IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 RCRev..No. 100 of 2008() ------------------------ RCA.49/2005 of DISTRICT COURT, KOTTAYAM RCP.11/1995 of PRL.M.C., KOTTAYAM .................... REVISION PETITIONER/APPELLANT IN RCA/COUNTER PETITIONER IN RCOP: ---------------------------------------------------------------- S.KARUPPAYYA, BUILDING NO.817, WARD NO.17, M.L.ROAD, KOTTAYAM MUNICIPALITY. BY ADV. SRI.A.GEORGE JACOB RESPONDENT(S)/ RESPONDENTS IN RCA/PETITIONERS 2 TO 6 IN RCOP, IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED ORIGINAL PETITIONER IN RCOP ---------------------------------- 1. SAIBUNNEESA BEEGUM, PUTHUPPRAMPIL, PARK LANE KOTTAYAM. 2. P.M.NISSAM, DO, DO. 3. P.M.NISTHAR, -DO-, -DO-. 4. P.M.NISSAR, DO, DO. 5. NASEERA IBRAHIM, -DO-, -DO-. ADV. SRI.MATHEW JOHN FOR RESPONDENTS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.100 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2009 ORDER Pius.C.Kuriakose, J. The defeated tenant against whom order of eviction has been passed concurrently by the rent control court and the appellate authority under Section 11(3) is the petitioner in this petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act 1965, Act 2 of 1965. The landlord had invoked the ground of arrears of rent also. But the rent control court declined eviction under that ground and that ground no longer survives. 2. The RCP was instituted by one P.A.Muhammad Kunju, the predecessor in interest of respondents 1 to 5. The need projected therein was that the scheduled building as well as the building scheduled to RCP.No.12/95 which was also filed simultaneously against another tenant is required by his dependent son Sri.P.M.Nishthar, the third respondent ( examined as PW3) for conduct of business in vegetables as well as in groceries. The building which RCR.No.100/08 2 was the subject matter of RCP.No.12/05 was much larger in size than the building which was the subject matter of the present RCP. RCP.No.12/95 was allowed concurrently by the rent control court and the appellate authority and finally this court in CRP.No.1778/01 confirmed the finding of the rent control court that the need projected by the original landlord in that case the very need projected by him in the present case also, is bona fide. By 2001 i.e. even before the present RCP had gone for trial the tenant in occupation of the building in RCP.No.12/95 vacated and thereafter the revision petitioner tenant got the statement of objections filed in the present RCP amended. Through the amended statement of objections, it was highlighted that the landlords have let out the building which was subject matter of RCP.No.12/95 to one Basheer who hails from Erattupetta and that the said Basheer is doing business therein. Thus it was contended through the amended statement of objections that non-occupation of the premises in RCP.No.12/95 for the need which had been projected and the landlord's conduct in letting out that building to Basheer is a circumstance militating against the bonafides of the need. RCR.No.100/08 3 3. The rent control court after recording the evidence found that the need and the claim projected by the landlord is bona fide. It was also found that the tenant was not entitled to the protection of the second proviso to Section 11(3) since he was unsuccessful in establishing that he satisfies either of the ingredients of that proviso. The rent control appellate authority on re-appreciating the evidence concurred with the conclusions of the rent control court and confirmed the order of eviction. 4. Sri.Geroge Jacob, learned counsel for the petitioner addressed extensively on the various grounds raised in the rent control revision petition. Learned counsel would draw our attention to the first proviso to section 11(3) of Act 2 of 1965. He referred to the judgment of the Supreme Court in Maqboolunnisa v. Mohd.Saleha Quaraishi (1998(9) Supreme Court Cases 585). He would argue that in the present situation where admittedly during the pendency of the RCP, the landlord has come to be in possession of the room which was subject matter of RCP.No.12/95, it was obligatory for him to have pleaded and proved the existence of special reasons justifying the passage of RCR.No.100/08 4 eviction order despite the landlords' possessing the building obtained by them during the pendency of the proceedings. Learned counsel submitted that there was absolutely no pleading by the landlord and much less proof regarding existence of special reasons in terms of the first proviso to Section 11(3) justifying the order of eviction under Section 11(3). Learned counsel pointed out that the area of the building which was subject matter of RCP.No.12/95 is more than 400 Sq.ft. while the area of the building which is subject matter of the present RCP is just 65 sq.ft. Learned counsel further submitted that though PW1 claimed that it is he who is doing business in that building, no documentary evidence was adduced by him to show that it was he who was doing business. It was after he was examined as witness that even the application for trade licence in respect of that room was submitted by him, submitted Sri.Geroge. 5. Sri.Mathew John, learned counsel for the respondent landlord would submit that the need projected in the present RCP as well as in RCP.No.12/95 was the need to conduct business both in grocery as well as in vegetables in both the rooms. That need could be RCR.No.100/08 5 accomplished only if both the rooms are got possession of. Learned counsel submitted that the question of the rent control petition failing on account of the first proviso to section 11(3) was never raised by the revision petitioner though he filed amended statement of objections after the building in RCP.No.12/95 was got possession of by the landlord. Counsel submitted that before the rent control appellate authority also this question was not raised. He pointed out that even in the RCR memorandum such a ground has not been raised. A tenant who never raised this question before the authorities below should not be permitted to raise this question during the argument of the RCR, so submitted Sri.Mathew John. 6. We have considered the rival submissions addressed at the Bar. The first proviso to Section11(3) of Act 2 of 1965 reads as follows: “A landlord may apply to the Rent Control Court an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or RCR.No.100/08 6 for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so.” 7. It is settled by the judgment of the Supreme Court in Pasupuleti Venkateswarlu v. The Motor & General Traders ( AIR 1975 Supreme Court 1409) and various later decisions that subsequent events which have a bearing on the bonafides or otherwise, and continued existence of a need projected by the landlord for own occupation can have relevance. But the landlord in this case cannot be blamed for not having raised pleading about the existence of special reasons or regarding his non-occupation of the premises in RCP.No.12/95. Obviously the landlord did not have possession of that RCR.No.100/08 7 room at the time when the present RCP was filed. At that time the building in RCP.No.12/95 was in the possession of a tenant. Then the question whether upon the happening of the subsequent event of that building falling vacant, it is obligatory that the landlord should raise additional pleadings regarding the existence of special reasons. It is not necessary that we decide that question in this case. We find that even as per the pleadings in the original RCP the case of the landlord is that he requires the buildings which are subject matter of the present RCP as well as RCP.No.12/95 for accomplishing the projected need which is to conduct of business in grocery as well as in vegetables in the two rooms by Sri.Nisthar. 8. Maqboolunnisa's case was a case where the need of the landlord therein was to do his own business only in the building which was subject matter of that RCP. During the pendency of that RCP the landlord got vacant possession of another building which was thitherto in the occupation of another tenant by name Sukumaran. The landlord did not occupy that building. That was noticed by the Supreme Court as a circumstance which militates against the genuineness of the need. RCR.No.100/08 8 The fact situation in the present case is entirely different. In the present case going by the pleaded case of the landlord the projected need could have been accomplished only if the landlord came to have possession of the rooms which were subject matter of both the cases. Significantly it has been found by the authorities below on the evidence adduced by the parties that PW3, the defacto complainant occupied the building which is subject matter of RCP.No.12/95 for conducting business in tea and snacks. 9. In deference to the persuasive submissions of Sri.George Jacob, we went through the entire evidence which was adduced by the PW3, the defacto complainant in chief examination . In chief examination he has very clearly explained as to why he is unable to start the business proposed in the RCP in the building which is subject matter of RCP.No.12/95. Despite searching cross examination, he stuck to his evidence that it will not be possible for him to conduct the business proposed by him unless he gets possession of the subject room also. This being the situation we are of the view that even it were necessary for the landlord in the circumstances of this case to give RCR.No.100/08 9 special reasons in terms of first proviso to Section 11(3), special reasons are shown to exist. 10. In this jurisdiction under Section 20, we do not sit in appeal over the findings of the authorities below. Having gone through the judgment of the rent control court and the appellate authority, we are of the view that the findings concurrently entered by those authorities are founded on evidence. In fact a similar finding regarding the genuineness of the need projected in this RCR has been entered by this court in Ext.P7 also. We therefore do not find any warrant for interfering with the findings of the authorities below. As his last submission, Sri.George Jacob requested for an year's time to surrender the premises. Sri.Mathew John, learned counsel for the landlord would oppose this request tooth and nail. He submitted that the RCP is more than 13 years old. However, we are of the view that on the circumstances which attend on this case, there is justification for granting seven month's time to the revision petitioner to vacate. Accordingly even as we dismiss the RCR, there will be a direction to the execution court ( Principal Munsiff Court, Kottayam) RCR.No.100/08 10 to defer the proceedings for delivery of the petition schedule building till 15/09/2009 on condition that the revision petitioner files an affidavit before the execution court within two weeks from today undertaking to give peaceful surrender of the petition schedule building to the third respondent on or before 14/09/2009. In the affidavit, he will also state that he will discharge arrears of rent if any within one month and will continue to pay the rent which falls due subsequently without fail. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. RCR.No.100/08 11