IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 RCRev..No. 166 of 2006() ------------------------ RCA.69/2002 OF RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.110/1987 OF RENT CONTROL COURT,THRISSUR .................... REVN. PETITIONERS/RESPONDENT/RESPONDENT ----------------------------------------------------------- 1. BRIJEETH, KUTTIKADAN, KIZHAKEANGADI, THRISSUR. 2. OUSEPH, DO. DO. 3. THOMAS, DO. DO. BY ADV. SRI.G.UNNIKRISHNON RESPONDENT: APPELLANT/PETITIONER ------------------------------------ KOCHANTHONY, ARIMBOOR PARAPPILLY, VADAKKECHIRA ROAD, THRISSUR.(DIED) ADDL. RESPONDENTS 2 TO 8 2. STANLEY, ARIMBOOR PARAPPILLY, VADAKKECHIRA ROAD, THRISSUR. 3. DARLEY -DO- -DO- 4. WILLIAMS -DO- -DO- 5. ANTONY -DO- -DO- 6. SHERLEY -DO- -DO- 7. MERLY -DO- -DO- 8. MERWIN -DO- -DO- ADDL. RESPONDENTS 2 TO 8 ARE IMPLEADED VIDE ORDER DATED 5-02-2010 IN IA.849/07 IN RCR.166/06 ADV. SRI.MATHAI M PAIKADAY, SENIOR ADVOCATE FOR R1 SRI.FEBIN J.VELLUKKARAN FOR R1 SMT.LAILA SIMON PAYYAPPILLY FOR R1 SRI.JOSE THOMAS (PALA) FOR ADL.R2,4 & 5 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/02/2010, ALONG WITH RCR. 169/06 ETC. THE COURT ON THE SAME DAY ASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. --------------------------------------------------------- RCR. Nos.140, 141, 164, 166, 167, 168, 169, 170, 171, 177, 179, 194, 196 & 197 of 2006 ------------------------------------------------------ Dated this the 5th day of February, 2010 O R D E R Pius C. Kuriakose, J. The tenants are in revision being aggrieved by the judgment of the Rent Control Appellate Authority ordering eviction against them on the ground of bona fide need for own occupation under sub-section (3) of Section 11 of Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to for short as the Act). The original landlord/ petitioner in the rent control petitions is no more and is survived by his legal heirs who have been impleaded as additional respondents 2 to 8 in these revision petitions. The original landlord instituted rent control petition Nos.100, 101, 102, 104, 105, 106, 107, 110, 113, 114, 115, 116, 117, 118, 119, 120, 131 and 132 of 1987 against the revision petitioners and four other tenants in occupation of the buildings described in the schedule of the respective RCR. Nos. 166/06 etc. - 2 - rent control petitions they being portions of the original family house of the landlord and appurtenant structures being structures put up subsequently as extensions of the original family house or put up adjacent to the existing structures. Significantly, the 18 buildings or building portions which are subject matter of the rent control petitions occupied a plot which has roughly 5.25 cents (2300 sq. ft.) of land. The contract rent payable by the tenants for their respective portions possessed by them was paltry amounts ranging between Rs.10/- per mensem and Rs.150/- per mensem. RCR. No. 140 of 2006 pertains to RCP. No. 131 of 1987 which relates to an area of 75 sq. ft. used by the revision petitioner therein for sale of spectacles. The contract rent in respect of that portion is Rs.25/- per mensem. RCR. No. 141 of 2006 pertains to RCP. No. 100 of 1987. The area involved in that RCP is 150 sq. ft. and the revision petitioner therein is conducting tailoring business paying a monthly rent of Rs.30/-. RCR. RCR. Nos. 166/06 etc. - 3 - No. 196 of 2006 pertains to RCP. No. 102 of 1987 used presently by the legal heirs of the tenant therein as a godown paying a monthly rent of Rs.50/-. RCR. No. 171 of 2006 pertains to RCP. No. 104 of 1987 which is in respect of the staircase room in the tarwad house and in that room presently the legal heirs of the tenant are conducting sale of lottery tickets paying a monthly rent of Rs.25/-. RCR. No. 164 of 2006 pertains to RCP No. 105 of 1987 where the area is 50 sq. ft. The tenant therein is conducting a telephone booth and selling cool drinks paying a monthly rent of Rs.50/-. RCR. No. 177 of 2006 pertaining to RCP No.106 of 1987 is in respect of an area of 50 sq. ft. the tenant therein is selling rice gruel (Kanji) paying a monthly rent of Rs.40/-. RCR. No. 166 of 2006 pertains to RCP. No. 110 of 1987 which is in respect of an area of 30 sq. ft. where soda manufacturing is conducted by the tenant on a monthly rental of Rs.20/-. RCR. No. 179 of 2006 relates to RCP. No. 113 of 1987 which is in respect of an area of 25 sq. ft. RCR. Nos. 166/06 etc. - 4 - where the tenant is conducting a Thattukada paying a monthly rental of Rs.50/-. RCR. No. 194 of 2006 relates RCP. No. 114 of 1987 which is in respect of an area of 20 sq. ft. where the tenant is conducting the work of repairing locks paying a monthly rental of Rs.25/-. RCR. No. 197 of 2006 relates to RCP. No. 115 of 1987 which is in respect of an area of 40 sq. ft. where the tenant makes appam and noolappam paying a monthly rent of Rs.30/-. RCR. No. 169 of 2006 pertains to RCP. No. 119 of 1987 which is in respect of an area of having two rooms of 20 sq. ft. each (one a part of the tarwad building and one outside) where the tenant sells tea and snacks paying a monthly rental of Rs.60/-. RCR. No. 168 of 2006 relates to RCP No. 132 of 1987 which pertains to two rooms, one inside the tarwad building and one outside, each of 30 sq. ft. where the tenant conducts akri business paying a monthly rental of Rs.150/-. RCR. No. 167 of 2006 relates to RCP. No. 116 of 1987 which is in respect of an area of 70 sq. ft. where the tenant is RCR. Nos. 166/06 etc. - 5 - conducting tailoring machine repair paying a monthly rental of Rs.10/-. RCR. No. 170 of 2006 pertains to RCP. No. 120 of 1987 which is in respect of 60 sq. ft. of area where the tenant is conducting soda manufacturing paying a monthly rental of Rs.50/-. 2. It will be noticed immediately that RCR. Nos. 171 of 2006, 169 of 2006, 168 of 2006 and 141 of 2006 pertain to portions of the main tarwad building. In RCR. No. 169 of 2006 the tenant has two rooms, one in the tarwad and one outside and in RCR. No. 168 of 2006 also the tenants have two rooms one in the tarwad and one outside. 3. The rent control petitions were instituted in the year 1987 by the landlord, a retired employee of the postal department invoking the ground of arrears of rent [under Section 11(2)(b)] and the ground of own occupation under subsection (3) of Section 11. It was submitted at the Bar that since the contract rent is nominal and orders of eviction passed on the ground of arrears of rent are provisional in RCR. Nos. 166/06 etc. - 6 - the sense that they can be got vacated by making the requisite deposits under section 11(2)(c) it is sufficient that we consider the claim for eviction on the ground under subsection (3) of Section 11, viz., bona fide need for own occupation. The need projected by the landlord was that he should have vacant possession of the premises which are subject matter of these rent control petitions for the purpose of residence with family urging that he was at that time residing in a rented premises situated to the back side of Stanly Institute where his wife was conducting a Typewriting Institute. It was the case of the landlord that he or any other member of his family had no other building of their own in their possession where they could set up residence. The tenants filed counter statements raising homologous contentions. It was contended that the need is not bona fide, that the landlord's case that he has no other building of his own for starting residence is not correct, that even after eviction notice was issued the landlord has sold RCR. Nos. 166/06 etc. - 7 - away other buildings belonging to him, that the petition schedule premises is not suitable for the residential purposes of the landlord, and that the tenants are entitled for the protection of the second proviso to subsection (3) of Section 11. The Rent Control Court consolidated all the rent control petitions and tried them jointly. The evidence at trial consisted on the side of the landlord of Exts.A1 to A45 and the oral evidence of the landlord as PW1. On the side of the tenants the same consisted of Exts.B1 to B14 and oral evidence of various tenants as Rws. 1 to 19. The report submitted by an Advocate Commissioner appointed by the Court for local inspection was marked in evidence as Ext. C1. The Rent Control Court by common order dated 27-8- 1990 held that the need projected by the landlord was not bona fide and ordered eviction on the ground of arrears of rent only. The court however, held that the tenants are not entitled to the protection of the second proviso to subsection (3) of Section 11. However, in view of the finding that the RCR. Nos. 166/06 etc. - 8 - need is not bona fide, order of eviction was declined on the ground of bona fide own occupation. The landlord preferred appeals before the Rent Control Appellate Authority. Appeals were dismissed confirming the order of the Rent Control Court. The landlord preferred revision to this court. This court by order dated 5-7-2000 remanded all the rent control petitions to the Rent Control Court for reconsidering the claim of the landlord for eviction under subsection (3) of Section 11. While doing so, this court confirmed the concurrent findings of the Rent Control Court and the Appellate Authority that the tenants have not established their claim for protection of the second proviso to subsection (3) of Section 11. Under the remand order both sides were given opportunity to adduce further evidence they may want on the question of bona fide need and on the applicability of the first proviso to subsection (3) of Section 11 of the Rent Control Act. After remand, PW1 the landlord was recalled and examined. He produced Ext. 46 series. RW1, one of RCR. Nos. 166/06 etc. - 9 - the tenants was also recalled and examined. He produced Exts. B15, B16 and B16(a). The Advocate Commissioner filed a further report Ext. C2. The Rent Control Court held that the need is bona fide, however, took the view that the petition was liable to fail by virtue of the first proviso to subsection (3) of Section 11. In other words, it was found that the landlord had not established special reasons justifying an order of eviction despite the landlord being in possession of other buildings. Accordingly an order declining eviction on the ground of bona fide need was passed by the Rent Control Court. The Appellate Authority under the impugned common judgment dated 20-2-2006 would allow all the 18 rent control appeals filed by the landlord reversing the finding of the Rent Control Court. It was found that the rent control petitions were not liable to fail by virtue of the first proviso to subsection (3) of Section 11 and accordingly all the tenants were ordered to be evicted on the ground of bona fide need for own occupation RCR. Nos. 166/06 etc. - 10 - also. Only 14 tenants being aggrieved by the order of eviction have filed these revision petitions assailing the judgment of the Appellate Authority on various grounds. During the pendency of the rent control revision on 8-2- 2007 the landlord died and upon his demise his legal heirs sons and daughters were impleaded as additional respondents 2 to 8. 4. Extensive arguments were addressed before us by the learned counsel for the parties viz., Sri.G.Unnikrishnan, Advocate for the revision petitioners tenants and Sri.Mathai M.Paikaday, Senior Advocate for the landlord. According to Mr.Unnikrishnan the judgment of the Rent Control Appellate Authority is vitiated by illegality, irregularity and impropriety as envisaged by Section 20 of Act 2 of 1965. He referred to the first proviso to subsection (3) of Section 11 and submitted that the implications of that proviso were not considered properly by the learned Appellate Authority. Referring to Exts. B15, B16 and B16(a) the learned counsel RCR. Nos. 166/06 etc. - 11 - submitted that the first two documents will reveal that at the time when the rent control petition was instituted the landlord was in possession of a building with three rooms and he referred to the evidence of PW1 in cross examination and submitted that the version of the landlord was that after getting vacant possession the landlord sold away that building. Such sale can only be after 1999, according to the learned counsel and the Rent Control Court was justified in dismissing the RCP on the reason that the landlord had not pleaded or proved any special reason for preferring to evict the tenant. The Rent Control Court's order was in fact in accordance with the first proviso to subsection (3) of Section 11 which will show that there is an embargo on the power of the Rent Control Court to order eviction in the absence of establishment of special reasons by the landlord. This aspect of the matter has been overlooked by the Appellate Authority which has ordered eviction taking into account the sentimental value for the RCR. Nos. 166/06 etc. - 12 - tarwad building from the landlord's point of view. The approach of the Appellate Authority is contrary to law, according to Mr. Unnikrishnan. 5. Mr. G. Unnikrishnan highlighted that at any rate the need for own occupation projected by the landlord does not subsist. According to him, the need pleaded by the landlord was his personal need for residing in his tarwad building. Now that the landlord is no more, the said need no longer subsists. The legal representatives of the landlord who have been impleaded as additional respondents in the RCRs are all happily put up in other residential abodes and hence the father's need accepted by the Appellate Authority will not survive and enure to their benefit. Mr.Unnikrishnan would refer to a catena of decisions starting from the judgment of the supreme Court in P.Venkateswarlu v. The Motor & General Traders, 1975 SC 1409 to support his argument that subsequent events have relevance while taking decision in rent control proceedings. Mr. Unnikrishnan would lastly RCR. Nos. 166/06 etc. - 13 - submit that at any rate the projected need of the landlord wanting to occupy all the buildings which are subject matter of these rent control petitions is highly artificial and cannot be bona fide. Such a common ground has been invoked in all the rent control petitions with the objective of ensuring that all these tenants who are paying only relatively small amounts by way of rent are evicted and the landlord is able either to sell off all the buildings for very high price or let them out to other tenants on high rents. Mr. Unnikrishnan submitted that the tarwad building to which only some sentimental attachment may be there for the landlord can be surrendered readily so that any one among the present landlords who is without a building of his own for his residence can occupy. The other tenants in occupation of the buildings which do not form part of the main tarwad building may be allowed to continue. The learned counsel submitted that those tenants will be prepared to pay any reasonable rent which may be tentatively fixed by this court RCR. Nos. 166/06 etc. - 14 - subject to fixation of fair rent by the Rent Control Court. 6. All the submissions of Mr.Unnikrishnan could be answered effectively by Sri.Mathai M.Paikaday, learned senior counsel for the respondent landlord. In fact before arguments were concluded on 8-1-2010 we passed the following order: “The arguments are almost over. We feel that a point which arises seriously is one pertaining to the operation of the first proviso to sub-section (3) of Section 11 of the Rent Control Act, 1965. Exts.B15 & B16 will show that during the period from 1988-94 the landlord was in possession of a building belonging to him, the door number of which was initially 353 in Ward No.X and thereafter 1227 in Ward No.X and lastly (going by Ext.B16) 569 in Ward No. IX. In the cross-examination, PW1 was asked regarding the availability of the above building. His answer was that as on as he got vacant possession of that building he sold the same off. The youngest son of PW1 is present and we enquired of him as to when the above building was sold by his father and also as to by which document the sale was effected. He was unable to give a specific answer. But he stated that the sale was by means of one among the documents already marked as Ext.A46 series. We have made a scrutiny of the entire Ext. A46 sale deeds. We do not think that they pertain to the above building (the building covered by Ext.B16). Mr.G.Unnikrishnan, learned counsel for the revision petitioner submitted that the RCR. Nos. 166/06 etc. - 15 - revision petitioner does not have a case that the landlord continues to possess the above building since the landlord himself admitted that the building is already sold off. Under the above circumstances we direct both parties to produce before this court the certified copy of the sale deed by which PW1 sold the above building 9the building covered by Ext.B16). Post on 22-1-2010.” 7. It will be noticed that no fresh documents were produced by either of the parties and the submissions of the learned senior counsel for the respondent landlord was that A46 series of 10 sale deeds are the only sale deeds executed by the original landlord in respect of buildings belonging to him. He would refer to the commissioners' reports C1 and C2 and submit that the building which is subject matter of Ext.B16 was at all relevant times possessed by a tenant and therefore the said building is not liable to be reckoned with for the purpose of the first proviso to subsection (3) of Section 11. According to Mr.Paikaday, even though the landlord instituted 18 rent control petitions in respect of buildings occupied by his tenants including the RCR. Nos. 166/06 etc. - 16 - present revision petitioners the total area occupied by all these buildings is hardly 5.25 cents. The tarwad building occupied by the tenant revision petitioners in RCR Nos. 171/06, 169/06, 168/06 and 141/06 is the main structure and all the other buildings and the buildings which are subject matter of the other rent control revisions are relatively small structures. In order that a reasonably convenient residence is possible it is necessary that the landlord gets possession of all the buildings which are subject matter of all the RCPs. Meeting the argument of Mr.Unnikrishnan that the need projected by the landlord no longer subsists and that the need for own occupation under subsection (3) of Section 11 should subsist till the culmination of the proceedings Mr. Paikaday would refer to various decisions such as the judgment of the Supreme Court in Sakunthala Bai and other v. Narayan Das and others (2004) 5 SCC 772, Om Prakash Gupta v. Ranbir B.Goyal (2002) 2 SCC 242, Gaya Prasad v. Pradeep RCR. Nos. 166/06 etc. - 17 - Srivasthava (2001) 2 SCC 604, and submit that bonafides of the need projected by the landlord under Section 11(3) has to be decided as on the date of filing of the application. The learned counsel submitted that subsequent events are to be brought to the notice of the court by raising additional pleadings which has not been done in this case by the tenants. Landlord may not be penalised for the slowness of the legal system. Landlord is not responsible for the inordinate delay of 23 years which has accrued since the institution of the RCPs in the present case. 8. Mr.Paikaday submitted that it is not correct to say that it was for leading a solitary life that the landlord sought eviction. Referring to the entirety of the pleadings in the RCP and the oral evidence of PW1 as well as the judgment of the appellate authority where reference is made to the arguments addressed by counsel for both sides, Mr.Paikaday submitted that both sides understood that the need projected by the landlord was need for residence of himself RCR. Nos. 166/06 etc. - 18 - and his younger son and family. Mr. Paikaday referred to paragraph (2) of the statement of facts in the present revision petitions and submitted that it is clear from the same that the need projected by the landlord was for the convenient enjoyment of the landlord and his family. According to Mr.Paikaday it is not now open to the tenant to contend that the need for own occupation by the son is not something pleaded by the landlord. 9. Answering the arguments of Mr.Unnikrishnan that the buildings which are subject matter of rent control revision petitions other than RCR. Nos. 171, 169, 168 and 141 of 2006 (buildings in the tarwad building) are not suitable and needed for the residential occupation by the landlord. Mr.Paikaday would refer to the judgment of this court in Ramachandran Nair v. Gopinathan, 2003(2) KLT 694 and argued that it is not for the tenant to decide or dictate whether a building is suitable for the use of the landlord in the instant case. The buildings sought to be RCR. Nos. 166/06 etc. - 19 - evicted are the tarwad house of the landlord where the landlord's father and grandfather resided, the landlord was born and brought up and other small structures put up in close proximity of the tarwad building. 10. Mr.Paikaday would argue that the tenants are taking advantage of a lone sentence in the cross examination of PW1, an octogenarian to argue that room No.1227 in Ward No. X (the building which is subject matter of Ext.B16) was got vacated and sold away. The evidence of PW1 is to be read and appreciated as a whole and it has been clearly stated by PW1 that none of the line rooms in Parappilly Angadi (relating to Ext.B16 also) was ever got vacated. The commissioner's report is very clear to the effect that a tenant by name Peter is staying in the building for the past 50 years and to this commission report no objections were filed by the tenant. Lastly Mr.Paikaday submitted that the idea of only the tarwad building being surrendered and the buildings occupied by the other tenants RCR. Nos. 166/06 etc. - 20 - who are conducting petty trades not being surrendered will cause great inconvenience. The buildings where trade is being conducted by the revision petitioners are actually on the back courtyard of the tarwad building and the access to those buildings is directly through the tarwad building. In the family of the youngest son of the landlord who proposes to reside in the building once surrender is obtained, there are grown up children including a girl and a peaceful life will not be possible in the tarwad house with the traders in the courtyard passing through the corridors of the tarwad house. 11. As for the apprehensions of Mr.Unnikrishnan that the idea of the landlord is to sell off the building or to let out the same to others on higher rent. Mr.Paikaday would refer to subsection (12) of Section 11 and submit that the landlord is ready to suffer any direction which this court may pass in the context of such apprehensions of the tenants. 12. We have very anxiously considered the rival RCR. Nos. 166/06 etc. - 21 - submissions addressed at the Bar in the