C. H. Mammu v. Fathima

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 13TH DAY OF JUNE 2012/23RD JYAISHTA 1934 RCRev..No. 200 of 2012 --------------------------RCA.179/2005 of DISTRICT COURT,THALASSERY RCP.165/2004 of RENT CONTROL COURT/MUNSIFF COURT, THALASSERY -------------- REVISION PETITIONER(S)/APPELLANT/RESPONDENT: ----------------------------------------------------------- C.H.MAMMU,S/O KALANTHAN, AGED 83 YEARS RESIDING AT CHANGARACHANKANDIYIL HOUSE,KUTTERI POST PUTHUR,KANNUR DISTRICT. BY ADVS.SRI.C.KHALID SMT.P.VANDANA SRI.PHIJO PRADEESH PHILIP RESPONDENT(S)/RESPONDENT/PETITIONER: -------------------------------------------------- FATHIMA, D/O. LATE ABDULLA HAJEE, AGED 38 YEARS, RESIDING AT KANNIPOYIL HOUSE POST PUTHUR,(VIA) PANOOR,PIN-670692. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------R. C. R No.200 of 2012 -----------------------------------------------Dated this the 13[th] day of June, 2012 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant, a nonogenarian challenges in this revision under Section 20 the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him by the Rent Control Court under sub Section 3 of Section 11 of Act 2 of 1965. The need projected by the landlady was that her son, Hashim failed to pass the SSLC examination and the building in question is needed bona fide so that Sri.Hashim can occupy the same and conduct business in leather goods. The revision petitioner/tenant filed statement of objections before the Rent Control Court raising various contentions. It was contended that the original owner of the building was one Abdulla Haji who is no more and that the respondent/landlady is only one of the co-owners of late R. C. R No.200 of 2012 -2- Abdulla Haji. It was contended that the other co-owners of the building being the other legal heirs of Sri.Abdulla Haji are not agreeable to the tenant being evicted and the respondent's son occupying the building. 2. Then it was contended that the lease commenced prior to 01/04/1940 and by virtue of the provisions of Section 11(17) the revision petitioner is not liable to be evicted. Further it was contended that the landlady, her husband and son are having many other buildings in the same town Panoor and that the present claim for own occupation of the subject building is without bona fides. It was also contended that the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11. In the enquiry conducted by the Rent Control Court, the evidence consisted of Exts.A1 to A5, oral evidence of PWs.1 to 3 and that of the revision petitioner as RW1. PW1 was the landlady, a Muslim woman and PW2, her son and PW3, a brother of the landlady (another co-owner of the building in question). Ext.A1 was a lease deed dated 02/07/1962 executed between the revision R. C. R No.200 of 2012 -3- petitioner and Sri.Abdulla Haji, the landlady's father. The Rent Control Court on evaluating the evidence came to the conclusion that the need is bona fide. It was further concluded that the revision petitioner is not entitled for the benefit of protection of the Section 11(17). Further it was concluded that the Rent Control Petition is maintainable and also that the revision petitioner though successful in showing that he satisfies the first ingredient of the second proviso failed in showing that he satisfies the second ingredient of the second proviso. Accordingly, the Rent Control Court ordered eviction under Section 11(3). Even though the revision petitioner preferred an appeal to the Rent Control Appellate Authority and the Rent Control Appellate Authority made a re-appraisal of the pleadings and the evidence that authority would confirm all the findings of the Rent Control Court and dismiss the appeal. 3. Very extensive submissions were addressed before us by Sri.Khalid, the learned counsel for the revision petitioner. Sri.Khalid drew our attention to Section 11(17) R. C. R No.200 of 2012 -4- and the oral evidence adduced by PW1 wherein he submitted that he took the building from the father of the respondent/landlady way back in 1939. Sri.Khalid submitted that there is no effective cross examination on the above version of PW1 in chief examination. Sri.Khalid then submitted that disputes and litigations are presently pending between the respondent/landlady and her siblings who are the other legal heirs of late Abdulla Haji. Therefore the present Rent Control Petition seeking eviction for the occupation of respondent's son is not maintainable without the junction of the other legal heirs of Abdulla Haji. Sri.Khalid would assail the finding of the statutory authorities against the revision petitioner in the context of the second proviso to sub Section 3 of Section 11. He pointed out that the two authorities concurrently found that the first ingredient of the second proviso is to be decided in favour of the tenant. As regards the second ingredient there is only oath against oath. PW1 is a nonogenarian and his credibility was never shaken in cross examination. The authorities should have R. C. R No.200 of 2012 -5- preferred the oral evidence given by RW1 to that given by PW1 and the other witnesses. Sri.Khalid would lastly submit that it will be an agonizing experience for a ninety year old man to be evicted from the building in which he has been doing business for decades at this twilight stage of his life. 4. We have very anxiously considered all the submissions of Sri.Khalid. We have very carefully read through the order of the Rent Control Court and the judgment of the Appellate Authority. We have considered materials such as Rent Control Petition, Ext.A2 lawyer notice, Ext.A3 reply notice- copies of which are furnished to us by Sri.Khalid as requested by us. We should at the very outset remind ourselves of the well delineated contours of the jurisdiction in which we are sitting presently. The jurisdiction under Section 20 of Act 2 of 1965 is revisional in nature and in this jurisdiction we are not ordinarily expected to make a re-appraisal of the evidence for substituting factual findings arrived at by the two fact finding authorities under the scheme of the Act namely the Rent Control Court R. C. R No.200 of 2012 -6- and the Appellate Authority especially when those findings are reasonable and are founded on evidence. As before the authorities below, before us also the thrust in the submission of the learned counsel for the tenant was on the tenant's claim based on Section 11(17) of Act 2 of 1965. It is true that apparently convincing oral evidence was given by RW1 regarding the commencement of the lease prior to 01/04/40 but then execution of Ext.A1 by RW1 in favour of Abdulla Haji, the father of the respondent is not disputed. Going by Ext.A1 the lease commenced only in 1962. Ext.A1 does not refer to any previous lease. In the absence of any recital in Ext.A1 regarding existence of landlord-tenant relationship already between the parties, we find it extremely difficult to accept the submission of Sri.Khalid that Ext.A1 was executed in renewal of the existing lease. We notice that in 1962 the revision petitioner was only 35 years old. If as a matter of fact the building was let out to him by Abdulla Haji in 1939 as he claims he should have been only 13 to 15 years at the time of commencement of lease. This in our opinion is highly R. C. R No.200 of 2012 -7- improbable. According to us, the finding concurrently entered by the two authorities under the Act that the lease commenced under Ext.A1 is a reasonable finding based on documentary evidence available on record. 5. We are not much impressed by the argument of Sri.Khalid that the Rent Control Petition is not maintainable on account of the non-junction of all the legal heirs of late Abdulla Haji. In the Rent Control Petition itself the landlady had stated that she is only a co-owner. According to her the other co-owners are agreeable to the idea of her son who failed in the SSLC examination starting business in the building for eking out his livelihood. To a certain extent she substantiated her claim by examining PW3, her own brother who is one of the co-owners. Apart from contending that the other co-owners want the tenant to continue, the tenant has not adduced any acceptable evidence rather than his own ipse dixit to substantiate the above contention. It is trite that even a co-owner can maintain an action under Section 11(3) provided the other co-owners do not oppose. R. C. R No.200 of 2012 -8- 6. Now coming to the finding regarding the bona fides of the need we find that the oral evidence of PWs.1 and 2 the mother and the son inspired the Rent Control Court and the Appellate Authority the two fact finding authorities under the statutory scheme. We in the present jurisdiction will not be justified in upsetting that finding which in our view is a reasonable one in view of the undisputed position that PW2 failed in the SSLC examination and will have to go in for business to eke out a living. As for the contention that the landlady and her husband are having so many other buildings in the town we find that the same stands unsubstantiated through documentary evidence. 7. Now the last point to be considered is the revision petitioner's claim for protection of the second proviso. As already stated the first ingredient of the second proviso has been found in favour of the revision petitioner, but that is not enough. The two ingredients are in the conjunctive. As regards the second ingredient RW1 himself said that he has not made any enquiries. It appears that the revision R. C. R No.200 of 2012 -9- petitioner, a nonogenarian was not even able to comprehend the idea of vacating the subject building which has been in occupation for several decades and hence, did not bother to make any enquiries regarding the availability of other buildings in the locality. Having regard to the principles laid down by the Full Bench of this Court in _Francis v. Sreedevi Varassiar (2003(2) KLT 230)_ and Supreme Court in _Kunhamma v. Akkali Purushothaman (2007(3) KLT 99)_ , we do not find any infirmity with the finding concurrently entered by the two statutory authorities that the tenant was not successful in proving that he is entitled for the protection of the second proviso. The above discussion will lead to the inevitable conclusion that the RCR fails and will stand dismissed accordingly. 8. When we made our decision known to Sri.Khalid, the learned counsel for the revision petitioner, the learned counsel requested that at least one and half year's time be granted to the revision petitioner in view of the special circumstances which attend on this case. We do not think R. C. R No.200 of 2012 -10- that will be justified in granting so much time to the revision petitioner/tenant that too without issuing notice to the respondent/landlady. Hence, even as we confirm the eviction order we direct issuance of urgent notice by speed post to the respondent for determining the duration of time to be granted to the revision petitioner/tenant. 9. There will be an interim stay of execution proceedings for a period of three months. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE