A. Narayanan v. Jwalini Avva

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934 RCRev..No. 360 of 2011 (E) --------------------------------RCA.13/2007 of RENT CONTROL APPELLATE AUTHORITY(DISTRICT COURT), KALPETTA RCP.10/2004 of RENT CONTROL COURT (MUNI-MAGI.COURT), MANANTHAVADY --------------- ## REVISION PETITIONER(S)/APPELLANT/RESPONDENT: ----------------------------------------------------------- A.NARAYANAN,AGED 60 YEARS, S/O.KRISHNAN NAIR,KALLUVAYAL HOUSE, THARUVANA POST PORUNNANNOOR AMSOM, CHANGADAM DESOM MANANTHAVADY TALUK, PIN 670 732. BY ADVS.SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU ## RESPONDENT(S)/RESPONDENT/PETITIONER: -------------------------------------------------- JWALINI AVVA,AGED 66 YEARS, S/O.LATE P.J.NEMACHANDRA GOWDER, PUTHIYADAM HOUSE PAYYAMPALLY AMSOM, PAYYAMPALLY DESOM MANANTHAVADY TALUK, PIN 670 646. BY ADV. SRI.B.KRISHNAN BY ADV. SRI.R.PARTHASARATHY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------R. C. R No.360 of 2011 -----------------------------------------------Dated this the 4[th] day of April, 2012 ## **ORDER** ## _Pius C. Kuriakose, J_ This revision under Section 20 of Act 2 of 1965 challenges the order of eviction passed by the Rent Control Court and the Appellate Authority concurrently against the revision petitioner on the ground under sub Section 3 of Section 11. The need projected by the landlady Smt.Jwalini Avva was that she wanted to accommodate her son P.N.Jyothi Prasad so that Sri.Jyothi Prasad can conduct business of hill products therein. The bona fides of the need was disputed by the tenant who contended that Sri.Jyothi Prasad is not dependant on his mother Smt.Jwalini Avva either financially or for the purpose of accommodation for conducting business. It did come out in evidence that Sri.Jyothi Prasad was financially well off having substantial R. C. R No.360 of 2011 -2- income from agricultural properties. It also came out in evidence that Sri.Jyothi Prasad owned and possessed other buildings in the same locality which he had let out to other tenants, though those buildings were in the first floor and not in the ground floor as the petition schedule building was. Apart from the ground under sub Section 3 of Section 11, the landlady had invoked the ground under Section 11(4)(iii) the ground that the tenant has other buildings in his possession reasonably sufficient for his requirements in the same city, town or village and also the grounds of cessation of occupation section 11(4)(v), and the ground of subletting under Section 11(4)(i). The Rent Control Court on appreciating the evidence which consisted of the oral evidence of PWs.1 to 5, (PW1 being the landlady herself and PW2 being the dependant son Jyothi Prasad), Exts.A1 to A16, RWs.1 and 2 and Exts.B1 to B32 apart from the evidence of CW1 Advocate Commissioner and Commissioner's Report and sketches Exts.C1 to C3 and third party Exts.X1 to X4 R. C. R No.360 of 2011 -3- (mainly Ext.X4 being the income tax returns pertaining to PW2/Jyothi Prasad, the dependant son). The Rent Control Court which conducted a joint trial of the RCP pertaining to this revision and another RCP would order eviction on the grounds under sub Section 3 of Section 11 bona fide need for own occupation, Section 11(4)(v) cessation of occupation and the ground of sub letting under Section 11(4)(i). The Rent Control Appellate Authority which considered the appeals preferred by the tenants confirmed the order of eviction passed on the ground of bona fide need for own occupation also. Order of eviction passed on the ground of subletting and cessation of occupation was set aside. The landlord has not challenged the judgment of the Appellate Authority vacating the order of eviction passed under the grounds of subletting and cessation of occupation. 2. In this revision, various grounds are raised by the tenant challenging the finding of the Appellate Authority that the need projected by the landlady is a bona fide one. It is R. C. R No.360 of 2011 -4- urged that the authorities below should have found that PW2 had in his ownership and possession convenient vacant rooms in the very town and that the landlady also had under their ownership and possession convenient vacant rooms in the very town and they have suppressed the above information from the court. It is accordingly urged that the Rent Control Petition to the extent eviction was claimed under Section 11(3) should have been rejected. It is then urged that the lease deed in question contained a provision that every year rent will stand enhanced by 5% and this amounts to creation of a lease in perpetuity. Therefore, the Rent Control Petition should have been found to be barred under sub Section 9 of Section 11. 3. We have heard the submissions of Sri.N.M.Madhu, the learned counsel for the revision petitioner and those of Sri.B.Krishnan the learned counsel for the respondent landlady. 4. One point which was highlighted before us by R. C. R No.360 of 2011 -5- Mr.N.M.Madhu who argued this revision before us is that the case projected by the landlady in the RCP is that her son Sri.Jyothi Prasad does not have any avocation/job or any income whatsoever. But, it came out in evidence that Sri.Jyothi Prasad has extensive areas of agricultural property with him and that he is getting sufficient income also from those properties. It also came out in evidence that Sri.Jyothi Prasad is an assessee to income tax. According to Sri.Madhu, as the landlady's case regarding the financial position of her son is belied by the evidence on record, the authorities below should not have upheld that claim under sub section 3 of Section 11 to be a bona fide one. The learned counsel submitted that the need can be a bona fide need only if it involves elements of necessity. It is an absolutely dishonest case which is projected by the landlady. That being so, even though the findings are concurrent, this court will be justified in upsetting those findings. 5. On going through the judgment of the learned Rent R. C. R No.360 of 2011 -6- Control Appellate Authority, we find that the point raised before us by Sri.Madhu - whether the need and the claim can be accepted as bona fide as it has become evident that the case projected by the landlady regarding her son's requirement of funds for sustaining himself and family is incorrect is not considered by the Appellate Authority. We have gone through the copy of the RCA that was supplied to us by Sri.Madhu. Even though as many as 23 specific grounds have been raised, we find that the point now raised before us by Sri.Madhu is not raised as a ground in the above memorandum of appeal which explains why the point was not considered by the Appellate Authority. 6. We were taken through the entire testimony of PWs.1 and 2. We have gone through the statement of objections filed by the tenant to the RCP. It is certainly raised that the need projected is not a bona fide one, as PW2 landlady's son is possessed of agricultural income as become evident also. But, we find that there is no specific R. C. R No.360 of 2011 -7- challenge on the bona fides, in view of the landlady's son being possessed of substantial agricultural income from the agricultural properties. The bona fides was challenged for other reasons. 7. The next question is whether the Rent Control Petition was liable to fail on account of the landlady or landlady's dependant son owning and possessing other buildings suitable for accomplishing the projected need. Ext.B23 Will and Property Tax Assessment Register Exts.B9 to B10 have been produced by the tenants. These three documents pertains to cinema hall buildings belonging to the family. A careful appreciation of these documents and the oral evidence available in the case will reveal that PW2 the son does not have any building in his possession which is suitable for conducting hill products business which is proposed in the Rent Control Petition. It certainly came out in evidence that portions of the first and second floors of the three storied building fell vacant and was let out by the R. C. R No.360 of 2011 -8- landlady to other tenants. We are convinced that the portions of the first and second floors of the two storied building is not suitable for PW2 to conduct the proposed business of sale of hill products. It came out in evidence that during the pendency of the proceedings after the landlady had projected the need to accommodate her son Jyothi Prsad PW2 in the petition schedule building, a room in the ground floor became available to the landlady. However, it has also come out in evidence that the landlady did not let out that building to any tenant. She has accommodated her younger son Ramesh Babu in that building and Sri.Ramesh Babu is presently conducting his own shop in that building. We are therefore, sure that the subsequent event of a room in the ground floor becoming available to the landlady which has been utilised by the landlady for accommodating her younger son Ramesh Babu will not affect the bona fides projected in the present Rent Control Petition. 8. We are of the view that within the well delineated R. C. R No.360 of 2011 -9- contours of our revisional jurisdiction under Section 20, there is no warrant for interference with the concurrent findings entered by the Rent Control Court and the Appellate Authority. The finding that the landlady's need to accommodate her son Jyothi Prasad PW2 in the petition schedule building so as to enable Jyothi Prasad to conduct hill produce business is a reasonable finding founded on evidence adduced by PWs.1 and 2 which inspired confidence in the mind of the two fact finding authorities under the statutory scheme. 9. Coming to the question whether the tenant is eligible for the protection of the second proviso to sub Section 3 of Section 11, we have no difficulty to conclude that the above question has been correctly answered by the two fact finding authorities. The documentary evidence adduced by the tenants was only regarding income which is derived from the business carried on by him in the petition schedule building. But it had become evident that he had apart from that R. C. R No.360 of 2011 -10- income other sources of income. In the absence of evidence regarding the quantum of income from such sources the conclusion is irresistible that the tenant failed in showing that he satisfies the first ingredient of the second proviso to sub Section 3 of Section 11. 10. The same is the position regarding the second ingredient of the second proviso to sub Section 3 of Section 11. The evidence reveal that no serious enquiry was conducted by the tenant in the context of the second proviso to sub Section 3 of Section 11. In short, when we keep in mind, the principles laid down in Francis v. Sreedevi Varassiar (2003(2) KLT 230 FB) which was approved by the Supreme Court in Kunhamma v. Akkali Purushothaman (2007(3) KLT 599 SC), there will be little scope for interfering with the finding that the tenant has not proved his eligibility for the protection of the second proviso to sub Section 3 of Section 11. 11. Sri.B.Krishnan sought leave to canvass for an order R. C. R No.360 of 2011 -11- of eviction under Section 11(4)(v) that is, for restoration of the order of eviction under Section 11(4)(v) passed by the Rent Control Court which was interfered with by the Rent Control Appellate Authority. On the principles of Order 41 Rule 22 CPC, we granted leave and we have heard both sides in the context of the ground under Section 11(4)(v) also. For that purpose we have made a re-appraisal of the evidence. We do not think that the evidence will justify a conclusion that the tenant ceased to occupy the building continuously for a period of six months immediately prior to the institution of the RCP. 12. The Commissioner who conducted a surprise inspection, himself was able to inspect the inside portions of the building. During such inspection, he found that a fairly large quantity of stock in trade belonging to the tenant was available. He also found that three employees including the salesman of the tenant were present. Though it is true that the tenant was unsuccessful in producing any documents R. C. R No.360 of 2011 -12- pertaining to the actual conduct of business, the oral evidence adduced by the parties as well as, the questions asked to the tenant in cross examination, will reveal that the tenant had not ceased to occupy the petition schedule premises during the statutory period of six months. 13. In short we do not find any warrant for interfering with the order passed by the Appellate Authority vacating the eviction order which was passed by the Rent Control Court under Section 11(4)(v). 14. The result of the RCR therefore, is that the RCR is dismissed confirming the order of eviction passed by the Rent Control Court and the Appellate Authority against the revision petitioner under sub Section 3 of Section 11. The tenant is given time till 30/06/13 to vacate on condition that the revision petitioner shall file an affidavit before the execution court within one week of the court re-opening after midsummer recess undertaking that arrears of rent if any due as on that date will be discharged by him within one R. C. R No.360 of 2011 -13- month. In the affidavit he shall also undertake that he will pay charges for occupation at the rate payable as per the terms of the tenancy escalated by 5% every year since the commencement of the lease without fail before he surrenders the building. More importantly, the affidavit shall contain an undertaking that peaceful possession of the building will be handed over to the landlady on or before 30/06/13. We make it clear that if affidavit is not filed or if the undertakings in the affidavit are disobeyed the revision petitioner will forfeit the benefit of time which is granted as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE R. C. R No.360 of 2011 -14-