A.J. Kuruvilla v. P.V. Samuel and Reji P. Samuel

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933** **RCRev..No. 415 of 2010() ------------------------** **RCA.1/2008 of ADDL.DISTRICT COURT-I,MAVELIKKARA RCP.1/2006 of MUNSIFF COURT,CHENGANNUR ....................** ## **REVISION PETITIONER/RESPONDENT IN RCA/PETITIONER IN RCP** **----------------------------------------------------------------------------------------------------** **A.J.KURUVILLA, AGED 67 YEARS, AIKKARETHU JOHNSON VILLA, ANGADIKKAL MURI, VADAKKEKKARA VILLAGE.** **BY ADV.S SRI.GEORGE VARGHESE (MANACHIRACKEL) SRI.P.R.MILTON** ## **RESPONDENTSAPPELLANTS IN RCA/RESPONDENTS IN RCP** **---------------------------------------------------------------------------------------** **1. P.V.SAMUEL, AGED 82 YEARS, PUTHIYAPURAKKAL HOUSE, ANGADIKKAL MURI, VADAKKEKKARA VILLAGE, CHENGANNUR TALUK.** **2. REJI P.SAMUEL, AGED 45 YEARS, PUTHIYAPURAKKAL HOUSE, ANGADIKKAL MURI, VADAKKEKKARA VILLAGE, CHENGANNUR TALUK.** **R1 & R2 BY ADV. SRI.N.ASHOK KUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **vk** ## **PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ.** **= = = = = = = = = = = = = = = = R.C.R. NO. 415 OF 2010 = = = = = = = = = = = = = = = = Dated this the 9[th] day of June, 2011.** ## **O R D E R** ## _**PIUS C. KURIAKOSE,J.**_ The landlord is the revision petitioner. He challenges in this revision u/s 20 the judgment of the Rent Control Appellate Authority vacating the order of eviction which was passed by the Rent Control Court in his favour on the ground u/sub-s.3 of Act 2 of 1965. The petition schedule building is one room in the ground floor of a double storied building situated in a very important area of Chengannur Municipal town. The other portions of this building are occupied by other tenants. The need projected ## **R.C.R. NO. 415 OF 2010** -:2:- by the landlord who at the relevant time was working in a private firm in the United States of America, was to start business in electronic goods and computer accessories. According to the landlord he had decided to come back from America and intended to settle down in his home town, Chengannur. The landlord invoked the grounds of arrears of rent also. But that ground no longer survives as the eviction order passed under that ground has got vacated by making deposits. The tenants filed objections admitting the landlord-tenant relationship between the parties. It was contended that the need is not bonafide and the same is only a ruse for evicting the tenants. The landlord had acquired immense wealth from his employment in U.S.A. The averment of the landlord that the other tenants had agreed to surrender the premises in their possession for enabling the landlord to conduct the proposed business was ## **R.C.R. NO. 415 OF 2010** -:3:- also disputed. Alternatively the tenant claimed protection under the 2[nd] proviso to S.11(3). On the pleadings the parties went for trial and the evidence consisted of Exts.A1 to A7 and the landlord himself was examined as PW1 and on behalf of 2[nd] respondent tenant's son was examined as DW1. The Rent Control Court came to the conclusion that the need projected by the landlord was bonafide. It was also concluded that both limbs to the 2[nd] proviso of S.11(3) are found against the respondent and accordingly the order of eviction was passed against the tenant. 2. The tenants preferred appeal against the order passed by the Rent Court Court. The learned Appellate Authority by the impugned judgment has allowed that appeal. According to the Appellate Authority the circumstance that the landlord has not so far initiated proceedings for evicting the tenants in ## **R.C.R. NO. 415 OF 2010** -:4:- occupation of the other portions of the two storied building and the inconsistent stand taken by the landlord at different stages about his evidence regarding his financial ability will show that the need is not bonafide. In that view of the matter the Appellate Authority reversed the finding of the Rent Control Court that the need is bonafide and found that the need is not bonafide. The Appellate Authority did not proceed to examine the question whether the tenant is entitled for the protection of the 2[nd] proviso as the same was unnecessary in view of the findings regarding the bonafides and thus the RCP to the extent the question which relates to sub-S.3 of S.11 was dismissed. 3. In this revision u/s 20 various grounds are raised by the landlord, challenging the judgment of the Appellate Authority. Sri.George Varghese, learned counsel for the revision petitioner addressed us in detail on ## **R.C.R. NO. 415 OF 2010** -:5:- those grounds. Sri George Varghese submitted that it was very inspiring evidence which was given by PW1 before the Rent Control Court. Nothing was brought out in the cross-examination of PW1 to doubt his credibility. It was only natural that a person belonging to Chengannur wants to come back to Chengannur in the evening period of his life. PW1 had specifically pleaded that he has the finance to commence the proposed business at Chengannur. The defence to that pleading was that the landlord has amassed immense wealth by working in U.S.A. and does not have to start a new business for his livelihood. The so called inconsistency was when various confusing questions were asked in the crossexamination regarding the proposed business including the investment requisite for different wings of the business and whether the landlord is having capacity to start the proposed business. That question can be answered only in ## **R.C.R. NO. 415 OF 2010** -:6:- favour of the landlord in view of the assertion of the tenant that the landlord is a very wealthy man. 4. Mr.George Varghese referred to Ext.A7 and submitted that under Ext.A7 the tenants in occupation of the other portions of the two storied building have agreed to surrender the portions in their possession for enabling the landlord to conduct the proposed business. So there will not be any difficulty for the landlord to take possession of those portions. Learned counsel submitted that necessary safeguards can be incorporated in our judgment regarding the above aspect. 5. According to Sri.George Varghese, the defence was that the idea of the landlord is to sell the building after getting eviction. That defence was not pursued in evidence. The judgment of the Appellate Authority is to be interfered with and the order of the Rent ## **R.C.R. NO. 415 OF 2010** -:7:- Control Court to be restored. It was also submitted that rent at the agreed rate of Rs.1,300/- per mensum has been defaulted by the tenant. 6. All the submissions of George Varghese were resisted very strongly by Sri.N.Asok kumar, learned counsel for the respondent. Sri.Asok kumar would submit that within the contours of our jurisdiction u/s 20 there was no warrant for interference as there is no illegality, irregularity or impropriety about the judgment of the Appellate Authority. The submission was that if there was bonafides in the need projected the landlord would have initiated proceedings for evicting the other tenants from the petition schedule building. Learned counsel further submitted that the evidence was that the landlord has decided to invest about 50 lakhs of rupees in the business. No evidence is produced before the Courts to show that the landlord has **R.C.R. NO. 415 OF 2010** -:8:- so much of money with him. 7. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the judgment of the Appellate Authority and we have also gone through the order of the Rent Control Court. The question that arises before us is whether there were any warrant for interfering with the judgment of the Appellate Authority. We are inclined to answer that question in the positive, i.e. in favour of the landlord for the following reasons. 8. It is trite by various decisions that bonafide need in the context of the Act does not mean an absolute necessity without accomplishing which the landlord cannot survive even for a moment. Bonafide need means only a reasonable need involving elements of necessity. Landlord himself gave oral evidence before the Rent Control Court. The Rent Control Court which had the opportunity to see the landlord and record **R.C.R. NO. 415 OF 2010** -:9:- his evidence was very much inspired by the oral testimony given by the landlord. The tenant does not have a case that due to any reasons including financial the landlord will be unable to conduct the proposed business. The defence contention was only that the landlord does not have to do business as the landlord is already in America amassing wealth. It has come out in evidence that the landlord was in the Defence Department and after retirement only went over to the U.S.A. The landlord's evidence was that he has decided to come back from USA and intends to settle down in his home town and wants to lead a peaceful life in the home town doing business here. We feel that a person like the landlord who was in the Defence Department and after retirement working in America for a few years, comes forward with a case that he wants to settle down in his home town during the evening period of his life, the above need can ## **R.C.R. NO. 415 OF 2010** -:10:- be presumed to be bonafide in the absence of oblige motives. Here in this case the only oblige motive mentioned in the pleadings is the motive of selling the building after evicting the tenants. But no evidence is adduced by the tenant to prove the above oblique motive. True, there is some variation in the landlord's evidence at different stages as to what is the total investment necessary for the proposed business. But tenant's contention was that the landlord is an immensely wealthy person and the apparent variations in the landlord's evidence regarding the amounts required to be invested in different wings of the business in our opinion cannot be a reason for holding that the need is not bonafide and for non-suiting the landlord. 9. The learned Appellate Authority seems to be under the impression that tenants will vacate buildings in their possession only after the landlord initiates legal proceedings against ## **R.C.R. NO. 415 OF 2010** -:11:- them. According to us a number of tenants surrender buildings in their possession obliging demands in that regard from the landlords. In the instant case Ext.A7 is there and Ext.A7 will show that the other tenants have agreed to vacate. Sri. George Varghese submitted before us that suitable conditions can be incorporated to ensure that the other tenants also vacate before the respondent vacates the building. We are therefore incorporating suitable directions for ensuring the same in this judgment. 10. Learned Appellate Authority did not examine the question whether the tenant is entitled for protection under the 2[nd] proviso to sub-S.3 of S.11. But we find that the parties adduced evidence regarding the 2[nd] proviso to sub.S.3 of S.11 and the Rent Control Court on making an appraisal of that evidence concluded that the tenant was unsuccessful in proving that it is entitled to the protection. In view of ## **R.C.R. NO. 415 OF 2010** -:12:- the principles laid down by the Full Bench of this Court in **Francis v. Sreedhevi Varasyar (2003 (2) KLT 230 and also the Hon'ble Supreme Court's decision in Kunhamma v. Akkali Purushothaman(2007 (3) KLT 599),** the finding of the Rent Control Court on the 2[nd] proviso to S.11(3) could only have been approved by the Appellate Authority. The result of the above discussion is as follows. 11. The revision is allowed. Setting aside the judgment of the Rent Control Appellate Authority we order eviction against the respondent on the ground under sub.S.3 of S.11. The execution Court is further directed to ensure that the tenants in occupation of the other portions of the two storied building have also vacated the premises in their possession before delivery is effected. At any rate the respondents will not be evicted for six months from today provided the following conditions are ## **R.C.R. NO. 415 OF 2010** ## -:13:- satisfied by the tenant. (a) The tenant deposits the entire arrears of rent as found by the Rent Control Court inclusive of the rent due till date less the amount paid subsequent to the order of the Rent Control Court within six weeks from today and produce receipts before the Execution Court. (b) The tenant continues to pay occupational charges till the date of actual surrender. It is made clear that the respondents will get the benefit of time granted as above only if they file the affidavit within three weeks from today and honours the undertakings contained therein. ## **Sd/- PIUS C. KURIAKOSE,** ## **JUDGE.** **Sd/- N.K. BALAKRISHNAN, JUDGE.** ul/- [ True copy ] _P.S. to Judge._