Lakshmikutty, Sasidharan, Damodharan and Sreedevi v. K. Gopinath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE V.CHITAMBARESH THURSDAY, THE 5TH DAY OF JANUARY 2012/15TH POUSHA 1933 RCR.No. 278 of 2011 ( ) ======================= RCA.45/2008 of D.C. & SESSIONS COURT,THRISSUR RCP.83/2006 of PRL.MUNSIFF COURT,THRISSUR REVISION PETITIONER(S)/REV.PETITIONER/RESPONDENTS. ===================== 1 LAKSHMIKUTTY, KUNNAMBATH, NELLANKARA DESOM NETTISSERY VILLAGE THRISSUR TALUK 680 651. 2 SASIDHARAN,KUNNAMBATH, NELLANKARA DESOM NETTISSERY VILLAGE THRISSUR TALUK PIN-680 651. 3 DAMODHARAN,KUNNAMBATH, NELLANKARA DESOM NETTISSERY VILLAGE THRISSUR TALUK PIN-680 651. 4 SREEDEVI,KUNNAMBATH, NELLANKARA DESOM NETTISSERY VILLAGE THRISSUR TALUK PIN-680 651. BY ADV.SRI.G.UNNIKRISHNAN RESPONDENT(S)/APPELLANT/PETITIONER. ============== K.GOPINATH, KRUMUDI HOUSE, NELLANKARA DESOM NETTISSERY VILLAGE THRISURR-680 651. BY ADV.SRI.K.M.SATHYANATHA MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05-01-2012 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & V.CHITAMBARESH, JJ.** ------------------------------- ## **R.C.R.No.278 of 2011** ------------------------------- ## **Dated this the 5[th] day of January, 2012** ## **O R D E R** ## Pius.C.Kuriakose, J. Under challenge in this revision filed by the tenants is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court against them on the ground under sub-section (3) of Section 11of the Kerala Buildings (Lease & Rent Control) Act (hereafter referred to as 'the Act' for short). At the time of institution of Rent Control Petition, the petition scheduled building was not an independent one. It was a portion of a larger building, the other portions of which belonged to other owners and were occupied by other persons. The need projected by the respondent-landlord was that he wants to demolish the petition scheduled building so that he can put up a residential building for himself. 2. The tenants disputed the bonafides of the need and contended that they are entitled to the protection of the second proviso to sub-section (3) of Section 11 of the Act. The Rent Control Court conducted an enquiry and the evidence consisted of R.C.R.No.278 of 2011 2 Exts.A1 to A12, PWs.1 and 2, Exts.B1 and B2 and also Rws.1 to 3, apart from the Commissioner's report, Ext.C1. On evaluating the evidence, the learned Rent Control Court came to the conclusion that the need projected by the landlord is not bonafide. To arrive at such a conclusion, the learned Rent Control Court took into account the fact that the construction of a residential building in place of the petition scheduled building was not technically possible without endangering other portions of the larger building. Coming to the question whether the tenants are entitled to the protection of the second proviso to sub-section (3) of Section 11 of the Act, the Rent Control Court found that the first limb of the second proviso is satisfied in favour of the tenants. However, it was found that the second limb, i.e., the availability of suitable buildings, has not been satisfied. In that view of the matter, it was held that the tenants are not entitled to the protection of the second proviso to subsection (3) of Section 11 of the Act. However, in view of the finding that the need projected by the landlord is not bonafide, the Rent Control Petition was dismissed. R.C.R.No.278 of 2011 3 3. The Rent Control Appellate Authority considered the appeal filed by the landlord and has passed the impugned judgment ordering eviction on the ground under Section 11(3) of the Act. The Rent Control Appellate Authority found on the basis of Ext.C2 report submitted by the Commissioner appointed by the appellate authority that the other portions of the larger building had already been demolished and there was no technical difficulty in carrying out the reconstruction of the petition scheduled building. The Appellate Authority on reappraisal of the evidence also come to the conclusion that the tenants were unsuccessful in showing that the income from the business carried on in the petition scheduled building is the income upon which they depend mainly for their sustenance. Accordingly, the appeal was allowed and the order of eviction was passed. 4. In this revision filed under Section 20 of the Act, various grounds are raised assailing the judgment of the appellate authority. Sri.G.Unnikrishnan, learned counsel appearing for the tenants addressed us on the basis of those R.C.R.No.278 of 2011 4 grounds. Mr.Unnikrishnan submitted that the action of the learned Appellate Authority in relying on Ext.C2 report of the Commissioner is illegal, irregular and improper. According to him, all cases are to be decided on the basis of the state of affairs which existed at the time of commencement of the lease. He also submitted that the Commission was issued by the appellate authority for the purpose of reporting as to the subsequent event of the adjacent portions of the larger building being demolished and removed. The report given by that Commissioner regarding the activities carried on in the petition scheduled building were extraneous matters and should not have been relied on. Counsel further submitted that at any rate, the Rent Control Appellate Authority should have found that the tenants are entitled for the protection of the second proviso to sub-section (3) of Section 11 of the Act. 5. Sri.K.M.Sathyanatha Menon, learned counsel appearing for the respondent-landlord however would support the impugned judgment. He reminded us of the attenuated nature of the jurisdiction under Section 20 of the Act. He R.C.R.No.278 of 2011 5 submitted that under the statutory scheme, final Court of facts is the Rent Control Appellate Authority and this Court is not expected to upset the factual findings arrived at by the Appellate Authority when they are reasonable and founded on evidence. 6. We have given our anxious consideration of the rival submissions addressed at the Bar. We have gone through the order of the Rent Control Court and we have scanned the judgment of the Appellate Authority. We remind ourselves of the attenuated nature of the jurisdiction under Section 20 of the Act. It is decided by a long line of decisions including **Pasupuleti Venkateswarlu v. Motor and General Traders** (AIR 1975 SC 1409) that subsequent events which have got a fundamental impact on the right of the landlord to obtain eviction or the liability of the tenants to suffer eviction can be noticed and relied on by the fact finding authorities under the Statute. In the instant case, the bonafides of the need projected was disputed mainly on a technical reason that as the building in question is not a separate building and is part of the larger R.C.R.No.278 of 2011 6 building, reconstructing the petition scheduled building will endanger the other portions of the larger building. The Commissioner appointed by the Appellate Authority in Ext.C2 report has very clearly reported that at the time of his inspection, the subject building was standing as an independent building and the other portions of the larger building having already been demolished. According to us, there is illegality or infirmity in the learned Appellate Authority having relied on Ext.C2 report. 7. Now we come to the question whether the tenants are entitled for the protection of the second proviso to subsection (3) of Section 11 of the Act. We do find some force in the submission of Mr.G.Unnikrishnan that the report in Ext.C2 that the tenants are not conducting tea shop business seriously in the petition scheduled building was extraneous and beyond the scope of the warrant that had been given to the Commissioner and should not have been relied on for entering a finding on a vital aspect as to whether the tenants are depending the income derived from the tea shop mainly for R.C.R.No.278 of 2011 7 their livelihood. But according to us, the finding in favour of the tenants, i.e., the first limb of second proviso to sub-section (3) of Section 11 of the Act cannot be sustained for reasons other than those entered by the Rent Control Court and the Appellate Authority. It is claimed that revision petitioners are conducting tea shop business and that they are depending mainly on the income derived from the tea shop for their livelihood. The learned Rent Control Court decided the first limb in favour of the tenants for the reason that the landlord has not adduced any evidence to show that the tenants are deriving income from any other sources than the tea shop business. Even assuming that the landlord has not adduced evidence to show that the tenants are having other business, the burden of proof being what it is, it was the tenants burden to adduce evidence and prove that the income which they derive from the tea shop business is large enough to sustain them. On an aspect which is capable of documentary evidence, in the absence of any documentary evidence, it has to be held that the tenants are unsuccessful in showing the first limb of second proviso to sub-section (3) of R.C.R.No.278 of 2011 8 Section 11 of the Act. Coming to the second limb, we find that it is on appreciating the evidence adduced by RWs. 1 to 3 on the side of the tenants that a finding against the tenant has been rendered by the two authorities. There is no illegality, irregularity or impropriety in the judgment of the learned Appellate Authority. In the light of the above discussion, the Rent Control Revision is only to be dismissed. We dismiss the same. 8. When our decision was made known to Mr.G.Unnikrishnan, learned counsel for the revision petitionerstenants, he requested for nine months time to surrender the vacant possession. This request is opposed very stiffly by the learned counsel for the landlord stating that the revision petitioners are not conducting any business in the petition scheduled building. Notwithstanding the said opposition, we feel that the revision petitioners can be granted 9 months time from today, i.e., till 30.10.2012 subject to the following conditions:- (i) The revision petitioners-tenants shall pay occupational charges to the respondent-landlord with R.C.R.No.278 of 2011 9 effect from 1.2.2012 till they surrender the building, at the rate of Rs.300/- per mensem. (ii) The revision petitioners-tenants shall file an affidavit before the Execution Court or Rent Control Court, as the case may be, undertaking to give peaceful surrender of the vacant possession of the building to the respondent on or before 30.10.2012. The affidavit as directed above shall be filed within three weeks from today. 9. However, we make it clear that the revision petitioners-tenants will get the benefit of time allowed as above only if they files affidavit as stated above and honours the undertakings therein. **PIUS C. KURIAKOSE, Judge** . **V.CHITAMBARESH, Judge.** **nj.**