M.P. Krishnan Achary v. T.S. Ajimon and T.N. Vijayan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 RCRev..No. 57 of 2011 ------------------------RCA.34/2008 of RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM RCOP.17/2007 of RENT CONTROL COURT, KOTTAYAM .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER ---------------------------------------------------------------- M.P. KRISHNAN ACHARY, PAINGONTTUPARAMBIL HOUSE, KUMARANELLOOR P.O., PERUMBAIKKADU VILLAGE, KOTTAYAM. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN SMT.NITA.N.S. RESPONDENT(S)/RESPONDENTS/PETITIONERS: ---------------------------------------------------- 1. T.S.AJIMON, S/O SREEDHARAN, THADATHIL HOUSE, GANDHI NAGAR P.O., MODIYOOR KARA, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK. 2. T.N.VIJAYAN, S/O NARAYANAN, THAKADIKALAYIL, PARAMBUZHA KARA, NOW RESIDING AT KOTTUNKUTHY HOUSE, THELLAKOM, PEROOR VILLAGE, KOTTAYAM TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------R. C. R. No.57 of 2011 -----------------------------------------------Dated this the 2[nd] day of February, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant, a traditional goldsmith who is conducting smithy works in the petition schedule premises is aggrieved by the orders of eviction concurrently passed by the statutory authorities under sub section 3 of Section 11. The respondents/landlords are two in number. First respondent is aged 39 and is presently working in a toddy shop. The second respondent is a retiree from the Kerala State Road Transport Corporation. They purchased petition schedule building jointly and as such are equal co-owners of the petition schedule building. They sought to evict the petitioner under sub Section 3 of Section 11. The need projected by them was that the income which the first R. C. R. No.57 of 2011 -2- respondent is getting from the toddy shop is meagre and not sufficient for supporting him and his family. Further case was that the pension which the second respondent is getting from KSRTC is also inadequate. Hence, the petitioners together have taken a decision to start a restaurant in the petition schedule building situated in a very important area of Kottayam Municipal town and hence, the revision petitioner/tenant is to be evicted for accomplishing their need. 2. The tenant would dispute the bona fides of the need. It was contended that the claim is projected only as a ruse for eviction. It was further contended that the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11. In the enquiry conducted by the Rent Control Court, the first respondent who is the first petitioner in the RCP was examined as PW1 and the Advocate Commissioner was examined as PW2. The R. C. R. No.57 of 2011 -3- documentary evidence on the side of the landlords consisted of Exts.A1 to A5 series. On the side of the tenant the same consisted of Exts.B1 to B7 series. Exts.C1 and C1(a) were report and sketch submitted by the Commissioner and Ext.X1 was the vacancy register produced by the Accommodation Controller. The oral evidence on the side of the tenant consisted of RWs.1 to 4. The Rent Control Court on appreciating the evidence came to the conclusion that the need projected by the landlords is bona fide. It was also concluded by that court that the tenant was unsuccessful in showing that he is entitled for the protection of the second proviso. Accordingly, order of eviction was passed under Section 11(3). 3. The Rent Control Appellate Authority considered an appeal preferred by the revision petitioner/tenant. That Authority re-appraised the evidence and concurred with all the findings of the Rent Control Court. Accordingly, the R. C. R. No.57 of 2011 -4- appeal was dismissed confirming the order of eviction passed under Section 11(3). 4. In this revision under Section 20, various grounds are raised assailing the judgment of the Appellate Authority. The learned counsel for the revision petitioner addressed very strenuous arguments on the basis of various grounds raised in the memorandum of revision. She submitted that the non-examination of the second respondent (second petitioner in the RCP) is fatal to the landlords' case. Bona fides of a claim under sub Section 3 of Section 11 is a state of mind which can be manifested only by the person who is harbouring the need. In the instant case, only the first petitioner in the RCP was examined. At best, he was able to manifest the bona fides of his need, but he has not manifested and will not manifest the bona fides of the need of the second respondent. Due to the non-examination of the second respondent herein, the bona fides of that R. C. R. No.57 of 2011 -5- respondent only stands unestablished. The learned counsel would read over to us the judgment of the Rent Control Appellate Authority wherein this argument was considered by that authority and submit that the finding entered by that authority in favour of the landlords is not satisfactory. The learned counsel would argue that, at any rate, the finding entered by the authorities below regarding the tenant's eligibility for protection of the second proviso to sub Section 3 of Section 11 is unsatisfactory. The revision petitioner is a traditional goldsmith who is following certain special methods for making gold and silver ornaments. For the purpose of making gold and silver ornaments, several facilities have been arranged in the petition schedule building. It will be difficult for the petitioner to arrange the same facilities in another building. The landlord had no case that the tenant has any source of income other than the smithy works conducted in the petition schedule building. R. C. R. No.57 of 2011 -6- Therefore, the first limb of the second proviso to sub Section 3 of Section 11 sould have been answered only in favour of the tenant. As for the second limb, the vacancy register Ext.X1 will show that no buildings have fallen vacant in the locality. Hence, the second limb also could have been answered in favour of the tenant. The judgment of the Appellate Authority is tainted by illegalities, irregularities and improprieties warranting interference in revision, so submitted the learned counsel for the revision petitioner. 5. We have very anxiously considered the submissions of the learned counsel for the revision petitioner. As directed by us, the learned counsel placed before us copies of the Rent Control Petition, the statement of objections filed by the tenant as well as the testimony of PW1, the 1[st] respondent. We have gone through each one of them meticulously. We have scanned the judgment of the Appellate Authority as well as the order of the Rent Control R. C. R. No.57 of 2011 -7- Court. 6. The question that arises before us for decision is whether the judgment of the Appellate Authority, which under the scheme of the Rent Control Act is the final court on facts, is vitiated to the extent of warranting interference within the contours of this Court's jurisdiction under Section 20 of Act 2 of 1965. It is our considered view that the above question can be answered only in favour of the respondents and against the revision petitioner. We shall first deal with the argument that the claim under Section 11(3) is not established as the second respondent (second petitioner in the RCP) has not mounted the box for giving oral evidence. A reading of the Rent Control Petition will show that the need which is projected under Section 11(3) is one common need of both the petitioners in the RCP. It will be seen on a reading of the statement of objections filed by the revision petitioner/tenant that he has understood the need as a need R. C. R. No.57 of 2011 -8- shared by both his landlords and it is the bona fides of that need that he has disputed through his statement of objections. Nowhere in the statement of objections it is suggested even that these are two separate needs which require to be established separately. The affidavit submitted by PW1 in lieu of chief examination will show that PW1 gave evidence not on his behalf alone but also on behalf of the second petitioner in the RCP, his co-petitioner and his co-proprietor or partner of the proposed business/ restaurant. In cross examination also PW1 has maintained his position that he was giving evidence in support of the need which was shared by him and his co-petitioner. PW1 was cross examined thoroughly. Even though one question is asked as to whether there is any difficulty for the second petitioner in the RCP to come to the court and give evidence by himself, it is seen that there was serious cross examination regarding the genuineness of the need and -9- R. C. R. No.57 of 2011 there is no suggestion in cross examination that there are two different needs harboured by the two petitioners in the RCP. Most importantly, there is no suggestion in pleadings or in evidence that the two petitioners in the RCP have mutually conflicting interests either over the subject matter of the RCP, the building or in respect of the business which is proposed to be conducted by them. It is certainly correct to say that the bona fides of a claim under sub Section 3 of Section 11 is a state of mind which can be manifested best by the person harbouring the state of mind. But according to us, in this case when two landlords come to the court with a case that they share a common need to start a business together in a building belonging to them jointly and the tenant also understands and recognizes the need projected by them as one need shared by them jointly it will suffice that the bona fides of the need is manifested by any one of them. It is clear to our mind that the evidence of PW1 has R. C. R. No.57 of 2011 -10- manifested not only the bona fides of the need harboured in his mind, but also in the mind of his co-petitioner, the second respondent herein. We do not find any infirmity about the concurrent findings entered by the two statutory authorities in the above regard. 7. Now we shall deal with the arguments of the learned counsel in the context of the second priviso to sub Section 3 of Section 11. As already indicated, the finding that the tenant has not established that he is not entitled for the protection of the second proviso is concurrently entered on the basis of the evidence adduced by the parties. It is trite by various decision including that of Full Bench of this Court in _Francis v. Sreedevi Varassiar (2003(2) KLT 230)_ that the burden in the context of the second proviso to sub Section 3 of Section 11 is that of the tenant. It is also trite that both the ingredients of the second proviso are conjunctive and that unless both the ingredients are satisfied, the tenant will R. C. R. No.57 of 2011 -11- not get the benefit of the proviso. Coming to the first ingredient, we find that the tenant has produced documentary evidence which will show as to what is the income that he derives from the petition schedule building. But the tenant's oral evidence is to the effect that he is an income tax assessee and is regularly paying income tax to the Department of Income Tax. As rightly noticed by the statutory authorities, the documents produced by the tenant in respect of his activities in the petition schedule building does not reveal any taxable income. Thus, by his own oral evidence it has come out that the tenant is having other income. In the absence of evidence as to the extent of the other income it is to be found that the tenant has not established that he is depending mainly for his sustenance on the income from the petition schedule building. 8. It is true that the vacancy register Ext.X1 does not reveal any vacancy in the locality of the petition schedule R. C. R. No.57 of 2011 -12- building. But it is notorious that vacancy registers are not seriously maintained by Accommodation Controllers. RW1 was unable to deny the suggestion that new buildings are emerging in and around Kottayam town. To the finding of the statutory authorities that the tenant was unsuccessful in showing that other buildings are not available in the locality is also founded on evidence and we do not find any illegality, irregularity or impropriety. 9. As a last plea, the learned counsel for the revision petitioner requested for granting at least one and a half year's time more to surrender the premises. According to the learned counsel, the petitioner has reached the twilight stage of his life and he may be permitted to continue in the building for at least 18 months more. Though the submission of the learned counsel was fervent, we do not think that we will be justified in granting so much time. We feel that the maximum time that can be granted without R. C. R. No.57 of 2011 -13- notice to the respondent is 11 months i.e. till 31/12/11 and we are inclined to grant so much of time. 10. The result of the above discussion is that the RCR is dismissed confirming the order of eviction. The execution court is directed to keep in abeyance proceedings for delivery till 31/12/11 subject to the following conditions:- 11. The revision petitioner will file an affidavit before the execution court or the Rent Control Court as the case may be within three weeks from today undertaking to give peaceful surrender of the building to the respondent on or before 31/12/11 and undertaking further to discharge arrears of rent, if any due within one month from today and to pay occupational charges at the current rent rate of Rs.700/- without fail. 12. We make it clear that the revision petitioner will get the benefit of time granted as above only if the affidavit as directed above is filed and the undertakings contained R. C. R. No.57 of 2011 -14- therein are honoured. 13. The learned counsel for the revision petitioner would now make a last submission that a sum of Rs.25,000/- was paid to the respondents as advance/ security deposit against receipt at the time of entrustment of the building and that the said amount should be ordered to be refunded. The execution court will consider this aspect of the matter before ordering delivery. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- **The figure “Rs.25,000/-” occurring in the last paragraph of the final order dated 02/02/2011 in R.C.R. 57/2011 is corrected and substituted with “Rs.75,000/- (Rupees seventy five thousand only)”, as per order dated 24/02/2011 in I.A.459/2011 in R.C.R.57/2011.** ## **Registrar (Judicial)** R. C. R. No.57 of 2011 -15-