IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 RCRev..No. 365 of 2011 --------- ---------------------- RCA.43/2008 of I ADDL. DISTRICT COURT, TRIVANDRUM RCP.3/2007 of PRL.MUNSIFF COURT,NEDUMANGAD ............................................................ PETITIONER/ COUNTER-PETITIONER: ------------------------------------------------------- AJITHKUMAR, SON OF VELAYUDHAN NAIR, PULIYATHINGAL HOUSE,IRIMBAMURI,ARUVIKKARA VILLAGE, NEDUMANGAD TALUK. BY ADVS. SRI.V.SURESH SRI.G.SUDHEER SMT.M.JAYASREE RESPONDENT(S): ----------------------- ASANARU PILLAI, SON OF MOHAMMED KUNJU,FROM FATHIMA MANZIL, KULAVIKONAM,THEKKUMKARA,NEDUMANGAD P.O. AND RESIDING AT D-10,ULLAS NAGAR,PEROORKADA, THIRUVANANTHAPURAM - 695001. ADV. SRI.J.HARIKUMAR FOR CAVEATOR SRI.J.HARIKUMAR FOR R-1 SRI.S.SHANAVAS (VAVARAMBALAM) FOR R-1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: STU PIUS C. KURIAKOSE & K. HARILAL,JJ. .................................................................... R.C.R.NO.365 OF 2011 ................................................................... Dated this the 8th day of November, 2011. O R D E R Pius C. Kuriakose, J. Under challenge in the revision filed by the tenant under Section 20 is the judgment of the Rent Control Appellate Authority ordering eviction against him under sub section (3) of Section 11 in reversal of the order of the Rent Control Court dismissing the rent control petition finding that the need projected by the landlord is not bonafide. 2. We may at the very outset state that the Rent Control Court as well as the Appellate Authority have concurrently found that the tenant was unsuccessful in proving his claim that he is entitled for protection of the second proviso to sub section (3) of Section 11. We do not find any infirmity in that finding. We confirm the above finding in favour of the landlord. 3. The need projected by the landlord was that he needs the building “for be doing business”. He has also projected a further need that his son who was employed in a foreign country is now come back to the home town also intends “to start business”. Significantly, it is not pleaded as to what R.C.R.NO.365 OF 2011 : 2 : is the business they intend to start. It was the landlord himself who gave evidence as PW1. In his evidence also he did not say as to what is the business that he proposes to start. The Rent Control Court on appreciating the above evidence and the other evidence in the case which consisted of Exts.A1 to A4, C1 and C2 and oral evidence of PWs 2 and 3 and that of CPW1, would come to the conclusion that the landlord was unsuccessful in proving that the need projected by him is a bonafide one. One of the aspects which weighed much with the Rent Control Court to come to the above conclusion is the situation that the landlord neither in pleadings nor in evidence stated as to what business that he proposes to conduct after evicting the tenant. 4. The landlord preferred RCA.No.43/2008 before the Rent Control Appellate Authority against the order of the Rent Control Court dismissing his rent control petition. Ground No.8 in the RCA is important and we extract the same as follows: R.C.R.NO.365 OF 2011 : 3 : “The appellant did not depose before court that the eviction of the petition schedule building is for starting business of his son. But he categorically stated that the appellant is going to start plywood business in the petition schedule shop room for his own livelihood”. 5. Ground No.10 of the RCA is equally important and we extract the same also as follows: “The lower court miserably failed to note that the petition is filed by the appellant/petitioner to start business for his own livelihood. The appellant/petitioner never stated that his son wanted to start business. The petitioner’s need is bonafide and not a mere desire”. 6. The lower appellate authority on considering the RCA would make a reappraisal of the evidence. According to the lower appellate authority, the non disclosure of the landlord either in the pleadings or in evidence had not resulted in any prejudice to the tenant. According to the lower appellate authority, as the tenant did not have a case that the landlord was already in business or otherwise engaged or that the landlord is incapable of conducting R.C.R.NO.365 OF 2011 : 4 : any business, it cannot be stated that on account of the non disclosure of the proposed business in pleadings and in evidence, the tenant has been deprived of an opportunity to defend the case against him properly. In para-10 of the judgment of the Rent Control Appellate Authority where the lower appellate authority discussed the all important issue of bonafides of the need, the learned authority has stated as follows: “That apart PW1 has clearly deposed that one of his sons who was abroad has now come back to the native place and that he would also join in his business and assist him. It is not a ground against the case set up by the petitioner, but in favour of the petitioner. “. 7. After saying so, the lower appellate authority would reverse the decision of the Rent Control Court and ordered eviction allowing the RCA. 8. In this revision under Section 20, various grounds have been raised assailing the judgment of the appellate authority. Mr. V. Suresh, the learned counsel for the revision petitioner addressed us at length on the basis of those R.C.R.NO.365 OF 2011 : 5 : grounds. All the submissions of Mr. V. Suresh were resisted by Mr. J. Harikumar, learned counsel for the landlord. Mr. V. Suresh highlighted before us that the non disclosure of the need for which the building is being evicted in the pleadings as well in the evidence has resulted in serious prejudice to the revision petitioner/tenant. Had the need been disclosed in the RCP, it would have been possible for the revision petitioner to raise many a contention which could have demolished the bonafides of the need projected. Mr. V. Suresh submitted that as against the pleaded case of the father and the son starting business in the same room, the case pursued in evidence by PW1 was the case of the father alone conducting business. But the lower appellate authority has observed without any basis that the father has stated in evidence that the son will be assisting him and has highlighted the same as an aspect in favour of the landlord. The above observation of the lower appellate authority will show that the lower appellate authority has not discharged its statutory function of reappraising the evidence for the purpose of arriving at factual conclusions. R.C.R.NO.365 OF 2011 : 6 : In this context, Mr. V. Suresh would draw our attention to grounds 8 and 10 of the RCA and submit that the above observation of the lower appellate authority runs contrary to the specific grounds raised by the landlord. Mr. J. Harikumar. learned counsel for the landlord submitted that no prejudice has been caused to the tenant at all on account of the non disclosure of the type of business proposes to be conducted. The room was having an extent of 100 sq. feet only. Having regard to the size of the room, the only defence which was possible to the tenant was that the landlord is not capable of conducting any business or that the room is not suitable for conducting any business. In as much as the tenant did not have such a defence, it cannot be said that due to the non disclosure of the nature of business proposed by the landlord, prejudice has been caused to the tenant. Mr. J. Harikumar would take us through the deposition of PW1 and submit that the cross examination does not indicate that the tenant had a case that the landlord was already in some other business or was incapable of conducting business. That being so the Rent R.C.R.NO.365 OF 2011 : 7 : Control Court erred and the appellate authority interfered with the decision of the Rent Control Court rightly. Mr. J. Harikumar would remind us of the contours of our jurisdiction and submit that it is the appellate authority which is the final court on facts. Answering a query posed by us, Mr. Harikumar submitted that if the petition schedule building is let out today, the same will fetch Rs.5,000/- per mensem. 9. We have given our anxious consideration to the rival submissions at the bar. We have gone through the judgment of the Rent Control Court as well as the appellate authority. As the findings of the statutory authority are divergent, we have gone through the rent control petition, statement of objection filed by the tenant as well as the evidence, particularly the testimony of PW1. We are of the view that appreciation of the pleadings and the evidence in this case by the Rent Control Appellate Authority was not proper. According to us, the appellate authority's view that no prejudice what so ever has been caused to the revision petitioner/tenant due to the non R.C.R.NO.365 OF 2011 : 8 : disclosure of the nature of the business which is proposed by the landlord to be conducted in the pleadings and also in the evidence is incorrect. We are not able to agree with the submission of Mr. Harikumar that the only defence which the tenant could have taken even if the landlord has disclosed the nature of business was the landlord’s incapability to conduct business or the defence that the land landlord is already engaged in business. According to us, had the landlord disclosed the nature of the business proposed by him in the pleadings or at least in the evidence and it could have been possible for the tenant to come out with many a defence militating against the genuineness or otherwise of the need projected. This is a case where the tenant became very much handicapped on account of the landlord’s non disclosing the nature of the business proposed by him. A reading of the pleadings, the evidence and also the stand taken by the landlord in the Rent Control Appeal Memorandum would show that the landlord for reasons best known to him was not inclined to disclose the nature of the proposed business. It is apparent when one reads grounds R.C.R.NO.365 OF 2011 : 9 : 8 and 10 of the Memorandum of Rent Control Appeal that the landlord was not prepared to take even the appellate authority into confidence as to what his case was under subsection (3) of Section 11. According to us, even apart from the issue of prejudice being caused to the tenant, as authorities governed also by the principles of equity, justice and good conscience (see Rule 11(8) of the Kerala Building (Lease and Rent Control) Rules, 1979), the lower appellate authority should not have interfered with the negative order passed by the Rent Control Court for the purpose of granting relief to a landlord who does not take court into confidence. It is the duty of the authorities under the statute to ensure that an entrenched tenant is evicted only on establishment of any one of the eviction grounds specified under Section 11 of the Act 2 of 1965 and also to ensure further that rule of fair trial which is applicable to the civil cases also is not deviated from. 10. Mr. Harikumar during the course of submission in support of the impugned judgment of the appellate authority submitted that the tenant has another building of R.C.R.NO.365 OF 2011 : 10 : his own possession and even if he is evicted from the petition schedule property, it will possible for him to continue the same business in the room belonging to him. If what Mr. Harikumar says is correct, it may be possible for the landlord to evict the tenant on the ground under Section 11(4)(iii), where unlike the ground under Section 11(3), it will not be necessary for the landlord to establish the bonafides of the claim. We find that the eviction ground under Section 11(4)(iii) was not one of the grounds which the tenant was called upon to defend. Another submission which was addressed before us by Mr. Harikuamr was that the matter to be remanded to the Rent Control Court giving an opportunity to the landlord to incorporate additional pleadings not only in the context of the ground under Section 11(3), but also in the context of the grounds under Section 11(4(3). Even though the above request was opposed by Mr. Suresh saying that the same will cause prejudice to the tenant, we feel that considerations of justice demand that the above request of Mr. Harikumar be granted in view of the fact that the landlord has now crossed R.C.R.NO.365 OF 2011 : 11 : the age of 68. We also find some force in the submission of Mr. Harikumar that, if the building is let out today, the same will fetch more than what the sum of ` 2000/- is fetching now. 11. Result of the above discussion is as follows: The judgment of the Rent Control Appellate Authority and the order of the Rent Control Court are set aside. RCP is remanded to the Rent Control Court, Nedumangad. That court is directed to permit the landlord to amend the pleadings for the purpose of raising additional pleadings in the context of section 11(3) and for raising additional ground under Section 11(4)(iii). If the landlord raises additional pleadings, the tenant should be permitted to file counter pleadings. Both sides should be permitted to adduce further evidence for substantiating their rival pleadings. The rent payable by the revision petitioner for the building is fixed with effect from 1.12.2011 at `3,500/- per mensem. We clarify that this re-fixation is tentative and if anybody is aggrieved, it is open to him to move for regular fixation of fair under Section 5. The revision R.C.R.NO.365 OF 2011 : 12 : petitioner shall pay rent with effect from 1.12.2011 at the rate of `3500/- per mensem till fair rent is fixed. Parties will enter appearance before the Rent Control Court, Nedumangad on 30th November, 2011. Transmit the LCR forthwith to the Rent Control Court, Nedumangad. The learned Rent Control Court shall expedite matters and ensure that revised order is passed in the RCP at the earliest. At any rate, it should be ensured that revised orders are passed by 31st March, 2012. We clarify that we have not interfered with the findings and the order passed under Section 11(2)(b). PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl