A.K. Mohandas v. Chundaran Yesoda and others

## 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 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934 RCRev..No. 65 of 2012 (B) -------------------------------RCA.118/2003 of ADDL.D.C.,THALASSERY RCP.127/2001 of PRL.M.C. (RENT CONTROLLER), KANNUR ------------- REVISION PETITIONER(S)/RESPONDENT/REVISION PETITIONER: ------------------------------------------------------------------------ A.K.MOHANDAS S/O. GOPALAN, RESIDING AT PARAKANDY HOUSE NEAR CHINMAYA BALA BHAVAN, TALAP, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN ## RESPONDENT(S)/SUPPLEMENTARY APPELLANTS/PETITIONERS: ---------------------------------------------------------------------- 1. CHUNDARAN YESODA, AGED 72 YEARS W/O. KANNAN, AZHILODE AMSOM DESOM KANNUR DISTRICT-670306. 2. C.MOHANAN, AGED 53 YEARS S/O. CHUNDARAN YESODA, AZHILODE AMSOM DESOM KANNUR DISTRICT- PIN-670306. 3. C. RAJEEVAN, AGED 50 YEARS S/O.CHUNDARAN YESODA, AZHILODE AMSOM DESOM KANNUR DISTRICT- PIN-670306. 4. C.SREEJA, AGED 46 YEARS D/O.CHUNDARAN YESODA, AZHILODE AMSOM DESOM KANNUR DISTRICT- PIN-670306. RCRev..No. 65 of 2012 (B) -2- 5. C.RATNA SUNIL, AGED 43 YEARS D/O.CHUNDARAN YESODA, AZHILODE AMSOM DESOM KANNUR DISTRICT- PIN-670306. BY ADV. SRI.A.MOHAMED MUSTAQUE BY ADV. SRI.K.R.AVINASH (KUNNATH) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------R. C. R No.65 of 2012 -----------------------------------------------Dated this the 20[th] day of June, 2012 ## **ORDER** _Pius C. Kuriakose, J_ Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority allowing the Rent Control Petition filed by the landlord and ordering eviction against the revision petitioner on the ground of bona fide need for own occupation – the ground under Sub Section 3 of Section 11 of Act 2 of 1965. 2. The case of the landlord as pleaded in the Rent Control Petition was that the building which lies contiguous to the petition schedule building is in the possession and occupation of the landlord who has been conducting a large scale textile business therein under the name and style “Padma Vasthralayam” for the last three decades. The above textile business is a flourishing business now. The R. C. R No.65 of 2012 -2- accommodation available inside and outside the building is not sufficient to meet the growing needs of the customers. There is no sufficient space for parking the vehicles of the customers. At present there is no passage to take the vehicles to the rear portion of the building. Hence, the landlord intends to demolish the petition schedule building situated on the rear side of the present establishment of the landlord for the purpose of using the area upon which the building is situated as a parking space. A further need that has been raised is that the space occupied by the petition schedule building can be used for conducting exhibitions during festival seasons. 3. The tenant filed counter contending that the need is not bona fide, that there is sufficient parking space in front of the recently constructed shopping complex of the landlord and the tenant is entitled to the protection of the second proviso to sub Section 3 of Section 11. 4. The Rent Control Court conducted enquiry and in the enquiry the evidence on the side of the landlord consisted of R. C. R No.65 of 2012 -3- oral evidence of PW1 and Exts.A1 to A6. On the side of the tenant there was oral evidence of tenant as RW1 and documents B1 to B4. Commission Report Exts.C1 to C3 were also marked. The Rent Control Court would hold that the need is bona fide. However, taking the view that the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11 the RCP was dismissed. 5. The landlord preferred an appeal challenging the finding in favour of the tenant under the second proviso to sub Section 3 of Section 11. The tenant preferred appeal by filing a cross objection that the finding that the need is bona fide is not correct. It was also contended through the cross objection that the tenant is entitled for the protection of Section 11(17). The Rent Control Appellate Authority under the impugned judgment has dismissed the Cross Objections and allowed the appeal preferred by the landlord. The finding of the Rent Control Court that the need is bona fide was reiterated. It was in fact found that the bona fides of the need was not even seriously challenged in evidence. The R. C. R No.65 of 2012 -4- question whether the tenant is entitled for the protection of the second proviso was also decided by the Rent Control Appellate Authority in favour of the landlord placing reliance on the judgment of the Supreme Court in _Kunhamma v. Akkali Purushothaman (2007(3) KLT 99)_ and the judgment of this Court in Thanuja Sunderdas v. Sisirkumar Raj (2008 (4) KLT 241). The Appellate Authority also held that the finding of the Rent Control Court that the tenant is depending mainly on the income derived from the business carried on in the building is correct. However, as regards the second limb of the second proviso, the availability of other buildings in the locality for the tenant to shift his business, the Rent Control Appellate Authority found in favour of the landlord. In fact before the Appellate Authority certified copies of property tax assessment registers pertaining to vacant buildings in the locality were marked as Ext.A7 series. The Appellate Authority found that the Rent Control Court had illegally cast the burden regarding second proviso to sub Section 11(3) on the landlord. Relying on Ext.A7 R. C. R No.65 of 2012 -5- series, also the Appellate Authority held that the second limb of the second proviso has to be decided in favour of the landlord and it was also decided. The tenant's claim under sub Section 11 of Section 17 was turned down by the Appellate Authority following the judgment of the Full Bench Prabhakaran v. Sulaikabi [(2007(2) KLT 103(F.B)]. Thus ultimately eviction order was passed against the tenant under Section 11(3). 6. In this revision various grounds are raised challenging the judgment of the Appellate Authority. We have heard the submissions of Sri.M.V.Amaresan, the learned counsel for the revision petitioner and those of Sri.Mohammed Mustaque, the learned counsel for the respondent. Very extensive submissions were addressed before us by Sri.M.V.Amaresan. He took us extensively through the order passed by the Rent Control Court and the judgment of the Appellate Authority. He would make a survey of the evidence before us. In his submissions he highlighted the following points. R. C. R No.65 of 2012 -6- 7. The case pleaded by the landlord was the need to access the parking areas situated on the backside of the building where the landlord is conducting Padma Vasthralayam. But it came out in evidence that the landlord has re-constructed his own building and the entire backside space has been utilised for the above re-construction. The parking area for the landlord's building is now provided on the front side. Therefore, the need projected in the RCP – utilising the site of the petition schedule building as parking area/for accessing the parking area has ceased to exist. The additional need of utilising the space occupied by the petition schedule building for conducting exhibitions is only an ancillary need. This ancillary need is temporary in nature. If at all there is need, the same exists only for a few days during festival seasons. The main need having ceased to exist the ancillary need cannot have independent existence. Counsel therefore, requested that at least an order of remand be passed and both parties be given opportunity to amend their pleadings in terms of the present case of the R. C. R No.65 of 2012 -7- landlord. 8. Sri.Mohammed Mustaque, the leaned counsel for the landlord per contra would support the impugned judgment of the learned Appellate Authority. He would remind us of the contours of our revisional jurisdiction under Section 20. According to him, the tenant understood the landlord's need as need for additional parking facility. The tenant's pleadings will show that no prejudice has been caused to the tenant at all due to any insufficiency in the pleadings of the landlord. The need is an eminently bona fide one and the finding that the tenant is not entitled for the protection of the second proviso is a correct finding which does not warrant any interference. 9. We have given our anxious consideration to the rival submissions addressed at the Bar. We have very carefully gone through the impugned judgment of the Appellate Authority and the order of the Rent Control Court. 10. We should at the very outset remind ourselves of the well delineated contours of the revisional jurisdiction R. C. R No.65 of 2012 -8- under Section 20 of Act 2 of 1965. In this jurisdiction we are not expected to make a re-appraisal of the evidence. As for this case the finding that the need is bona fide is a concurrent finding arrived at by the two fact finding authorities namely the Rent Control Court and the Appellate Authority on an appreciation of the evidence adduced by the parties. There is divergence only regarding the finding in the context of the second proviso to sub Section 3 of section 11. The learned Appellate Authority has referred to the judgment of the Supreme Court in _Kunhamma v. Akkali Purushothaman (2007(3) KLT 99)_ and that of this Court in Thanuja Sunderdas v. Sisirkumar Raj (2008(4) KLT 241) and has correctly understood that the burden regarding the second proviso to sub Section 3 of Section 11 is on the tenant. The two ingredients or limbs of the second proviso are in the conjunctive. Unless the tenant satisfies both the ingredients the tenant will not get the benefit of the second proviso. In the instant case, the tenant lost because of the second ingredient or second limb of the second proviso. The R. C. R No.65 of 2012 -9- finding by the Appellate Authority that the tenant has not proved that other suitable buildings are not available in the locality is a correct finding based on documentary evidence. Ext.A7 series are certified copies of assessment registers. These are documents envisaged by Section 26 of Act 2 of 1965. Such documents have to be accepted by the authorities under the Rent Control Act as evidence of facts stated therein. We do not find any infirmity about the finding of the Appellate Authority regarding the second proviso to sub Section 3 of Section 11. 11. Coming to the argument of Sri.Amaresan that the need pleaded was the need to utilise the site of the petition schedule room for accessing the parking area behind the scheduled building of the landlord and that upon reconstruction of the landlord's building above parking area has been obliterated and parking area is now shifted to the front side of the landlord's building, we are of the view that a careful reading of the pleadings raised by the tenant will show that he understood the landlord's need as the need R. C. R No.65 of 2012 -10- mainly for additional parking facility. In the memorandum of Cross Objections filed by the tenant before the Appellate Authority also the point now raised – that the need has ceased to exist is not raised. The point raised is only that there is already sufficient parking facility and there is no requirement for additional parking area. The landlord's need to have additional parking facility wherever it has been found to be a genuine need by the two fact finding authorities appreciating the inspiring evidence adduced by the landlord. The landlord has the additional need also of conducting exhibitions seasonally. True the evidence is that the exhibitions are not conducted all the days of the year. Exhibitions are conducted during festivals. It is a matter of common knowledge that such exhibitions bring much profit to the exhibitors, here the landlord himself. The authorities cannot be blamed for having entered a finding that even that additional need is a genuine need. 12. The result of the above discussion is that we do not find any infirmity with the eviction order passed by the R. C. R No.65 of 2012 -11Appellate Authority. Sri.Amaresan as a last submission requested for grant of two years time to surrender the building. This request is opposed tooth and nail by Sri.Mustaque, the learned counsel for the landlord. Sri.Mushtaque submitted that the current rent is ridiculously low and should be enhanced in case this Court is inclined to grant time. 13. Having considered the rival submissions addressed, we are of the view that the revision petitioner can be granted 15 months time from today that is till 31/10/13 to surrender the building. In view of the submission of Sri.Amaresan that the revision petitioner is in dire straits financially, we are not inclined to re-fix the rent also. The only condition that we are imposing for granting time to the revision petitioner till 31/10/13 is the condition of filing an affidavit within one month. The revision is therefore, dismissed. Execution court is directed to keep in abeyance proceedings for delivery of the building till 31/10/13 subject to the following conditions:- R. C. R No.65 of 2012 -12- 14. The revision petitioner shall file an affidavit within one month from today before the execution court undertaking to give peaceful surrender of the building to the landlord on or before 31/10/13 and undertaking further that arrears of rent as found due by the authorities will be discharged within two months and that occupation charges at the existing rent rate will also be paid without fail every month. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE