IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 RCRev..No. 155 of 2008 (C) -------------------------------- RCA.13/2002 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.35/1998 of RENT CONTROL COURT,THRISSUR .................... PETITIONER/RESPONDENT/RESPONDENT ---------------------------------------------- RAMAKRISHNAN, S/O. PUTHEARI KOCHUNNY, CHERPPU VILLAGE AND DESOM, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): APPELLANT/PETITIONER. ------------------------------------------------ SANTHAN, S/O. TAIYIL KOCHUGOVINDAN, KANIMANGLAM VILLAGE AND DESOM, THRISSUR TALUK, THRISSUR DISTRICT. ADV. SRI.JIJO PAUL THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.155 of 2008 ------------------------------------------------ Dated this the 3rd day of December, 2010 ORDER Pius C. Kuriakose, J Under challenge in this revision filed under Section 20 of Act 2 of 1965 by the tenant is the judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioner on the grounds of arrears of rent and under sub Section 3 of Section 11. The petition schedule premises is the entire ground floor portion of a two storeyed building situated near to the main centre at Cherpu in Thrissur District. The landlord alleged arrears rent since the very date of Ext.A1 rent deed on the basis of which the landlord tried R. C. R. No.155 of 2008 -2- to maintain the Rent Control Petition. The need projected by the landlord under sub Section 3 of Section 11 was that he needs to conduct tea shop business in the petition schedule building where the tenant himself is conducting tea shop in a portion and is residing in the remaining portion. The tenant denied the title of the landlord. The tenant contended that the document of title executed by himself in favour of the landlord on the basis of which the landlord claimed proprietary title, was not intended to be a deed of sale. It was intended to be a deed of mortgage. It was pointed out that at the time when the above deed was executed the tenant was in dire need of money for meeting the treatment expenses of his wife who was having serious brain ailment. It was also R. C. R. No.155 of 2008 -3- alleged that the document was executed as a sale deed instead of mortgage deed due to the machinations of one Sivaraman Nair, an Advocate Clerk who functioned as a middleman between the landlord and the tenant. The bona fide need was also disputed by pointing out that the landlord was running a hotel business on Swaraj Round, Thrissur under the name and style “Chandra Hotel”. It was also claimed that the tenant, at any rate, is entitled to the protection of the second proviso to sub Section 3 of Section 11. The allegation that rent is in arrears was denied by contending that the status of the alleged tenant is not that of a tenant, but is that of an owner with no liability to pay rent. The Rent Control Court enquired into the RCP and came to the conclusion R. C. R. No.155 of 2008 -4- that the denial of landlord's title by the tenant is bona fide. On the basis of that finding it was found that the eviction ground under Section 11(2)(b) is not established. Then, as regards the ground under Section 11(3), it was found that the need projected is not bona fide. That court did not, enter any finding regarding the availability of the protection of the second proviso to the revision petitioner. Resultantly, RCP was dismissed. The learned Appellate Authority considered an appeal preferred by the landlord and passed the impugned judgment ordering eviction on the grounds of arrears of rent as well as bona fide need for own occupation. 2. In this revision under Section 20 filed by the tenant, various grounds have been raised R. C. R. No.155 of 2008 -5- assailing the judgment of the Appellate Authority. Very extensive submissions were addressed before us by Sri.P.V.Chandramohan, the learned counsel for the revision petitioner and all his submissions were opposed by Sri.Jijo Paul, the learned counsel for the respondent. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the order of the Rent Control Court and we have scanned the judgment of the Appellate Authority. We have also made a re-appraisal of the evidence on record as the findings entered by the authorities are divergent. The question that arises before us in this revision is whether there is any warrant for interfering with the judgment of the Appellate Authority. We shall now proceed to answer that question. R. C. R. No.155 of 2008 -6- 3. One of the arguments which was seriously addressed before us by Sri.Chandramohan was that the Rent Control Appellate Authority is in error in finding that the denial of title raised by the tenant is not bona fide. Sri.Chandramohan conceded that Ext.A5 common judgment of the Civil Court in a suit filed by the landlord and another suit filed by the tenant has attained finality at the hands of this Court by judgment in A.S.148/98. He will fairly concede that in the teeth of that appellate judgment it may not be possible for the tenant to legally urge the contention that the tenant has proprietary title over the building. But according to the learned counsel the same will not mean the petitioner is not entitled to contend that there is no landlord- R. C. R. No.155 of 2008 -7- tenant relationship between the parties. Even in a case where the landlord is shown to have proprietary title over the building, in order that the Rent Control Petition is maintained it is for the landlord to plead and establish that there exists a landlord-tenant relationship. 4. Ext.A1 is the rent chit. On going through Ext.A5 common judgment in the two civil suits, we find that defending the contention of the revision petitioner that he continues to be the title holder it was contended by the respondent/ landlord that the status of the revision petitioner is only that of a building lessee under Ext.A1 which was marked as Ext.A2 in the suits. It is seen that the learned Subordinate Judge under Ext.A5 has not only repelled the case of the R. C. R. No.155 of 2008 -8- revision petitioner, but has also practically accepted the case of the respondent/landlord that the status of the revision petitioner is that of a tenant under Ext.A2 rent chit. The learned Appellate Authority has considered this aspect of the matter. In our view the learned Appellate Authority is right in its view that when there are only two rival versions regarding the jural status of the revision petitioner and when the revision petitioner's version falls to the ground, the version of the revision respondent has to be accepted. We do not find any illegality, irregularity or impropriety about the finding of the learned Appellate Authority that the status of the revision petitioner is that of a building tenant by virtue of Ext.A1 rent chit. We confirm that finding. R. C. R. No.155 of 2008 -9- 5. The question now arises is whether the finding that the need is bona fide and the further finding that the tenant has not established that he is entitled for the protection of second proviso warrants interference. As already noticed such findings are entered for the first time by the Rent Control Appellate Authority in reversal of the finding entered by the Rent Control Court. On scanning the pleadings and evidence of the landlord what we find is that his case is that the hotel business by name “Chandra Hotel” which is being conducted by him on Swaraj round, Thrissur does not belong to him exclusively and it belongs to himself and his four brothers jointly and therefore, he bona fide needs to conduct a tea shop business of his own in his own village, R. C. R. No.155 of 2008 -10- Cherpu. The learned Appellate Authority finds fault with the revision petitioner for not producing documents which will show that Chandra Hotel on Thrissur Swaraj round belongs exclusively to the respondent. The approach of the learned Appellate Authority in our view was not proper. Whether or not Chandra Hotel on Thrissur Swaraj round belongs exclusively to the landlord or jointly to the landlord and his co-owners is a matter especially within the knowledge of the landlord. The documents pertaining to the ownership over that hotel business and the building where the hotel is being conducted should be available with the landlord. The landlord has not chosen to produce those documents. One aspect highlighted by the Rent Control Court to enter a finding that the need R. C. R. No.155 of 2008 -11- is not bona fide was the oral evidence adduced by the landlord that even at the time when he got title over the building conveyed in his favour by the revision petitioner, he was harbouring the need to start his own tea shop business. According to the Rent Control Court, if as a matter of fact the landlord had a genuine need to start hotel business shortly, he would not have let the building out to the tenant. We feel that this is a circumstance which demands an explanation from the landlord. On going through the evidence of PW1, we do not find any such explanation offered. In view of both the reasons we feel that the question whether the need is bona fide requires to be reconsidered by the Rent Control Court. The same is the position as regards the finding of the R. C. R. No.155 of 2008 -12- learned Appellate Authority that the tenant is not entitled for the protection of the second proviso. As already noticed, the Rent Control Court did not enter any finding on this aspect. The finding of the Appellate Authority in favour of the landlord on this aspect is not satisfactory. Of course, the burden to show that the tenant satisfies both the ingredients of the second proviso to sub Section 3 of Section 11 is on the tenant. We feel that the tenant should be given an opportunity to adduce further evidence on this aspect so that the Rent Control Court can enter proper finding on this issue. If the tenant adduces further evidence on this issue it is open to the landlord also to adduce counter evidence. We notice yet another aspect of the matter. The rent of Rs.500/- fixed under R. C. R. No.155 of 2008 -13- Ext.A1 in our view is below the rent which the building situated near Cherpu centre will fetch if the same is let out today. We are inclined to re-fix the rent tentatively with effect from 01/01/11 at Rs.1,000/- per mensem. 6. The result of the above discussion therefore, is as follows:- The finding by the learned Rent Control Appellate Authority that there is a landlord-tenant relationship between the parties and that the Rent Control Petition is maintainable is confirmed. Eviction order passed by the Appellate Authority under Section 11(2)(b) is also confirmed. The eviction order passed by the Appellate Authority under Section 11(3) is set aside and the RCP is remanded to the Rent Control Court for deciding R. C. R. No.155 of 2008 -14- the question whether the need is bona fide and also whether the tenant is entitled to the protection of second proviso to sub Section 3 of Section 11 afresh. Both sides are given opportunity to adduce further evidence. The Rent Control Court will take fresh decision on the basis of the entire evidence which comes on record including the evidence already on record. 7. The rent payable by the respondent is re- fixed with effect from 01/11/11 at Rs.1,000/- per mensem. This re-fixation is subject to fixation of fair rent by the Rent Control Court on application filed by either side. Till the fair rent is fixed, respondent shall pay rent at Rs.1,000/- per month. 8. Tenant is given two months time from R. C. R. No.155 of 2008 -15- today for getting the order of eviction passed under Section 11(2)(b) vacated. Parties will enter appearance before the Rent Control Court on 23/12/10. If the landlord is desirous of amending pleadings, the Rent Control Court should permit the landlord to do so. If the pleadings are amended, respondent will be permitted to raise counter pleadings. It is made clear that the observations made in this judgment regarding the bona fides of the need have been made only for the purpose of this judgment. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-