Alex Joseph v. Vellathu House

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 RCRev..No. 292 of 2009() -----------------------RCA.14/2008 of ADDL.DISTRICT COURT,KOTTAYAM RCOP.19/2007 of ADDL.M.C.,KOTTAYAM .................... ## PETITIONER/RESPONDENT/RESPONDENT VELLATHU HOUSE, PUTHANANGADY, KOTTAYAM TALUK, BY ADV. MR. MATHEW JOHN (K) RESPONDENT(S): APPELLANT/PETITIONER ALEX JOSEPH, S/O. JOSEPH, VENKADATH HOUSE, KANJIRAM POST, THIRUVARPPU VILLAGE, KOTTAYAM TALUK, NOW RESIDING AT ANIMA STUDIO AND EDITING LAB, KULASSERIL BUILDINGS, OPPOSITE MARIA FLAMES, OLD PANCHAYAT ROAD,PIRAVOM. ADVS. MR. K.M.KURIAN MR. P.VIJAYAKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------** ## **R.C.R. No.292 of 2009** ## **----------------------------------** Dated this the 25[th] day of February, 2010 **O R D E R ---------------** ## **Pius C.Kuriakose,J.** The tenant is in revision being aggrieved by the judgment of the Appellate Authority ordering his eviction on the ground of bonafide need for own occupation. The respondent landlord sought to evict him on the ground of arrears of rent and bonafide need for own occupation. Eviction sought on the ground of arrears of rent was declined concurrently by the Rent Control Court and Appellate Authority and it is conceded by both sides that the above ground does not survive in any manner. The need projected by the landlord in the context of Section 11(3) was that the landlord wants to occupy the petition schedule premises as well as the two rooms which are adjacent to the same for the purpose of conducting a studio and colour lab after renovating the building. The tenant filed objections disputing the bonafides of the need. Protection of the second proviso to S.11(3) was also claimed by the tenant. The **RCR.292/09-C** **2** evidence before the Rent Control Court at trial consisted of Ext.A1 to A9, B1 and B2, C1, PWs 1 to 3 and CPW 1 and 2. The Rent Control Court on appreciating the oral evidence believed the version of PWs1 and 2 that PW1 is trained in photography and colour labs and is presently without any avocation of his own. That court found that the tenant was unsuccessful in proving that he satisfied the ingredients to second proviso to S.11(3). Nevertheless that court did not become inclined to pass order of eviction in favour of the landlord. This was because of the two reasons stated in the order and the appellate judgment. The first reason was that in respect of adjacent two rooms, contrary to the evidence adduced by PW1 the ground under S.11(3) had not been invoked. The second reason was that the total area occupied by the three rooms is too small and that building is unsuitable for the conduct of the proposed business. The Appellate Authority reappraised the evidence and deviating from the view taken by the Rent Control Court came to the conclusion that the non-invocation of the ground of the bonafide need of own occupation in RCPs which were filed in respect of the two adjacent rooms was not fatal. According to that authority, even if eviction is obtained on the ground of subletting nothing prevents the landlord from occupying the building for **RCR.292/09-C** **3** his own occupation if he does have need for own occupation. The Appellate Authority also relied on the judgment of the Madras High Court in **N.M.H. Rasheeda Bivi v. V.R. Sreepathy (1984 Madras 62)** and took the view that once the bonafides of the needs projected is established, things such as absence of facilities, insufficient spaces etc. are not to determine by the Rent Control Court from ordering eviction. The Appellate Authority re-appreciated the evidence of PW1 thoroughly and was very much inspired by that evidence. Before the Appellate Authority, the bonafides of the need was challenged on the reason that the landlord had not adduced evidence to show that he had the financial capacity at the moment to commence the proposed business. The Appellate Authority would repel that contention giving reasons which we also feel are reasonable. 2. In this revision various grounds have been raised assailing the judgment of the Appellate Authority and Sri. Mathew John.K., learned counsel for the revision petitioner addressed us on the basis of all those grounds. Mr. Mathew John drew our attention to the judgment of the Appellate Authority and submitted that the Appellate Authority has misread Ext.C1 commission report and come to the conclusion that the petition schedule building has an area of 45 Sq.M **RCR.292/09-C** **4** corresponding to 450 Sq.Ft. Mr.Mathew submitted that the total area which is occupied by the 3 rooms is only 225 Sq: Ft. and the plot abuts two main roads. No renovation and much less reconstruction is permissible in view of the size of the plot and its situation of being by the side of two roads. According to Mr. Mathew, conduct of the proposed business by the landlord in the building is an impossibility. Mr. Mathew would highlight the circumstance that the landlord had not invoked the ground under Section 11(3) in the RCP which was filed in respect of other two rooms. According to him, if as a matter of fact, there was a genuine need to occupy those rooms also to conduct the proposed business, then the landlord would have invoked the ground under Section 11(3) in that RCP also. The Appellate Authority, which was called upon to examine whether the need is bonafide, missed this crucial aspect of the matter and has in a rather casual manner observed that the law does not prevent the landlord who obtained the eviction on the ground of subletting to occupy the building so obtained from using the building for own occupation. The learned counsel would challenge the finding of the Appellate Authority in the context of the second proviso to S.11(3). 3. All the submissions of Mr. Mathew were resisted by **RCR.292/09-C** **5** Mr. K.M. Kurian learned counsel for respondent. Mr. Kurian submitted that it was very inspiring evidence that was given by PW1 before the Rent Control Court regarding the bonafides of the need. According to him, the landlord was almost sure of getting an order of eviction in the other Rent Control Petitions since the tenant of that Rent Control Petition had practically abandoned the building after inducting a stranger sub-lessee. The non mentioning (non-invocation) of S.11(3) in that RCP is result of an omission on the part of the draftsman of the RCP. Referring to paragraph 8 of the judgment of the Appellate Authority Mr. Kurian submitted that the Appellate Authority certainly understood that the room in question was a small one and the mentioning of 45 Sq:M as area of the room was a patent mistake. The petition schedule room and the 2 rooms which were subject matter of the other RCPs constitute the only building belonging to the landlord and he has no other choice in the matter of a building for conduct of business of his own. It is not a reconstruction that is proposed to be done by the landlord. It is only renovation. Evidence of PW1 was that it will be possible for him to conduct studio and colour lab in the building after renovation and there is no effective challenge on that part of PW1's evidence before the Rent Control Court. Mr. Kurian **RCR.292/09-C** **6** reminded us of the contours of the revisional jurisdiction of this court under Section 20 and submitted that the final court of fact under statutory scheme is the Rent Control Appellate Authority and it is not possible to show that the finding entered by that authority are illegal, irregular or improper to the extent of invoking Section 20 revisional jurisdiction. Counsel submitted that the finding that the tenant is not entitled for protection of the second proviso is a finding concurrently entered by both the authorities below. Hence there is absolutely no warrant for interference with that finding. 4. We have very anxiously considered the rival submissions addressed at the Bar. Since findings are divergent we have gone through the entire evidence on record and re-appreciated the same. The question that arises for decision is as to whether there is any warrant for interference with the order of eviction passed by the Appellate Authority under Section 11(3). In this connection we will notice that the Rent Control Court also has practically held that PW1 harbours a need in his mind to start the proposed business of studio and colour lab. It has also become evident that the petition schedule building and the 2 rooms which was subject matter of other Rent Control **RCR.292/09-C** **7** Petitions simultaneously filed constitute the only building belonging to PW1. Rent Control Court disallowed eviction on reasons which we have already narrated. It is giving reasons that the Appellate Authority reversed the finding of the Rent Control Court regarding the landlord's eligibility for an eviction order. Eventhough some mistakes have crept into the judgment of the Appellate Authority, we are of the considered opinion that that authority has ultimately taken a just decision. In concluding that the landlord is entitled for order of eviction under Section 11(3), we also do not think that the omission on the part of the landlord to invoke Section 11(3) as an additional ground in the other Rent Control Petitions is fatal to the present RCP. We are inclined to accept the submission of Mr. Kurian that the omission if at all was that of the draftsman and not that of the landlord. We feel that on account of that omission the cause which is otherwise good should not be thrown out. As for the tenant's eligibility for protection to the second proviso to Section 11(3) we notice that the finding that the tenant is not eligible is entered concurrently by the authorities below on the basis of evidence on record. 5. The result of the above discussion is that the revision has to fail. At the same time we notice that the **RCR.292/09-C** **8** respondent/revision petitioner is conducting a small time Pan shop in the petition schedule building. He has already reached the twilight period of his life. We feel that the last request of the learned counsel for grant of an unusually long period of time, should be accepted despite Mr. Kurian's opposition. Hence the RCR is dismissed. Execution court is directed not to order and effect delivery of the petition schedule building till 31.1.2011 subject to the following conditions: Revision petitioner shall file an affidavit before the execution court or the Rent Control Court as the case may be within one month from today undertaking to give peaceful possession of the building to the respondent on or before 31.1.2011. Through the same affidavit it will be undertaken that entire arrears of rent as alleged by the landlord will be discharged within one month from today and that he will continue to pay occupational charges at the current rent rate promptly and regularly till 31.1.2011. ## **PIUS C.KURIAKOSE, JUDGE.** ## **C.K.ABDUL REHIM, JUDGE.** okb