IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 RCRev..No. 418 of 2011(E) ------------------------------ RCA.1/2010 of I ADDL. DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM RCP.39/2008 of ADDL. RENT CONTROL COURT,KOCHI .................... PETITIONERS/APPELLANTS/RESPONDENTS ----------------------------------------------- 1. ALEPPEY SARVODAYA SANGHAM, PALARIMANGALAM PO, MAVELIKKARA 690 107, REPRESENTED BY ITS ADMINISTRATOR. 2. THE MANAGER,ALLEPPEY SARVODAYA SANGHAM, SHOP NO.4/664,PALACE ROAD, MATTANCHERRY, COCHIN-2. BY ADV. SMT.SHAHNA KARTHIKEYAN SRI.C.ANIL KUMAR RESPONDENT(S)/RESPONDENT/PETITIONER: -------------------------------------------------- P.M.MAJEED,6/1250,INDIAN CHAMBER ROAD, MATTANCHERRY,COCHIN 682 002. ADV. SRI.SUNIL SHANKAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ R. C. R. No.418 of 2011 ------------------------------------------------ Dated this the 17th day of November, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the tenants namely Alleppey Sarvodaya Sangham and Manager, Alleppey Sarvodaya Sangham is the judgment of he Rent Control Appellate Authority confirming the order of eviction passed against them under sub Section 3 of Section 11. The respondent/landlord had sought to evict the revision petitioners in the year, 2001 by filing RCP.26/01. It was virtually the same need which has been projected in the above RCP. The above RCP was fought up to this Court and this Court by order in RCR 29/04 held that the eviction ground under Section 11(3) was not established in favour of the landlord and declined eviction. This view was taken mainly on the reason that there was no sufficient pleadings and materials to prove that such an eviction ground existed R. C. R. No.418 of 2011 -2- in favour of the landlord. However, this Court concluded the judgment in RCR 29/04 by observing that “landlord can approach the court with better particulars and cogent evidence to establish his bona fide need, if so advised”. It appears that it is on the basis of the above permission granted by this Court that the present proceedings were initiated as RCP.39/08 by the respondent/landlord. The need projected here was that the building where the cassette shop was previously being conducted by the landlord at the time when the earlier Rent Control Proceedings were pending had to be surrendered back to his landlord and that the business in cassettes had to be discontinued for want of profit. What is stated is that presently it is the business in mobile accessories and stationery which is being conducted in a new building taken on lease from another landlady under Ext.A4. The bona fides of the need was disputed and the tenants also contended that they are entitled to the protection of the second proviso to sub section 3 of section 11. R. C. R. No.418 of 2011 -3- 2. In the enquiry before the Rent Control Court evidence consisted of Exts.A1 to A9, B1 to B2 series, oral evidence of PW1 and CPW1 and CPW2. Rent Control Court on evaluating the evidence came to the conclusion that the eviction ground under Section 11(3) was established and that the tenant was not entitled to the protection of the second provsio. Accordingly, order of eviction was passed. The Appellate Authority made a re-appraisal of the evidence and concurred with all the findings entered by the Rent Control Court and dismissed the appeal. 3. In this revision various grounds are raised assailing the judgment of the appellate Authority. We have heard the submissions of Sri.M.C.Sen the learned senior counsel for the petitioner and Sri.Sunil Shankar for the respondent/landlord. Sri.Sen submitted that it is the very same ground which was urged in the earlier Rent Control Proceedings which culminated in RCR.29/04 before this Court which has been urged in the present proceedings also. This Court granted permission to the landlord to initiate fresh proceedings R. C. R. No.418 of 2011 -4- subject to the condition that better particulars and cogent evidence should be adduced for establishing the bona fides of the need. Drawing our attention to the evidence adduced by the landlord Sri.Sen submitted that barring Exts.A4 and A5 and perhaps a Commission Report the entire evidence produced by the landlord is the evidence which was before the court in the earlier proceedings also. As regards Ext.A4, he submitted that Ext.A4 is a post litem document dt.18/06/09. He also submitted that Ext.A4 will not show that the landlord has commenced business or as to what is the business commenced by the landlord. As regards Ext.A5 Sri.Sen submitted that Ext.A5 at best will show that the landlord has licence for conducting sale of sweets. The landlord does not have a case in the pleadings that he is conducting sale of sweets. This is a case where there is absolutely no material which will show that the landlord is actually conducting the business of mobile accessories and stationery to shift which business only he seeks eviction. In the absence of some evidence the statutory authorities R. C. R. No.418 of 2011 -5- should not have granted eviction. 4. Sri.Sunil Shankar, the learned counsel for the respondent would oppose all the submissions of Sri.Sen. He took us to the evidence adduced by PW1. He took us first to the statement of objections filed by the revision petitioners to the Rent Control Petition. Then he took us to the oral evidence adduced by PW1. He submitted that there was no challenge at all either in the statement of objection or in cross examination that the landlord is not conducting business in the building taken by him on lease under Ext.A4. The nature of the business actually conducted by the landlord was never an issue between the parties. No prejudice whatsoever has been occasioned to the tenants on account of the landlord not producing document which shows that he is presently conducting stationery business and mobile accessories business in the premises taken by him on lease. Sri.Sunil Shankar also submitted that it is indicated by the Advocate Commissioner in Ext.C1 that it is business in sweets also that is being conducted by the R. C. R. No.418 of 2011 -6- landlord in the premises covered by Ext.A4. 5. Sri.Sen also reminded us of the contours of this Court's jurisdiction under Section 20 and submitted that in the present jurisdiction this Court will not be justified in upsetting factual conclusions. In this context he relied on the observations of this court in the order in RCR.29/04. 6. We have given our anxious consideration to the submissions addressed at the Bar. We do realise that in our present jurisdiction which is (as was realised by the learned Bench which decided RCR.29/04) revisional jurisdiction, this Court is not ordinarily expected to upset the findings of fact concurrently arrived at by the final fact finding authorities when they are founded on evidence. But then as submitted by the learned Senior counsel Sri.M.C.Sen the permission which was granted by this Court under the order in RCR.29/04 was permission to file a fresh Rent Control Petition “with better particulars and cogent evidence to establish the bona fides of the need”. The bona fides of the need which is to be established by the landlord for getting R. C. R. No.418 of 2011 -7- eviction is the landlord's need to shift the landlord's existing business. As to what is the existing business of the landlord what is gatherable from the pleadings in the Rent Control Petition is that the same is business in stationery and mobile accessories. We find some force in the submission of Sri.Sen that there is no cogent materials produced by the landlord to show that the landlord is actually conducting the above two business in the building which he has taken on lease under Ext.A4. In the reports submitted by the Advocate Commissioner Sri.Joseph Edakkad this is what is stated “the petitioner seems to conduct a stationery cum mobile accessories shop in the said premises.“. Elsewhere in the report it is stated that corporation licence fee is seen remitted for vending sweets together with PFA licence. We are not prepared to accept the submission of Sri.Sunil that there is indication in the report that the petitioner is actually conducting sale in sweets. May be it is true that in stationery shop, sweets are also sold occasionally. Whatever that be, we feel that the landlord/respondent has to convince at least R. C. R. No.418 of 2011 -8- the execution court that he is presently conducting the business in stationery and mobile accessories or at least business in stationery in the premises taken by him on lease under Ext.A4. 7. Question is whether there is warrant for interference with the findings concurrently entered that the landlord wants to shift his business to the petition scheduled premises. According to us, when that question is considered in the background of what was happened between the parties and the nature of the contentions raised and evidence adduced where from it appears to us that it was never an issue between the parties that some business is being conducted by the landlord we feel that having regard to the attenuated nature of the jurisdiction under Section 20, there is no warrant for interference with the above findings. 8. Coming to the question of second proviso to sub section 3 of Section 11 to which much thrust is seen given by the revision petitioner in the pleadings, we are of the view that the first petitioner/tenant not being a natural R. C. R. No.418 of 2011 -9- person will not be entitled for the protection of the second proviso. So the eviction order can be sustained subject to the condition that the respondent shall produce before the execution court a document which will show that as of now the respondent is conducting business in stationery and mobile accessories or at least in stationery before the execution court. The result of the above discussion is therefore as follows:- 9. The eviction order passed by the Appellate Authority under Section 11(3) is confirmed. But there will be a direction to the execution court that before actual delivery order is issued the execution court should be convinced on the basis of a document produced by the respondent that the respondent is presently conducting business in mobile accessories and stationery or at least in stationery. 10. As a last submission, Sri.Sen requested that the tenant be given one year's time to surrender the premises. This request is opposed very stiffly by Sri.Sunil Shankar. According to Sri.Sunil, the tenant has closed down the R. C. R. No.418 of 2011 -10- business about two years from now. Sri.Sen disputed the above submission. Having regard to the request of the learned senior counsel we direct that the order of eviction will not be executed till 31/05/12 subject to the following conditions:- 11. The second revision petitioner representing both the revision petitioners will file affidavit before the execution court or the Rent Control Court as the case may be undertaking to give peaceful surrender of the building (subject to other conditions incorporated in this judgment) on or before 31/05/12 and undertaking further that arrears of rent if any will be discharged within 30 days from today and that occupational charges at the existing rent rate will be paid without fail till actual surrender is made. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns/- //True Copy// P. A. To Judge R. C. R. No.418 of 2011 -11-