IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 RCRev..No. 175 of 2011() ------------------------ RCA.6/2006 of RENT CONTROL APPELLATE AUTHORITY,ADDL.DISTRICT COURT (ADHOC)-II, MANJERI RCP.12/2005 of RENT CONTROLLER (MUNSIFF) COURT, MANJERI .................... PETITIONER(RESPONDENT/RESPONDENT). ------------------------------------------------------------------- KUNHARAMAKKANTAKATH SAIDALIKUTTY, S/O. SAIDUTTY, PARAKOTT LODGE, CHETTIYANGADI, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.RAJESH R.KORMATH RESPONDENT(S): (PETITIONER/APPELLANT): -------------------------------------------------------------------- MADURAKARIYAN PATHUMMAKKUTTY, WIFE OF PARAKKOTTIL EASSA HAJI, EDATHANATTUKARA AMSOM DESOM, EDATHANATTUKARA P.O., MNNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678 601. BY ADV. SRI.K.M.SATHYANATHA MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/10/2011 LONG WITH RCR NO. 176 OF 2011, RCR NO. 178 OF 2011 AND RCR NO. 179 OF 2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- RCR.NOs.175,176,178 & 179 of 2011 --------------------------------- Dated this the 20th day of October, 2011 ORDER Abdul Rehim,J. These four revision petitions arise out of a common judgment of the Rent Control Appellate Authority, by which a common order dismissing four applications for eviction, filed by the landlord under section 11(3) of the Kerala Building (Lease and Rent Control) Act, is reversed. 2. The landlady filed eviction petitions on the ground that she bonafide required the petition schedule buildings in all the four cases, which are part of a common edifice, for the need of her sons to start a furniture show room. Contention was that, one among the 5 rooms in the building is already in the possession of the landlady and by evicting the tenants occupying these four rooms, her sons are intending to start a furniture show room, by joining all the 5 rooms together. It was pleaded that the children of the landlady have got means to start the furniture show room in a comparatively large scale. It was also pleaded that the landlady has a building at Chandakunnu, 3 kms. away from Nilambur town where the schedule building is situated and it is not suitable for accomplishing the need because it is not RCR.175/2011 & conn. Cases. 2 situated in a commercially important area, and the building is not convenient for starting the furniture showroom. 3. The tenants resisted the applications inter alia contending that the need projected is not bonafide and it is only a ruse to evict the tenants, since they refused to increase the rent to an excessive rate. It was also contended that the building in ownership and possession of the landlady at 'Chandakunnu' is not situated at a distance of 3 km. and that the said building is more suitable for starting the furniture showroom. They also claimed protection under the second proviso to section 11(3). 4. Evidence before the Rent Control Court consisted of oral testimony of Pws.1 and 2, the two sons of the landlady, and documentary evidence of Exts.A1 to A14 marked from the side the landlady. Two of the tenants were examined as RW1 and Rw2 and Exts.B1 and B1(a) were marked on behalf of the tenants. On appreciating the entire evidence on record, the Rent Control Court found that the need put forth is not genuine and bonafide. Findings are to the effect that PW2 was running a furniture manufacturing unit at 'Edathanattukara' since the year 1996 and he was selling furniture since then, even without a showroom of his own. Therefore there is no necessity to have a new business is the finding. It was also found RCR.175/2011 & conn. Cases. 3 that the children of the landlady are having Rubber estates and a lodging house, and PW1 admitted of having an Accent car. Learned Rent Control Court found that the sons are not depending on the mother and that they have source of income to maintain themselves. It is further found that since they have not established that the intention is to start a business of their own for independent income or employment, and since they are running a lodging house and have got income from Rubber estate, the need cannot be held as bonafide and genuine. Rent Control Court also found that the contention of the landlady that the building at 'Chandakunnu' is not suitable for the proposed need could not be admitted, since the landlady had failed in taking out a commission and getting report regarding the importance of the location of the two buildings and its business potential. However with respect to the 2nd proviso to section 11(3), the Rent Control Court found that no convincing evidence was produced by the tenants. 5. On a total reappraisal of the evidence on record, the Rent Control Appellate Authority had reversed the findings on the aspect of genuineness of the need projected and also on the aspect of unsuitability of the building at 'Chandakunnu' for accomplishing the need projected. RCR.175/2011 & conn. Cases. 4 6. Sri.Rajesh R.Kormath, learned counsel appearing for the revision petitioners raised vehement contentions assailing the findings of the Rent Control Appellate Authority. It was contended that the appellate authority went highly erred in reversing the conclusions with respect to genuineness and bonafides of the need projected . He raised contention to the effect that the building in question is too small for establishing a furniture showroom of a considerable dimension. Further it is contended that joining of all the 5 rooms and putting up of a furniture showroom of a large size, is not possible due to the nature of construction of the building and its old age. But we notice that it is evident that all the 5 rooms put together, the total area will be more than 550 sq. feet and it cannot be said that it is insufficient to establish a furniture showroom. We also finds that there is no convincing evidence to hold that joining of all the rooms together is technically impossible. 7. Much emphasis was placed in the arguments of learned counsel for the revision petitioners on the first proviso to section 11(3). It is argued that the evidence on record revealed that the landlady is in possession of a building having 20 rooms at 'Chandakunnu' and that only one of the rooms in that building is let out at present. Contention is that the landlady had failed in taking out RCR.175/2011 & conn. Cases. 5 a commission to prove that any special reason exists regarding unsuitability of the building for accomplishing the need projected. According to learned counsel, the evidence on record will reveal that the area of 'Chandakunnu' is also part of Nilambur town and it is a commercially important area having so many public institutions. It is further argued that the said building is situated at an area where there are other furniture show rooms and it is only at about 1½ km. away from the schedule buildings, and is situated on the front of the very same public road viz. Nilambur -Ootty Road. Arguments are raised to the effect that in order to take a divergent view the appellate authority had depended only on abstract inferences which are not having support of any conclusive evidence. 8. Sri. Sathyanatha Menon, learned counsel appearing for the landlady had resisted the contention on the basis of apparently attractive arguments. According to him, the revision petitioners have not attributed any oblique motive with respect to the eviction sought for on the ground of the bonfide need. He placed much emphasis on the evidence of RW1 and RW2 to the extent that they have refused the offer made to provide accommodation at the building at 'Chandakunnu' for shifting their existing business. He also contended that the evidence on record is to the effect that only two rooms in the RCR.175/2011 & conn. Cases. 6 building at 'Chandakunnu' is having road frontage and out of the said two rooms, one room is already in the occupation of a tenant and in the another room landlady's office of the building is established. Sri.Sathyanatha Menon contended that the landlady was successful in establishing special reason regarding unsuitability of the building at 'Chandakunnu' and that there was failure on the part of the revision petitioners in rebutting such evidence any proper and convincing evidence to the contrary. 9. In the attenuated jurisdiction conferred on this court under section 20 of the Act, which is revisional in nature, a reappreciation of the evidence on record is not contemplated. However, since the findings are divergent, we had a quick reappraisal of the evidence. We scanned the order passed by the Rent Control Court and the judgment of the appellate authority. We have no hesitation to hold that the findings of the Rent Control Court with respect to the genuineness of the need projected, is not based on a legally sound approach. It is worthy to note that the landlady had never put forth a case that the intention of her sons to start the furniture show room is with an objective of earning income for their livelihood or that it is for providing employment to her 3 sons. On the other hand, the dependency pleaded is only for accommodation for RCR.175/2011 & conn. Cases. 7 establishing the business proposed. The Rent Control Court ought to have considered the fact of availability of the furniture manufacturing unit, as a factor which promote the need for establishment of a showroom. The experience in the field of furniture manufacturing ought to have been considered as a positive factor supporting the desire for establishment of the show room. We could not find any infirmity in the oral evidence of Pws. 1 and 2 to the extent of treating it as not trustworthy regarding their desire and need. Even the oral evidence of RW1 and RW2 does not reveal any specific allegation of motive in evicting the tenants from the scheduled building. We are reminded of the remedy available to the tenants under section 11(12) of the Act, in the case the landlady fails to establish the business in the schedule building, after getting vacant possession. On a perusal of finding of the appellate authority with respect to the aspect of bonafides and genuineness of the need, we find no reason warranting interference . 10. With respect to non suitability of the building at 'Chandakunnu' we notice the evidence on record to the effect that the building is situated at 1 to 2 kms away from the schedule buildings. On a perusal of evidence adduced on either side we have no hesitation to arrive at conclusions and inferences that the evidence will only RCR.175/2011 & conn. Cases. 8 indicate that the building at 'Chandakunnu' is situated not in a commercially important area as that of the location of the schedule buildings. The question to be considered is as to whether the landlady was successful in establishing non suitability of the building at chandakunnu. The specific case pleaded is that the building is not situated in a commercially potential and viable area and that the building is not suitable for establishing the furniture show room. Even though learned counsel for the petitioner contended that the best evidence which ought to have been let in for establishing the above said reasons, was to take out an advocate commissioner, which the landlady had failed. But we notice that the tenants also failed in rebutting the reason of non suitability pleaded by the landlady. Even without deciding on the question regarding burden of proof, we notice that the contention of the landlady with respect to the importance and non feasibility of the locality stands established through the refusal of the offer made from the side of RW1 and RW2 for shifting of their existing business to the building at Chandakunnu. RW2, who is running a show room of 'Hantex', had categorically said that Hantex will not establish a showroom in a place like 'Chandakunnu'. It is further stated that they will lose the existing customers if a showroom is started at Chandakunnu because it is not convenient for the RCR.175/2011 & conn. Cases. 9 customers to reach. We cannot hear the tenants to contend that the landlady can utilise the building for establishing the furniture showroom at a location where the tenants themselves are reluctant to shift their own business. With respect to suitability of the building at 'Chandakunnu' we notice the evidence to the effect that it is a 'U' shaped building where only two rooms are facing the main road. One room is occupied by the tenant and in another room office of the building is established by the landlady. The very fact that so many rooms are lying vacant in the building itself is an indication regarding the commercial non-potentiality. Learned counsel for the petitioner had draw our attention to a piece of evidence that there is an admission from the side of the sons of the landlady that the building at 'Chandakunnu' is already under an agreement for sale to some person. But the tenants have no case that such an agreement was arrived even prior to institution of the Rent Control petitions and that the decision for sale was taken to defeat the interest of the tenants . 11. Under the above mentioned circumstances we hold that the approach made by the appellate authority in arriving at conclusions, while reversing the findings of the rent control court, does not suffers from any illegality, irregularity or impropriety. In exercise of the revisional jurisdiction we do not find any circumstances RCR.175/2011 & conn. Cases. 10 warranting interference on the impugned common judgment of the appellate authority. Therefore the revision petitions deserve no merit and the same are liable to be dismissed. 12. Having made known about our conclusions, Sri.Rajesh R.Kormath learned counsel for the petitioner made an appeal to this court to allow two years period for surrendering vacant possession of the schedule buildings. The said prayer was stiffly opposed by Sri.Sathayanatha Menon, learned counsel appearing for the respondent/landlady. He pointed out that the landlady was offering accommodation for the tenants in the building at 'Chandakunnu' and still the tenants were not prepared to vacate. On a specific question put to learned counsel appearing for the respondent landlady as to whether such accommodation can be provided even at present, he replied the building was already under agreement for sale and he is not in a position to assert that the same is available with the landlady even now. 13. Considering the request for time we are inclined to grant time for the revision petitioners/tenants upto 31.12.2012 to surrender vacant possession of the schedule building, subject to conditions. Hence while dismissing these revision petitions we grant time for the revision petitioners/tenants to vacate schedule building in RCR.175/2011 & conn. Cases. 11 possession of each of them, till 31.12.2012, subject to the following conditions:- The revision petitioners/tenants shall file individual affidavits before the Rent Control Court or the Execution Court, as the case may be, undertaking to surrender vacant possession of the schedule buildings on or before 31.12.2012 and also undertaking to pay arrears of rent if any due within a period of one month from today, and further undertaking to continue payment of occupational charges at the rate of the existing monthly rent, till surrender of the vacant possession. The affidavit as directed above shall be filed within a period of three weeks from today. 14. Needless to say that if the revision petitioners comply with the condition stipulated as above, the Execution court shall defer ordering and effecting delivery of the schedule buildings till 31.12.2012. PIUS C. KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE pmn/ RCR.175/2011 & conn. Cases. 12