Kunhammed v. Adakkaniveettil Kader

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 RCRev..No. 62 of 2010 (A) ----------------------------RCA.131/2007 of 1ST ADDL. RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.170/2006 of ADDL.M.C.-I, KOZHIKODE .................... ## REV.PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------ KUNHAHAMMED, S/O.ZUBAIR, RESIDING AT KOYILANDY AMSOM PANTHALAYANI DESOM OF KOYILANDY TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): RESPONDENTS/PETITIONER ---------------------------------------------------- ADAKKANIVEETTIL KADER, S/O.UMMER KOYA, RESIDING AT NAGARAM AMSOM DESOM OF KOYILANDY TALUK. ADV. SRI.N.M.MOHAMMED AYUB FOR R1 SRI.K.M.FIROZ FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. -----------------------------------------------R. C. R. No.62 of 2010 -----------------------------------------------Dated this the 23[rd] day of September, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant is in revision. He challenges the judgment of the Rent Control Appellate Authority confirming the order of eviction which was passed against him by the Rent Control Court on the ground of arrears of rent and bona fide need for own occupation. As regards the ground of arrears of rent, it is submitted by Sri.P.A.Harish, the learned counsel for the revision petitioner that it will suffice if the revision petitioner is given one month's time to get that order vacated by making requisite deposits and by filing necessary applications under Section 11(2)(c). We, R. C. R. No.62 of 2010 -2- therefore, in this revision are considering only the correctness of the order of eviction passed under Section 11(3). 2. The building in question is situated in Big Bazaar, Kozhikode. The need projected by the landlord who is an Engineer and was employed as an Engineer in the Middle-east for a pretty long time and who has come back to his hometown at Kozhikode is that he needs the petition schedule building so that he can conduct engineering consultancy in the same. In the Rent Control Petition he had also stated that for conducting the proposed business he does not have any suitable building with him. The bona fides of the need was stiffly disputed by the tenant. The tenant contended that the landlord had about one year prior to the institution of the RCP sent a lawyer R. C. R. No.62 of 2010 -3- notice demanding hike in rent stating that considering the locational advantages of the building and the prevailing rent rates in the locality the rent that is being paid is very low. The real purpose in instituting the RCP is to compel the tenant to pay increased rent. Though not specifically, the landlord's claim that he does not have any other building which is suitable for his purpose was disputed. Specifically it was contended that the tenant is entitled to the protection of the second proviso to sub Section 3 of Section 11. The Rent Control Court enquired into the RCP and at the enquiry the evidence consisted of the oral evidence of PW1 and documents Exts.A1 to A5 on the side of the landlord. On the side of the tenant, the same consisted of oral evidence of RW1 and documents R. C. R. No.62 of 2010 -4- Exts.B1 to B22. On appreciating the evidence, the Rent Control Court came to the conclusion that the need projected by the landlord is bona fide and that the circumstances highlighted by the tenant and brought out in evidence for showing that the need is not bona fide do not militate against the bona fides of the claim. 3. Coming to the first proviso to sub Section 3 of Section 11, the court noticed Exts.B13 to B15 as well as Ext.A3. The court would accept the landlord's explanation that the buildings covered by Exts.B13 to B15 were under the actual possession of tenants and hence, it was concluded that the first proviso to sub Section 3 of Section 11 does not operate against the landlord. 4. Coming to the question whether the tenant is entitled to the benefit of the second R. C. R. No.62 of 2010 -5- proviso the court concluded that the tenant satisfies the first limb of that proviso. However, it was concluded further that the tenant was unable to show that other suitable buildings are not available in the locality and on the basis of that finding against the tenant in the context of the second limb of the second proviso it was held that the tenant is not entitled for the benefit of the second proviso. In the result, the Rent Control Court ordered eviction under Sub Section 3 of Section 11. The Rent Control Appellate Authority considered the appeal preferred by the tenant. That Authority made a thorough reappraisal of the entire evidence as well as the pleadings. That Authority would concur with all the conclusions of the Rent Control Court and confirmed the order of eviction which was passed by that court and R. C. R. No.62 of 2010 -6- dismissed the RCA. In this revision under Section 20, the tenant has raised various grounds assailing the judgment of the Appellate Authority. 5. We have heard the submissions of Sri.P.A.Harish, the learned counsel for the revision petitioner and those of Sri.Mohammed Ayoob, the learned counsel for the respondent/landlord. Sri.Harish would draw our attention to the lawyer notice which was sent by the landlord to the tenant as a prelude for instituting the Rent Control Petition. He highlighted that the claim of own occupation which is projected in the RCP does not find a place in the lawyer notice at all. On the contrary, the grievance of the landlord as discernible from the lawyer notice is only that the current monthly rent of Rs.600/- which is being paid is far below the fair rent for the building. R. C. R. No.62 of 2010 -7- According to Sri.Harish, if there is an element of bona fides in the claim now projected the same would have found a place in the lawyer notice also. He drew our attention to the first paragraph of the Rent Control Petition and submitted that in that paragraph also the landlord has voiced the grievance that the rent that is being paid is low. According to Sri.Harish, it is clear that the real purpose of instituting the RCP is to see that the tenant accedes to the landlord's demand for exorbitant rent. It was in the context of the first proviso the sub Section 3 of Section 11 that Sri.Harish addressed still more forceful arguments. He drew our attention to Exts.B13 to B15. He submitted that Exts.B13 to B15 will show that the landlord is in vacant possession of buildings having Door Nos.229 and 230 situated R. C. R. No.62 of 2010 -8- hardly 500 metres away from the petition schedule building. According to him, when a landlord is in possession of his own other buildings in the same city, town or village, he has the obligation to disclose the availability of those buildings and show as to whether there are special reasons as to why the landlord is preferring the petition schedule building to those buildings for accomplishing the proposed need. According to Sri.Harish, Exts.B13 to B15 are documents covered by Section 26 of Act 2 of 1965. In the teeth of such documents it was the obligation of the landlord to have adduced strong rebuttal evidence to show that the state of affairs revealed from Exts.B13 to B15 is not correct. Ext.A3 produced by the landlord on noticing that Exts.B13 to B15 is a self serving document R. C. R. No.62 of 2010 -9- Sri.Harish submitted that the response of the landlord to the interim orders which were passed by this Court in this revision in the context of the two buildings covered by Exts.B13 to B15 itself will show that the landlord wanted to suppress from this Court materials which will enable this Court to decide the crucial issue correctly. He drew our attention to the landlord's oral evidence and also to the affidavit which was filed before this Court by the landlord. He submitted that going by the oral evidence adduced by the landlord, the buildings covered by Exts.B13 to B15 are entrusted to the tenant orally whereas going by the affidavit the entrustment is covered by written document. He submitted that the two documents, the certified extracts of the Register maintained by the Corporation of Calicut R. C. R. No.62 of 2010 -10- pertaining to the buildings covered by Exts.B13B15 do not come within the purview of Section 26. The best evidence to show that the buildings covered by Exts.B13 to B15 are in the possession of tenants is either the lease deed or the tenants themselves. Even report by the Commissioner on the basis of a local inspection can be the better evidence than Ext.A3, according to Sri.Harish. Sri.Harish argued that even if the need is found to be bona fide, the RCP will entail rejection if the first proviso to sub Section 3 of Section 11 operates. Sri.Harish submitted that the findings of the Rent Control Court and the Appellate Authority in the context of the second limb of the second proviso are wrong. 6. All the submissions of Mr.Harish were very stiffly opposed by the learned counsel for the R. C. R. No.62 of 2010 -11- respondent Sri.Muhammed Ayoob. Mr. Ayoob would support the findings of the learned Appellate Authority. According to Mr. Ayoob, this Court is not expected to make a reappraisal of the evidence and substitute factual conclusions arrived at by the statutory appellate authority when those conclusions are not illegal, irregular or improper. 7. We have anxiously considered the rival submissions addressed at the Bar. We have scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court which was confirmed by the Appellate Authority. In any case for eviction on the ground of bona fide need under sub-section (3) of Section 11 the first point to be considered is whether the need projected by the landlord is bona fide. Having R. C. R. No.62 of 2010 -12- scanned the judgment of the Appellate Authority and made a quick survey of the evidence, we are of the considered view that the finding concurrently entered by the Rent Control Court and the Appellate Authority that the need projected is bona fide is entered on the basis of inspiring evidence adduced by the landlord. We don't find any justification for upsetting that finding. Same is the position regarding the tenant's eligibility for the protection of the second proviso to sub-section (3) of Section 11. The two ingredients of the second proviso are conjunctive and the finding concurrently entered by the statutory authorities that the tenant was unsuccessful in establishing that he is entitled to the protection of the second proviso, in our opinion is a reasonable finding founded on R. C. R. No.62 of 2010 -13- evidence. We notice that binding judicial precedents governing the point, such as the Full Bench decision of this Court in Francis v. Sreedevi Varassiar, 2003 (2) KLT 230 F.B. was kept in mind by the learned Appellate Authority while deciding this point. 8. However, we are unable to agree with the statutory authorities in their view that the rent control petition is not liable to fail by virtue of the first proviso to sub-section (3) of Section 11. The submissions of Mr.Harish addressed before us in the context of the first proviso to sub-section (3) of Section 11 were forceful. The landlord's response to the successive orders passed by us in this revision for production of relevant documents was also lukewarm. We however, do not propose to decide that question finally. We are inclined to R. C. R. No.62 of 2010 -14- direct the Rent Control Court to reconsider that question after affording opportunity to both sides. 9. The result is that the order of eviction passed under Section 11(2)(b) is confirmed. The revision petitioners are granted 30 days' time from today for getting that order vacated under Section 11(2)(c). The finding that the tenant does not satisfy the second proviso to Section 11(3) is confirmed. So also the finding that the need is bona fide is confirmed. The matter is remitted to the Rent Control Court, Kozhikode for reconsidering the question whether the RCP is liable to be rejected by virtue of the first proviso. Both sides will be given opportunity to adduce further evidence. Both sides should be given opportunity to raise pleadings. They will also be given opportunity to adduce evidence in the context of R. C. R. No.62 of 2010 -15- the first proviso to sub Section 3 of Section 11. The learned Rent Control Court will decide the issue afresh on the basis of the evidence already on record and the evidence which comes to be on record. Since the RCP is of the year, 2006 the learned Rent Control Court will expedite matters. We notice that the rent of Rs.600/- which is being presently paid by the tenant is far below the rent which the building may fetch if let out now. The building has a plinth area of 2200 sq. ft. The building is situated in Big Bazaar which is one of the most important commercial areas of the Kozhikode town. We therefore, are inclined to refix the rent to be paid by the revision petitioner with effect from 1[st] November, 2010 at Rs.2,000/per mensem. If either party is aggrieved they are free to move the Rent Control Court under Section R. C. R. No.62 of 2010 -16- 5. The fixation made by us is tentative. Parties will enter appearance before the Rent Control Court on 28/10/10. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns & ksv/-