Chalikandy Puthiya Purayil Abootty and Edakkadankandi Arshad v. Chirammal Chembil Hamza (through his legal heirs) and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 RCRev..No. 187 of 2010 (C) ------------------------------RCA.135/2001 of ADDL. DISTRICT COURT, THALASSERY RCP.7/1997 of RENT CONTROL/MUNSIF COURT, KUTHUPARAMBA .................... REVISION PETITIONERS/APPELLANTS/SUPPLE. APPELLANTS 2 TO 7 CHIRAMMAL CHEMBIL HAMZA (DIED) SUPPL. 1. EDAKKADANKANDI SAINABA, W/O LATE HAMZA, AGED 50 YEARS, 2. ANWAR, S/O.LATE HAMZA, AGED 31 YEARS, 3. SIRAJUDHEEN, S/O.LATE HAMZA, AGED 29 4. SHAFEER, S/O.LATE HAMZA, AGED 27 YEARS, 5. SHABANA, D/O.LATE HAMZA, AGED 24 YEARS, ALL ARE RESIDING AT SHABANA MANZIL, PAZHASSI AMSOM DESOM, MATTANNUR, THALASSERY TALUK, KANNUR DISTRICT. - BY ADV. SRI.V.V.ASOKAN - SRI.K.M.MOHAMMED KUNHI RESPONDENT(S): RESPONDENT/5TH APPELLANT IN RCA 1. CHALIKANDY PUTHIYA PURAYIL ABOOTTY, S/O. USMAN HAJI, AGED 55 YEARS, BUSINESS, RESIDING AT PADUVILAYI AMSOM VENGAD DESOM, P.O.VENGAD, THALASSERY TALUK, KANNUR DIST. RCR.187/10 -2- 2. EDAKKADANKANDI ARSHAD AGED 28 YEARS, S/O LATE HAMZA, RESIDING AT SHABANA MAPAZHASSI AMSOM DESOM, MATTANNUR THALASSERY TALUK KANNUR DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.187 of 2010 -----------------------------------------------Dated this the 19[th] day of July, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenants are in revision. They challenge the judgment of the Rent Control Appellate Authority confirming the order of eviction which was passed by the Rent Control Court on the ground of bona fide need for own occupation. In fact the respondent/landlords had invoked the ground of arrears of rent also. However, even before the RCP came up for trial, the entire arrears as claimed in the RCP and the subsequent rent which fell due was deposited by the revision petitioners before the Rent Control Court and on R. C. R. No.187 of 2010 -2- that reason the Rent Control Court declined eviction on the ground of arrears of rent. That issue has become final as the landlord did not prefer any appeal. 2. The only ground which survives is the ground of bona fide need for own occupation. By the statement of objections filed by the revision petitioner to the RCP, the rental arrangement was practically conceded. In fact no denial of title as envisaged by the first proviso to Section 11 was raised. The evidence before the Rent Control Court consists of Exts.A1 to A20(a), B1 to B18, X1 affidavit submitted by the Accommodation Controller, oral evidence of one of the landlords as PW1 and evidence of witnesses RW1 to RW3 on R. C. R. No.187 of 2010 -3- the side of the revision petitioners/tenants. Even though the tenants had disputed the bona fides of the need projected and had contended that at any rate they are entitled to the protection of the second proviso, the Rent Control Court on appreciating the evidence was very much inspired by the oral evidence adduced by PW1 and held that the need projected in the RCP which was for conducting grocery trade was quite bona fide. It was also found that the revision petitioners were well off and were unsuccessful in showing that they are entitled to the protection of the second proviso to Section 11(3). Before the Rent Control Appellate Authority, the revision petitioner filed I.A.291/07 and I.A.1544/08 for reception of fresh R. C. R. No.187 of 2010 -4- documents and also for permission to correct the statement of objections filed. The purport of the amendment which was sought for was to incorporate a contention that the petitioners in the RCP do not have title over the building in question and hence, the RCP is not maintainable. The purpose of seeking production of documents was in fact to substantiate these contentions. The learned Appellate Authority considered the I.As along with the main RCA. That authority permitted marking of additional documents Exts.B19 and B20 by the revision petitioners and one additional document Ext.A22 by the respondents. Appreciating the entire evidence including Exts.A22, B19 and B20 the learned Appellate R. C. R. No.187 of 2010 -5- Authority came to the conclusion that the denial of title which was sought to be raised by the revision petitioners was without any bona fides. According to the Appellate Authority a proper appreciation of the documents will show that the respondents were having proprietary title also over the building in question and that at any rate the revision petitioners are not entitled to dispute the title of the landlord. According to that court the finding by the Rent Control Court regarding the bona fides of the need and also regarding the revision petitioner's eligibility for protection of the second proviso were correct findings and on that reason confirmed the order of eviction. 3. In this revision under Section 20 various R. C. R. No.187 of 2010 -6- grounds have been raised assailing the judgment of the Appellate Authority. Sri.K.M.Mohammed Kunhi, the learned counsel for the revision petitioners addressed extensive arguments before us on the basis of those grounds. Sri.Mohammed Kunhi would draw our attention to Exts.B19 and B20 and argue that those documents will show that at the time when Ext.A22 correction deed was executed Smt.Sainaba the person under whom the respondents' claim title did not have any title. The title at that time was vested with Aboobacker Haji only. According to him, the revision petitioner cannot be blamed for not having raised the contention of denial of title in the original objections as the information came to R. C. R. No.187 of 2010 -7- them only when Sri.Aboobacker Haji approached them demanding rent after the Rent Control Court had given its verdict. Sri.Mohammed Kunhi endeavoured to convince us with respect to Exts.B18 and B20 and A22 that the respondents do not have title over the building in question and that at the time of execution of the correction deed Sainaba had ceased to have any interest over the building. Sri.Mohammed Kunhi further submitted that as the correction deed is executed only within a period of one year from the date of institution of the RCP, the third proviso to sub Section 3 of Section 11 will clearly apply and therefore, it has to be found that the eviction petition was not maintainable in law. As there was R. C. R. No.187 of 2010 -8- a statutory bar for the eviction petition under sub Section 3 of Section 11 the RCP should be rejected. Sri.Mohammed Kunhi further submitted that the findings of the statutory authorities regarding the bona fides of the need and the tenant's eligibility for protection of the second proviso are wrong. According to him, the conduct of the revision petitioner in depositing the arrears of rent does not militate against his contention of denial of title. Sri.Mohammed Kunhi highlighted that the respondents who are very much conscious of their lack of title over the building have not even bothered to withdraw the amounts deposited by the revision petitioner towards arrears of rent. R. C. R. No.187 of 2010 -9- 4. We have very anxiously considered the submissions addressed at the Bar. We are not impressed by the plea of denial of title which was sought to be raised by the revision petitioner for the first time before the Appellate Authority. The Rent Control Petition was accompanied apart from the schedule by a statement of particulars submitted by Rule 12 of the Kerala Buildings (Lease and Rent Control) Rules. It is very clearly described in that statement of particulars that the scheduled premises are the premises where the revision petitioners are conducting business under the name and style 'Ajmeer Tea and Tobacco'. In the statement of objections originally filed the correctness of the landlord's version in the R. C. R. No.187 of 2010 -10- statement of particulars which form part of the Rent Control Petition is not disputed. As already indicated through the statement of objections originally filed, the Revision Petitioner did not raise plea of denial of title at all. The above plea was raised for the first time before the Appellate Authority. We find that the Appellate Authority appreciated Exts.A22, B19 and B20 correctly and came to the conclusion that the revision petitioners are presently having proprietary title over the building in question. According to us, what is important in a proceeding under the Rent Control Act is not proprietary title of the landlord, instead it is an existence of landlord-tenant relationship between the parties. Having not R. C. R. No.187 of 2010 -11- disputed the statement wherein the names of the landlord and the tenant are clearly shown, it was too late in the day for the revision petitioners to have raked up the issue before the Appellate Authority. The conduct of the revision petitioners in depositing the entire arrears of rent before the Rent Control Court including the rent which fell due during the pendency of the proceedings even before the issue under Section 11(2)(b) had been adjudicated is significant. That conduct will show that the revision petitioners were recognizing the respondents as their landlords. The judgment of the Division Bench of this Court in Aboobacker v. Girija (1995(1) KLT 553) a leading light on the issue under the proviso to sub Section 1 of R. C. R. No.187 of 2010 -12- Section 11 has been rightly applied by the learned Appellate Authority to reject the plea and we do not find any illegality, irregularity or impropriety in the Appellate Authority having turned down the endeavour of the revision petitioners to raise a plea of denial of title. 5. Now we will consider whether the RCP is liable to fail by virtue of third proviso to sub Section 3 of Section 11. We have no hesitation to answer that question in favour of the landlord. The correction deed is certainly executed within a period of one year of the institution of the RCP. But the correction made as per the correction deed relates back to the original deed which is executed more than one year prior to the R. C. R. No.187 of 2010 -13- ## institution of the RCP. 6. As for the merits of the eviction ground which is upheld by the statutory authorities we find that it is by appreciating the evidence which was available on record that those authorities concluded that the need is bona fide and that the tenant is not entitled for the protection of the second proviso to sub Section 3 of Section 11. It was seen from the evidence that the revision petitioner is much better off financially and otherwise than the landlords. Whatever that be we do not find any illegality, irregularity or impropriety about the eviction order passed under Section 11(3). 7. As a last plea Sri.Mohammed Kunhi R. C. R. No.187 of 2010 -14- requested that an year's time be granted for surrendering the premises. We are not inclined to grant so much of time. However, noticing that the revision petitioners have been conducting their business in the scheduled premises for quite a long time we feel that subject to certain conditions time can be given till 28/02/11 for surrendering the premises. 8. The result of the above discussions therefore, is as follows:- The RCR fails and the same will stand dismissed. Eviction order passed under Section 11 (3) is confirmed. The execution court is directed to defer ordering of delivery to 28/02/11 subject to the following conditions:- The revision petitioner shall file an affidavit before the execution court or the Rent Control R. C. R. No.187 of 2010 -15- Court as the case may be undertaking to give peaceful surrender of the building to the respondents on or before 28/02/11. It shall also be undertaken through the same affidavit that arrears of rent if any will be discharged within one month from today and that occupational charges at the current rent rate will also be paid without fail till such time as actual surrender is made. We make it clear that the revision petitioners shall get the benefit of time granted by this Court only if they file affidavit on time. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-