C. J. Sebastian v. Mini, Emily Boby & P. R. Radha

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939 RCRev..No. 215 of 2013 (B) -------------------------------AGAINST THE JUDGMENT IN RCA 41/2010 of ADDL.RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM, DATED 05.12.2012 AGAINST THE ORDER IN RCOP 9/2009 of RENTCONTROL COURT, ETTUMANOOR DATED 30.10.2010 PETITIONER IN R.C.R-APPELLANT IN R.C.A-RESPONDENT IN R.C.P: - ----------------------------------------------------------------------------------------------------- C.J.SEBASTIAN, AGED 62, OWNER OF CHENNAT HIRING SERVICE, PALA ROAD, KIZHAKKUMBHAGAM, ETTUMANOOR VILLAGE. BY ADVS.SRI.N.N.ELAYATH SRI.PAULSON THOMAS RESPONDENTS IN R.C.R-RESPONDENTS IN R.C.A-PETITIONER IN R.C.P:- --------------------------------------------------------------------------------------------------------- ## 1. MINI, AGED 35, W/O M.C.SAJIMON, NADUVILEPARAMBIL VEETTIL, ETTUMANNOOR P.O., KIZHAKUMBHAGAM KARA, KOTTAYAM-686 001. 2. EMILY BOBY, AGED 35, W/O BOBY MATHEW, RESIDING AT VAZHAPPILLIL HOUSE, PEROOR P.O., PEROOR VILLAGE. 686637 3. P.R.RADHA, W/O K.R.REJI, KAKKANATTU HUSE, ETTUMANNOOR.686 631. R1-R3 BY ADV. SRI.P.GOPAL R1-R3 BY ADV. SRI.B.MURALEEDHARAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08-06-2017, ALONG WITH RCR. 240/2014, RCR. 243/2014, RCR. 244/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- ## **K. HARILAL & P. SOMARAJAN, JJ.** -----------------------------------------------R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 -----------------------------------------------Dated this the 08[th] day of June, 2017 ## O R D E R ## **K. Harilal, J.** These Rent Control Revisions are filed challenging the legality and propriety of a common judgment passed by the Rent Control Appellate Authority, whereby a common order, granting eviction under Sections 11(2)(b) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') passed by the Rent Control Court stands confirmed. The respondents in all these Rent Control Revisions are the common landlords. Therefore, all these Rent Control Revisions are heard together and disposed of accordingly by this common order. 2. The landlords filed R.C.(O.Ps) under Sections 11(2)(b), 11(3) and 11(4)(iv) of the Act against the tenants who are occupying different rooms in a row of building. The building is situated in Ettumanoor town and according to them, the building is a very old and in a dilapidated condition and not suitable for occupation. They _bona fide_ need the entire building, after reconstruction, for their own occupation to start R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 2 a business therein. It is further alleged that there are various vacant rooms, available in the locality, for the tenants, to shift their business from the petition schedule shop rooms. 3. It was averred that the tenants failed to pay rent from 25.10.2008. Though, the tenants have received the notice, demanding to pay the arrears of rent, they have not paid the huge amount, pending due, as arrears of rent. On the above premises, the landlords have prayed for granting an order of eviction under Sections 11(3), 11(4)(iv) and 11(2)(b) of the Act. The tenants resisted the claim of eviction raising common contentions. According to them, the need projected in the petition is a ruse for eviction only. They denied the claim of the landlords that they need the entire building wherein the scheduled rooms are situated, for their own occupation after reconstruction. According to them, the building is not in a dilapidated condition and is sufficiently strong and it needs no reconstruction. They are mainly depending upon the income derived from their business in the petition schedule shop rooms, for their livelihood and no other shop rooms are available in the locality to shift their business. Further, they contended that subsequent to the receipt of the notice, they R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 3 have paid the entire arrears by way of money orders; but they have admitted that they have not paid interest and charges of notices. During the pendency of the Rent Control Petitions, they were ready to pay interest and costs also. The learned counsel for the petitioner submits that thereafter they have paid interest and costs and, at present, no amount is due from them, as arrears of rent. 4. On the above premises, both parties adduced evidence consists of the oral testimony of P.Ws 1 and 2 and DWs. 1 to 5, Exhibits A1 to A15, B1 to B13 and C1 to C1(b). After considering the above said evidence, the Rent Control Court passed an order of eviction under Sections 11(2)(b) and 11(3) of the Act. In appeal, after re-appreciating the evidence, on record, the Appellate Authority also confirmed the aforesaid order of eviction. Thus, findings under challenge are concurrent. 5. Heard the learned counsel for the revision petitioners and the learned counsel appearing for the respondents/landlords. 6. Since, the Revisions are filed under Section 20 of the Act, first of all we must remind ourselves the limited scope and R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 4 extent of jurisdiction and power conferred to a Revisional Court under Section 20 of the Act. The extent of jurisdiction is confined to legality, propriety and regularity of the impugned judgment under challenge only. This Court is not inclined to re-appreciate the entire evidence, on record, under the revisional jurisdiction as the revision is not an appeal in disguise. This Court cannot convert the jurisdiction to an evidence collecting or fact finding Court. A re-appreciation of the entire evidence, on record, or substitution of the findings of this Court, instead of the findings of the courts below, is not permissible. As regards the findings on factual issues are concerned, this Court cannot re-appreciate the entire evidence and arrive at a different finding other than the concurrent findings, unless the courts below have placed reliance on irrelevant evidence or ignored material evidence adduced by the parties. The above view is supported by the decisions reported in **Gouthaman v. Lohithakshan** [1992 (1) KLT 32], **K.A.Anthappai v. C. Ahammed** [AIR 1992 SC 1696], **Lakshmi v. Labbah Kunju Ameer Hamsa** [2005 (3) KLT 627] and **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh** [2014 (4) KLT 182]. R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 5 7. Bearing the above legal proposition in our mind, we have considered the legality, propriety and regularity of the concurrent findings of the courts below. There is an evasive denial of the landlords' title over the building and thereafter, it is seen that they themselves admitted that they have paid rent to the landlords by Exhibits B2, B4, B5 and B7 series. In view of the admitted fact that they had been paying rent to the landlords and the definition of “landlord” under Section 2(3) of the Act, the courts below concurrently found that the denial of landlords' title was made without any _bona fides_ and the Rent Control Petitions filed by the landlords against the tenants are maintainable. We do not find any reason to interfere with the aforesaid finding in view of the admitted facts. 8. Coming to Section 11(2)(b) of the Act, it is the case of the landlords that rent was in arrear from 10[th] October onwards and they have not paid the said arrears of rent with interest and charges of notice mentioned under Section 11(2)(b) of the Act within the stipulated time of 15 days, even after the receipt of the demand notice in writing. Even though the tenants contended that they have paid the entire arrears of rent, they have admitted that they have not paid interest and R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 6 charges of notice, as contemplated under Section 11(2)(b) of the Act. The learned counsel for the tenants submits that during the pendency of the Rent Control Petitions, they have paid interest and charges of notice also, by money orders. Going by the orders passed by the Rent Control Court, it could be seen that the tenants have failed to prove that they have paid interest and charge of notice within 15 days from the date of receipt of the notice issued under Section 11(2)(b) of the Act. Even if the tenants have paid or deposited entire interest and charge of notice after 15 days, such payment will not prevent the Rent Control Court from passing an order under Section 11(2)(b) of the Act. In other words, the payment made by the tenants, during the pendency of the Rent Control Proceedings, is of no consequence at all and such payment or deposit can be adjusted and considered, if he prefers a petition under Section 11(2)(c) of the Act, after the passing of the order of eviction under Section 11(2)(b) of the Act. The tenants cannot escape from the order of eviction under Section 11(2)(b) of the Act, by making payments unilaterally by way of money orders, after fifteen days from the receipt of notice under Section 11(2)(b) of the Act. In the absence of evidence R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 7 to prove the payment of entire arrears with interest and cost of notice within 15 days from the date of receipt of the notice issued under Section 11(2)(b), the Courts below are justified in finding that the landlords are entitled to get an order of eviction under Section 11(2)(b) of the Act. 9. Coming to Section 11(3) of the Act, it is seen that the second petitioner was examined as PW1 and he has given oral evidence projecting the _bona fides_ of the need and the requirement of the reconstruction of the entire building. It has come out in evidence that the location where the said building is situated is a prime location in Ettumanoor town and the building is a very old one and not suitable for, in view of the fast development of the town. According to the landlords, the locality is very important and the building is very old and stands in a dilapidated condition, so that, after the reconstruction, the reconstructed building can be used in a more profitable way. It stands undisputed that the building is aged more than 50 years. The evidence of PW2, the Commissioner appointed in R.C.P.No.4/2009, has depicted the clear picture of the building. In Exhibit C1 report, the photographs of the buildings are attached and that would bring R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 8 out the present nature of the building. The evidence of the Commissioner also would show the importance of the location, where the said building is situated. The landlords produced Exhibit A15, copy of the building permit and plan of the proposed new building. The financial capacity of the landlords to reconstruct the building is not disputed. But, the case of the tenants is that there is no necessity for reconstruction of the building. After analysing the evidence, on record, the court below concurrently arrived at a finding that the building is in a dilapidated condition and it requires reconstruction. Further, the court below relied on the decisions reported in [2007(3) KLT SN 77] (Case No.97) **Jude v. Fathima** and [1971 KLT 571] **Vareed Porinchu v. Ouseph** to arrive at a finding that “if really the landlord is wanting to start a big trade on his own and for that purpose he is trying to get recovery of possession, it follows that he _bona fide_ intends to reconstruct the present building”. We do not find any reason to interfere with the concurrent findings of the court below that the building stands in a dilapidated condition and it requires reconstruction. 10. As regards the _bona fide_ need, the Rent Control R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 9 Court is inclined to evaluate the evidence, on record, with an initial presumption that the need is a _bona fide_ one. The above view is supported by the decision reported in **Sarla Ahuja v. United India Insurance Company Ltd** [1998 (8) SCC 119]. It was incumbent upon the tenant, to prove that the need projected by the landlord is not a _bona fide_ one, by adducing evidence, contrary to the need projected by the landlord in his oral testimony. ' _Bona fide'_ is a state of mind. Therefore, if the landlord testifies himself as to his need and offers himself for cross-examination, and the tenant fails to bring out evidence, contrary to the evidence given by the landlord, the Rent Control Court is bound to accept the evidence given by the landlord; as a _bona fide_ one. After evaluating the oral testimony of PW1, the courts below concurrently found that even though PW1 was subjected to a cross-examination, at length and breadth, nothing brought out to discredit his evidence. Therefore, the Rent Control Court was bound to accept the evidence given by PW1. 11. Indisputably, the _bona fides_ of the need can only be ascertained from the facts and circumstances of the case disclosed by the evidence available, on record. The building is R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 10 a very old and dilapidated one. It is situated in the heart of a town having commercial importance and value. Their financial capacity to reconstruct the building is an undisputed fact. The courts below concurrently found that from the evidence of PW1, it is clear that they want to start a business in the building to be constructed so as to use the same in a more profitable way. In the absence of any contra evidence, the courts below relied on the need projected by PW1 and the dilapidated condition of the building disclosed by the Commission Report. We do not find any reason to interfere with the concurrent findings of the courts below. 12. As regards the first proviso, according to the tenants, there is another building owned by the husband of PW1 and the respondents can start their business in the said building. PW1 also admitted that her husband owns another room near the above said building wherein the schedule rooms are situated. We are of the view that the fact that the husband of a co-owner owns another vacant building is of no consequence at all, while considering the first proviso to claim under Section 11(3) of the Act. 13. The next question to be considered is, whether there R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 11 is any illegality or impropriety in the finding that the tenants are not entitled to get the protection under the second proviso to Section 11(3) of the Act. Needless to say, the burden is heavy on the tenant to prove the entitlement of protection under Section 11(3) of the Act. According to the tenants, they are depending upon the income derived from the business carried on in the scheduled rooms and there is no suitable room for them, to shift their business, in the same locality. After evaluating the evidence, on record, with respect to the protection under the first limb of second proviso, the courts below found that no evidence is available to prove the income of the tenants from the schedule rooms and they are depending upon such income for their livelihood. Further, it was found that the landlords have adduced evidence to the effect that other rooms are available for lease in the same locality. It has come out, in evidence, that the witnesses examined by the tenants themselves admitted that they have not made any enquiry regarding the availability of the alternative accommodation. In short, the tenants have miserably failed to discharge the burden of proof under the second proviso to Section 11(3) of the Act. We do not find any R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 12 kind of illegality or impropriety in the aforesaid finding, denying protection under the second proviso to Section 11(3) of the Act of the tenants. In the absence of any kind of illegality, impropriety or irregularity in the concurrent findings of the courts below, this Court is not inclined to interfere with the concurrent findings of the courts below, in exercise of the revisional jurisdiction under Section 20 of the Act. All these Rent Control Revisions are dismissed. 14. At last, the learned counsel for the petitioners sought for some time to surrender the petition schedule building. The learned counsel for the respondents opposed the said request. But, this Court is of the view that a reasonable time can be given to the petitioners to surrender the petition schedule building. The petitioners shall surrender the petition schedule shop rooms within nine months from today, provided that they could apply the conditions given below within the specified time. - i) The respondents/tenants in the Rent Control Petitions shall file an affidavit before the Rent Controller expressing their readiness and willingness to surrender the petition schedule building R.C.R. Nos. 215 of 2013, 240/14, 243/14 & 244/14 13 within a period of nine months from today and the said affidavit must be filed within one week from the date of receipt of a copy of this order. - ii) The respondents/tenants shall deposit entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent, without default. - iii) In the event of failure, the time granted to vacate the petition schedule building would stand automatically repealed and the petitioners/landlords will be at liberty to proceed with the execution of the eviction order. ## **K. HARILAL (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-