IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 RCRev..No. 188 of 2008() ------------------------ RCA.4/2004 OF RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.1/2002 OF RENT CONTROL COURT, TRIVANDRUM .................... REV.PETITIONERS(RESPONDENTS 2 & 3/PETITIONERS2 & 3 ---------------------------------------------------------------------- 1. P.V.THULASI, T.C.41/39, VATTAVILAKATHU VEEDU, MANACAUD, TRIVANDRUM. 2. G.MADHAVANKUTTY, T.C.41/39, VATTAVILAKATHU VEEDU, MANACAUD, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): (APPELLANTS/COUNTER PETITIONERS) ----------------------------------------------- 1. SIVAKUMARI, W/O.LATE RAJAN, T.C.38/1862, KURIATHI, MEDICAL COLLEGE P.O., TRIVANDRUM. 2. ARAVIND RAJ, AGED 12 YEARS S/O.SIVAKUMARI, T.C.38/1862, KURIATHI, MEDICAL COLLEGE P.O.,TRIVANDRUM (MINOR) 3. AISWARYA RAJ, AGED 10 YEARS D/O.SIVAKUMARI, TC 38/1862, KURIATHI, MEDICAL COLLEGE P.O., TRIVANDRUM (MINOR). ADV. SRI.V.SURESH FOR R1 TO 3 SRI.G.SUDHEER FOR R1 TO R3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30-11-2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ RCR. No. 188 of 2008 ------------------------------------------- Dated this the 30th day of November, 2009 O R D E R Pius C. Kuriakose, J. The landlords are in revision. They sought to evict the respondents on the ground of arrears of rent and bonafide need for own occupation. The case of the landlords was that the building in question was let out to one Rajan, the predecessor in interest of the respondents on a monthly rent of Rs.1,000/- for residential purposes and that till, Sri.Rajan passed away in October 1999, he had discharged rent for the period up to August 1999. Thereafter the rent was defaulted and not paid in spite of statutory notice issued in that regard. The need projected under sub-section (3) of Section 11 was that the building is required for the conduct of the whole sale business in drugs and pharmaceuticals. In this context, it is averred that the mother of the first petitioner in the RCP, who is the mother of respondents 2 RCR. 188/08 - 2 - and 3 herself, was having a medical shop and that the building in which the medical shop was being conducted was acquired by the Government for road widening. The third petitioner in the RCP Sri.Madhavankutty was assisting his mother in conducting the above medical shop and the need projected is that Madhavankutty, who is presently without any job or avocation for life, will conduct business in the petition schedule building once possession is obtained. Before instituting the rent control petition, Ext.A10 lawyer notice was issued by the revision petitioners, to which Ext.B2 reply was sent. Both in Ext.B2 reply as well as in the statement of objection filed to the RCP, the contention raised by the respondents was that their status in the petition schedule building is not as the tenants. On the contrary, the contention was that the building was entrusted to Sri.Rajan, husband of the first respondent and father of the other respondents in 1999 on the basis of an agreement RCR. 188/08 - 3 - for sale and purchase under which a sum of Rs.4 lakhs was fixed as total sale consideration payable, out of which a sum of Rs.3 lakhs was readily paid and towards the balance one lakh, a cheque was also issued. Thus, the contention was that the respondents are holding the petition schedule building as persons in possession pursuant to an agreement for sale. 2. The Rent Control Court formulated necessary points and enquired into the RCP. The evidence at the enquiry consisted of Exts.A1 to A13, B1 to B8, C1 commission report, oral testimonies of PW1, the third revision petitioner and that of CPWs.1 to 3. Exts.A1 to A1(d) were the drug licences and ancillary documents pertaining to the same under which the first revision petitioner assisted by the third revision petitioner used to conduct sale of drugs. Exts.A1 (e), A1(f), A4, A5, A7 and A8 were property tax receipts issued by the local authority indicating that in the RCR. 188/08 - 4 - assessment books of that authority, the ownership of the building was with the revision petitioners only. Ext.A3 was copy of the sale deed under which the husband of the first petitioner in the RCP purchased the building. Ext.B1 letter was issued by the Dhanalakshmi Bank indicating that the said bank had sanctioned a loan of more than Rs.2 lakhs to the husband of the first respondent in 1998. CPW-1 was the first respondent in the RCP, wife of Rajan and CPW-2 was an uncle of CPW-1 who tried to prove that way back in 1964 itself the petition schedule premises were being enjoyed by Sri.Karunakaran Nair, father of the first respondent on 'Vakkal Pattom Basis'. CPW-3 was the Advocate Commissioner, who submitted Ext.C1 report which was to the effect that the petition schedule building is not a separate building, but is only a portion of a larger building, the other portion of which was numbered as 39/1861. The Rent Control Court, on evaluating the evidence, came to the RCR. 188/08 - 5 - conclusion that the denial of landlord's title by the respondents is not bonafide. Though it was noticed that the evidence to prove the rental arrangement pleaded by the revision petitioners was only oral, that court would accept the oral rental arrangement pleaded by the revision petitioners, since the respondents had miserably failed in proving that the nature of their possession of the petition schedule premises was as persons in possession, pursuant to agreement for sale. Accordingly, the court would find that the rent is in arrears as alleged and pass order of eviction under section 11(2)(b). Similarly, it was found that the need projected by the revision petitioners for occupation of the buildings for the conduct of whole sale business in drugs was found to be bonafide. Since the building was a residential one, order of eviction was passed in view of that finding. 3. The Appellate Authority re-appraised the evidence, RCR. 188/08 - 6 - considering an appeal preferred by the respondents. According to that Authority, in order that a petition for eviction under Section 11 of Act 2 of 1965 is maintained, it was absolutely necessary that the landlord succeeded in proving that there was landlord-tenant relationship between the parties and also that the terms of the landlord-tenant relationship pleaded by the landlords are correct. The Appellate Authority would notice that going by the various property tax assessment receipts put in evidence by the landlords, the contract rent of the building could not have been anywhere near the monthly rent of Rs.1500/-, alleged by the revision petitioners. Taking the view that the landlord-tenant relationship pleaded by the landlord was not established, the Appellate Authority found that the rent control petition was not maintainable. Coming to the bonafides of the need for own occupation, the Appellate Authority found that on the basis of the evidence on record, RCR. 188/08 - 7 - the same was not to be suspected. However, in view of the finding that the landlord-tenant relationship pleaded by the revision petitioners was not proved, the Appellate Authority would set aside the judgments of the Rent Control Court and dismiss the RCP. It is challenging the judgment of the Appellate Authority, that the instant revision is filed under section 20. 4. We have heard the submissions of Mr.G.S. Reghunath, the learned counsel for the revision petitioners and those of Mr.Sudheer, the learned counsel for the respondents-landlords. Sri.Reghunath would assail the finding of the Appellate Authority that the rent control petition is not maintainable since the landlord-tenant relationship pleaded by the revision petitioners was not proved by evidence. 5. Our attention was drawn by Mr.Reghunath to sub section (1) of section 11 and he submitted that in a RCR. 188/08 - 8 - situation where the tenants resisting a petition for eviction filed under section 11 denies the landlord-tenant relationship, i.e. the title of the landlord to maintain the RCP, then it is obligatory that the authorities under the statute examines whether the above denial is bonafide. It is such an enquiry which was conducted by the Rent Control Court. The Appellate Authority was expected to examine the correctness of the finding of the Rent Control Court on the basis of the evidence on record regarding the question whether the denial of the landlord's title by the tenants was bonafide. The Appellate Authority does not discharge that function, instead the enquiry was whether the landlord was successful in establishing by documentary evidence that the oral rental arrangement pleaded by the landlord was correct. Sri.Reghunath would draw our attention to the pleadings raised by the respondents and also to the evidence adduced by them for proving their pleaded case. RCR. 188/08 - 9 - The learned counsel submitted that there is marked deviation from the case pleaded in the statement of objections and the case that was sought to be proved by adducing evidence. The pleaded case was only that the building was entrusted to Rajan, husband of the first respondent on the basis of an agreement for sale in 1999. But the case that was sought to be proved by adducing evidence was that the entire premises were under the possession of Karunakaran Nair, father of PW1 as a tenant and that the building was given to PW1 at the time of her marriage as dowry or patrimony. Such a case, inasmuch as does not have foundation of pleadings, cannot be accepted. The learned counsel submitted that it is not unusual that lease of buildings is governed by oral arrangements, especially, in cases like the instant one where there was close personal friendship between the lessee and one of the landlords. The prominent defence of the respondents was RCR. 188/08 - 10 - that they are in possession on the basis of an agreement for sale. Once that defence has fallen to the ground, due to total absence of evidence, the landlord's version is the only surviving one which was rightly accepted by the Rent Control Court. There was no warrant for the Appellate Authority in interfering with the finding of the Rent Control Court. Sri.G.Sudheer, the learned counsel for the respondent, apart from supporting the findings of the Appellate Authority on the various reasons stated in the judgment of the Appellate Authority, would assail the order of eviction passed on the ground of bonafide own occupation on its merits. The learned counsel pointed out that it was the evidence of PW1 Madhavankutty that the drug licence which stood in the name of the first revision petitioner had become stale and was not renewed for several years. If that be so, it would be impossible for PW1 to carry on the proposed business. RCR. 188/08 - 11 - 6. We have very anxiously considered the rival submissions addressed at the Bar. The judgment of the Division Bench of this Court in Aboobacker v Girija (1995 (1) KLT 553) lays down sufficient guidelines to be followed by the Authorities under the Rent Control Act while deciding the crucial question whether the denial of the landlord's title as envisaged by the proviso to sub section 1 of section 11 is bonafide. The Division Bench held that the Rent Control Court should have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea and the chances of the plea being upheld by the civil court, if the issue is relegated to the civil court should be fairly on the higher side. In the instant case, both in Ext.B2 reply notice as well as in the statement of objections filed by the respondents to the Rent Control Petition, the plea is that Rajan the husband of the first respondent was given possession of the petition schedule premises on the RCR. 188/08 - 12 - basis of an agreement for sale under which the sale consideration payable by Rajan was fixed as four lakhs out of which he paid three lakhs readily and one lakh by means of a post dated cheque. The above case in pleading is given a clear picture at the stage of evidence. The case sought to be proved in evidence is that since 1964 ,Sri.Karnakaran Nair, father of PW1 was in enjoyment of the petition schedule premises as a lessee on 'Pattom Basis' and that the premises were given to CPW1 by the above said Karunakaran Nair at the time of her marriage as dowry or patrimony. This marked deviation in the case pleaded and the case sought to be proved was rightly noticed by the Rent Control Court as a circumstance not inspiring any confidence in the mind of that court. We are also of the opinion that the evidence adduced by the respondents for proving the case of Sri.Karunakaran Nair being already in possession of the properties in 1964 and handing over RCR. 188/08 - 13 - possession of the property to CPW1 at the time of her marriage should have been eschewed as not being legal since the same is being founded on pleadings. We notice that in the statement of objections, a feeble attempt was made by the respondents to deny the proprietory title of the revision petitioners over the building. But interestingly, the respondents are admitting the ownership of the revision petitioners over the building having door No.39/1861 and the other portions of the larger building. They are also admitting that the above portion is let out by the revision petitioners themselves to the Co-operative Society. The circumstances that the building portion having door No.1861 is let out by the revision petitioners to the Co- operative Society is a circumstance which probabilises the version of the landlord that it is they who are having paramount title over the petition schedule building and that the building is held by the respondent on the basis of rental RCR. 188/08 - 14 - arrangement. We notice that the petition schedule premises are situated in the heart of the capital city of Thiruvananthapuram and that it will be highly improbable that such a valuable building will be agreed to be sold by the third petitioner to the respondents orally. The oral evidence adduced by the respondent CPW1 in fact is in deviation from her pleadings and rightly did not inspire confidence in the mind of the Rent Control Court. We are of the view that when following the guidelines laid down by this Court in Aboobacker v. Girija, 1995 (1) KLT 553 it will have to be held that in the event of the parties being relegated to a civil court the respondent in the RCP does not stand any chance for succeeding. In fact, she does not have any inconsistent case. The case pleaded was the one based on agreement for sale of property, to support which the evidence is practically nil. According to us, there was no warrant at all for the learned Appellate Authority to have RCR. 188/08 - 15 - interfered with the finding of the Rent Control Court that it is landlord tenant relationship which exists between the parties. As for the merits of the eviction ground, even the Appellate Authority has concluded that if a landlord tenant relationship existed between the parties the findings of the Rent Control Court that order of eviction is liable to be passed on the ground of arrears of rent and also on the ground under sub-section (3) of Section 11 will have to be found to be correct findings. We have scanned the order of the Rent Control Court in this context. We notice that the findings entered by that court in the context of the eviction grounds are founded on evidence. 7. The result of the above discussion is that the RCR is allowed. The finding of the Rent Control Appellate Authority that the case involves a bona fide denial of the landlords' title by the respondent and that there is no landlord tenant relationship between the parties is vacated. The findings in RCR. 188/08 - 16 - that regard by the Rent Control Court is restored. The eviction order passed by the Rent Control Court is also restored and the respondent is ordered to be evicted on the ground of arrears of rent and also the ground of the bona fide need for own occupation. 8. However, taking into account the last plea of Mr. Sudheer , learned counsel for the respondent that this court be pleased to grant time to the respondent for surrender of the petition schedule building till 30-6-2010 we are inclined to grant so much of time on the following conditions: 1) The first respondent shall pay the entire arrears of rent as found by the Rent Controller in its order including the rent which has fallen due subsequently till date within thirty days of receiving copy of this order. 2) The first respondent on her behalf and on behalf of other respondents shall file an affidavit within one month RCR. 188/08 - 17 - from today undertaking to surrender possession of the petition schedule premises to the revision petitioners on or before 30-6-2010 peacefully. Through the same affidavit it will be undertaken that occupational charges at the current rent rate will also be paid as and when the same falls due till 30-6-2010, the date of surrender. It is made clear that the respondent will be entitled for benefit of time granted as above only if the affidavit is filed on time. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-