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 5TH AUGUST 2009 / 14TH SRAVANA 1931 RCRev..No. 148 of 2004() ------------------------ RCA.38/2002 OF RENT CONTROL APPELLATE, ERNAKULAM RCP.77/1999 OF RENT CONTROL COURT, ERNAKULAM .................... PETITIONER/APPELLANT/PETITIONER. ---------------------------------------------------- K.C.RAVEENDRAN, "RAVISANTH", DOOR NO. 1033/1, PRASANTH NAGAR, EDAPPALLY, COCHIN - 682 024, NOW RESIDING AT "RAMALAYAM", CHANDRAPINI, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SMT.T.D.RAJALAKSHMI SRI.M.GOPIKRISHNAN NAMBIAR SMT.T.RESMI DAMODARAN RESPONDENT(S): RESPONDENT/RESPONDENT. ------------------------------------- K.P.AUGUSTINE, S/O. K.A.APAPPU, KAITHAMANA HOUSE, BOLGATTY, P.O.MULAVUKADU, ERNAKULAM DISTRICT. ADV. SRI.JOSEPH FRANKLIN FOR R1 SMT.NIMMI FRANKLIN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/08/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------------------ RCR. No. 148 of 2004 ----------------------------------------------- Dated this the 5th day of August, 2009 O R D E R Pius C. Kuriakose, J. The landlord is in revision. Eviction was sought on the ground of arrears of rent (Section 11(2)(b) and bona fide need for own occupation (Section 11(3)) of Act 2 of 1965. The need projected under sub-section (3) of Section 11 was that the landlord had retired from service on 31-12-1998 and was without any occupation. The landlord was having sufficient funds and wanted to start business in cold storage and other allied items in the petition schedule building. It was contended by the landlord that the tenant is having other sources of income and that other suitable buildings are available in the locality for the occupation of the tenant. As regards arrears of rent, the allegation was that the rent has been kept in arrears from March 1997 onwards. The tenant denied the allegation regarding arrears of rent. The RCR. N0. 148/04 -2- tenant also denied the bona fides of the need for own occupation. It was contended that the need for own occupation is only a pretext to evict the tenant unlawfully. The protection of the second proviso to sub-section (3) of Section 11 was also claimed by the tenant. 2. At trial the evidence on the side of the landlord consists of Ext.A1 to A8 and the oral testimony of the landlord as PW-1. On the side of the tenant the same consists of Exts.B1 and B2 and the oral testimonies Rws. 1 to 3. It was practically conceded before the Rent Control Court that the ground of arrears of rent no longer survives and the Rent Control Court enquired into the claim for eviction under sub-section (3) of Section 11 only. On evaluating the evidence it was held that the need is not bona fide. However, it was also held that the tenant is not entitled to the protection of the second proviso to sub- section (3). Appellate Authority would re-appraise the RCR. N0. 148/04 -3- evidence and concur with all the conclusions of the Rent Control Court. The finding that the need under sub-section (3) of Section 11 is not bona fide, was confirmed. Despite a cross objection filed by the tenant, the finding that the tenant is not entitled to the protection of the second proviso was also confirmed, resultantly, the petition was dismissed. 3. We have heard the submissions of Sri.T.P.Kelu Nambiar, learned senior counsel for the revision petitioner landlord and those of Mr.Joseph Franklin, learned counsel for the respondent tenant. In fact, the landlord had filed another rent control petition, RCP. No.74 of 2000 for evicting the tenant of the adjacent room. In that RCP also the need for own occupation under section 11(3) was invoked and that RCP was dismissed concurrently by the Rent Control Court and the Appellate Authority. Against the order dismissing that RCP, the revision petitioner landlord filed RCR. No. 149 of 2004 and the present RCR and as well RCR. N0. 148/04 -4- as RCR No. 149 of 2004 were taken up by us simultaneously. 4. Sri.T.P.Kelu Nambiar, learned senior counsel for the revision petitioner addressed us extensively on the various grounds raised in the memorandum of revision. The learned senior counsel assailed the finding of the Rent Control Court and the Appellate Authority that the need projected by the landlord under section 11(3) is not bona fide. The learned senior counsel fortified his submissions by a large number of judicial precedents. All the submissions of Mr. Nambiar were resisted by Mr. Joseph Franklin who defended the order of the Rent Control Court and the Appellate Authority on the various reasons stated in the order and the judgment. 5. The carpet area of the building which is subject matter of the present case is just 70 sq. feet. This building is admittedly a stair case room in which the tenant is RCR. N0. 148/04 -5- carrying on a small time cool bar business. But the adjacent room which is subject matter of RCR. No. 149 of 2004 is fairly extensive having a carpet area of 700 sq. ft. The need projected by the landlord in respect of the building which is subject matter of RCR. No. 149 of 2004 is that he wants to occupy the same for the conduct of agency business. Having considered the rival submissions addressed before us in RCR. No. 148 of 2004, the present case and in RCR. No. 149 of 2004, the case relating to the adjacent room, we feel that there is justification for adopting different standards for evaluating the bona fides of the claim for own occupation projected by the landlord in these two cases. According to us, even if we are able to decide the issue in RCR. No. 149 of 2004 that the need projected by the landlord for conduct of agency business is bona fide, it is not necessary that we should find that the need projected by the landlord in the present case is also bona fide. We are RCR. N0. 148/04 -6- therefore proceeding to decide this case independent of the view which we may be taking in RCR. No. 149 of 2004. 6. Under the statutory scheme the Rent Control Appellate Authority is the final court on facts. Ordinarily in revisional jurisdiction under Section 20 this court does not reappraise the evidence adduced by the parties and substitute this court's conclusions for the conclusions on fact arrived at by the fact finding authorities. The revisional court is expected ordinarily only to make an overall survey of evidence on record to the extent necessary for finding out whether the decision of the Rent Control Court and the Appellate Authority is tainted by any illegality, irregularity or impropriety warranting correction under section 20. 7. Having scanned the orders of the Rent Control Court and the Appellate Authority as well as the relevant portions of the evidence on record we are of the view that it is on excellent reasons that the authorities below have found RCR. N0. 148/04 -7- that the landlord's need to carry on cold storage business is not a bona fide one. The carpet area of the room, as already stated, is just 70 sq. ft. The landlord does not know as to what the measurements of a deep freezer are. He does not know whether it will be possible for him to keep a deep freezer which is indispensable for the successful conduct of cold storage business in the petition schedule room and carry on cold storage business from the petition schedule room. Thus the evidence adduced by the landlord in the present case falls short of establishing that the landlord bona fide needs the petition schedule building for the conduct of cold storage business. At any rate, we do not find any warrant for invoking the revisional jurisdiction under Section 20 for interfering with the findings of the Rent Control Court and the Appellate Authority in that regard. 8. At the same time, we notice that the petition schedule building is situated in a very important area of the RCR. N0. 148/04 -8- Cochin Corporaton being in close proximity to the High Court building. The current rent of Rs.325/- fixed years ago, in our opinion, is far below the fair rent the building could fetch. Therefore, even if we are confirming the order of the Rent Control Court and the Appellate Authority, we are inclined to fix the rent payable by the respondent tenant tentatively at Rs.650/- prospectively with effect from 1st September, 2009. It is made clear that our fixation of rent as Rs.650/- per month is without prejudice to the right of either of the parties to move the competent court for fixation of fair rent. The RCR is dismissed subject to tentative fixation of contract rent with effect from 1st September, 2009. 9. We clarify once again that this judgment confirming the decision of the Rent Control Court and the Appellate Authority will not stand in the way of our taking a different view in RCR. No. 149 of 2004. This decision turns mainly on RCR. N0. 148/04 -9- the reason that it is not a practical proposition to conduct a cold storage business in a room which has just 70 sq. ft. of carpet area. The parties will suffer their respective costs. PIUS C.KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE ksv/-