IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 RCRev..No. 261 of 2004() ------------------------ RCA.103/1996 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.15/1995 OF RENT CONTROL COURT, THALIPARAMBA .................... PETITIONERS-SUPPL.APLNTS.2 TO 5-LRS OF PETITIONR NO.- SUPPL. PETITIONERS 2 TO 5: --------------------------------------------------------------------- 1. DR.M.RAJALAKSHMI, D/O.K.M.NARAYANI, MEDICAL PRACTITIONER, "AGRIMA", TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, TALIPARAMBA TALUK. 2. M.VIJAYALAKSHMI, D/O.K.M.NARAYANI, OCCUPATION NIL, MANIL HOUSE, COURT ROAD, TALIPARAMBA AMSOM, -DO- -DO-. 3. K.M.BABU, S/O. K.M.NARAYANI, OCCUPATION NIL, RESIDING AT -DO-. 4. M.JAYALAKSHMI, D/O. K.M.NARAYANI, OCCUPATION NIL, RESIDING AT -DO-. BY ADV. SMT.VIDHYA. A.C RESPONDENT(S): RESPONDENTS-RESPONDENT & SUPPL. R2. -------------------------------------------- 1. CHUNGAKKARAN KARUNAKARAN, (DIED) S/O. KALLIANI, TRADER, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, THC V IN BUILDING NO.(TRADING) 1589, P.O. TALIPARAMBA, DIST. KANNUR. 2. M.RAJAN, S/O. K.M.NARAYANI, "NANDANAM", 7TH MILE, P.O. POOKODE, VIA. KUTHUPARAMBA, DIST. KANNUR. ADDL. RESPONDENTS: 3. M.YESODA, 62 YEARS (DIED) PRASANTHA NILAYAM, NEAR DREAM PALACE AUDITORIUM THRICHAMBARAM PO. TALIPARAMBA, DT. KANNUR. 4. C.PUSHPA, AGED 41 YEARS DO. DO. 5. C.PRAKASAM, AGED 39 YEARS, DO. DO. 6. C.SUJILAKUMARI, AGED 37 YEARS, DO. 7. C.PRASAD, AGED 35 YEARS DO.DO. 8. C.PRASANT, AGED 30 YEARS, DO. RESPONDENTS 4 TO 8 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE THIRD RESPONDENT WHO IS NO MORE AS PER ORDER DT. 9-7-09 IN MEMO FILED UNDER ORDER 22 RULE 2 CPC. ADDL. R3 TO R8 ARE IMPLEADED AS LRS. OF THE DECEASED R1 AS PER ORDER IN IA. 2055/06 DATED 18-6-09 ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1,3TO8 SRI.P.G.RAJAGOPALAN FOR R1,3TO8 SRI.M.GOPIKRISHNAN NAMBIAR FOR R1,3TO8 SMT.T.RESMI DAMODARAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. ----------------------------------------------- RCR. No. 261 of 2004 ----------------------------------------------- Dated this the 3rd day of August, 2009 O R D E R Pius C. Kuriakose, J. The landladies, being the legal heirs of the original landlady the petitioner in the RCP one Narayani, being aggrieved by the order of the Rent Control Court and the judgment of the Appellate Authority declining eviction sought under sub section (3) of Section 11 are the revision petitioners. In fact, the original landlady had invoked the ground of arrears of rent also. But the Rent Control Court and the Appellate Authority allowed eviction on the ground of arrears of rent. There is no challenge by the tenant against that order obviously on the reason that order of eviction passed under Section 11 (2) (b) is only a tentative eviction, which is liable to be vacated by the Rent Control Court on an application under section 11 (2)(c) to be filed by the tenant. It is submitted by Sri.T.P.Kelu Nambiar, RCR. No. 261 of 2004 -2- learned senior counsel that the entire arrears of rent, as found by the rent control court and confirmed by the Appellate Authority has been paid or deposited and that getting the order of eviction vacated under Section 11 (2)(c) is only a formality. The above submission is not seriously disputed by Smt.A.C.Vidhya, learned counsel for the revision petitioners. Therefore, as regards the order of eviction passed under section 11 (2) (b), we will only observe that the respondent tenant will have a period of 30 days from today for getting that order vacated by making formal application under Section 11 (2) (c). 2. The need projected by the original landlady in the RCP was that her daughter Smt.K.M.Vijalakshmi (who is impleaded upon the demise of the original landlady as supplemental petitioner No.3) is a physically disabled lady without any job or avocation for life and that she is to be accommodated in the petition schedule building for conduct RCR. No. 261 of 2004 -3- of tailoring and allied business. It was averred in the RCP that Smt.Vijalakshmi is a diploma holder in garment making and that she has no other vacant building of her own or in her possession in which she can be accommodated to conduct garment business. 3. The bona fides of the need and the claim under Section 11 (3) was very stiffly resisted by the respondent tenant. It was contended inter alia that the landlady Smt.Vijalakshmi, who was the owner of a building occupied by a tenant by name M.P.Moideenkutty, got an order of eviction against Sri. M.P. Moideenkutty projecting the very same need and that after getting possession of that building the second revision petitioner did not occupy that building for the need projected in that RCP which is same as the need projected in the present RCP. It was also contended that the original landlady Narayani possessed another vacant building, which disentitles to her order of RCR. No. 261 of 2004 -4- eviction in view of the first proviso to sub section 3 of Section 11. It was further contended that the original landlady Smt.Narayani had obtained eviction of her other tenants projecting the present need also as one among the various grounds. It was highlighted that there was inordinate delay on the side of the landlady in approaching the Rent Control Court with petition for eviction and that the delay is demonstrative of the total absence of bona fides for the claim. 4. Very extensive submissions were addressed before us by Smt. A.C.Vidhya, learned counsel for the revision petitioner and Sri.T.P.Kelu Nambiar, learned senior counsel for the revision respondent. While Smt. Vidhya's submissions were all founded on the grounds raised in the memorandum of revision the senior counsel Sri.T.P.Kelu Nambiar would defend the orders of the authorities below citing judicial precedents. The learned senior counsel RCR. No. 261 of 2004 -5- referred to the first proviso to subsection (3) of Section 11 and argued citing the judgment of the Supreme Court in AIR 1981 SC 1113 that when it is seen that the landlord is possessed of another building it is for the landlord to plead and prove that the said building is not sufficient for the landlord's requirement. The senior counsel relied on the judgment of the Supreme Court in Charan Dass Duggal v. Brahma Nand, 1982(1) RCJ 789 and the judgment of this Court in 1995(1) KLT 596 in support of the very same proposition. 5. We have very anxiously considered the rival submissions in the light of the statutory provision subsection (3) of Section 11 which is subject to the first proviso as well as the judicial precedents cited by the senior counsel for the respondent. In this revisional jurisdiction under section 20 of Act 2 of 1965 this court is not expected ordinarily to interfere with conclusions of fact arrived at by RCR. No. 261 of 2004 -6- the Rent Control Court and the Appellate Authority which under the statutory scheme are the courts of fact, unless those findings are not based on evidence or are so wholly unreasonable as to warrant invocation of the revisional jurisdiction. In the instant case, on a scanning of the order of the Rent Control Court which is approved by the Rent Control Appellate Authority by its judgment we find that the finding of the Rent Control Appellate Authority which is the final court on facts under the statutory scheme is based on evidence which is actually available on record. Despite our having made an overview of the evidence for the purpose of deciding whether the above finding suffers from any illegality, irregularity or impropriety envisaged by section 20 we are unable to notice any such illegality, irregularity or impropriety. Another tenant of PW-1 for whose need the building was sought to be evicted by the original landlady was actually evicted on the ground that the room occupied RCR. No. 261 of 2004 -7- by that tenant, viz., one Moideenkutty is required bona fide for the occupation of PW-1. For several years the building previously occupied by the above said Moideenkutty was not occupied by PW-1. The explanation of Smt.Vidhya is that the said building was in a state of disrepair and could not have been occupied and that the said building has since been demolished and therefore is not presently available for PW-1 to occupy. We are not impressed. The demolition of the building which was occupied by Moideenkutty is years after PW-1 came back into possession of the said room and significantly the need which is sought to be granted by filing the present RCP is the need which was projected in the RCP which was filed by PW-1 against Sri.Moideenkutty. Apart from that, it is in evidence that the original landlady was having another vacant building, the availability of which was not disclosed in the rent control petition. It has however, become evident in the case that the said building RCR. No. 261 of 2004 -8- is converted as a bath room. According to us, the availability of this building is a matter which ought to have been disclosed by the landlady who was expected to plead and prove special reasons as to why this building could not be provided to PW-2. In short, we are of the considered view that the findings concurrently entered by the Rent Control Court and the Appellate Authority that the need projected under subsection (3) of Section 11 is not bona fide does not warrant interference. 6. At the same time, we notice that the building is situated in a commercially very important area of Taliparamba Municipal Town. The rent of Rs.40/- per month currently fixed, according to us, is far below the prevailing rent in the locality. We are told that the tenant is a close relative of the landladies and that is why the parties were not seriously concerned with the adequacy of the rent. We however, are of the view that the tenant should pay a RCR. No. 261 of 2004 -9- reasonable rent to the landlady. Therefore we tentatively re-fix the monthly rent payable by the respondent tenant to the revision petitioner prospectively with effect from 1st September, 2009 at Rs.1,200/- per month. It is made clear that this re-fixation is without prejudice to the right of either of the parties to move the competent court for fixation of fair rent. RCR is dismissed subject to re-fixation of the rent. No costs. (PIUS C.KURIAKOSE, JUDGE) (P.Q.BARKATH ALI, JUDGE) dpk/ksv