacant building pointed out by the tenants is under the occupation of another institution, submitting on the basis of the commission report that it is only a portion of that building which is occupied by the institution. The other portion, he submitted, is remaining vacant. 5. Resisting the submissions of Sri.Ramachandran, Sri.Pavithran submitted that the landlady came down from Bombay and gave evidence before the rent control court that once she gets back the possession of the petition schedule R.C.R..No.220/2007 5 building she will come down to Kuthuparamba and start residence. The marriage of the second child is also to be conducted at Kuthuparamba only, according to him. The elder son, who has secured employment in the Bank of America, will certainly continue at Bombay and stay in the flat in Bombay. Sri. Pavithran submitted that apart from the testimony given before the Rent Control Court, the landlady is preferred to file an affidavit before this court undertaking that she will come down to Kuthuparamba for good once vacant possession of the building is obtained. The learned counsel submitted that the revision petitioner at any rate does not have to worry since sub section (12) of Section 11 will protect the evicted tenant against the situation of the landlady of not occupying the building which got vacated on the ground under sub section (3) of Section 11. 6. We have anxiously considered the rival submissions keeping in mind the relevant statutory provisions as well as binding judicial precedents governing identical situations. It has been concurrently found by the rent control court and the appellate authority on the basis of the testimony of PW-1 that the need projected by her to start tuition classes in the petition R.C.R..No.220/2007 6 schedule building once she obtains possession, residing in the tharwad house which is kept vacant is a bona fide one. In this jurisdiction under Section 20, this court is not normally expected to re - appreciate the evidence unless some illegality, irregularity or impropriety is noticed regarding the findings entered by the authorities below especially when there are concurrent. However, in deference to the submissions of Sri.Ramachandran, we have considered the circumstances highlighted by him, which according to him, are indicative of absence of bona fides. We are unable to accept the case of the revision petitioner that since PW-1 is having her own flat in Bombay and her only son is gainfully employed in Bombay, PW-1 will not come back from Bombay. So also, we are unable to accept the revision petitioner's case that the landlady will not come back to Kuthuparamba since her husband is having an employment in Bombay. PW-1 belongs to Kuthuparamba and her tharwad house, which even according to the revision petitioner is a palatial one, is kept vacant. PW-1 is now aged 57 and her husband is aged 65. According to us, it is only natural that a person thinks in terms of coming back to his own village after R.C.R..No.220/2007 7 long years of stay in a far away city and that too in another State. The rent control court, which had the advantage of recording the evidence of PW-1, was inspired by her testimony. It is in evidence that PW-1 is giving tuition to students in the bed room of her flat in Bombay and when such a person gives evidence that in her village also she will conduct tuition classes in the petition schedule building which is situated not away from the tharwad house, her version can ordinarily be accepted in the absence of any oblique motives. The only oblique motive, which is suggested, is that the landlords are unhappy with the small rent that is being paid by the revision petitioner and that once the eviction is obtained they will let out the building to somebody else on much higher rent. The apprehension of the revision petitioner in the context of this alleged oblique motive and also in the context of a situation of the landlady not coming back to Kuthuparamba at all after obtaining eviction, according to us, is taken care of to a considerable extent by sub section (12) of Section 11. As already noticed, Mr.Pavithran the learned counsel for the landlady submitted that the landlady will be prepared to file affidavit before the execution court reiterating R.C.R..No.220/2007 8 her intention to come back to Kuthuparamba and occupy the petition schedule building for conducting tuition classes before order of delivery is issued by that court. 6. We do not find any infirmity about the findings concurrently entered by the rent control court and the appellate authority in the context of sub section (3) of Section 11. The apprehension of the revision petitioner are not real in view of the statutory protection given to the evicted tenants under sub section (12) of section 11 and in the present case we are issuing directions which according to us, are sufficient for removing such apprehension. 7. Result is that revision petition fails. Confirming the orders of the Rent Control Court and the Appellate Authority, the Rent Control Petition will stand dismissed issuing the following directions; i). The 3rd petitioner in R.C.P. (PW-1) is directed to file an affidavit before the Execution Court along with R.C.R..No.220/2007 9 the execution petition undertaking unconditionally that she will come down from Bombay and occupy the petition schedule building for conduct of tuition classes within a period of one month of her getting actual possession of the petition schedule building and also that she will not let out the petition schedule building to anybody else and that nobody else will be inducted into the petition schedule building under any other arrangement whatsoever for a period of one year after she commences occupation of the petition schedule building. ii). The revision petitioner as well as the present President of the Kuthuparamba Mandal Congress Committee are directed to file an affidavit before the Execution Court R.C.R..No.220/2007 10 within two weeks of their receiving notice of the execution proceedings stating that they will peacefully surrender the petition schedule building to PW-1 on or before 22/11/2009. iii). The revision petitioner and the present President of the Kuthuparamba Mandal Congress Committee are also directed to discharge the arrears of rent which has fallen due since 30/11/2002 with interest at the statutory rate of 6% p.a. within one month from today. The above amount can be paid either directly to PW-1 or through her counsel in this court against a memo. iv). Once the Execution Court notices receipt against payment of arrears of rent and the affidavits filed both by PW-1 and by the revision petitioner and the President of the R.C.R..No.220/2007 11 Mandal Congress Committee, that court will adjourn the E.P. to 23/11./2009. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE mt/dpk