IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 CRP.No. 2824 of 2002() ---------------------- (RCA NO.3/2001 OF ADDITIONAL DISTRICT COURT, PARUR RCP NO.3/1998 OF THE RENT CONTROL COURT, NORTH PARUR) REVN. PETITIONER(S): RESPONDENTS/PETITIONERS: --------------------------------------------- 1. JOSEPH @ SIJU, S/O. LATE MATHEW, MOOLAN HOUSE, KONGORPPILLY, PARAVUR TALUK, ERNAKULAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER HIS MOTHER MARY MATHEW, MOOLAN HOUSE, KONGORPPILLY. 2. JOHN @ SIBI, S/O. LATE MATHEW, DO. DO. BY ADV. SRI.M.A.ABDUL HAKHIM RESPONDENT(S): APPELLANT/RESPONDENT: ------------------------------------ T.K. BABU, S/O. KRISHNAN KUTTY, THAYYIL HOUSE, KONGORPPILLY, PARAVUR TALUK, ERNAKULAM DISTRICT. ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) FOR R THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ C.R.P..No. 2824 OF 2002 ------------------------ Dated this the 4th day of November, 2009 O R D E R Surendra Mohan, J. The landlord has filed this revision petition challenging the judgment of the Rent Control Appellate Authority,North Parur, reversing an order of eviction granted by the Rent Control Court, North Parur. 2. The Rent Control Petition was filed by the landlord seeking eviction of the tenant on the ground of bona fide need under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as the 'Act' for short). According to the revision petitioner/landlord, he requires the tenanted premises for the purpose of starting an air conditioning and refrigeration workshop. The need was resisted by the tenant alleging that the same was put forth without any bona fides whatsoever. The main contention of the tenant was that the landlord was in possession of another vacant room which could be utilised to satisfy his need. In short the contention was that possession of another vacant room disentitled him from CRP.No.2824/2002 2 seeking an order of eviction in view of the first proviso to sub section (3) of Section 11. The Rent Control Petition was tried by the Rent Control Court after formulating the necessary points for consideration. 3. The evidence in the case consists of Exts.A1 to A4 and Exts.B1 to B3 documents, besides the oral evidence of PW1 and RW1. 4. After an elaborate consideration of the evidence on record as well as the rival contentions of the parties, the Rent Control Court found that the landlord had succeeded in establishing that he bona fide required the tenanted premises for his own use and occupation. It was also found that the tenant was not entitled to the protection of the provisos to Section 11 (3) of the Act. Therefore, the Rent Control Court directed the tenant to put the landlord in possession of the tenanted premises within a period of two months from the date of the order. The order of the Rent Control Court was challenged by the tenant before the Rent Control Appellate Authority, North Parur in RCA No.3/1998. The Rent Control Appellate Authority on a reappraisal of the evidence on record found that the landlord had CRP.No.2824/2002 3 made crucial admissions during his cross examination as PW1 to the effect that he was in possession of other shop rooms. Therefore, the Appellate Authority held that it was up to the landlord to have proved that the said buildings were not suitable for the need that was put forth by him. Having failed to do so, the Appellate Authority found that the order of eviction granted by the Rent Control Court under Sub Section (3) of Section 11 was not sustainable. Therefore, the said order of the Rent Control Court was set aside. 5. The landlord has filed the present Revision Petition challenging the said judgment of the Rent Control Appellate Authority. 6. We have heard Sri.M.A.Abdul Hakhim, learned counsel who appears for the revision petitioner and Sri.G.Balamuraleedharan, the learned counsel who represents the tenant. We have also perused the records of the case made available by the counsel. 7. The main contention of the counsel for the revision petitioner is that the Rent Control Appellate Authority had misread and misinterpreted the evidence of PW1 to hold that he CRP.No.2824/2002 4 had admitted his possession and ownership of other vacant rooms. The above assertion of the learned counsel for the revision petitioner is seriously disputed by Sri.Balamuraleedharan who appears for the tenant. According to the learned counsel for the tenant, the landlord was in possession of other vacant buildings, which could be ascertained by a local inspection at any time. He also expressed his willingness to substantiate his assertion by taking out a commission from this court. Accordingly, as per order dated 29/10/2009, we appointed Smt.Lakshmi Rajan, an advocate of this court as Advocate Commissioner with directions to conduct a local inspection and report to this court whether the buildings having door Nos. 416/2 & 417/2 of Alangad Panchayat were in the possession of the landlord, as alleged by the learned counsel for the tenant. However, the tenant did not cooperate and therefore, the Advocate Commissioner was not able to conduct the local inspection or to execute the order passed by us. In the above circumstances, the matter was heard by us today. However, the counsel for the tenant was not present today also to offer any explanation for the conduct of his client. In the CRP.No.2824/2002 5 above circumstances, we have heard the submissions of the learned counsel for the landlord and have proceeded to pass final orders on this Rent Control Revision. 8. The Rent Control Appellate Authority in the judgment under revision, has extracted the portion of the deposition of the landlord as PW1 on which reliance has been placed. The landlord while he was cross examined, was asked whether the building having Door No.414 of Alangad Panchayat was given on rent to anyone. The answer given by him was that he does not know. Thereafter, he was asked about Room No.415 about which also his answer was that he does not know. He was then asked who was the tenant of Room No.416. He has again replied that he does not know. He was further asked whether the said rooms were given on rent to anyone else at present. He replied that he was not able to say, because the names of the persons were not disclosed. He was then asked whether Room No.415 was given on rent to One Thankappan. His answer is “No”. Again he has been asked whether room No.417 was in his possession, to which he has answered that he does not remember the correct number of the room. A reading of the above passage does not CRP.No.2824/2002 6 disclose any admission to the effect that any of the rooms referred to by the counsel for the tenant in his cross examination were actually owned by the landlord. In fact, no question was put to him as to whether the rooms pointed out by the tenants' counsel were actually owned by him. A reading of the questions and the answers given by PW1, does not offer any indication as to whether the witness had actually understood the questions as referring to whether he was the owner of the rooms with respect to which he was questioned. At any rate, the answers of PW1 referred to above cannot be taken as constituting an admission of ownership and possession over the rooms that were referred to. However, the Appellate Authority has proceeded on the assumption that the landlord had admitted to the ownership of the rooms that were referred to. Therefore, the Appellate Authority has observed as follows; “So here is a landlord who is unable to remember the names of tenants who are keeping in possession of his own building.” The answers of PW1 referred to above do not warrant any such conclusion. Nor do they contain an admission that any of the rooms owned by the landlord was lying vacant. Therefore, the CRP.No.2824/2002 7 Appellate Authority was not justified in finding fault with PW1 for having been unable to remember the number of the buildings about which he was questioned. In fact, there is absolutely no evidence to show that any building that is owned by the landlord was actually in his possession as required by the provision of law. 9. It is also worth noticing that the landlord has specifically stated in his Rent Control Petition that no other building was available in his possession and ownership and that the said averment has not been traversed in the objections filed by the tenant. In fact, the tenant has not specifically stated in his objections that any building owned by the landlord was available for him to satisfy the need that was put forth by the landlord. The conduct of the tenant before this court in not cooperating with the Advocate Commissioner is yet another circumstance that leads us to take an adverse inference against the tenant that the landlord is not possessed of any room that is owned by him. For the above reasons, it is found that the Appellate Authority went wrong in upsetting the order of eviction granted by the Rent Control Court under Section 11(3) of the Act. The Judgment of CRP.No.2824/2002 8 the Rent Control Appellate Authority is, therefore, set aside and the order of the Rent Control Court in RCP No.3/2001 is restored. The Rent Control Revision is accordingly allowed. 10. However, in the facts and circumstances of the case, we feel that some time could be granted to the tenant to surrender vacant possession of the premises to the landlord, subject to appropriate conditions. It is, therefore, ordered as follows; i). The tenant is granted time up to 31/3/2010 to surrender vacant possession of the tenanted premises to the landlord, provided he files an affidavit before the Rent Control Court unconditionally undertaking to surrender vacant possession of the tenanted premises to the landlord on or before the said date. Such affidavit shall be filed within a period of three weeks from today. ii). The tenant shall also pay all arrears of rent due in respect of the CRP.No.2824/2002 9 tenanted premises and shall continue to pay the rent at the contracted rate regularly and without default till he surrenders vacant possession of the premises to the landlord. Iii). The landlord shall be free to execute the order of eviction in the event of default on the part of the tenant of any of the above conditions. In the above circumstances, there will be no order as to costs. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk CRP.No.2824/2002 10 PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ C.R.P.No. 2824 OF 2002 ------------------------ O R D E R 4th November, 2009 CRP.No.2824/2002 11 PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ C.R.P.No. 2824 OF 2002 ------------------------ Dated this the 29th day of October, 2009 O R D E R Pius C.Kuriakose, J. Heard Sri.M.A.Abdul Hakhim, learned counsel for the petitioners in full and Sri. G.Balamuraleedharan, learned counsel for the respondent in part. During the course of his submissions, Sri.Balamuraleedharan asserted that the buildings having Door No.416/2 and 417/2 in Alangad Panchayat belong to the petitioners and those buildings continue to be under their vacant possession. He submitted that he has no objection in this court deputing a commissioner immediately to have local inspection and a report filed before this court in that regard. 2. Under the above circumstances, we appoint Advocate Smt.Lakshmi Rajan as commissioner to conduct immediate local inspection of the buildings having Door Nos. 416/2 & 417/2 of CRP.No.2824/2002 12 Alangad Panchayat and report to this court whether those rooms are occupied and also as to who is in occupation. 3. The Commissioner will submit report regarding other relevant matters as requested by the counsel on either side with regard to those two rooms. Inspection will be conducted and report will be submitted at the earliest and at any rate by the next posting date of the case. Post on 3/11/2009. Remuneration for the Commissioner is fixed at Rs.10,000/- which shall be paid by the respondent to the commissioner directly against a memo to be issued by the Commissioner. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk CRP.No.2824/2002 13 PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ C.R.P.No. 2824 OF 2002 ------------------------ O R D E R 29th October, 2009