IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 RCRev..No. 56 of 2008() ----------------------- RCA.15/2005 of D.C. & SESSIONS COURT,KOLLAM RCP.17/2002 of PRL.M.C., KOLLAM .................... REVISION PETITIONER/FIRST RESPONDENT/PETITIONER ------------------------------------------------------------------- A.JAYAKUMAR, S/O.LATE ARAVINDAKSHAN PILLAI, SREE ARAVIND, UDAYAMARTHANDAPURAM, MUNDAKKAL, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.P.SUJESH KUMAR RESPONDENT(S): APPELLANT & 2ND RESPONDENT/COUNTER PETITIONERS ------------------------------------------------------------- 1. REGHUNATHAN NAIR, S/O.PACHAN PILLAI, RADHAKRISHNA AGENCIES, VADAKKUMBHAGOM, HOSPITAL ROAD, KOLLAM, RESIDING AT SARASWATHY VILASOM, KOTTAMKARA CHERRY, KOTTARAKKARA VILLAGE. 2. K.PRADEEPKUMAR, S/O.KARUNAKARAN PILLAI M/S.REGHU SANITARY STORES, VADAYATTUKOTTA, KOLLAM. ADV. SRI.PRATHEESH.P FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------- R.C.R. 56 of 2008 ------------------------------------------------- Dated: JULY 23, 2009 ORDER Pius C. Kuriakose, J. The landlord is in revision under sec.20 of Act 2 of 1965. The subject matter of the proceedings is a shop building. The landlord sought eviction on the ground of bona fide need for own occupation (sec.11(3)), subletting (sec.11(4)(i)) and the tenant having another building reasonably sufficient for the tenant's requirements (sec.11(4)(iii)). The Rent Control Court on the basis of the evidence found that the landlord was successful in establishing all the three eviction grounds involved and accordingly ordered eviction on all the three grounds. The Appellate Authority however set aside the orders of eviction and dismissed the RCP. However, the Appellate Authority also retained the finding of the Rent Control Court that the tenant is not entitled for the protection of the second proviso to sub-sec. (3) of sec.11. In this revision under sec.20, the landlord impugns the judgment of the Rent Control Appellate Authority R.C.R. 56 of 2008 2 declining eviction on all the three grounds sought for. 2. We have heard the submissions of Sri P.B.Suresh Kumar, learned counsel for the revision petitioner and those of Sri P.Prathish, learned counsel for the respondent. Though Mr. Suresh Kumar argued on all the three grounds and pleaded for restoration of the order of the Rent Control Court, he gave more thrust in his arguments to the ground that eviction order passed under sub-sec.(3) of sec.11 should not have been interfered by the Rent Control Appellate Authority. The counsel argued that it is solely on the basis of the non-examination of the landlord despite his being present in the city a few days prior to the commencement of trial that the Rent Control Appellate Authority became inclined to set aside the order of eviction granted under sub-sec.(3) of sec.11. Sri Prathish, learned counsel for the respondent, would however support the judgment of the Appellate Authority on the various reasons stated by that authority. Having considered the rival submissions addressed at the Bar, we feel that we need consider seriously in this revision only regarding the legality, regularity and propriety of the R.C.R. 56 of 2008 3 Appellate Authority's judgment interfering with the order of eviction passed by the Rent Control Court under sub-sec.(3) of sec.11. 3. Certain facts are either admitted or become evident in the context of sub-sec.(3) of sec.11. The revision petitioner/landlord is an NRI settled in Singapore. He is the proprietor of a business named “Karthika Exports”, which is being conducted by him through his brother and power-of-attorney holder PW.1 in a rented premises. It is P.W.1, the power-of- attorney holder, who is actually carrying on business and his competence to speak to the details regarding the business and also regarding the requirements of the business to be shifted to old premises is not seriously in dispute. The Rent Control Petition itself was filed by the landlord through the power-of- attorney holder P.W.1 who is none other than the landlord's own brother. The maintainability of the Rent Control Petition was never questioned on the reason that the signatory to the Rent Control Petition is not competent to verify and sign the pleadings on behalf of the landlord. The Rent Control Appellate R.C.R. 56 of 2008 4 Authority also apparently does not doubt the competence of PW.1 to give evidence regarding the requirements of the business. But the Appellate Authority takes the view that since it is the bona fides of the need of the landlord which is being examined and since the same is essentially a state of mind of the landlord, the most competent person to speak regarding that state of mind is the landlord himself. In other words, the Appellate Authority takes the view on the basis of the judgment of the Supreme Court and this Court that the person most competent to speak regarding the bona fides of his need is himself. It was brought out in evidence that the landlord was in Kollam a few days prior to the commencement of the trial. The Appellate Authority thought that the landlord was not keen on getting himself examined as a witness on his side and according to that authority, the same was a circumstance indicating that there was no element of necessity in the need projected by the landlord for the purpose of sub-sec.(3) of sec.11. 4. According to us, there is no hard and fast rule that in all cases where sub-sec.(3) of sec.11 is invoked, the landlord R.C.R. 56 of 2008 5 himself should mount the box and give oral evidence in support of the claim. The bona fides of the need projected under sub- sec.(3) of sec.11 can be established by examining a competent witness who is capable of giving responsible evidence regarding the genuineness of the need. Say for example, in a case where a father seeks eviction for the occupation of his dependent son, perhaps the dependent son may be more competent than the father himself to give evidence though the evidence to be adduced by the son will be evidence in support of the father's need which will obviously be shared by the son also. We do not propose to decide the question whether the need of the landlord projected in the present Rent Control Petition stood satisfactorily established by the oral evidence of PW.1, the power-of-attorney holder. We will only observe that the oral evidence adduced by PW.1 was a very valuable item of evidence going in support of the landlord's need. It is submitted by Sri P.B.Suresh Kumar, learned counsel for the revision petitioner, that the landlord comes to Kollam off and on and if an opportunity is given, he will not have any hesitation in giving evidence by his own mouth. R.C.R. 56 of 2008 6 We feel that in the instant case where a business belonging to the landlord is being carried on in a rented premises and the need projected is to shift that business over to the landlord's own building, such an opportunity should be afforded to the landlord. Accordingly, we are inclined to afford an opportunity to the landlord for getting himself examined as a witness on his side. Ordinarily, we would have been inclined to remand the matter to the Rent Control Court. But we feel that on the facts and in the circumstances of this case, the Appellate Authority which has been statutorily conferred co-equal powers with the Rent Control Court to hold enquiries itself can be directed to record the evidence of the landlord and to decide the case afresh on the basis of the evidence already on record including the evidence to be adduced by the landlord. 5. The above discussion leads this rent control revision to the following results: The judgment of the Rent Control Appellate Authority to the extent it pertains to the eviction sought for under sub-sec.(3) of sec.11 of the Act is set aside. The judgment to the extent it R.C.R. 56 of 2008 7 pertains to the eviction sought for on all other grounds is confirmed. The concurrent findings of the Rent Control Court and the Appellate Authority that the tenant is not entitled to the protection under the second proviso to sub-sec. (3) of sec.11 is also confirmed. The rent control appeal is remanded to the Rent Control Appellate Authority, Kollam. That authority will afford opportunity to the landlord to get himself examined as a witness on the side of the petitioner in the Rent Control Petition and will take fresh decision in the Rent Control Petition to the extent it relates to the ground under sub-sec.(3) of sec.11 on the basis of the entire evidence which comes on record. The decision as directed above will be taken by the Appellate Authority at the earliest and, at any rate, within three months of receiving a copy of this judgment. The parties will appear before the Appellate Authority on 17.8.2009. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-