IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 RCRev..No. 61 of 2009() ----------------------- RCA.69/2003 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.32/2001 of RENT CONTROL COURT, WADAKKANCHERRY .................... REVISION PETITIONER/RESPONDENT/RESPONDENT: -------------------------------------------------------------------------------- GOPALAN, S/O. MANCHERY VELU, MINALOOR VILLAGE, DESOM, TALAPPILLY TALUK. BY ADVS. MR.P.VIJAYA BHANU, SMT.M.M.DEEPA. RESPONDENT(S): APPELLANT/PETITIONER: ------------------------------------------------------------------ GEETHA, D/O. KOZHIKKARA PADINHARETHIL PADMINI AMMA, ATHANI DESOM, MINALOOR VILLAGE, TALAPPILLY TALUK. BY ADVS. MR. P.R.VENKATESH, MR. P.C.CHACKO. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/03/2009 ALONG WITH RCR NO. 62 OF 2009, RCR NO.63 OF 2009 AND RCR NO. 64 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NOS: 61, 62, 63 & 64 OF 2009 ----------------------------------------------------------------------------------- Dated this the 17th March, 2009. O R D E R PIUS C. KURIAKOSE, J. All these revision petitions are filed by tenants who impugn the common judgment of the Rent Control Appellate Authority, Thrissur in R.C.A 57/03, 69/03, 70/03 & 71/03. The respondent/land lady instituted three rent control petitions, viz., RCP 32/01, 33/01 & 34/01 in respect of different portions of a double storied building which had altogether 5 rooms in the ground floor and two rooms in the first floor. The land lady owned 3 rooms in the ground floor and two rooms in the first floor while the land lady's sister Mini owned one room in the ground floor and one room in the first floor. Land lady had earlier instituted RCP 17/94, 16 & 18/97. In all these RCP's the common ground invoked was the ground under sub-section (3) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 viz., the ground that the land lady wants to put up a residential building after demolishing the buildings. All the previous RCP's failed mainly due to the reason that there was no material to show that land lady's sister Mini who RCR 61/09 etc. 2 admittedly owned portion of the double storied building was agreeable to the proposal. However, the appellate authority granted liberty to the land lady to institute fresh proceedings on the same ground and it is pursuant to that permission that the present rent control petitions were filed by the land lady. In these rent control petitions also interestingly, land lady's sister did not join nor did the land lady produce any material before the Rent Control Court to show that her sister Mini was agreeable to the proposal for demolishing the entire building and putting up a residential house. Apart from the ground under sub-section (3) the ground under Section 11(2)(b) was also taken up in all the rent control petitions. In one of the RCP's an additional ground of cessation of occupation was also taken up by her. The Rent Control Court dismissed RCP 32/2001 and 33/2001 completely. But that court allowed RCP 34/2001 on the grounds under Sections 11(2)(b) and 11(4)(5). RCA 57/2003 was filed by the tenant impugning the order of eviction passed in RCP 34/2001 under Section 11(4)(5) while RCA 69/2003, 70/2003 and 71/2003 were filed by the land lady. It has to be noticed that it was mainly on the ground that there was no material placed before the Rent Control Court to show that the land lady's sister Mini was agreeable to the proposal of RCR 61/09 etc. 3 demolishing the building and putting up a new residential building, that eviction was declined by the Rent Controller under sub-section (3) of Section 11. 2. In the appeals before the Rent Control Appellate Authority also, the main bone of contention between the parties was consensus or otherwise of the land lady's sister Mini to the proposal to demolish the entire building and put up a residential building. Faced with the situation that, despite the orders passed in the earlier proceedings and the leave granted by the rent control appellate authority, no materials had been produced by the land lady to show that her sister Mini was agreeable for the demolition of the portion of the building belonging to her also, the land lady caused the filing of an affidavit on 9.8.2004 by her sister Smt. K.P.Mini. The said affidavit was sought to be received as an item of evidence by filing I.A.2259/2004. The revision petitioner/tenant filed a detailed statement of objections to the above I.A on 7.10.2004. Copies of the affidavit in support of I.A.2259/2004 and the statement of objections filed by the revision petitioner to the I.A are placed before us by Shri. P.C.Chacko. It is discernible from the affidavit and statement of objections and also from the submissions addressed by the learned counsel for the petitioner before us, that RCR 61/09 etc. 4 the argument seriously addressed before the Rent Control Appellate Authority was that even if the land lady's sister Mini is agreeable to the proposal, the room belonging to her is in the possession of one Sasidharan, a tenant. The affidavit filed by the land lady's sister is to the effect that she had instituted an RCP for evicting the aforementioned Sasidharan, Sadidharan had surrendered that room as early as on 1.5.2004 and that the said room is, on the date of filing of the affidavit, in her own possession. The affidavit very clearly states that the proposal of the land lady to demolish the entire building is acceptable to the land lady's sister. The learned counsel for the revision petitioner would take very strong objection to the procedure adopted by the Rent Control Appellate Authority in straight away accepting the affidavit in evidence without affording an opportunity to cross-examine the deponent in terms of Rule 2 of Order 19 CPC. We would have been inclined to accept this argument, but we find that it is not contended, even for a moment in the statement of objections filed to the I.A by the revision petitioner, that the affidavit in question has not been voluntarily given by Smt. Mini, the land lady's sister. On the contrary, the contentions in the statement of objections are regarding the truth or otherwise of the surrender of the building RCR 61/09 etc. 5 given by Sasidharan to Smt. Mini. Shri. P.C. Chacko, learned counsel for the land lady submitted that the land lady has no objection in this Court deputing a commission immediately from this Court for verifying whether the building is not under vacant possession. 3. Learned counsel for the revision petitioner would submit that though it is true that Sasidharan vacated the room which was under his possession, the land lady's sister Mini owns another room and that room is being possessed by another tenant. No proceedings have been initiated for vacating that tenant. Therefore, the present proposal is not going to be accomplished at all. Mr. Chacko for the land lady would strongly dispute the above submission of the learned counsel for the petitioner. He asserted that the entire double storied building is under the vacant possession and reiterated his willingness to have a commission deputed. 4. We have considered the rival submissions and we have carefully gone through the orders passed by the rent control court and the appellate authority. We notice that the findings of the Rent Control Appellate Authority which under the statutory scheme is the final court on facts is based on evidence. Of course the RCR 61/09 etc. 6 appellate authority relied on the affidavit filed by the land lady's sister before that authority. It should be noticed that unlike appellate courts governed by the provisions of Order 41 of CPC, Rent Control Appellate Authority has got powers in the matter of holding of enquiries which are coterminous with that of the Rent Control Court itself (see Section 23, Section 18(2) of Act 2 of 1965 and Rule 16(2) of the Kerala Buildings (Lease and Rent Control) Rules). Moreover, as we have already indicated it was never the contention of the revision petitioner that the affidavit produced before the Appellate Authority was not willingly sworn to by land lady's sister Mini. On the contrary, the contention was that the statement in that affidavit that Sasidharan the tenant has vacated has been falsely made by the land lady's sister with the objective of helping the land lady. That being the position, we do not find any infirmity with the appellate authority having received the affidavit as an additional item of evidence in the case. We are not convinced, despite the persuasive submissions of the learned counsel for the revision petitioner, that any tenant is presently in occupation of the entire double storied building except the revision petitioner himself. However in deference to the submission of the learned counsel we are providing in this judgment that this aspect RCR 61/09 etc. 7 of the matter shall be enquired into and verified by the execution court before order of delivery is passed. 5. Having regard to the contours of this Court's jurisdiction under Section 20, we find no illegality, irregularity, and infirmity in the order of the appellate authority. The challenge against the judgment of the appellate authority fails and we dismiss the rent control revisions. However, there will be a direction to the Execution Court to ensure, by conducting such enquiry as that court may deem fit, before ordering delivery that the other portions of double storied building of which the petition schedule building is only a part is under the vacant possession of the land lady or her sister. Since order of eviction has been passed under Section 11(4) (5) also against the petitioners in RCR 62/09 and 63/09 we are not inclined to grant any time other than normal time of one month to surrender the building. But in the case of petitioners in RCR 61 and 64/09, time for surrender is fixed as 6 ½ months from today. There will be a further direction that if the entire building is not demolished for paving the way of construction of proposed new building within one month of the land lady getting back possession of the entire building, it will be open to the revision petitioners in RCR 61 and 64/2009 to apply under sub-section 12 of Section 11 in RCR 61/09 etc. 8 which case the Rent Control Court will have the power to order re- induction of those petitioners into the portions of the building which were previously under their possession. The parties are directed to suffer their respective costs. PIUS C. KURIAKOSE Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: