IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 RCRev..No. 392 of 2010() ------------------------ RCA.38/2005 of I ADDL.RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.96/2002 of RENT CONTROL COURT,THRISSUR .................... REVISION PETITIONER/APPELLANT/IST RESPONDENT :- ---------------------------------------------------------------------------------- BABU, AGED 42 YEARS, S/O.PANAVALAPPIL KUTTAPPAN, POONKUNNAM DESOM VILLAGE,THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 4 :- ------------------------------------------------------------------------------------------------------ 1. JOSE, AGED 51 YEARS, S/O.NELLANKARA ANTONY, PARAVATTANY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK, THRISSUR – 5. 2. KATHIRU,AGED 74 YEARS,W/O.NELLANKARA ANTONY, PARAVATTANY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK, THRISSUR-5. 3. LAZAR, AGED 52 YEARS, S/O.NELLANKARA ANTONY, PARAVATTANY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK, THRISSUR-5. 4. FRANCIS, AGED 52 YEARS, S/O.NELLANKARA ANTONY, PARAVATTANY DESO, OLLUKKARA VILLAGE, THRISSUR TALUK, PRESENT ADDRESS : N.A.FRANCIS 20/175, MOOZPET ROAD,THRISSUR-5. ADV. SRI.E.G.PARAMESWARAN FOR (CAVEATOR) SRI.K.B.MOHANDAS FOR R1 SRI.LELLULAL T.G.THUNDATHIL FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.392 of 2010 ------------------------------ Dated this the 14th day of December 2010 O R D E R Pius C. Kuriakose, J. Under challenge in this revision filed by the tenant under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him by the Rent Control Court under Sub section (3) of Section 11. The landlord had invoked the ground of arrears of rent also for evicting the revision petitioner and the Rent Control Court ordered eviction under that ground also. Even though the eviction order under Section 11(2)(b) is also challenged in the RCR, we are not persuaded by the submissions of the learned counsel for the revision petitioner to hold that there is illegality, irregularity and impropriety in the above order of R.C.R. No.392 of 2010 -: 2 :- eviction passed under Section 11(2)(b). We confirm that eviction order and grant to the revision petitioner 30 days time from today to get that order vacated. 2. We shall now deal with the correctness of the eviction order passed by the statutory authorities under Sub section (3) of Section 11. The need projected by the landlord was that he wants to shift the advertising business, which he is presently conducting in a rented building in the name and style of M/s.Pellet Advertising Company. The landlord's contention in the RCP is that the owner of the building, where he has presently conducted Pellet Advertising, asked him to surrender that building and has actually issued a notice to him demanding surrender. Therefore, according to the landlord, he was about to face proceedings for eviction of that building and hence he wants the petition schedule building for own occupation. 3. The bonafides of the need was disputed by the tenant who contended that the landlord is not in possession R.C.R. No.392 of 2010 -: 3 :- of any building at rice Bazar and that the landlord is not conducting any business at rice Bazar. It was contended that, on enquiry it was found that the owner of the building, in which the landlord is conducting business, is a friend of him and the demand for surrender is a collusive affair between the landlord and his friend. The tenant claimed protection of the 2nd Proviso to Sub section (3) of Section 11 also. In the enquiry conducted by the Rent Control Court, the evidence consisted of Exts.A1 to A6, B1 and B2 and oral evidence of the landlord as PW1 and the tenant as RW1. On appreciating the evidence the Rent Control Court found that the need is bonafide and also that the tenant has not successfully established the entitlement to the benefit of the provisos to Sub section (3) of Section 11. Accordingly, the order of eviction passed under Sub section (3) of Section 11 was confirmed. 4. The learned Appellate Authority also after reappraising the evidence considering the appeal preferred R.C.R. No.392 of 2010 -: 4 :- by the tenant confirmed the order of eviction. 5. In this revision petition various grounds have been raised assailing the judgment of the Appellate Authority and Sri.Santhosh P. Poduval, the learned counsel for the revision petitioner addressed strenuous arguments on the basis of those grounds. Sri.K.B.Mohandas, the learned counsel for the respondent opposed all the arguments of the learned counsel for the revision petitioner. Mr.Santhosh draw our attention to the pleadings raised by the landlord and also to the landlord’s evidence as PW1. The learned counsel submitted that the need projected by the landlord is one arising in the context of a demand made by the landlord’s landlord to surrender the building at rice Bazar. The very case of the landlord that the landlord of his building at rice Bazar demanded surrender of that building is a false case. No evidence has been adduced by the landlord to show that the landlord actually had a rented building at rice Bazar. Exts.A4 and A5 rent receipts are self R.C.R. No.392 of 2010 -: 5 :- serving documents. Ext.A5 which appears to be photo copy of sales tax return, by itself will not show that the landlord is in possession of the building mentioned therein at the time of commencement of the RCP. The best evidence on the above points could have been an Advocate Commissioner's report based on inspection. The landlord failed to bring such evidence before the court. Oral evidence of the landlord of that building, one Mr.E.J.Antony also could have been good evidence. Even though that evidence is not brought on record. At any rate, there is clear evidence to show that the rent control petition which was filed by Mr.E.J.Antony the owner of the building at rice Bazar has been compromised between the parties and at the moment there is no threat of eviction. Thus, the very basis on which the landlord has built up his case has fallen to the ground. The judgment of the learned Appellate Authority is illegal, irregular and improper warranting interference under Section 20. R.C.R. No.392 of 2010 -: 6 :- 6. Sri.K.B.Mohandas, the learned counsel for the respondent would resist all the submissions of Sri.Santhosh Poduval. He would read over to us almost the full text of PW1's examination. He highlighted that PW1 has stated that he was finding it difficult to continue in the rented building by paying the high rent for that building which is periodically enhanced by the landlord. He also highlighted PW1’s evidence that the petition schedule building is situated in a commercial area. He reminded us that two fact finding authorities clearly found that the need is bonafide. He concluded his submission by pointing out that the tenant has not paid the rent more than 10 years and also that the power charges payable for the electricity in the building is also not paid. As a result of this the power supply stands disconnected. According to Sri.Mohandas, the arrears of power charges will be more than Rs.25,000/-. 7. We have considered the rival submissions addressed at the Bar. Even though in this revisional R.C.R. No.392 of 2010 -: 7 :- jurisdiction, we are not expected to reappraise the evidence especially when the findings of fact arrived at by the statutory authorities are concurrent. we have made a quick survey of evidence for appreciating the submissions addressed by the counsel on either sides properly. We have gone through the pleadings also. Even though in the evidence adduced by PW1 he has stated that the rent charged by his landlord is not affordable and that he will not be able to conduct business in the petition schedule building situated at rice Bazar, the need under Sub section (3) of Section 11 as projected in the RCP is a need which is arising on account of the demand by the landlord of the building at rice Bazar for surrender. Of course, it is always natural for any landlord who has business in a rented building to feel in terms of moving over to his own building and if that is the case any court will be impressed by prima facie. But as we have stated above, the case pleaded is that of a need which arose out of the demand of the landlord of R.C.R. No.392 of 2010 -: 8 :- the rented building to surrender the same. Of course, there is evidence of PW1 that the need to shift his own building is dehors the demand from the landlord of the building at rice Bazar but that evidence is not properly founded on pleadings. If that be so, we feel that the pleadings presently made by the landlord requires to be amended if relief has to be given to him in the present proceedings. At the same time we notice some merit in the submissions of Sri.Mohandas regarding the limits of our jurisdiction under Section 20 and also regarding the conduct of the tenant in defaulting the rent payable by him and in allowing the electricity supply to the building to be disconnected by the KSEB. We feel that this is a case where proper directions should be issued against the tenant as a condition for relief being given to him by way of an order of remand. The result of the above discussions is as follows:- The judgment of the Rent Control Appellate Authority and the order of the Rent Control Court are set R.C.R. No.392 of 2010 -: 9 :- aside. The finding that the tenant is not entitled to the 2nd Proviso to Sub section (3) of Section 11 is confirmed. The RCP is remanded to the Rent Control Court, Thrissur for fresh decision on the question as to whether the need projected by the landlord is bonafide. If the petitioner files any application for amendment of the RCP so as to incorporate the pleading that he has a need to conduct business in the petition schedule building belonging to him rather than in a building which belongs to somebody else, the Rent Control Court will allow that application. If the application is filed and allowed, the court will permit the tenant/revision petitioner to raise additional counter. Once pleadings are completed, the learned Rent Control Court will include the RCP in the earliest available special list, try the RCP and ensure that fresh orders are passed in the RCP. At any rate, the learned Rent Control Court will pass revised orders within two months from the court reopening after Christmas holidays. R.C.R. No.392 of 2010 -: 10 :- We also make it clear that this judgment remanding the RCP to the Rent Control Court will become operative only if the following conditions are complied with by the revision petitioner. He pays arrears of rent due in respect of the building in question from April 2002 at the rate of Rs.150/- per mensem together with interest at the rate of 6% per annum from the date of respective default within a period of one month from today and produces its receipt before the Rent Control Court. If any payments have been made already towards rent payable for the above period, he is entitled to adjust those payments against the quantum. There will be yet another condition that the rent payable by the revision petitioner for the building in question is refixed with effect from 1.1.2011 at the rate of Rs.1500/- per mensem subject to regular fixation of fair rent. Until fair rent is fixed on the basis of application filed by either sides, the revision petitioner shall pay rent to the respondent at the rate of Rs.1500/- with effect from R.C.R. No.392 of 2010 -: 11 :- 1.1.2011. The parties will enter appearance before the Rent Control Court, Thrissur on 22.12.2010. It is needless to mention that if either of the conditions stated above are not complied with, by the revision petitioner, he will not get benefit of the order of remand passed by this Court and in such a situation the judgment of the Appellate Authority will stand confirmed. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt