IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 RCRev..No. 359 of 2007(A) -------------------------------- RCA.16/2006 of ADDL. DISTRICT COURT, N. PARAVUR RCP.3/2001 of MUNSIFF COURT,ALUVA (IA 220/05) .................... PETITIONER(S): RESPONDENT/PETITIONER: ---------------------------------------------------- GOVINDAN KARTHA, S/O. GOPALAN KARTHA, RESIDING AT TELALY HOUSE, NEAR POLICE QUARTERS, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE. BY ADV. SRI.T.K.VENUGOPALAN RESPONDENT(S): APPELLLANT/RESPONDENT: ------------------------------------------------------ DEVASSYKUTTY, S/O. EANASU, PADAYATTY HOUSE, KALADY KARA, KALADY VILLAGE. R1 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. = = = = = = = = = = = R.C.R.No.359 of 2007. = = = = = = = = = = = Dated this the 30th day of September, 2010. O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority dismissing I.A.No.220/2005 in RCP.No.3/2001 filed by the tenant under Section 11(12) of Sec.11 of Act 2 of 1965. The parties in the Rent Control Petition are hereinafter referred to conveniently as landlord and tenant. The Rent Control Petition was instituted by the tenant seeking eviction on the ground under Sec.11(3). The need projected was that the landlord wanted to occupy the building for the conduct of cool bar business. Even though the bonafide of the need was disputed and the tenant claimed protection of the provisos under Sec.11(3), the Rent Control Court after enquiry ordered eviction of the tenant under Sec.11(3). The R.C.R.No.359/2007. -: 2 :- Appellate Authority confirmed the order of eviction. A revision filed by the tenant to this Court under Sec.20 was unsuccessful. Finally, the tenant was evicted from the building on 6.12.2004. It appears that the landlord didn’t occupy the building within one month thereafter for accomplishing the need which was projected in the Rent Control Petition. Alleging that the landlord has failed to occupy the building within the period of one month without reasonable cause, the IA was filed by the tenant on 27.1.2005. Along with the IA, appointment of an immediate commission was also sought for. The commissioner inspected the building and reported that the building was found locked up. It was reported further that when the building was opened it was found that 1/4th bag of cement apparently for doing repair works was seen kept in the building. It was also reported that the electric supply to the building was found disconnected apparently for carrying out repairs. The contention raised by the landlord to the IA was that he did occupy the building R.C.R.No.359/2007. -: 3 :- within one week of his getting possession and he did conduct cool bar business in the building for a period of one week in a small scale. It was further contended by the landlord that thereafter as the building was in need of exclusive repair, the business was temporarily stopped, so that all the repairs could be carried out. The Advocate Commissioner visited the building on 29.1.2005 at a time when the business had been temporarily closed for repairs. 2. In the enquiry conducted by the Rent Control Court the evidence consisted of oral evidence of the tenant as Pw1 and that of the commissioner as Pw2. On the side of the landlord the evidence consisted of his oral evidence as Rw1 and that of a resident of the locality as Rw2. Apart from a document which was marked as Ext.B1, a receipt issued by the local authority, the commission report Ext.C1 also formed part of the evidence. The learned Rent Control Court on an appreciation of the evidence came to the conclusion that the version of the landlord that he occupied the building within R.C.R.No.359/2007. -: 4 :- seven days of his getting possession is unbelievable. It was accordingly held that the landlord had failed to occupy the building within a period of one month on getting possession withhout a reasonable cause. On the basis of that finding, order was passed directing the landlord to put the tenant back in possession of the building in terms of Sec.11(12). The landlord preferred Rent Control Appeal before the Rent Control Appellate Authority. The learned Appellate Authority would make a reappraisal of the pleadings and evidence and hold that occupation of the building for the purpose of Sec.11 (12) need not amount to conduct of actual business by the landlord. Occupation in the opinion of the Appellate Authority would include occupation with intention to conduct business. Ext.C1 commission report itself was relied on by the learned Appellate Authority to hold that the landlord had actually occupied the building within a period of one month on getting possession and at the time of commissioners visit arrangements to have the building repaired ready for R.C.R.No.359/2007. -: 5 :- continuance of the proposed business. In that view of the matter, the learned Appellate Authority would reverse the finding of the Rent Control Court and allow the appeal and setting aside the order of the Rent Control Court would dismiss the IA filed by the tenant. 3. We have heard the arguments of Sri.T.K.Venugopalan, the learned counsel for the revision petitioner. All the submissions of Mr.Venugopalan were opposed by Sri.V.Rajendran, the learned counsel appearing for the respondent. Mr.Venugopalan submitted that the version of the landlord that he had occupied the building within a week on getting possession was absolutely unbelievable. According to Sri.Venugopalan, if, as a matter of fact, the landlord had conducted business in the plaint schedule building as claimed by him, there would have been documents on the basis of which the claim should have been established by the landlord. No documents were produced at all. R.C.R.No.359/2007. -: 6 :- 4. The Advocate commissioner's report was mis- appreciated by the learned Appellate Authority and this has resulted in prejudice. According to Mr.Venugopalan, the version of the landlord was not established by the evidence in the case and hence the Appellate Authority should not have interfered with the findings of the Rent Control Court. 5. Per contra, Sri.Rajendran submitted that on the issue as to whether or not the landlord conducted the cool bar business for a period of one week as he claimed there is only oath against oath. The version of the landlord as Rw1 was not shaken despite searching cross examination. It is a small time business of cool bar that was conducted by the landlord for a short period as claimed by him. Hence, it is too much to insist that there should be documents regarding of conduct those businesses. Sri.Rajendran submitted that it would be unjust to invoke Section 11(12) in this particular case where the tenant was not be evicted on need under Sec.3 which was not genuine. In the instant case, the need which was R.C.R.No.359/2007. -: 7 :- projected in the Rent Control Petition and which was upheld by the statutory authorities under the Rent Control Appeal and also by this Court in revision was a genuine need. The landlord did occupy the building permanently after the repairs and he is even now conducting business in cool bar in the building and is eking out his lively hood from the said business. It was an absolutely genuine need that he had projected in the Rent Control Petition and that was recognized by the Rent Control Court. The judgment of the Appellate Authority can be sustained on equitable consideration also, so submitted by Mr.Rajendran. 6. The submission of Mr.Rajendran that the landlord is continuing to do business in the building was not seriously disputed. Answering a query put by us, Mr.Venugopalan submitted that the revision petitioner is presently doing some business in Perumbavoor not far away from the plaint schedule building. 7. We have considered the rival submissions R.C.R.No.359/2007. -: 8 :- addressed at the Bar. As the findings are divergent, we made a reappraisal of the evidence. We are in agreement with the finding of the learned Rent Control Court that the claim of the landlord that he did occupy the building within seven days of getting possession and conducted a cool bar business for a limited period is absolutely incorrect. Nevertheless, we are not inclined to interfere with the judgment of the Appellate Authority on that reason. We notice the subsequent event of the landlord continuing to do the business in the building without inducting anybody else in the same. We also notice that the tenant is put up elsewhere and not without any place to conduct the business for himself. At the same time we are of the considered opinion that the landlord who raised a false case before the Rent Control Court for the purpose of defending the IA filed by the tenant has to pay a penalty. We are told that the contractual rent which the tenant had paid is for Rs.150/- per mensum. According to us, the landlord should pay to the tenant and the tenant should receive from R.C.R.No.359/2007. -: 9 :- the landlord a sum of Rs.15,000/- in full and final settlement of their mutual rights of liability in respect of the building. We dispose of the Rent Control Revision directing the landlord/respondent to pay to the tenant/revision petitioner a sum of Rs.15,000/- within two months from today and once such payment is made, the same will be in settlement of all the claims covered by the subject matter of the IA. If the payment is not made within the above time frame, the amount will carry interest at the rate of 12% per annum. In case the payment is not made within the stipulated time, it is open to the revision petitioner to recover the amount by filing execution. Sd/- PIUS C.KURIAKOSE, (Judge) Sd/- P.S.GOPINATHAN, (Judge) kvs/- R.C.R.No.359/2007. -: 10 :- Memo dated 30.11.2010 (C.F.No.4385/10) stating that an amount of ` 15,000/- (Rupees Fifteen thousand only) is paid on time is recorded and the R.C.R. closed once and for all, vide order dated 09.12.10. Sd/- Registrar (Judicial)