K.P. Ibrahim v. Kottarathil Sankunni Memorial Trust

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 RCRev..No. 75 of 2010() ----------------------RCA.23/2007 OF RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM RCOP.5/2006 OF RENT CONTROL COURT, KOTTAYAM .................... REVISION PETITIONR/APPELLANT/COUNTER PETITIONER: K.P.IBRAHIM, AGED 54, K.M.C.XIV 286, KOTTARATHIL SANKUNNI MEMORIAL BUILDING, KODIMATHA, KOTTAYAM VILLAGE, BY ADV. SRI.C.S.MANILAL ## RESPONDENT(S): RESPONDENT/PETITIONER: KOTTARATHIL SANKUNNI MEMORIAL TRUST, KODIMATHA, KOTTAYAM REPRESENTED BY ITS SECRETARY, K.MADHAVAN UNNI, S/O.NARAYANAN UNNI, KANJIRAKKATTU MADOM, PAK KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK. ADV. SRI.MATHEW JOHN (K) FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06/04/2010, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ.** -----------------------------------------RCR. No. 75 of 2010 ------------------------------------------Dated this the 6[th] day of April, 2010 ## **O R D E R** ## **Pius C. Kuriakose, J.** The tenant is in revision challenging the order of eviction concurrently passed against him by the Rent Control Court and the Appellate Authority on the ground under sub-section (3) of Section 11. The respondent landlord is Kottarathil Sankunni Memorial Trust represented by its Secretary. The parties will be referred to as landlord and tenant. 2. The case of the landlord as averred in the Rent Control Petition was that the landlord trust is the owner of the petition schedule rooms which are two rooms in the ground floor of a larger building belonging to the landlord by virtue of trust deed No. 2956/92 of Sub Registry, Kottayam. The tenant took the rooms on lease and he is conducting business therein. The records of the trust are presently kept RCR. No. 75/10 - 2 - in the office of KSS School of Arts where there is no sufficient space. The landlord intends to shift the records to one of the rooms in the possession of the tenant, so that the office of the trust can be set up in that room. The landlord also intends to start a library and research centre in memory of late Kottarathil Sankunni. The proposed library ad research centre is proposed to be started in the other room in the possession of the tenant. According to the landlord, the landlord has no vacant space available with them for accomplishing the above purpose and hence the bona fide need of the landlord to evict the tenant from both the rooms. 3. The tenant resisted the RCP contending that there is no landlord tenant relationship between the petitioner trust and the tenant. The landlord is Kottarathil Sankunni Smaraka Samithi. The petitioner trust is presently using the space available now in the KSS School of Arts for office purpose. At present 150 sq. ft. area is being used by the - 3 - RCR. No. 75/10 petitioner as office in the first floor and 100 sq. ft area is also available in the ground floor which is also used as additional space by the petitioner. There are vacant rooms and sufficient space for the petitioner in the trust building as well as in the English Medium School at Kodimatha which can be used for keeping records and for use as office and library cum research centre. The need projected is not bona fide. The tenant is entitled to the protection of the second proviso to subsection (3) of Section 11. 4. The evidence at trial before the Rent Control Court consisted of Exts.A1 to A8, B1 to B14, C-1 and C-1(a) report and sketch submitted by the Advocate Commissioner, Ext.X- 1 vacancy register submitted by the Accommodation Controller and oral evidence of PWs. 1 and 2 and CPWs. 1 to 4. Considering Point No.1 as to whether the need put forward by the landlord is a genuine one, the Rent Control Court found that the need is a genuine one. Point No.2 formulated by the Rent Control Court was whether the RCR. No. 75/10 - 4 - landlord is in possession of other buildings in the same town which is suitable for the landlord's requirement? Analysing the evidence on record thoroughly it was concluded by the Rent Control Court that there is no evidence to prove that there are vacant rooms in the possession of the landlord as pointed out by the tenant. Accordingly, point No.2 was answered in favour of the landlord. The third point formulated by the Rent Control Court was whether the tenant is mainly depending on the income derived from the business for his livelihood? and the 4[th] point was whether suitable accommodations are available in the locality for the occupation of the tenant? These points were raised in the context of the tenant's claim for protection of the second proviso to sub-section (3) of Section 11. Here also it was concluded by the Rent Control Court that the tenant was unsuccessful in proving that the satisfies either of the ingredients of the second proviso to subsection (3) of Section 11. Accordingly it was found that the tenant is not RCR. No. 75/10 - 5 - entitled to get the protection of the second proviso to subsection (3) of Section 11. Accordingly order of eviction was passed under Section 11(3). The Rent Control Appellate Authority made a thorough reappraisal of the entire evidence and concurred with all the conclusions of the Rent Control Court and dismissed the RCA confirming the order of eviction. 5. In this revision under Section 20 various grounds have been raised by the tenant assailing the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority. Sri.C.S.Manilal, learned counsel for the revision petitioner addressed us very extensively and strenuous arguments were made based on all those grounds. The submissions of Mr. Manilal were resisted by Mr.Mathew John, learned counsel for the respondent landlord who supported the order of the Rent Control Court and the judgment of the Appellate Authority on the various reasons stated therein. RCR. No. 75/10 - 6 - 6. Sri.Manilal would argue that no evidence was produced by the landlord to show that the landlord trust has taken any conscious decision to evict the tenant for accomplishing the need projected in the RCP. No document relating to any such decision is produced. Mr. Manilal further argued that no document which will show that the signatory to the RCP, the secretary of the trust has been authorised to file the rent control petition is produced. Mr. Manilal would highlight before us Ext.C-1 commissioner's report. According to him, the report will show that in the school building at Kodimatha as well as in the larger building, a part of which is the petition schedule building, there are vacant rooms. Mr. Manilal's argument was that the RCP is liable to be rejected in view of the first proviso to sub-section (3) of Section 11. According to the learned counsel, at any rate, before the Rent Control Appellate Authority evidence was adduced to show that the tenant has no other source of income. Thus the first ingredient of the - 7 - RCR. No. 75/10 second proviso had to be decided in favour of the tenant. As regards the second ingredient, the learned counsel submitted that the Accommodation Controller was examined and two witnesses were also examined. Even the advocate commissioner reported that other buildings are not available in the locality. Therefore, according to him, this was a case where even if the finding that the need is bona fide is correct, the tenant should be granted the protection of the second proviso and the RCP should be dismissed. 7. We have very anxiously considered the rival submissions of the learned counsel for the revision petitioner and the respondent. We have scanned the order of the Rent Control Court and the judgment of the Appellate Authority. Under the scheme of Act 2 of 1965, the final court on facts is the Rent Control Appellate Authority. When the findings of that authority are reasonable and are founded on evidence this court in revision is not expected to make a reappraisal of the evidence and enter fresh findings RCR. No. 75/10 - 8 - of facts. On going through the judgment of the Rent Control Appellate Authority we find that every contentions raised by the tenant has been considered by that authority and decided on the basis of the evidence which was available on record. We are not at all impressed by the contention of the tenant that the RCP is liable to fail by virtue of the first proviso to Section 11(3). The room at Kodimatha mentioned by the advocate commissioner in Ext.C-1 is room in a school where along with the articles belonging to the school or related to the school some records of the landlord trust are also kept. It is too much on the part tenant to insist that the landlord must continue to keep the records of the trust and can have the office of the trust in that room. As for the so called vacant building in the petition schedule premises we notice that such an argument was raised before the Appellate Authority also. The Appellate Authority fround relying on the commissioner's report itself that no vacant room as such is available in the larger building. The RCR. No. 75/10 - 9 - above finding is quite reasonable. In fact, what is reported by the Commissioner in Ext.C-1 is the so called vacancy of toilet rooms. It is too much on the part of the tenant to say that the above both rooms should be used by the landlord for accomplishing its projected need. We do not find anything in the evidence which will show that the landlord is in vacant possession of some other building so as to attract first proviso to Section 11(3). We concur with the finding of the Rent Control Appellate Authority in the context of first proviso to subsection (3) of Section 11. 8. As for the argument of Mr.Manilal that no evidence was produced by the landlord to show that the trust has taken any conscious decision and that no document which will show that the signatory to the RCP has been authorised to file the RCP, what we find is that such a contention has not been specifically raised either before the Rent Control Court or the Appellate Authority. Existence of a landlord tenant relationship between the petitioner in the RCP and RCR. No. 75/10 - 10 - the revision petitioner is admitted. The signatory to the RCP is admittedly the Secretary of the landlord trust. A perusal of the statutory rules (see Rule 7 (3) of the Kerala Buildings (Lease and Rent Control) Rules) will show that unlike plaints it is not mandatory that a rent control petition should be signed by the landlord. It is sufficient that the same is signed by the landlord's advocate. Even Mr.Manilal did not argue before us that Advocate Philipose Tharakan who had signed the rent control petition on behalf of the petitioner landlord had not been authorised to so sign the same. 9) Now coming to the question whether the tenant is entitled to the protection of the second proviso to subsection (3) of Section 11 – it is trite by various decisions of this Court including the judgment of the Full Bench in Francis v. Sreedevi Varassiar, 2003(2) KLT 230 (F.B) that the burden to show that the tenant satisfies both the ingredients of the second proviso to sub-section (3) of Section 11 which are conjunctive is on the tenant only. May RCR. No. 75/10 - 11 - be it is true that before the Appellate Authority the tenant produced some documents which will indicate that the tenant is deriving income from the business carried on by him in the petition schedule premises. But mere production of documents will not be sufficient. The tenant could have sought his further examination as witness in the Appellate Authority itself for the purpose of proving those documents. This was not done. Even assuming that the tenant satisfies the first ingredient of the second proviso, that will not be sufficient. It is difficult to accept the case of the tenant that other suitable buildings are not available in Kottayam Town for the tenant to shift his business. Ofcourse, the Accommodation Controller's vacancy register has been produced. But it is notorious that vacancy register is not seriously maintained in the Offices of the Accommodation Controllers. When the landlord has pointed out the availability of various buildings within the area of the municipal town it was for the tenant to have examined the RCR. No. 75/10 - 12 - owners of those buildings or to facilitate commission reports regarding those buildings and prove to the satisfaction of the Rent Control Court either that those buildings are not available on lease or that those buildings are not suitable for the tenant's purpose. Having not done so, the tenant cannot claim the protection of the second proviso to subsection (3) of Section 11. 10. The result is that the RCR fails and will stand dismissed. However, considering the last plea of Mr.C.S.Manilal for one year's time to surrender the premises we are inclined to grant time till 31-3-2011 despite objection by the learned counsel for the landlord, subject to the condition that with effect from 1-5-2010 the revision petitioner shall pay occupational charges at the rate of Rs.1000/- per month. The revision petitioner shall also file an affidavit before the execution court on or before 25-52010. Through this affidavit it will be undertaken by the revision petitioner that he shall give peaceful surrender of RCR. No. 75/10 **==> picture [39 x 10] intentionally omitted <==** the building to the respondent-landlord on or before 31-32011 and will pay occupational charges at the rate of Rs.1000/- per mensem from 1-5-2010. The revision petitioner will get benefit of time granted as above only if the affidavit is filed on the stipulated time. ## **PIUS C.KURIAKOSE, JUDGE** **C.K. ABDUL REHIM, JUDGE** **ksv/-**