Ahammed Thayil v. V. Badrilakshmi

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 MARCH 2010 / 14TH PHALGUNA 1931 RCRev..No. 76 of 2010() ----------------------RCA.8/2009 of RENT CONTROL APPELLATE AUTHORITY, PALAKKAD RCP.34/2007 OF RENT CONTROL COURT, PALAKKAD .................... ## REVISION PETITIONER/APPELANT/RESPONDENT ----------------------------------------------------------- AHAMMED THAYIL, AGED 41 YEARS, S/O THAYIL MUHAMMED HAJI, 11/1158(5), RAINBOW COLOUR LAB, T.B.ROAD, PALAKKAD TOWN, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.C.SASIDHARAN SRI.O.V.MANIPRASAD RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ V.BADRILAKSHMI, AGED 47 YEARS, W/O VENKITESH, 'VENKIDARI', HARIKKARA STREET, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BINOY VASUDEVAN ADV.R.MANIKANTAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------R.C.R.No. 76 OF 2010 ------------------------** Dated this the 5[th] day of March, 2010 ## **O R D E R** Pius C.Kuriakose, J. The tenant challenges in this revision under Section 20 the orders of eviction concurrently passed against him by the Rent Control Court and the Appellate Authority on the grounds of arrears of rent and bona fide need for own occupation. The allegation in the Rent Control Petition regarding arrears of rent was that, as demanded in the statutory demand notice, the rent is in arrears from 2000 onwards. The above allegation was disputed by the Revision petitioner. The need projected in the context of ground under Section 11(3) was that the building is needed bona fide for occupation of Smt. Lakshmi Priya daughter in law of the landlady who is a graduate in Computer Science so that she can conduct computer related businesses in the building. 2. The bona fides of the need and the claim were very stiffly disputed by the revision petitioner through the statement of objection filed by him. It was contended that the defacto RCR.No.76/2010 2 claimant, the daughter in law of the landlady, is not a member of the landlady's family and that at any rate she is not a dependent of her mother in law for any purpose whatsoever. It was also contended that the husband of Smt. Lakshmi Priya is conducting a bar attached hotel in the same town very successfully. It was contended that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11 of Act 2 of 1965. 3. The Rent Control Court enquired into the matter and at trial the evidence on the side of the landlady consisted of her own oral evidence as PW1 and the oral evidence of the daughter in law as PW2. Apart from that, Ext.A1 to A14 were marked on the side of the landlady. Ext.C1 was the report submitted by the Advocate Commissioner and C1(a) was the plan submitted by the commissioner. Significantly not even formal counter evidence was adduced by the revision petitioner/tenant. The evidence adduced by PW1 and PW2 inspired the Rent Control Court. Accepting that evidence and the circumstance brought out through the other evidence available in the case, the Rent Control Court came to the conclusion that the landlady was successful in proving the bona fides of the need projected under Section 11 RCR.No.76/2010 3 (3). Obviously, relying on the judgment of a Division Bench of this court in Francis v. Sreedevi Varassiar (2003 (2)KLT 230), the Rent Control Court also held that the tenant, having not adduced any evidence, is not entitled for the protection of the second proviso to sub section (3) of Section 11. Even though no counter evidence was adduced by the tenant, the Rent Control Court did not accept the allegation of the landlady in the Rent Control Petition regarding the quantum of rent due. It was concluded on the basis of the evidence that the rent is in arrears from December 2007. Accordingly, the order of eviction was passed both under Section11(2)(b) and also under section 11(3). 4. The tenant preferred appeal to the Rent Control Appellate Authority. The Appellate Authority made a reappraisal of the evidence, however, concurred with all the conclusions of the Rent Control Court regarding the existence of eviction ground. As regards the ground of arrears of rent the Appellate Authority would clarify that the the rent is in arrears from December 2006. 5. This revision is filed raising various grounds assailing the judgment of the Rent Control Appellate Authority as well as RCR.No.76/2010 4 the order of the Rent Control Court. In anticipation of this revision, a caveat has been lodged by the landlady through Advocate Sri. R.Manikantan and when the matter came up for admission, as directed by us, Sri.Manikantan has taken notice and we have heard the submissions of Sri.P.C.Sasidharan, learned counsel for the revision petitioner and those of Sri.R.Manikantan learned counsel for the respondent/landlady. 6. Sri.P.C.Sasidharan would address very extensive submissions before us on the basis of the various grounds raised in this revision. Sri. Sasidharan submitted that the findings of the authorities below regarding the existence of statutory ground for passing order of eviction under Section 11(3) and 11(2)(b) are illegal, irregular and improper and hence warrant interference of this court's revisional jurisdiction under Section 20. The learned counsel highlighted that the landlady and her daughter in law are very conservative Brahmins. The landlady's son, husband of PW2, is very successfully conducting a bar attached hotel and it is too much for the landlady to say that her daughter in law depends on her rather than on her own husband. The PW2 if at all is depending on her husband and not on the mother RCR.No.76/2010 5 in law. PW2's husband is in a position to provide his wife (PW2) with any other building if it becomes absolutely necessary for her to do business. The learned counsel submitted that the findings of the authorities below in the context of the second proviso to sub section (3) of Section 11 are erroneous. Even the landlady does not have a case that the revision petitioner is doing any business other than the present business in the petition schedule building i.e. conduct a colour lab. Lakhs of Rupees have been invested in the revision petitioner's business and it will be practically impossible for the revision petitioner to find out any building suitable for shifting the colour lab business. Sri.Sasidharan would assail the decision of the court's below in the context of ground under sub section11(2)(b) also. Drawing our attention to the findings entered by the Rent Control Court and the Appellate Authority in the context of that ground, Sri.Sasidharan submitted that the Appellate Authority, considering the appeal preferred by the tenant even in the absence of appeal preferred by the landlady, has modified the findings of the Rent Control Court to the detriment of the Revision Petitioner atleast to the extent of interfering when there RCR.No.76/2010 6 was no cross objection even for the landlady, warranting the modification of the finding that the rent is in arrears from 2006 and not from December 2007. No specific finding has been entered by the Rent Control Appellate Authority as to what is the quantum of rent in arrears. Without entering such specific finding, it was not proper on the part of that authority to have ordered eviction under Section 11(2)(b). Quantum of arrears of rent is not a matter to be left to the decision of the Rent Control Court under Section 11 (2) (c). It is a matter to be determined by the Rent Control Court and the Appellate Authority before passing order of eviction. As a last request Sri.Sasidharan sought for three year's time to vacate the premises. 7. All the submissions of Sri.Sasidharan were very stiffly resisted by Sri. R.Manikantan. The learned counsel reminded us of the contours of this court's jurisdiction under Section 20. According to him, in the present case, where absolutely no counter evidence was adduced by the revision petitioner, it is not open to the revision petitioner to challenge the findings of the Rent Control Court and the Appellate Authority. There is no irregularity, illegality or impropriety about the findings entered RCR.No.76/2010 7 concurrently by the authorities below. The learned counsel submitted that what the learned Appellate Authority has done in the context of ground of arrears of rent is only to rectify a typographical error. 8. We have considered the rival submissions addressed at the Bar keeping in mind the contours of this court's jurisdiction under Section 20. We have carefully gone through the order of the Rent Control Court and the Judgment of the Appellate Authority. Under the statutory scheme, the final court on facts is the Rent Control Appellate Authority. We have scanned the judgment of the Rent Control Appellate Authority. We find that the findings entered therein both regarding the bona fides of the need under sub section (3) of Section 11 and also regarding the tenant's eligibility for protection of the second proviso to sub section (3) of Section 11 are findings entered on the basis of evidence. As already indicated by us, there was absolutely no counter evidence adduced by the revision petitioner tenant. We are of the view that there is no warrant for invoking the revisional jurisdiction for interfering with the findings entered on the basis of evidence which was there only on the side of the RCR.No.76/2010 8 landlady. It is trite that the burden to prove that tenant satisfies both the ingredients of the second proviso to sub section (3) of Section 11 is on the tenant himself. The burden of proof being what it is.(See the judgment of the Full Bench in Francis's case(supra)) . In the present case, where the tenant has not adduced even a formal counter evidence, the tenant cannot aspire for the benefit conferred to the second proviso to sub section (3) of Section 11. 9. Not that we do not find any merit in the submission of Sri.Sasidharan that it is necessary that the Rent Control Court before passing an order of eviction has to enter a specific finding regarding the quantum of rent in arrears. But we notice here again that the allegation of the landlady was that the rent is in arrears at least from December 2006. These allegations are testified by the landlady as PW1. The tenant did not even adduce formal counter oral evidence much less produce any document. That being so, in this jurisdiction, which is revisional in nature, we do not find any warrant for interference. After all, order of eviction under Section 11(2)(b) is a provisional order which is liable to be vacated under Section 11(2)(c). We only observe RCR.No.76/2010 9 that if the revision petitioner files an application under Section 11(2)(c) for getting the order of eviction under Section 11 (2) (b) vacated, the Rent Control Court will conduct enquiry on the specific question as to what is the correct amount due as arrears of rent from the revision petitioner. Sri.Sasidharan's request for grant of three years time was opposed tooth and nail by Sri.Manikantan. We are not inclined to grant so much of time. At the same time we feel, on the totality of the facts and circumstances of the case , that there is justification for granting one year's time to the revision petitioner for vacating the premises. 10. The result of the above discussion is as follows; i). The RCR is dismissed confirming the order of eviction. ii). The Execution Court is directed to put off all proceedings for execution of the impugned eviction order till 15/3/2011 subject to the following conditions; The Revision Petitioner shall file an affidavit before the Execution Court within three weeks from today undertaking that he shall give peaceful possession of the building RCR.No.76/2010 10 in question to the respondent or to PW2 on or before 14/3/3011 and undertaking further that arrears of rent admitted by him will be discharged within six weeks and that occupational charges at the rent rate of Rs.13,200/- that falls due from 1st April 2010 will be paid promptly and regularly as and when the same falls due. The revision petitioner will get the benefit of time granted under this judgment only if the affidavit as directed above is filed on time. ## **PIUS C.KURIAKOSE,JUDGE** ## **C.K.ABDUL REHIM , JUDGE** dpk