IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 RCRev..No. 554 of 2005() ------------------------ RCA.60/2004 of RENT CONTROL AUTHORITY ,ERNAKULAM RCP.131/2003 of RENT CONTROL COURT .,ERNAKULAM .................... REVISION PETITIONER/APPELLANT IN RCA/RESPDT.IN RCP ---------------------------------------------------------------------- C.K. ASOK, AGED 50 YEARS, S/O. LATE KUMARAN, XL/2055, MARKET ROAD,ERNAKULAM. BY ADV. SRI.K.R.VINOD SRI.N.SATHEESH RESPONDENT(S)/ RESPONDENT IN RCA/PETITIONER IN RCP: --------------------------------------------------- MR.M. JAIHIND, S/O. M.D. SALUNGHE PARVATHI MAHADEV, MARKET ROAD, ERNAKULAM. ADV. SRI.ALEXANDER PETER FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22/12/2009, ALONG WITH RCR NO. 565 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: INTERIM ORDER IN I.A. NO.3259/2005 IN R.C.R. 554/2005 DISMISSED 22/2/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- K.S.SURENDRA MOHAN, JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 554 & 565 OF 2005 ------------------------ Dated this the 22nd day of December, 2009 O R D E R Pius C.Kuriakose, J. Being aggrieved by the judgment of the Rent Control Appellate Authority, both the landlord and the tenant are in revision before this court. R.C.R.No.565/2005 is the revision filed by the landlord and R.C.R.No.554/2005 is the revision filed by the tenant. The parties will be referred to as the landlord and the tenant respectively. 2. The landlord sought to evict the tenant on the grounds of arrears of rent under Section 11(2) (b) and bona fide need for own occupation under sub section (3) of Section 11. The allegation of the landlord in the context of the ground of arrears of rent was that rent is in arrears since 24/8/1989. The further allegation was that despite the issuance of a statutory demand notice(Ext.A5), the tenant has not discharged the arrears of rent. The defence of the tenant to the above allegation was that, in two earlier suits filed by the tenant seeking injunction against the landlord and his brother, the RCR.No.554/2005 & other 2 definite stand taken by the landlord was that the jural status of the tenant is not that of a building tenant but only that of a permissive occupant. It was also contended that the Rent Control Petition is bad for non joinder of necessary parties since the real owner Sri.Salunghe is the brother of the landlord and the landlord is only looking after the affairs of his brother. 3. The need projected by the landlord in the context of ground under sub section (3) of Section 11 was that under Ext.A4 sanction order issued by the Deputy Chief Electrical Inspectorate, Cochin, a new 160 KVA transformer is to be installed at the premise of the hotel Blue Diamond, Market Road, Cochin and that the area occupied by the petition schedule building is to be utilised for installing the transformer mentioned in Ext.A4. The bonafides of the need projected in the RCP was strongly disputed by the tenant, who contended that the RCP is continuation of an earlier illegal attempt made by the landlord to evict the tenant from the building. It was pointed out that thanks to the undertaking furnished by the defendant in the two earlier suits (O.S. No. 930/1998 & 140/2003, the tenant was able to thwart the previous attempt of the landlord for forcefully RCR.No.554/2005 & other 3 evicting the tenant. The tenant also claimed protection of the second proviso to sub section (3) of Section 11 by contending that the income from the petition schedule premises is his sole means of livelihood and that other suitable buildings are not available in the locality for him to shift his business. At trial the evidence consisted of Exts.A1 to A9 Exts.B1 & B2, Ext.C1 commission report and Ext.C1A sketch submitted by the commissioner apart from the oral evidence of PW1 the landlord and that of RW1 and the advocate commissioner, who submitted Ext.C1. Significantly no counter oral evidence was adduced by the tenant. The Rent Control Court on appreciating the evidence, came to the conclusion that the status of the tenant was that of a building tenant under the petitioner in the RCP and that the rent at the rate of Rs.350/- per month was in arrears as alleged from 24/8/1989. Accordingly, order of eviction was passed under Section 11 (2) (b). That court also found that the need projected by the landlord under sub section (3) of Section 11 was a bona fide one. It was noticed that no evidence at all was adduced by the tenant for proving that he satisfies either of the ingredients of the second proviso to sub section (3) of Section 11 and RCR.No.554/2005 & other 4 accordingly, it was held that an order of eviction was liable to be passed under sub section (3) of Section 11 and order was passed accordingly. 4. The tenant preferred an appeal to the Rent Control Appellate Authority. The Appellate Authority reappraised the evidence. The Appellate Authority concurred with the Rent Control Court in its finding in the context of eviction ground under clause (b) of Sub section (2) of Section 11 and confirmed the order of eviction passed on the ground of arrears of rent. For doing so, the Appellate Authority also accepted the finding of the Rent Control Court that the respondent in the RCP is a building tenant under the petitioner in the RCP. However, the Appellate Authority noticed that the need projected in the RCP was need to install the transformer not for its domestic purpose, but for the purpose of hotel Blue Diamond. According to the Appellate Authority, the landlord had not produced any evidence to show that he is a co-owner of hotel Blue Diamond or that he is a partner of the hotel Blue Diamond. In the absence in evidence showing that the landlord is interested in hotel blue diamond either as owner or as partner, in the view of the RCR.No.554/2005 & other 5 Appellate Authority the order of eviction, which is essentially for the benefit of hotel blue diamond cannot be sustained. The Appellate Authority went on to hold that going by Ext.C1 commission report there was enough vacant space in the premise of the hotel blue diamond which can be utilised for the proposed installation of transformer. According to the Appellate Authority though the petition schedule premises are in close proximity to the generator room of hotel Blue Diamond, it is not necessary that the electrical transformer should be installed near to the generator room. The Appellate Authority practically accepted the argument raised on behalf of the tenant that in the absence of evidence showing that the petitioner in the Rent Control Petition has ownership or other interest in the hotel Blue Diamond building the need can be upheld only as the need of a dependent family member and in the absence of any pleading in that line the eviction order presently passed by the Rent Control Court cannot be sustained. On these reasons, the Appellate Authority set aside the order of eviction passed by the Rent Control Court and allowed the appeal to that extent. 5. In RCR No. 565/2005 filed by the landlord various RCR.No.554/2005 & other 6 grounds are raised assailing the judgment of the Appellate Authority to the extent it declines order of eviction under sub section (3) of Section 11 and in RCR No. 554/2005 various grounds are raised assailing the judgment of the Appellate Authority confirming the order of eviction passed under sub Section (2) of Section 11. 6. We have heard the submissions of Sri.Alexander Peter, learned counsel for the petitioner in RCR No. 565/2005 and also those of Sri.K.R.Vinod, learned counsel for the petitioner in RCR No. 554/2005. 7. Sri.Alexander Peter submitted that the Rent Control Appellate Authority was not at all justified in interfering with the order of eviction passed by the Rent Control Court on the ground under sub section (3) of Section 11. According to him, the case of the landlord was that hotel Blue Diamond and Bar belongs to him and his brother and the case of the landlord being owner of the hotel Blue Diamond and Bar along with his brother was not only not disputed by the tenant but was practically admitted by the tenant. That being the situation, it was improper on the part of the Rent Control Appellate Authority to have blamed the RCR.No.554/2005 & other 7 landlord for not producing evidence to show that he is a owner or co-owner or partner of hotel Blue Diamond and Bar. The learned counsel submitted that the petitioner and his brother are Maharashtrians and are members of hindu undivided joint family. The business of hotel Blue Diamond and Bar is, According to the learned counsel, the family business of the petitioner and his brother. So, the need for installation of transformer is that of the petitioner himself and it is that need which is projected in the Rent Control Petition. The learned counsel also pointed out that, to the evidence adduced by the landlord that the hotel Blue Diamond and Bar is the family business, the tenant did not adduce even formal counter evidence. The Appellate Authority therefore should not have interfered with the eviction order rightly passed by the Rent Control Court on properly appreciating the evidence. Referring to the finding of the Appellate Authority that the transformer can be installed in the vacant area reported by the advocate commissioner under Ext.C1 as lying on the southern side and front side of the petition schedule premises, Sri.Alexender Peter submitted that the above area is being utilised for parking the customers of the hotel Blue Diamond. RCR.No.554/2005 & other 8 According to the learned counsel, the landlord is the best judge of his requirements and the law allowed latitude to the landlord for choosing the premises to be utilised for his purpose. The enquiry of the authorities under the statutes can only be to find out whether in requesting eviction the landlord is actuated by any oblique motives. 8. All the submissions of Sri.Alexander Peter were very stiffly resisted by Sri.K.R.Vinod. Sri.Vinod submitted that the tenant has not admitted that the petitioner is a co-owner of the hotel Blue Diamond. He read over to us the depositions of PW1. The learned counsel submitted that PW1 admitted that the property where the hotel Blue Diamond is situated belongs to the wife of the petitioner's brother. He submitted further that the landlord had conceded in his evidence that there are documents which will prove that the landlord is a co-owner or partner of the business hotel Blue Diamond. According to him, in spite of such statement in the evidence, the landlord has not chosen to produce documents and this was a circumstance justifying drawal of adverse inference against the landlord in terms of Section 114(g) of the Indian Evidence Act. The learned RCR.No.554/2005 & other 9 counsel also submitted that there is nothing in Ext.A4 order to show that the petition schedule building is the space where the transformer should be installed. The plan which accompanies Ext.A4 has not been produced by the landlord and this is again, According to Sri.Vinod, a circumstance for drawl of adverse inference against the landlord. 9. Challenging the order of eviction passed concurrently on the ground of arrears of rent, the learned counsel referred to Exts.B2 and B3 written statement filed in the earlier two suits. He submitted that the definite stand taken by the landlord was that the juristical status of the respondent in the RCP was that of permissive occupant and not that of building tenant. Therefore, according to the learned counsel, the present Rent Control Petition taking entirely different stand is to be rejected as not maintainable. The learned counsel submitted that it is highly improper that a tenant will be allowed to continue from the very day of inception of the tenancy without paying any rent. According to him, the authorities below have not taken into account the probabilities of the matter while accepting the landlord's case regarding arrears of rent. RCR.No.554/2005 & other 10 10. We have considered the rival submissions addressed at the Bar. We have gone through the pleadings raised by the parties and we have made a survey of the entire evidence which was available before the Rent Control Court. We are in agreement with the learned Appellate Authority that the Rent Control Petition does not contain specific and clear pleadings to the effect that the petitioner in the RCP is owner or partner of hotel Blue Diamond and Bar and that the transformer mentioned in Ext. A4 is to be installed for the benefit of the hotel Blue Diamond and Bar. But, then it is trite that rules of pleadings, as applicable to regular civil proceedings, are not to be insisted upon meticulously in proceedings before the authorities under the Rent Control Statute. We notice that Ext.A4 is produced as the very first item in the list of documents appended to the Rent Control Petition. It is equally trite that the list of documents appended to the Rent Control Petition and the documents produced along with the Rent Control Petition forms part of the pleadings. Ext.A4 is a sanction order issued to the hotel Blue Diamond in respect of installation of a transformer in question for the hotel. RCR.No.554/2005 & other 11 11. Ext.A4 is referred to in the Rent Control Petition as the sanction order obtained by the landlord/petitioner for installation of 160 KVA. transformer and HT Conversion. The claim in the Rent Control Petition under sub section (3) of Section 11 is that the schedule building is required for the purpose of installation of the transformer. In other words, the claim in the Rent Control Petition, is that the petitioner in the Rent Control Petition as a person interested in hotel Blue Diamond the recipient of Ext.A4 needs the petition schedule building for implementation of the sanction issued under Ext.A4. We do not find any contention raised in the statement of objection filed in the Rent Control Petition that the petitioner is not a beneficiary of Ext.A4 or that the petitioner has nothing to do with hotel Blue Diamond. In the evidence of PW1 what was stated was that hotel Blue Diamond is a family business of the petitioner and his brother and to that evidence not even formal counter evidence was adduced by the respondent in the Rent Control Petition. This being the position, the Rent Control Appellate Authority should not have discovered technical reasons for dismissing the Rent Control Petition despite having found that there is landlord-tenant relationship between RCR.No.554/2005 & other 12 the petitioner in the rent Control Petition and the respondent in in respect of the building which is subject matter of the RCP. If the business of hotel Blue Diamond is the family business of the petitioner and his brother, the need for instaling the transformer for Blue Diamond is as much the need of the petitioner as the same may be of that of his brother. The Appellate Authority ought to have noticed the crucial aspect that the tenant/respondent in the RCP did not choose to adduce even formal counter evidence to the evidence of the landlord that hotel Blue Diamond and Bar is his family business and that the need of instaling transformer is a genuine need. 12. It is on the basis of Ext.C1 commission report that the learned Appellate Authority has found that the transformer can be installed in the vacant area reported by the advocate commissioner under Ext.C1 as lying on the southern side and the front side of the petition schedule premises. But, as rightly submitted by the learned counsel for the landlord, the above area is being utilised for parking the vehicles coming to hotel Blue Diamond. May be one or two cars alone can be parked. But then having regard to the conjested nature of the junction where the RCR.No.554/2005 & other 13 hotel Blue Diamond is situated, as is discernible from Ext.C1, the landlord is justified in preferring the petition schedule building to that vacant area. Moreover, the law allows a certain amount of latitude to the landlord in the matter of identifying the area to be occupied for his purpose. The look out of the authorities under the statutory is only to find out whether the need projected is actuated by any mala fides or oblique motives. We are of the view that the appreciation of the evidence including the circumstantial evidence by the learned Rent Control Court was quite proper and that it is a correct finding that was entered by that court regarding bona fides of the need. The Appellate Authority appreciated the evidence in a highly improper manner and reversed the findings without any good reason. Reversing the findings of the Appellate Authority, we restore the order that the Rent Control Court and conclude that the need under sub Section (3) of Section 11 projected in the RCP is a bona fide one. 13. As for the question whether the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11, we notice that the finding that the tenant was unsuccessful in RCR.No.554/2005 & other 14 proving that he satisfies either of the two ingredients of the proviso has been concurrently entered by the Rent Control Court and the Appellate Authority. We are not persuaded to hold that there is any illegality, irregularity or impropriety tainting the above finding. The eviction order necessarily has to be passed under sub section (3) of Section 11. 14. We will now examine the correctness of the order of eviction passed by the authorities below concurrently on the ground of arrears of rent. The one argument which was highlighted by Mr.Vinod, learned counsel for the tenant was that the landlord was in the earlier stages of the litigations between the parties taking the stand that the jural status of the respondent in the RCP is only that of a permissive occupant and therefore the landlord cannot now contend that the respondent in the RCP is a building tenant. We cannot accept this argument. It was the tenant's contention that his status is not that of a permissive occupant but is that of a building tenant. The Rent Control Petition was filed by the landlord accepting the above stand taken by the tenant. No prejudice has been occasioned to the tenant, by the landlord accepting the stand RCR.No.554/2005 & other 15 taken by the tenant regarding his jural status in the building. 15. As already noticed the finding that there is landlord tenant relationship between the parties and that the rent is in arrears as alleged in the Rent Control Petition has been concurrently entered by the authorities below on the basis of evidence. Here again not even formal counter evidence is adduced by the tenant. We do not find any warrant for interference with the eviction order passed under Section 11(2) (b). But then the order of eviction passed under sub section 11 (2) (b) is a provisional eviction order which is liable to be vacated if the tenant deposits the arrears of rent and applies under section 11 (2)(c). 16. Result is therefore as follows; i). RCR No. 565/2005 is allowed. The judgment of the Appellate Authority declining the order of eviction under section 11 (3) is set aside. The order of eviction passed by the Rent Control Court under section 11 (3) is restored. ii). RCA No. 554/2005 is dismissed. The tenant is given time till 30/6/2010 to surrender the premises subject to the following conditions; RCR.No.554/2005 & other 16 i). The tenant shall file an affidavit before the Execution Court or before the Rent Control Court as the case may be within one month from today undertaking to give peaceful surrender of the petition schedule premises to the landlord on or before 30/6/2010. It will be undertaken through the same affidavit that arrears of rent as found by the Rent Control Court will be discharged within six weeks from today and that occupational charges at the current rent rate of Rs.350/-will also be paid as and when the same falls due till the date of actual surrender. ii). The amounts under deposit towards arrears of rent made will be released to Sri.Alexander Peter, learned counsel for the landlord. The petitioner/tenant will get the benefit of time granted RCR.No.554/2005 & other 17 under this judgment only if the affidavit is filed on time. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk