Gireesh Babu Veettil v Abdul Khader @ Abdul Rahman Kutty and Nabeesa Beevi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935 RCRev..No. 170 of 2011 ( ) --------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 6/2007 of RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA DATED 00-00-0000 AGAINST THE ORDER/JUDGMENT IN RCP 5/2005 of RENT CONTROL COURT, THIRUVALLA REVISION PETITIONER(S)/PETITIONER IN RCR: ----------------------------------------------------------------------- GIREESH BABU VEETTIL, PADINJAREKKARA MURI, NEDUMPROM PO NEDUMPROM VILLAGE, THIRUVALLA TALUK. BY ADVS.SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENT(S): ---------------------------- 1. ABDUL KHADER @ ABDUL RAHMAN KUTTY S/O.SAID MUHAMMED, PUTHUVATHARATHUNDIYIL @ NIYAS MANZIL HOUSE, PADINJAREKKARA MURI, NEDUMPROM PO NEDUMPROM VILLAGE, THIRUVALLA TALUK 689 101. 2. NABEESA BEEVI,W/O.ABDUL KHADER, RESIDING IN DO. R,1,2 BY ADV. SRI.G.SREEKUMAR (CHELUR) R1,R2 BY ADV. SMT.PREETHY KARUNAKARAN R1,R2 BY ADV. SRI.P.M.ZIRAJ THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 170 of 2011** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 23RD DAY OF MAY, 2013** ## **O R D E R** ## Ramachandran Nair, J. The tenant of a non residential building is the petitioner, aggrieved by the judgment rendered bey the Rent Control Appellate Authority, Pathanamthitta. We will refer to the parties as arrayed in the revision petition. 2. Respondents 1 and 2 are the landlords who approached the Rent Control Court seeking eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'). 3. We heard learned Senior Counsel for the petitioner, Shri S.V. Balakrishna Iyer and Shri G. Sreekumar (Chelur), learned counsel appearing for the respondents. 4. While opening the arguments, learned Senior Counsel appearing for the petitioner submitted that this is a case where both the authorities have failed to enter a clear finding on the applicability of the first proviso to Section 11(3) of the Act. It is also submitted that even though the plea of RCR 170/2011 -2- bonafide need has been accepted, when the Appellate Authority reversed the findings of the Rent Control Court with regard to the two limbs of the second proviso to Section 11(3), no detailed reasons have been stated. In that context, learned Senior Counsel, at the outset, invited our attention to the relevant paragraph of the judgment of the Appellate Authority which according to him, is so cryptic. 5. We will advert to the bare facts necessary for the disposal of the revision petition. This is a case where a civil suit was initially instituted as O.S. No.55/94 before the Sub Court, Thiruvalla which was decreed on 27.2.1996. The petitioner herein filed appeal against the decree and judgment. During the pendency of the appeal, the provisions of the Rent Control Act were made applicable to Nedumpram Panchayat by a notification and therefore, the appeal was allowed. 6. It was pleaded that the second son of the landlords, Navas Muhammed is an automobile engineering diploma holder and he is unemployed. The elder son Niyas is also unemployed and they are dependants of the landlords. Accordingly, the respondents/landlords pleaded that the petition schedule room is needed for starting an automobile spare parts business. It is also pointed out that all the other rooms in the RCR 170/2011 -3- petition schedule building are too small and further, the said rooms are in the possession of other tenants. It was specifically pleaded that the landlords are not in possession of any other building in Nedumpram Panchayat except the petition schedule building and the house in which they are residing. It is also pointed out that several other suitable rooms are available near the petition schedule building for the tenant to shift the business. 7. The tenant firmly contended that the landlords are having in their possession other vacant buildings and the details were shown in the objection itself. While objecting the bonafide need pleaded, the entire history of the dispute between the parties have been narrated and it was also pointed out that the landlords are having so many other buildings and the need under Section 11(3) is only a ruse to evict the tenant. 8. We were taken through the oral and documentary evidence by the learned counsel on both sides. First we will come to the question of bonafide need pleaded and the finding rendered by the Rent Control Court as well as the Appellate Authority. In para 8 of the order passed by the Rent Control Court, the plea of the tenant that the sons are not dependants of the landlords, stands rejected. It was found that the elder son is remaining RCR 170/2011 -4- unemployed and the second son is a diploma holder and he is also unemployed. A suggestion put to P.W.1 that his elder son is mentally retarded, was also denied. On going through various materials, it was found that the plea is bonafide. While considering the said aspect, the Appellate Authority has chosen to confirm the finding rendered by the Rent Control Court in the light of the factual setting pleaded as well as the evidence of P.W.1. 9. Herein, it cannot be said that it was only a mere desire on the part of the landlords. The bonafide need was pleaded and spoken to by the landlords with regard to the requirement of their sons their unemployment and that the second son is qualified in automobile engineering. The Rent Control Court has chosen to accept above evidence to enter a positive finding in favour of the landlords and it cannot be said that the appreciation of evidence is so irrational warranting interference by this Court. The Appellate Authority has confirmed the said view. We are also satisfied that the bonafide need pleaded is genuine and we confirm the findings rendered on that ground, by both the authorities. 10. Regarding the first proviso to Section 11(3) of the Act, learned Senior Counsel Shri S.V. Balakrishna Iyer referred to the pleadings of the RCR 170/2011 -5- petitioner, contained in the objection, especially paragraphs 6 and 7 wherein the details of certain buildings in the possession of the landlords have been mentioned and some of them are remaining vacant, according to the petitioner. It is submitted that the oral evidence of P.W.1 is not helpful to find out any special reason in favour of the landlords. We were taken through the oral evidence as well as other factors and the law laid down by this Court and the Apex Court in **Raghavan v. Gopalan Nambiar** (1995 (1) KLT 596), **Janatha Drugs v. Maithiri Constructions** (2007 (4) KLT 625) and **Charan Dass Duggal v. Brahma Nand** (1982(1) RCJ 789). 11. In fact, going by the first proviso to Section 11(3), the Rent Control Court should be satisfied about the special reasons. We find from a reading of the order passed by the Rent Control Court that no specific finding has been rendered even though learned counsel for the respondent submitted that a reading of paragraphs 10 and 11 will show that there is clear finding in favour of the landlords. It is evident from para 10 that there is a discussion of the arguments of both sides as well as a reference to certain parts of the evidence including the evidence of CPWs.3 and 4 and then the Rent Control Court has extracted the dictum laid down by the Apex Court in **M.L. Prabhakar v. Rajiv Singal** {(2001) 2 SCC 355}. The RCR 170/2011 -6- matter was left there and straightaway the Court proceeded to consider the bonafide need pleaded. A finding regarding the bonafide need is rendered in para 11 and the two limbs of the second proviso to Section 11 (3) has been discussed in para 12. In the judgment of the Appellate Authority also, there is no discussion on the first proviso to Section 11(3). 12. In the light of the dictum laid down by this Court and the Apex Court in various decisions, especially in a case like this where there is a specific mention about the availability of vacant buildings, which is tried to be explained away by the landlords, there should have been a clear finding by the authorities below on this aspect. Therefore, on this score, the orders of the authorities below suffer from non consideration of the first proviso to Section 11(3). It may not be proper for this Court to analyse the evidence, since we are sitting in revisional jurisdiction. 13. As regards the two limbs of the second proviso, learned Senior Counsel submitted that there is an admission in the cross examination of P.W.1 that the tenant is depending upon the income from the petition schedule building, but the said aspect has not been considered by the Appellate Authority while reversing the finding of the Rent Control Court on both the limbs of the second proviso. We were taken through the RCR 170/2011 -7- discussion on the various aspects, in para 11 of the judgment of the Appellate Authority. It was found that “no document, especially the account book maintained by the counter petitioner is produced to prove that he is regularly depending on the income derived from the business in the petition schedule building.” It was also observed that the counter petitioner has not taken any steps to prove that alternate accommodation is not available in the locality. After referring to the dictum laid down by this Court in **Francis v. Sreedevi Varassiar** (2003 (2) KLT 230), **Puthenpurayil Rajan v. Kotheri Dileep Kumar** (2010 (2) KHC 464) and **Lucy Varghese v. Karunakaran Achary** (2010 (2) KLT 643), in para 15 it is observed that the tenant failed to establish both limbs under the second proviso to Section 11(3) of the Act. 14. Learned Senior Counsel for the petitioner is right in submitting that when the Rent Control Court, after elaborate discussion of the evidence, found in favour of the tenant on the two limbs of the second proviso to Section 11(3) and when the Appellate Authority has chosen to reverse the said findings of the Rent Control Court, there should have been proper consideration of the materials as well as the pleadings of the parties. We find force in the said submission. It is also clear that the admission of RCR 170/2011 -8- P.W.1 has not been referred to or considered by the Appellate Authority. We are told by the learned counsel for the respondents that the said admission will not have the effect of putting a lid on the plea of the landlord. We are not expressing any opinion on that question since we are of the view that there should be a clear finding after considering various materials including the oral and documentary evidence adduced by both sides. The judgment of the Appellate Authority is so short and so cryptic and hence it may not be proper for this Court to re-appreciate the evidence, in this revision. 15. In the light of the above, while confirming the findings regarding the bonafide need, rendered under Section 11(3) of the Act, we set aside the judgment of the Appellate Authority and remand the matter to the said Authority to consider the appeal afresh in the light of the observations made above. 16. Learned Senior Counsel Shri S.V. Balakrishna Iyer prayed that the Appellate Authority may be directed to allow the parties to adduce additional evidence. It is submitted by Shri G. Sreekumar, learned counsel for the respondents that it is not a case where additional evidence is required. We leave the matter to the discretion of the Appellate Authority RCR 170/2011 -9- to consider such a plea, if raised by any of the parties. If the Appellate Authority allows the application of either of the parties seeking permission to adduce evidence for that purpose the case need not be remanded to the Rent Control Court. The appeal will be disposed of within four months from the date of receipt of a copy of this order. The parties shall appear before the Appellate Authority on 24.6.2013. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(A.V. RAMAKRISHNA PILLAI, JUDGE)** ## **kav/**