Goulden Jiji Mathew @ G.G.Mathew v. Late P.A.John and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 RCRev..No. 417 of 2011() -----------------------RCA.47/2010 of RENT CONTROL APPELLATE AUTHORITY ERNAKULAM RCP.63/2007 of RENT CONTROL COURT ,ERNAKULAM .................... REVN.PETITIONER/APPELLANT. ---------------------------------------------- GOULDEN JIJI MATHEW @ G.G.MATHEW, S/O.GEORGE MATHEW, 39/4954. PULIKKAL BUILDING, M.G.ROAD, ERNAKULAM. BY ADV. SRI.SANTHAN V.NAIR SRI.V.GOPIKRISHNA SRI.V.V.MITHUN RESPONDENT(S): RESPONDENTS. --------------------------- 1. LATE P.A.JOHN, S/O.ANTHAPPAN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-682 016. 2. MOLLY JOHN, W/O.LATE P.A.JOHN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-682 016. 3. TONY JOHN, S/O.LATE P.A.JOHN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-682 016. 4. XAVIER JOHN,S/O.LATE P.A.JOHN, PULIKKAL HOUSE, M.G.ROAD, ERNAKULAM-682 017 ADV. N.C JOSEPH FOR R SRI.N.C.JOSEPH FOR R2-4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & K. HARILAL,JJ.** .................................................................... R.C.R.NO. 417 OF 2011 ................................................................... Dated this the 29[th] day of November, 2011. ## **O R D E R** ## **Pius C. Kuriakose, J.** The tenant who has been ordered to be evicted on the ground under sub section (3) of Section 11 challenges the order of eviction passed against him by the rent control court as well as the appellate authority concurrently. The landlords had invoked the ground of cessation of occupation also. However, the rent control court declined eviction on that ground and the order declining eviction under Section 11(4)(v) has attained finality. The RCP was instituted by one P.A. John (late) urging that the building in question where the revision petitioner and his son are conducting auto consultancy business under the name and style ‘Vijaya Auto Agencies’ is needed bonafide for occupation by his younger son Dr. Xavier John who is a Medical Psychiatrist. According to the landlords, Dr. Xavier John was badly in need of the petition schedule room RCR.No.417/2011 2 for accommodating his consultancy. 2. The tenant disputed the bonafides of the need projected by the landlords. It was contended that Dr.Xavier John is already having a consultation room for receiving his patients in his father’s house. It was also contended that the landlords were having other vacant room in the very same building for accommodating Dr. Xavier John. It was then contended that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11 as the auto consultancy business carried on in the petition schedule building provides for the main source of livelihood for the tenant. It was also contended that at any rate other buildings are not available in the locality for the tenant to shift his business. 3. The rent control court conducted the enquiry and the evidence consisted of oral evidence of PWs1 and 2, PW1 being Dr. Xavier John, Exts.A1 to A3 were marked on the side of the landlords. There were three witnesses RWs 1 to 3 and Exts.B1 series to B3 series on the side of the tenant. Reports and sketches by the advocate commissioner were marked as Exts.C1 and C2 series. On evaluating the evidence, the rent RCR.No.417/2011 3 control court came to the conclusion that the need is bonafide and that the tenant is not entitled to for the protection of the second proviso to sub section (3) of Section 11. Accordingly order of eviction was passed under sub section (3) of Section 11. The original tenant died after the rent control court passed the eviction order. However, the RCA was filed in the name of the deceased tenant himself. On noticing this aspect, the appellate authority rejected the RCA. This Court however in revision permitted the revision petitioner - son of the original tenant to come on record as the appellant before the appellate authority. This permission was granted noticing that the other legal heirs of the deceased original tenant are agreeable to retention of the building by the revision petitioner. Relief was granted in the RCR by this Court subject to condition that monthly rent payable by the tenant will stand enhanced to Rs.7,500/- per mensem, with effect from 1.8.2011. The learned appellate authority has passed the impugned judgment pursuant to the remand order passed by this Court. The learned appellate authority on reappraising the evidence would concur with all the findings of the rent RCR.No.417/2011 4 control court and dismiss the rent control appeal. In this revision under Section 20, various grounds are raised challenging the judgment of the appellate authority. 4. Sri. Santhan V. Nair, learned counsel for the revision petitioner addressed submissions before us based on those grounds. Sri. Santhan V. Nair submitted that the judgment of the appellate authority is vitiated by non application of mind to the issue which arose for decision and also non appreciation of the pleadings and the evidence available in the case. According to the learned counsel, it had come out in evidence that PW1 is conducting consultancy every Saturday and Sunday in a room behind the petition schedule room. The ownership over the portion where consultancy is conducted is a matter especially within the knowledge of the respondents. They have not produced any document to prove their case that PW1 Dr. Xavier John does not have any interest over the space situated behind the petition schedule room. The learned counsel submitted that the Commissioner’s report shows that the space behind the petition schedule room had been furnished in a manner typical of Doctor’s consultancy room. RCR.No.417/2011 5 Stainless steel tables with wheels are used in hospitals and 42 numbers of plastic tokens in red colour ordinarily used in Doctor’s consultancy room were noticed by the Commissioner. In view of the controversy at the bar as to what all buildings belonging to late P.A. John have been bequeathed in favour of Dr. Xavier John, we directed Sri. N.C. Joseph - learned counsel for the respondents to produce the Will executed by Sri. P.A. John. Accordingly, the Will was produced. Referring to the Will, Sri. Santhan V. Nair submitted that the Will will show that Dr. Xavier John is the legatee in respect of as many as seven buildings at Vyttila junction. According to him, this information could be acquired by the revision petitioner only when the Will was produced. The counsel requested that the matter be remanded at least to the appellate authority to consider the sustainability of the eviction order in view of operation of the Will under which Dr. Xavier John has come to possess as many as seven rooms near Vyttila junction. 5. All the submissions of Sri. Santhan V. Nair were resisted by Mr. N.C. Joseph . The jurisdiction under Section 20 will not enable this Court to make a reappraisal of the evidence RCR.No.417/2011 6 and the pleadings for the purpose of substituting factual conclusions entered by the two fact finding authorities namely the rent control court and the appellate authority. According to the learned counsel, there is no illegality, irregularity or impropriety as envisaged under Section 20 on the judgment of the appellate authority. The learned counsel argued that no building bequeathed in favour of Dr.Xavier John situated at Vyttla is remaining vacant. According to him, at any rate, there is every justification for Dr. Xavier John who is presently the owner of the schedule building in insisting that he should conduct his consultancy in the petition schedule building which is situated very near to Dr.Xavier John’s residential house and where consultancy can be more conveniently conducted. Mr.N.C Joseph would support the findings of the statutory authority under the second proviso to subsection (3) of Section 11. According to him, it is in evidence that the revision petitioner is having possession of other buildings suitable for conducting his business. He also submitted that it has come out in evidence that so many other buildings are available in Kochi city to the revision petitioner on lease. Mr. N.C. Joseph also submitted RCR.No.417/2011 7 that it was come out in evidence that the business conducted by the petitioner in the building is not his only source of livelihood. Hence, according to the learned counsel, the finding entered in the context of first limb of the second proviso is also unassailable. 6. We have given our anxious consideration to the rival submissions addressed at the bar. We have gone through the judgment of the appellate authority as well as the order of the rent control court. We have also gone through the other relevant materials including those items of evidence to which our attention was drawn by the learned counsel in their respective submissions. 7. The short question, which arises for consideration, is whether within the attenuated jurisdiction of this court under Section 20, there is warrant for interference with the impugned judgment of the Rent Control Appellate Authority. We have no difficulty to answer that question in the negative i.e. in favour of the landlords. We find that the findings concurrently entered by the Rent Control Court and the Appellate Authority that, the need projected by the original landlord who is no more to RCR.No.417/2011 8 accommodate his son in the petition schedule building for conducting his consultancy, is a bona fide one is founded on evidence actually available on record. PW1 is none other than the needy son - Dr. Xavier John who is a Psychiatrist by profession. The petition schedule building is situated very close to the residential apartment of Dr.Xavier John. The version of PW1 in chief examination that he genuinely needs the petition schedule building for starting his consultancy is not seen successfully shaken in cross examination. The bona fides of the need was seen challenged mainly with reference to the space which is seen used as a car porch and also another space situated on the back side of the room where the PW1's brother Sri.Tomy John is conducting business under the name and style of "Nokia Priority Services". The defence based on the car porch area was rightly turned down by the statutory authorities relying on the report submitted by the advocate commissioner on the basis of a local inspection. The revision petitioner was able to show that at least on Saturdays and Sundays when Sri.Tomy Xavier does not open his shop he allows Dr.Xavier John to have his consultancy in the space behind his room. In fact, the RCR.No.417/2011 9 above fact is conceded by PW1 also. But, the question is whether the same will result in the claim being repelled. Admittedly the above space does not belong to Dr.Xavier John. More importantly the above space is situated behind the shop of Sri.Tomy John and there is no direct access to the above space from M.G.Road or for that matter any other road. It is seen from the Will of Sri. P.A.John produced before this court that the schedule building is bequeathed in favour of Dr.Xavier John. Thus, by operation of the Will Dr.Xavier John has become the absolute owner of the petition schedule building. The submission of Sri.Santhan V.Nair learned counsel for the revision petitioner on the basis of the Will that Dr.Xavier John is legatee in respect of 7 rooms of Vyttila Junction also does not appeal to us. First of all, the learned counsel was not able to assert before us that any one of those rooms are under the vacant possession of Dr.Xavier John. Secondly, the need which is projected by late P.A.John and now by Dr.Xavier John is the need to have a consultancy in the premises situated near to his residential building. Such a need, according to us ,can be accomplished only if the petition schedule building is obtained by Dr.Xavier RCR.No.417/2011 10 John. In short, we do not find any illegality, irregularity or impropriety in the finding concurrently entered by the two statutory authorities that the need projected in the rent control petition is a bona fide one. The only question which survives for consideration is whether the tenant is entitled to the protection of the second proviso. Having regard to the principles laid down by a Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) and the Supreme Court in Kunhamma v. Akkali Purushothaman (2007 (3) KLT 599(SC), we are of the view that the finding concurrently entered to the effect that the tenant was unsuccessful in showing that he satisfies either of the two ingredients of the second proviso is not vitiated by any illegality, irregularity or impropriety. 8. The Revision Petition has to fail and the same will stand dismissed. However, considering the very fervent appeal of the learned counsel for the revision petitioner for time, we direct the Execution Court not to order and effect delivery of the building to the respondents till 31/7/2012 subject to the following conditions; i). The revision petitioner will file an affidavit before the RCR.No.417/2011 11 Execution Court or the Rent Control Court as the case may be with notice to the counsel for the respondent within three weeks from today undertaking as follows; a). That he shall give peaceful surrender of the building to the respondents on or before 31/7/2012. b). That he shall discharge occupational charges at the existing rate of Rs.7,500/- per month promptly and regularly till the actual surrender or the building is given. ii). We make it clear that the revision petitioner will get the benefit of time as allowed above only if he files the affidavit and honurs the undertakings therein. If the undertakings are violated, it is open to the respondents to levy execution of the eviction order immediately. ## **PIUS C.KURIAKOSE,JUDGE** **K. HARILAL, JUDGE.** cl/dpk RCR.No.417/2011 12