IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 RCRev..No. 30 of 2009() ----------------------- RCA.52/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM RCP.88/2006 of III ADDL.M.C.EKM (RENT CONTROL) .................... PETITIONER – APPELLANT - RESPONDENT -------------------- K.R. JAMES, 4C CLASSIC RESIDENCY, JANATHA ROAD, VYTTILA, KOCHI -19. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT- RESPONDENT - PETITIONER --------------- SURESH NATARAJAN, S/O. A. NATARAJAN, ST. ALVAROS HOUSE, 188, VEER SAVARKAR MARG, MAHIM, MUMBAI -16 ADV. SRI.P.S.SREEDHARAN PILLAI FOR R1 SMT.C.G.PREETHA FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27/07/2009 ALONG WITH RCR NO. 81 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------- R.C.R. 30 & 81 of 2009 ------------------------------------------------- Dated: JULY 27, 2009 ORDER Pius C. Kuriakose, J. RCR 30/2009 is filed by the tenant. RCR 81/2009 is filed by the landlord. Eviction was sought by the landlord in respect of a flat situated near the Janatha Junction on the ground of arrears of rent and bona fide own occupation. The parties will be referred to as landlord and tenant respectively. The need projected by the landlord in the context of sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act was that he who is a freelance photographer presently stationed at Bombay needs the petition schedule flat for his own occupation. The case projected by him in the context of arrears of rent was that contract rent is kept in arrears by the tenant since 1.4.2003. As regards the rate of rent, the pleaded case was that to begin with by Ext.A1, the same was fixed at Rs.4000/- monthly subject to increase every year at 10% above the previous year's rent. The bona fides of the need claimed under sec.11(3) was strongly R.C.R. 30 & 81 of 2009 2 disputed by the tenant. His defence in answer to the case of eviction on the ground of arrears of rent was that the entire rent as alleged by the landlord was paid by him to one Shaju C. Cherian, a person who, according to him, was authorised by the landlord to collect rent on behalf of the landlord . The Rent Control Court on evaluating the evidence adduced by the parties concluded that the tenant was successful in showing that grounds existed both under sec.11(2)(b) and also under sec.11 (3) to evict the tenant. But in appeal preferred by the tenant the Appellate Authority would reverse the finding of the Rent Control Court in the context of sub-sec.(3) of sec.11 while confirming the order of eviction passed under sec.11(2)(b). Both the authorities would repel the tenant's defence to the case for eviction under sec.11(2)(b) based on an agreement for sale which the landlord had executed in favour of the tenant's wife. It was noticed by the authorities that the tenant's wife was unsuccessful in the suit filed by her for specific performance of the contract of sale of the building in her favour. 2. We have heard the submissions of Sri S.V.Balakrishna Iyer, learned senior counsel for the tenant and those of Smt. C.G.Preetha, learned counsel for the landlord. Smt. Preetha R.C.R. 30 & 81 of 2009 3 drew our attention to the judgments of the Supreme Court in Shashi Kapila v. R.P. Ashwin (2002) 1 SCC 583 and Atma S. Berar v. Mukhtiar Singh (2003) 2 SCC 3 and submitted that the Supreme Court has very clearly laid down that the circumstance that the landlord had, at some earlier point of time, entered into an agreement for sale of the property, which is the subject matter of the rent control proceedings, cannot be a circumstance to hold that the need for own occupation is not a bona fide one. According to the learned counsel, the landlord belongs to Cochin and his roots are in Cochin. He is now aged 47. His only daughter is coming of marriageable age and it is only natural that he is thinking in terms of settling down in Cochin. She submitted that the landlord has clientelle in Cochin also and his reputation as a photographer is such that he will not have any difficulty in picking up further clients once he settled down in Cochin. As regards the order of eviction passed by the authorities concurrently under sec.11(2)(b) of the Act, Smt. Preetha submitted that there is no warrant at all in invoking the revisional jurisdiction for correcting those orders. 3. Sri S.V. Balakrishna Iyer, learned senior counsel, would support the judgment of the Rent Control Appellate Authority to R.C.R. 30 & 81 of 2009 4 the extent the same pertains to the order of eviction sought under sub-sec.(3) of sec.11. He submitted that the landlord having admitted that he was ready and willing to sell the petition schedule building to the tenant's wife if she was prepared to honour her commitments under the agreement, he cannot claim that at that point of time he had in his mind the need to occupy the building for his own occupation. Referring to the Supreme Court judgment cited by Smt.Preetha, Mr. Balakrishna Iyer argued that there was nothing in the evidence of the landlord to indicate that the landlord had taken a decision to close down his activities in Bombay and come back to Kerala for good. It was impossible for any person to stay at Cochin and continue his activities in Bombay. In as much as the landlord has not decided to close down the activities in Bombay, the need projected in the RCP of setting up residence at Cochin in the petition schedule flat can only be a ruse to evict the tenant. The learned senior counsel was even more forceful in assailing the judgment of the authorities in the context of the ground of eviction under sec.11(2)(b). He referred to four interlocutory applications filed before the Appellate Authority for substantiating the tenant's defence that the rent was not in arrears in the sense R.C.R. 30 & 81 of 2009 5 that the entire rent had been paid to one Shaju C. Cherian who was admittedly the power-of-attorney holder of the landlord. All the applications were dismissed by the Appellate Authority, submitted the learned senior counsel. The learned senior counsel fervently requested that the judgment of the Appellate Authority ordering eviction under sec.11(2)(b) be set aside and the Appellate Authority itself be directed to permit examination of Sri Shaju C. Cherian so that the tenant gets an opportunity to substantiate his defence by examining the competent witness. 4. We have anxiously considered the rival submissions addressed at the Bar. We have gone through the impugned judgment of the Appellate Authority. We have re-appraised the evidence to the extent necessary for appreciating the arguments addressed before us by the learned counsel and for deciding whether that judgment is vitiated by any illegality, irregularity or impropriety warranting invocation of revisional jurisdiction under sec.20. We shall first deal with the legality, regularity and propriety of the order of the Rent Control Appellate Authority in declining eviction on the ground of bona fide need. Admittedly the landlord is a freelance photographer having excellent practice in Bombay. His establishment in Bombay is well equipped. R.C.R. 30 & 81 of 2009 6 Most of his clientelle is from Bombay. When such a person seeks eviction of his tenant in Cochin for his own residential occupation of the building in Cochin, one would expect him to give some evidence as to why despite the voluminous practice he has of his profession in Bombay, he is thinking in terms of settling down in Cochin. One would at least expect him to give evidence that he has decided either to close down his activities in Bomaby or to shift most of his activities over to Cochin after making arrangements for continuance of his activities in Bombay. Having scanned the evidence we do not find any endeavour made by the landlord in that line in the case. Under the statutory scheme the Rent Control Appellate Authority is the final court on facts. We feel that the reasons stated by the Appellate Authority for concluding that the claim for own occupation is not a bona fide one are reasonable. The judgments of the Supreme Court cited by Smt.Preetha are to the effect that the mere fact that the landlord entered into an agreement for sale of the suit property will not by itself disentitle the landlord to claim eviction on the ground of own occupation. But in the instant case when one examines the evidence given by PW.1, it will be seen that it is his case that even at the time when he entered into an agreement R.C.R. 30 & 81 of 2009 7 for sale of the building in favour of the tenant's wife, he had in his mind the need to occupy this building and it is for accomplishing that need that the present Rent Control Petition is filed. We also find it difficult as the Appellate Authority did, to accept the above version of the landlord. 5. Now coming to the order of eviction under sec.11(2)(b) concurrently passed by the Rent Control Court and the Appellate Authority, we will remind ourselves of the contours of our jurisdiction under sec.20 and observe that normally this court in revision is not expected to interfere with conclusions on facts arrived at by the statutory authorities and substitute our conclusions unless they are wholly unreasonable. In the instant case, the defence shorne off all details was that arrears of rent as alleged in the RCP have been discharged by the tenant by making payment to one Shaju C. Cherian. Admittedly no documentary evidence is available with the landlord even now to prove payment of rent to Sri Shaju C. Cherian. The request of the learned senior counsel was to permit the tenant to examine Sri Shaju C. Cherian for the purpose of proving the discharge claimed. We do not think that the tenant will be able to discharge his burden of establishing that he has discharged the R.C.R. 30 & 81 of 2009 8 arrears of rent alleged, merely by examining Sri Shaju C. Cherian. As a tenant the petitioner in RCR 30/2009 was bound to insist on getting receipts. Admittedly no receipt was ever sought for by him from Sri Shaju C. Cherian. The evidence on record in the case is not sufficient to hold that the landlord had authorised Sri Shaju C. Cherian to collect rent from the tenant. In fact, the finding concurrently entered by the courts below is that the tenant paid the rent for the building upto 11.4.2003 to the landlord directly. That being so, we find it difficult to accept the tenant's case that he paid rent to Shaju C. Cherian. The finding of the courts below is founded on evidence and we do not find any warrant for upsetting that finding. The Appellate Authority has made an observation in its judgment that the dispute regarding quantum of rent actually due can be resolved in a prospective proceeding under sec.11(2)(c) to be initiated by the tenant. We will clarify that observation and say that the tenant will be entitled only to prove payments, deposits or adjustments made towards arrears of rent during the period subsequent to the institution of rent control proceedings and not during any anterior period. According to the learned counsel for the landlord, the rent in arrears as on today is Rs.4,81,465/-. It is not clear R.C.R. 30 & 81 of 2009 9 whether this figure takes in payments actually made by the tenant during the period subsequent to the rent control proceedings including the amounts claimed by the tenant as adjustments during the above period. Even as we confirm the order of eviction passed by the Appellate Authority under sec.11 (2)(b), it will be clarified that any payments or adjustments not given credit to by the landlord for claiming Rs.4,81,465/- as on date can be claimed and established by the tenant in the prospective proceedings under sec.11(2)(c) which may be filed by the tenant for getting the order of eviction passed under sec.11(2)(b) vacated. It will be clarified further that the amount to be deposited under sec.11(2)(c) will be decided on the basis of governing judicial precedents. The rent control revisions are disposed of as above. No costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/- R.C.R. 30 & 81 of 2009 10