IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 RCRev..No. 71 of 2011(D) ----------------------------- RCA.4/2008 of RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT, KASARAGOD RCP.6/2007 of RENT CONTROL COURT/MUNSIFF COURT, HOSDRUG .................... PETITIONER/APPELLANT IN RCA4/20 ,RES INRCA,5/08 ------------------------------------------------------------- KANNAMPATHI RAGHAVAN,S/O.AMBU, BUILDING CONSULTANT,HOSDURG, PO,KANHANGAD, HOSDURG VILLAGE AND TALUK KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): RESPONDENT IN RCA.4/08,APPELLANT IN RCA.5/08 ------------------------------------------------------------------------------ M.ABDUL SALAM,S/O.M.P.AHAMMED,REPRESENTED BY THE POWER OF ATTORNEY HOLDER KADEEJA, RESIDING AT KOVVALPALLY, KANHANGAD VILLAGE, HOSDURG TALUK, PO,KANHANGAD-671 315, KASARAGOD DISTRICT. ADV. SRI.K.A.ARUNKUMAR FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 31/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. BHAVADASAN, JJ. ------------------------------------------------ R. C. R. No.71 of 2011 ------------------------------------------------ Dated this the 31st day of August, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the tenant is the judgment of the Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground of arrears of rent and the order of eviction passed by the Appellate Authority under sub Section 3 of Section 11 reversing the order of the Rent Control Court declining eviction on the above ground. 2. At the very outset, it was submitted by Sri.M.Gopikrishnan Nambiar, the learned counsel for the petitioner that as regards the eviction order passed under Section 11(2)(b) concurrently it will suffice that this Court grants reasonable time for invocation of the provisions R. C. R. No.71 of 2011 -2- under Section 11(2)(c) and that this Court need be concerned only with the correctness of the eviction order passed on the ground under sub Section 3 of Section 11. Sri.Gopikrshnan Nambiar further submitted that the judgment of the Appellate Authority ordering eviction on the ground under Section 11(3) is contrary to the evidence on record. According to him, the need was to conduct a business in partnership in bakery items as well as in fruit juice by utilising the entire building which consists of two rooms in the ground floor and three rooms in the first floor. As regards one room in the ground floor it was submitted that another Rent Control Petition is instituted. To the knowledge of the revision petitioner, no such Rent Control Petition is instituted so far. As regards the another room which was in occupation of another tenant by name Hari, the case of the landlord as spoken to by PW1, and PW2 mother of the landlords was that Sri.Hari had agreed to vacate the R. C. R. No.71 of 2011 -3- building at any time. Sri.Nambiar submitted that the evidence was that the proposed partnership will be managed by one Abdul Majeed who was presently gainfully employed in a Gulf country. The suggestion that Sri.Majeed was drawing a monthly salary of ` 2 lakhs was not denied. It was admitted by Pws.1 and 2 that the above said Majeed's children are studying in schools at Gulf. No explanation was offered by PW1 or PW2 as to why at least Majeed did not mount the box for giving oral evidence. On the contrary the definite stand taken by Pws.1 and 2 was that they do not propose to examine Sri.Majeed or Sri.Hari or the proprietor of Sruthi Musicals, the tenant against whom another RCP is allegedly filed. The appreciation of evidence, oral or circumstantial by the learned Appellate Authority was faulty. The non-examination of at least Majeed, the person who is to conduct the business was fatal. 3. Sri.K.A.Arunkumar, the learned counsel for the R. C. R. No.71 of 2011 -4- respondent/landlord, however, would support the impugned judgment of the Appellate Authority. He reminded us of the limits of our jurisdiction under Section 20 and submitted that the Appellate Authority being the final court on facts under the scheme of the Rent Control Act, this Court will not be justified in upsetting the findings entered by the Appellate Authority. 4. We have anxiously considered the rival submissions addressed at the Bar. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority which has reversed the decision of the Rent Control Court in the context of the ground under sub Section 3 of Section 11. It is true that the contours of this Court's jurisdiction under Section 20 are well delineated and this Court will not be justified ordinarily in making re-appraisal of the evidence for the purpose of arriving at conclusions of fact different from those arrived at by the statutory R. C. R. No.71 of 2011 -5- Appellate Authority. But in this case, there is a difference. The Rent Control Court found on appreciating the evidence that the need is not bona fide. The Appellate Authority for the first time ordered eviction entering finding that the need is bona fide. When the finding of the Appellate Authority is in reversal of the finding of the Rent Control Court, this Court will necessarily have to examine whether the reversal is justified on the evidence on record. Necessarily, this Court will have to make a re-appraisal or at least a quick survey of the evidence on record. We, therefore, made a survey of evidence on record. Bona fides is essentially a state of mind. PW1 is one of the landladies who propose to conduct the business in partnership along with the other petitioners in the RCP. But it is PW1's on evidence that it is not she who is going to conduct business. According to her, it is her brother Majeed who is in Gulf is going to conduct and manage the business. We feel that ideally the above Majeed also could R. C. R. No.71 of 2011 -6- have given oral evidence. We are not inclined to interfere with the decision of the Appellate Authority on that reason. The Appellate Authority has accepted the evidence of Pws.1 and 2 that Majeed will come back from Gulf and manage the proposed partnership business. Admittedly the need projected in the RCP is capable of being accomplished only if the rooms presently in the possession of Sri.Hari and M/s Sruthi Musicals are also got vacated. As regards Hari, the evidence of PW1 and PW2 was only that he has orally agreed to vacate. Ideally at least an affidavit sworn to by Sri.Hari could have been produced. The explanation as regards M/s Sruthi Musicals was that the Rent Control Petition is already instituted for evicting M/s Sruthi Musicals from the room in their possession. We do not find anything in the evidence to prove these two aspects. But for these two aspects also, we are not inclined to interfere with the finding of the Appellate Authority. We feel that the judgment of the Appellate R. C. R. No.71 of 2011 -7- Authority can be sustained by incorporating suitable conditions which will give assurance that the need projected by the landlord and recognized and accepted by the Appellate Authority is a bona fide one. 5. We notice another aspect of the matter. The building though small is situated on a prime commercial locality at Kanjangad. According to us, the monthly rent of ` 500/- presently paid by the revision petitioner is very low. We therefore, are inclined to re-fix the rent (occupational charges payable by the revision petitioner with effect from 01/09/11) at ` 1,000/- per mensem. The revision petitioner shall pay rent at the above rate till such time as he surrenders the building. 6. The result of the above discussions is therefore, as follows:- The judgment of the Appellate Authority ordering eviction on the grounds under Section 11(2)(b) and 11(3) are R. C. R. No.71 of 2011 -8- sustained and confirmed. But the execution court is directed to keep in abeyance all proceedings for delivery of the building to the respondent subject to the following conditions:- 1) The execution court will ensure that the rooms presently occupied by Sri.Hari and by M/s Sruthi Musicals have come back to the possession of respondents. 2) Sri.Abdul Majeed, brother of PW1 and son of PW2 has come back from Gulf and produces his passport before the execution court. Delivery warrant will be given to the Amin only after the execution court is satisfied regarding the two conditions aforenoted. In any event the revision petitioner will not be evicted for a period of six months from today subject to the condition that he will file an affidavit before the execution court within one month from today undertaking as follows:- 1) That he will pay the entire arrears of rent found by R. C. R. No.71 of 2011 -9- the Rent Control Court and move the Rent Control Court by appropriate petition under Section 11(2)(c) for getting the eviction order under Section 11(2)(b) vacated. 2) That he will surrender the building peacefully to the respondents (upon the Rent Control Court being satisfied that there is compliance with the conditions imposed under this judgment for ordering delivery) within a period of six months. 3) That he will pay occupational charges every month commencing from 01/09/11 at the rate of ` 1,000/- per mensem till actual surrender of the building is given to the respondents. PIUS C. KURIAKOSE JUDGE P. BHAVADASAN JUDGE kns/- R. C. R. No.71 of 2011 -10-