M. Ayyappan v. Sunil, Satheesh, Vikraman Pillai and Navas

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 -----------------------------RCA.17/2008 of III ADDL. RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.7/2006 of PRL. RENT CONTROLLER, KOLLAM .................... ## REVISION PETITIONER/APPELLANT/PETITIONER M.AYYAPPAN,S/O.MADASWAMY ACHARI,AGED 48, AYYAPPA BHAVAN,M.G NAGAR, HOUSE NO.146, KUREEPUZHA,KAVANADU POST,KOLLAM. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) 1. SUNIL,S/O.ANANTHAKRISHNAN, - NADAKKAVILKIZHAKKATHIL,VAYALIL VEEDU, - THEKKEVILA CHERRY,ERAVIPURAM P.O,KOLLAM.-691011 2. SATHEESH,S/O.AYYAPPAN,POCHAPPALLY LANE, THAMARAKULAM WARD,THAMARAKULAM,KOLLAM.-690530 3. VIKRAMAN PILLAI,S/O.KUNJU PILLAI, CHEMPAKKATTU VEEDU,ARUNOOTTULMANGALAM, MANGAD VILLAGE,KOLLAM.-691015 4. NAVAS,S/O.ALIYARU KUNJU,N.S.JEWELLERY VADAYATTUKOTTA,KOLLAM.-691010 - ADV. SMT.K.G.BINDU FOR R1 TO 3 - SMT.T.S.MAYA (THIYADIL) FOR R1 TO 3 SRI.N.SASIDHARAN UNNITHAN FOR R4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30/11/2011,THE COURT ON THE SAME DAY PASSED THE PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ R. C. R. No.164 of 2011 -----------------------------------------------Dated this the 30[th] day of November, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ The landlord is the revision petitioner. He is aggrieved by the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court declining the eviction which was sought by him on the ground under sub Section 3 of Section 11. The need projected by him was that he is presently conducting Goldsmithy works in a building belonging to one Balakrishnan Nair and he wants to shift his business over to the 4 rooms which are subject matter of the Rent Control Petition as Sri.Balakrishnan Nair is compelling him to vacate the building where he is conducting business. The bona fides of the need was disputed by the tenant who claimed the protection of the second proviso to sub section 3 of Section 11. On evaluating the evidence, the Rent Control Court found that the need is R. C. R. No.164 of 2011 -2- not bona fide. It was however found that the tenants were unsuccessful in proving that they are entitled to the protection of the second proviso and accordingly, the Rent Control Court dismissed the RCP. The revision petitioner carried the matter in appeal to the Appellate Authority. The Appellate Authority has not only confirmed the finding of the Rent Control Court in the context of the bona fides of the need but has gone to the extent of finding that the tenants are entitled to the protection of the second proviso. 2. In this revision under Section 20 various grounds are raised challenging the judgment of the Appellate Authority. The learned counsel requested that the matter be remanded to the Rent Control Court so that the revision petitioner can adduce evidence in the form of a Commission Report as to the relative areas occupied by the respondent/tenant and also by himself in Blakrishnan Nair's building. He submitted that the findings concurrently though they may be regarding the bona fide need are illegal, irregular and improper. Even in the absence of any compulsion from Sri.Balakrishnan Nair R. C. R. No.164 of 2011 -3- it was quite natural on the part of the landlord/revision petitioner to have felt in terms of conducting business in his own building rather than in Balakrishnan Nair's building. The finding of the Appellate Authority in the context of the second proviso is contrary to the principles laid down by the Full Bench of this Court in _Francis v. Sreedevi Varassiar (2003(2) KLT 230)_ and by the Supreme Court in _Kunhamma v. Akkali Purushothaman (2007(3) KLT 99)_ . Smt.K.G.Bindu per contra submitted that even in the memorandum of appeal there was no request by the appellant that the matter should be remanded for enabling the landlord to take out a commission. If opportunity is given at this stage to the landlord for filling up the lacuna in evidence prejudice will be occasioned to the tenants. She reminded us of the attenuated nature of our jurisdiction under Section 20 and submitted that within the contours of that jurisdiction, there is no justification for interfering with the judgment of the Appellate Authority which under the statutory scheme is the final court on facts. R. C. R. No.164 of 2011 -4- 3. During the course of his submissions the learned counsel for the revision petitioner submitted that the monthly rent of ` 300/- being payable by the respondents is ridiculously low and even rent at that rate is not paid by the revision petitioners. 4. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully gone through the judgment of the Appellate Authority as well as the order of the Rent Control Court. This is a case where the Rent Control Court and the Appellate Authority found concurrently that the need projected by the landlord is not bona fide. We find that the above finding is entered by the two authorities on appreciation of evidence adduced by the parties. According to us, within the scope of the revisional jurisdiction under Section 20 there is no warrant for interference with that finding. May be with better pleadings and more evidence it would have been possible for the landlord to prove that the need projected by him in the RCP was bona fide. But we are not inclined to afford opportunity R. C. R. No.164 of 2011 -5- to the revision petitioner for filling up the lacuna in the evidence. We feel that with the present pleadings it may not be possible for the landlord to prove that he requires possession of all the four rooms which are subject matter of the Rent Control Petitions. We therefore, are not inclined to interfere with the findings concurrently entered by the two authorities that the need is not bona fide. 5. Coming to the finding of the Appellate Authority in the context of the second proviso to sub Section 3 of Section 11, we are afraid that the learned Appellate Authority did not keep in mind the principle laid down by a Full Bench of this Court in _Francis v. Sreedevi Varassiar (2003(2) KLT 230),_ regarding the burden of proof, we will only say that the above finding is unsatisfactory. But we are not inclined to set aside that finding in this revision. 6. We find considerable force in the submission of the learned counsel for the revision petitioner that the rent payable by the respondent presently at the rate of ` 300/per mensem is far below the fair rent which the building may R. C. R. No.164 of 2011 -6- fetch. We are therefore inclined to re-fix the rent subject to right of either parties to move the Rent Control Court for regular fixation of fair rent under Section 5. 7. The result of the above discussion is therefore as follows:- The order of the statutory authority declining eviction under Section 11(3) is confirmed. But we permit the petitioner to file fresh Rent Control Petition seeking eviction of all or some of the respondents with better pleadings. If the revision petitioner files a fresh Rent Control Petition pursuant to this judgment the Rent Control Court which comes to be in seizin of that Rent Control Petition will expedite matters and try to dispose of the above Rent Control Petition if possible within the statutory time frame of four months fixed under Section 24. The Rent Control Court will not be influenced by the findings entered by the Appellate Authority and by the Rent Control Court in the present RCP while taking decision in the prospective Rent Control Petition. The prospective Rent Control Petition will be R. C. R. No.164 of 2011 -7- decided on its merits on the basis of the pleadings raised by the parties and the evidence adduced by them. 8. We re-fix the rent payable by the respondents at ` 900/- each. We make it clear that this re-fixation is tentative and if either the landlord or the tenant is aggrieved it is open to them to move the Rent Control Court for regular fixation of fair rent under Section 5 of Act 2 of 1965. Till fair rent is regularly fixed each of the respondent shall pay rent to the revision petitioner at the rate of ` 900/- per mensem with effect from 01/01/12. Sd/PIUS C. KURIAKOSE JUDGE Sd/K. HARILAL JUDGE kns/- //True Copy// P. A. TO JUDGE R. C. R. No.164 of 2011 -8-