IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 RCRev..No. 13 of 2005(B) ------------------------ RCA.144/1998 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.153/1994 OF RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT ---------------------------------------- A.K.MANOJ, S/O.CHANDRAN ANAYODAN, BUSINESS, RAM NIVAS, P.O.PALLIKUNNU, PODIKKUNDU, KANNUR-4. BY ADV. SRI.V.PREMCHAND RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ KATTAMPALLY PUTHIYAPURAYIL KHADEEJA, OPPOSITE NEAR HAR SALES CORPORATION, TALAP, KANNUR. ADV. SRI.A.MOHAMED MUSTAQUE FOR R1 SRI.KAUSER EDAPPAGATH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO. 106 OF 2005 DISMISSED SD/- PIUS C. KURIAKOSE, JUDGE. 15-7-2010 SD/- C.K.ABDUL REHIM, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 13 of 2005 ----------------------------------------------- Dated this the 15th day of July, 2010 O R D E R Pius C.Kuriakose, J. The tenant challenges in this revision under Section 20 the order of eviction concurrently passed against him by the statutory authorities on the ground under Section 11(8). The petition schedule building is a small room having an area of 100 sq. feet forming part of a larger building, the remaining portion of which are under the residential occupation of the landlady. The landlady urged that she requires the petition schedule building bona fide by way of additional accommodation in view of the inconveniences which is being experienced by her and other 12 members of her family who are presently put up in the remaining larger building. The statutory authorities appreciating and re- appreciating the evidence which consisted of Exts. A1 to A4, Exts. B1 to B3, PW-1, RW-1 and Ext.C1 came to the RCR. 13 of 2005 -2- conclusion that the need for additional accommodation is bona fide and that the advantages to be gained by the landlady by getting eviction will not outweigh the hardship which may be sustained by the tenant. Before the Appellate Authority and before us, the revision petitioner assails the impugned eviction order mainly on the basis of the decree which has been passed against the landlady in OS. No. 313/1994, a decree for specific performance of a contract for sale of the entire premises including the petition schedule premises in favour of one Salahudheen, the first respondent in AS. No. 101 of 2003 preferred by the landlady against the above decree. The statutory authorities took the view that the bonafides or otherwise of a claim under Section 11(8) has to be determined during the period when the RCP is instituted. According to them, the institution of the suit and passage of decree by the trial court was a subsequent event which does not eclipse the need particularly since the contention of the landlord was that RCR. 13 of 2005 -3- the sale agreement is not genuine and appeal AS. 101 of 2003 is readily filed against the trial court decree. Rent Control Court and the Appellate Authority accordingly ordered eviction concurrently. 2. In this revision, the judgment of the Appellate Authority is challenged on various grounds and it is particularly urged on the basis of the decree of specific performance passed against the landlady that the need for additional accommodation cannot be held to be bonafide at all. 3. Sri.V.Premchand, learned counsel for the tenant revision petitioner and Sri.Mohammed Mustaque, learned counsel for the respondent landlord addressed us in extenso on the basis of the grounds raised in the revision memo/reasons stated in the judgment of the Appellate Authority. 4. Mr.Premchand would submit emphatically that the observation of the court below that the agreement for sale RCR. 13 of 2005 -4- was entered into between the landlady and the respondent in AS. 101/03 only after the commencement of the rent control proceedings is wrong. According to him, it is prior to the RCP that such an agreement was entered into. He argued that if there was an element of bonafides in the need of the landlady projected under sub-section (8) of Section 11 to have additional accommodation of the petition schedule premises, she would not have contracted to sell the same to the respondent in AS. 101/03. The learned counsel would assail the finding regarding the tenant's entitlement for the protection of the proviso to sub-section (10) of Section 11 also. According to him, the portion of the building presently under the possession of the landlady is a palatial one and by obtaining possession of the petition schedule building which is just 100 sq. ft. the landlady was not going to gain much. On the contrary, if the tenant is thrown out from the building the hardship to be sustained by the tenant will far outweigh the apparent advantage RCR. 13 of 2005 -5- which the landlady may gain on getting order of eviction. 5. Sri.Mustaque, learned counsel for the landlady submitted that the genuineness of the agreement for sale relied on by the respondent in the appeal is very stiffly disputed by the landlady. The landlady had specific explanation regarding the circumstances under which her signature appears on the controversial agreement for sale. The decree passed by the trial court is clearly erroneous and that was why this court without any hesitation admitted AS. 101/03. According to him, there is every likelihood that the appeal will be allowed. He submitted that at any rate, the bonafides or otherwise of the need or claim under the provisions of the Rent Control Act is to be determined as on the date of commencement of the litigation. Unless it be so done, in our present system of litigative process where things are getting delayed indefinitely, several subsequent events would come into existence and it will not be possible for the statutory authorities to give effect to eviction orders RCR. 13 of 2005 -6- passed by them on valid grounds. 6. We have very anxiously considered the rival submissions addressed at the Bar. We find merit in the submission of the learned counsel for the revision petitioner that the observation of the learned Appellate Authority that agreement for sale was entered into between the landlady and the respondent in the appeal only after the commencement of the rent control proceedings is incorrect. The records reveal that the date of the agreement Ext.A3 is 2-2-1994. According to us, if at the time of institution of the RCP when the landlady claims that she has already conceived a genuine need in her mind to occupy the schedule premises by way of additional accommodation for personal use, the landlady has entered into an agreement to sell the premises for consideration, then such agreement for sale can be accepted as a very strong circumstance indicating absence of bonafides for the claim that she raises in the rent control petition. The agreement cannot be RCR. 13 of 2005 -7- explained away by saying that the landlady is not expected to sit idle waiting for relief from the Rent Control Court which may be very late to get. It is true that is settled by various decisions of this Court and also Supreme Court that the standards for proving bonafides in a case for eviction under sub-section (8) of Section 11 are liberal than the standards for proving a claim under sub-section (3) of Section 11 and that in an appropriate case a claim for additional accommodation under Section 11(8) can be upheld even when the claim actually amounts to allowing the landlord a luxury. Nevertheless, element of genuineness which is necessary for any claim required by law to be bona fide should necessarily be proved in a case under sub-section (8) of Section 11. If this is a case where the landlady admitted that she had entered into Ext.A3 consciously as an agreement for sale, then despite the attenuated nature of our jurisdiction, we would have unhesitatingly held that the need for additional RCR. 13 of 2005 -8- accommodation projected by her under sub-section (8) of Section 11 is bereft of bonafides required under the first proviso to sub-section (10) of Section 11. But in this case, the landlady never admits Ext.A3 to have been executed by her. She by filing written statement in the suit seriously contended that the suit document is not a genuine agreement for sale and that the same was got executed by her under vitiating circumstances. True, her contention did not find favour with the trial court, but she has preferred an appeal to this Court. This Court admitted the appeal and has granted an absolute stay. The submission of Mr.Mustaque that the appeal is meritorious both in terms of facts and even in terms of legal questions cannot be brushed away. We are therefore of the view that the decree for sale passed against the respondent being under challenge and stay in a first appeal need not be a reason for interfering with the concurrent findings entered in favour of the landlady by the Rent Control Court and the Appellate RCR. 13 of 2005 -9- Authority. This view we are taking as we notice that it was on appreciating inspiring evidence produced by the landlady including Commissioner's report C-1 that the statutory authorities concluded that the landlady's need for additional accommodation is bona fide. We further notice that the finding that the advantages which will enure to the landlady by getting eviction will outweigh the hardship to be sustained by the tenant is also entered on the basis of evidence and the circumstances highlighted before us by Mr.Premchand do not persuade us to interfere with the above finding. Under the above circumstances we are of the view that the impugned order of eviction can be sustained incorporating a rider that it will be executed only if Ext.A3 is set aside in appeal by this Court. Both sides submitted that the final disposal of the appeal is likely to be delayed and we also feel having regard to the time taken ordinarily for disposal of contentious first appeals in this Court that decision in A.S. No. 101 of 2003 may be delayed further. RCR. 13 of 2005 -10- 7. One of the grievances voiced before us by Mr.Mustaque was that the contract rent payable for the building fixed at Rs.300/- is far below the rent the building may fetch if it is let out now. Another grievance was that the rent for the building even at the contract rate has not paid since 15-4-1993. As for the first grievance we are convinced on the basis of the discussions with the counsel at the Bar that the same is genuine. As for the second grievance what we find is that rent for the period upto 30-6- 1998 was discharged during the pendency of the proceedings and it was noticing such discharge that the eviction which was sought on the ground of arrears of rent was declined. But we find that thereafter no rent was paid. We are inclined to give relief to the landlord in view of both the above grievances. 8. The result of the above discussion therefore is as follows: The eviction order passed by the Appellate Authority is RCR. 13 of 2005 -11- confirmed. However, it is ordered that the same will become executable only if and when AS. No. 101/03 filed by the respondent before this Court is allowed andExt.B3 decree is set aside. The rent payable by the revision petitioner to the respondent for the building is fixed at Rs.1000/- per mensem with effect from 1st September 2010 until fair rent is filed by the Rent Control Court on the basis of application submitted by either party the revision petitioner shall pay rent at the above rate. The revision petitioner is directed to pay the rent which has fallen due for the building in question at the rate of Rs.300/- since 30-6- 1998 till date less any amount already paid towards that period within two months from today failing which he shall immediately put the landlord in possession of the building. This summary order of eviction as a consequence of non- payment of rent which fall due subsequent to the proceedings we are passing keeping in mind the legislative intendment underlying Section 12 of Act 2 of 1965 and the RCR. 13 of 2005 -12- fact that in the present case despite several opportunities the revision petitioner did not pay the above rent nor has shown any cause before us against passage of such summary order. RCR is disposed of accordingly. However, the parties are directed to suffer their respective costs. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/- RCR. 13 of 2005 -13-