IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 RCRev..No. 223 of 2007() ------------------------ RCA.34/2006 OF RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.6/2004 OF RENT CONTROL COURT, KARUNAGAPPALLY .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- N.BHASKARAN, S/O.NARAYANAN, MALIKATHARA VEEDU, PADA NORTH KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.RASHEED C.NOORANAD SRI.G.GOPAKUMAR (CHERTHALA) RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------- S.VIJAYAN, S/O.SREEDHARAN, RESIDING AT S.N.NIVAS, VADAKKEVILA VILLAGE, KADAPPAKKADA, KOLLAM. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------ RCR. No. 223 of 2007 ----------------------------------------------- Dated this the 17th day of September, 2009 O R D E R Pius C. Kuriakose, J. The landlord is the revision petitioner and the tenant is the revision respondent. The parties will be referred to for convenience as landlord and tenant respectively. The landlord filed the rent control petition invoking grounds of arrears of rent under Section 11(2)(b) and bona fide own occupation under Section 11(3). In this rent control petition we are concerned with the order of eviction passed under Section 11(3) only. The need projected by the landlord under Section 11(3) was that he bona fide requires the building for starting an engine re-boring centre and automobile spare parts business for his dependent son Pramod. According to the landlord, he has already obtained possession of another building situated on the southern side of the petition schedule building which was outstanding with RCR. N0. 223/07 -2- another tenant. The landlord needs that building as well as the petition schedule building for accommodating his son. The bona fides of the need projected by the landlord was very strongly denied by the tenant. It was contended that the son of the landlord Pramod, for whose need eviction is sought, is running a business by name P & P Industries and Engine Re-boring Centre near Karunagappally Muslim Jama- Ath. Even if the landlord's son wants to start any new business the same can be done by utilizing the southern room which was vacated by the other tenant. The tenant also contended that he is entitled to the protection of the second proviso to sub-section (3) of Section 11. At trial before the Rent Control Court both the landlord and the son were examined respectively as PWs. 1 and 2. On the side of the landlord Exts.A1 to A7 were marked. C-1 commission report was proved and the Advocate Commissioner was also examined as CW-1. On the side of the tenant documents B1 RCR. N0. 223/07 -3- and B2 were marked and witnesses RW-1 to RW-3 were examined. RW-1 was the tenant himself. On evaluating the evidence the Rent Control Court found that the need projected by the landlord was bona fide and that the tenant was not entitled to the protection of the second proviso to sub-section (3) of Section 11. It was however, found that the landlord was not entitled for an order of eviction under Section 11(2)(b) since it was noticed that the entire arrears of rent was discharged during the pendency of the rent control petition. Resultantly, the petition was allowed under Section 11(3) only. The Rent Control Appellate Authority however, considered the appeal preferred by the tenant and set aside the finding of the Rent Control Court under sub- section (3) of Section 11 that the need of the landlord to accommodate his son Pramod was bona fide. The Appellate Authority also however, confirmed the finding of the Rent Control Court that the tenant is not entitled to the protection RCR. N0. 223/07 -4- of the second proviso to sub -section (3) of Section 11. The RCP however was , dismissed in view of the finding that the need is not a bona fide one. In order to arrive at the finding that the need projected by the landlord was not bona fide the Rent Control Appellate Authority noticed that PW-2, the landlord's son was conducting business P & P Industries and Engine Re-boring Centre for the last 10 years prior to his examination. Referring to the argument of the landlord that previously the said business was being conducted in a rented building the Appellate Authority noticed that “there is absolutely no murmur either in the pleading or in the evidence as to where the above business was being conducted by PW-2 before it was shifted to the premises in which the petition schedule building is situated”. The Appellate Authority also noticed that it was the evidence of RW-2 that he had got vacant possession of the room on the southern side of the petition schedule room just two months RCR. N0. 223/07 -5- prior to his examination and RW-1's evidence was that a shed was constructed on the rear side of the whole building and the engine re-boring works are being conducted in that shed. According to the Rent Control Appellate Authority, if the landlord's son was conducting repair business previously in his own building the need projected in the RCP cannot be bona fide. It is in that view of the matter that the Appellate Authority interfered with the decision of the Rent Control Court in the context of the bona fides of the need under Section 11(3). 2. In this revision the landlord has raised various grounds assailing the judgment of the Rent Control Appellate Authority and Sri.Gopakumar, learned counsel for the revision petitioner addressed us extensively on all those grounds. Our attention was drawn by the learned counsel to the evidence in the case and particularly to Exts. C-1 commission report and mahazar. It was argued by RCR. N0. 223/07 -6- Mr.Gopakumar that the Rent Control Appellate Authority was unable to appreciate the nature of the need projected by the landlord. The need was for starting of an Engine Re- boring Centre and also an Automobile Spare Parts shop for the landlord's son Pramod. It was in evidence that the landlord's son had completed diploma course in Automobile Engineering in 1995 and that both PW-1 and PW-2 had the financial capacity to carry on the proposed business. The learned counsel submitted that it was nobody's case that the landlord was having any vacant building at his disposal. The tenant did not have a case that the landlord's son was conducting repairing work shop previously in his own building and that the said building is even now available with the landlord's son or for that matter the landlord. The commencement of engine re-boring business in the temporary shed put up behind the petition schedule building ought not have been seen an event putting an end to the RCR. N0. 223/07 -7- need of the landlord to start engine repair business which was only a temporary arrangement pending eviction of the petition schedule building. 3. We have anxiously considered the submissions of the learned counsel for the revision petitioner. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority. We are of the view that if the petitioner is able to show that his son Pramod was conducting P & P Industries and Engine Re-boring Centre previously in a rented building, there is no warrant for upsetting the finding of the Rent Control Court that the need projected by the landlord under Section 11(3) is bona fide. It is true that neither in the pleadings nor in the evidence the landlord has a case that his son was conducting P & P Industries and Engine Re-boring Centre in a rented building. But it appears to us that the parties were never at issue on this point. It is submitted by RCR. N0. 223/07 -8- Mr.Gopakumar that if opportunity is given, the revision petitioner will be able to establish that his son was previously conducting P & P Industries and Engine Re-boring Centre in a rented building. We feel that it is in the interests of justice that an opportunity should be granted to the revision petitioner for producing documentary evidence to show that his son was previously conducting the above business in a rental building. The result of the above discussion is as follows: The order of the Rent Control Court and the judgment of the Appellate Authority are set aside to the extent the same pertains to the question whether the landlord's need is bona fide. The decision that the tenant is not entitled to the protection of the second proviso is confirmed. The RCA is remanded to the Rent Control Appellate Authority. That Authority is directed to afford an opportunity to the landlord to produce documentary evidence for showing that RCR. N0. 223/07 -9- his son was previously carrying on the business of P & P Industries and Engine Re-boring Centre in a rented building. If documentary evidence is produced by the landlord to show that his son was carrying on the said business in a rented building. Once evidence is adduced by the landlord to show that his son was previously carrying on the above business in a rented building the Appellate Authority will enter findings on the question whether the need is bona fide based on that evidence and decide the appeal finally. The needful in compliance with the above direction will be done by the Appellate Authority at the earliest and at any rate within three months of receiving copy of this order being made available to the Appellate Authority. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/- RCR. N0. 223/07 -10-