M.S.M. Kasim v. A. Sadique

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 RCRev..No. 316 of 2006() -----------------------RCA.79/1999 of II RENT CONTROL APPELLATE AUTHROITY TRIVANDRUM RCP.44/1998 of RENT CONTROL COURT ,TRIVANDRUM .................... ## REVISION PETITIONER/APPELLANT/PETITIONER ------------------------------------------------------------ M.S.M.KASIM, BARKATH, T.C.NO.20/1150, KARAMANA, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): COUNTER PETITIONER --------------------------------- A.SADIQUE, T.C./38/841, CHENTHITTA WARD, THIRUVANANTHAPURAM. ADV. SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------R.C.R.No. 316 OF 2006 ------------------------** Dated this the 1st day of July, 2010 ## **O R D E R** Pius C.Kuriakose, J. The landlord is the revision petitioner. He sought to evict the respondent tenant on the ground of arrears of rent and ground under Section 11(3). It is conceded by both sides that we in this revision need not be concerned with the ground for eviction under Section 11(2)(b). 2. The need projected by the landlord in the context of the ground under Section 11(3) was that the building in question is needed bonafide by him for accommodating his son Zahir, who, according to him, was without any employment or avocation for life. The tenant through his statement of objections disputed the bonafides of the need. He also contended that the landlord at the time of filing the Rent Control Petition was possessing other buildings in the city, town or village and hence the need of the landlord is not bonafide. The above contention was construed by the Rent Control Court and also by the Rent Control Appellate RCR.No.316/2006 -2- Authority as a contention under which the tenant was taking protection under the first proviso to Section 11(3). The tenant further contended that he is entitled to the protection of second proviso to Section 11(3) as according to him the income derived from the business carried on by him in the building in question was his main source of livelihood and since other buildings are not available. 3. The evidence before the Rent Control Court consisted of the oral evidence of PW1 the dependent son the defacto claimant and that of the landlord PW2 as against which there was oral evidence of tenant, who was examined as RW1. The documentary evidence on the side of the landlord consisted of Ext.A1 to A5 as against Ext.B1 on the side of the tenant. The Rent Control Court on appreciating the evidence came to the conclusion that the need projected by the landlord in the Rent Control Petition is not bonafide. It was also concluded that the tenant is entitled to the protection of the second proviso to Section 11(3) (though not in so many words). This conclusion was arrived at assuming that the burden to establish that the tenant satisfies the two ingredients of second proviso is on the RCR.No.316/2006 -3- landlord. The Rent Control Court however, did not enter any specific finding as to whether the RCP was liable to fail by virtue of the first proviso to Section 11(3). in the light of the other findings the RCP was dismissed. The Appellate Authority would come to the conclusion that the tenant was unsuccessful in proving that as alleged by him PW1 the defacto claimant was having some other business of his own and also that “there is nothing on record to disbelieve the bonafide of the need put forward by the petitioner”. Thus, the Appellate Authority actually concluded that the need projected by the landlord under Section 11(3) is a bonafide one. However, considering the operation of the first proviso to Section 11(3) the learned Appellate Authority would observe as follows: “When there is admission to the effect that the tenant at the shop rooms was evicted through court, and when there is admission by PW1 to the effect that there are 4 shop rooms therein and also the evidence of CPW1 that shop building No.TC38/842 and 843 are in the vacant possession of the petitioner himself, materials are to be scrutinized very carefully.” RCR.No.316/2006 -4- Learned Appellate Authority would thereafter refer to the evidence of PWs 1 and 2 in cross-examination and conclude as follows: “Thus it can be seen that when the case is filed the petitioner or under his command was having shop rooms. It is true that in Section 11(3) first proviso applicable if only the landlord has in the possession of building in the same city, town or village.” The Appellate Authority would leave the issue of first proviso there and go on to consider the tenant's entitlement to the protection to second proviso observing immediately thereafter as follows: “But all the attending circumstances has to be kept in mind while considering at least the second proviso.” The Appellate Authority would then consider the oral evidence of the parties, particularly the oral evidence of CPW1 the tenant, and concluded that there is nothing to disbelieve CPW1 in this regard. On the basis of that conclusion the Appellate Authority would specifically find that the tenant is entitled for the protection of the second proviso to Section 11(3) of the Rent RCR.No.316/2006 -5- Control Act. Resultantly the Appellate Authority would dismiss the RCA preferred by the landlord. 4. In this revision filed under Section 20 the landlord has raised various grounds assailing the judgment of the Appellate Authority. It is urged that the burden of proof in the context of the second proviso to Section 11(3) has been wrongly cast by the Appellate Authority on the landlord, that binding judicial precedents governing that aspect of the matter has been ignored by the Appellate Authority; it is urged that the observation by the Appellate Authority that the landlord has admitted that he has in his possession other vacant buildings at the time of commencement of the litigation is wrong and it is also urged that the finding of the Appellate Authority that the tenant is entitled to the protection of the second proviso is clearly erroneous. On the basis of these grounds it is prayed that the finding of the Appellate Authority in the context of the second proviso be reversed and an order of eviction be passed under Section 11(3). 5. Sri.G.S.Reghunath, learned counsel for the revision petitioner would address strenuous and extensive arguments before us. The learned counsel drew our attention to the RCR.No.316/2006 -6- judgment of the Full Bench in **Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (F.B)** and submitted that it is trite by that judgment and by various other judgments of this court and the Supreme Court that the ingredients of the second proviso are in the conjunctive and the burden to establish that a particular tenant satisfies both the ingredients is on the tenant himself. Inasmuch as the findings by the Appellate Authority that tenant is entitled to the protection of the second proviso has been rendered ignoring the law as settled by binding judicial precedents including Full Bench Judgment in **Francis v. Sreedevi Varassiar** (cited supra) the above finding is to be vacated, according to the learned counsel. Learned counsel would submit that the observation of the Appellate Authority that there is admission by the landlord and his son that other vacant buildings belonging to them were available with them at the time of institution of RCP is contrary to the evidence on record. According to him, in spite of that observation of the Appellate Authority has not entered a specific finding in the context of the first proviso to Section 11(3). 6. Per contra, Sri.Liju Stephen, learned counsel for the RCR.No.316/2006 -7- respondent/tenant would defend the impugned judgment very strongly. According to him, even in cases where the Court finds that the need projected by the landlord is bona fide, unless the landlord is able to surmount the two provisos of sub section(3) of Section 11, the RCP is liable to be dismissed. Reading over to us certain portions in testimonies of PWs 1 and 2, wherein those witnesses admitted that two or three buildings were got evicted (point of time of getting eviction not stated), counsel submitted that the observation of the learned Appellate Authority, to which exception is taken by Sri.G.S.Raghunath, is very correct. The learned counsel would defend the finding of the Appellate Authority, that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11, even more forcefully. The counsel submitted that there was no cross examination and much less effective cross examination on the version of RW1 in chief examination that he and his family are depending solely on the income they derived from the business carried on by them in the petition schedule building and on the further version that other suitable buildings are not available in the locality. The learned counsel would place strong reliance on RCR.No.316/2006 -8- the judgment of a Division Bench of this court in Sadanandan v. Kunheen (1991 (2) KLT 628) in support of the proposition that when there is no effective cross examination, it can be taken that what was deposed to by a witness has been proved. The learned counsel relied on the judgment of this Court in Thomas v. Joseph (1986 KLT 392,) and the judgments of the Supreme Court in M.M.Quasim v. Manohar Lal Sharma and others ( AIR 1981 SC 1113) and Sudama Prasad v. Ashok Kumar (2007 (15) Supreme Court cases 554) for various propositions canvassed by him. 7. We have very anxiously considered the the rival submissions addressed at the Bar. We have gone through the impugned judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court which was confirmed by the Appellate Authority. We have also taken due note of the evidence particularly those items of evidence to which our attention was drawn by the learned counsel for the parties. This Court under Section 20 of Act 2 of 1965, which is a revisional jurisdiction, is concerned essentially with the legality, regularity and propriety of the findings entered and decision taken by the Rent Control Appellate Authority which under the statutory RCR.No.316/2006 -9- scheme is the final fact finding Authority. As already stated, the significant aspect of the decision of the Appellate Authority in deviation from the decision of the Rent Control Court is that the Appellate Authority has found on appreciating the evidence that the need projected by the landlord which is for accommodating his depending son who was examined as PW1 is a bona fide. This finding is not challenged by the respondent by a separate revision or even by filing a memorandum of cross objection. In his submissions also the learned counsel for the respondent did not make any serious endeavour to assail the above finding. His endeavour rather was to support the decision of the Appellate Authority rendered in the context of the first and second provisos to sub section (3) of Section 11. We are therefore of the view that our enquiry in this revision need only be confined to the question whether the decision of the Appellate Authority that the Rent Control Petition is liable to fail by virtue of the first and second provisos of sub section (3) of Section 11 is illegal irregular and improper. 8. We shall refer to the pleadings raised by the tenant. The tenant has certainly raised specific pleadings claiming RCR.No.316/2006 -10- protection of the second proviso to sub section (3) of Section 11. But, as far as the first proviso to sub section (3) of Section 11 is concerned, what is pleaded is only that the landlord has several other buildings in the landlord's possession for accomplishing the projected need. It is not pleaded that the other buildings allegedly possessed by the landlord belong to the landlord. If we are construe the pleadings strictly, it will have to be held that no proper pleadings are raised by the tenant claiming the protection of the first proviso to sub section (3) of Section 11. However, it is seen from the order of the Rent Control Court and the Judgment of the Appellate Authority that both the authorities and even the parties including the landlord construed the pleadings raised by the respondent as pleadings claiming protection of the first proviso to sub section (3) of Section 11. We are, therefore, of the view that the pleadings raised by the respondent can be liberally construed as pleadings claiming protection of the first proviso to sub section (3) of Section 11. The question that arises now is whether the first proviso does operate in favour of the tenant in this case. The Appellate Authority held that if does operate saying that it was admitted RCR.No.316/2006 -11- by the landlord and the sons PW1 and 2 in evidence that other buildings are in their possession and in view of that admission, it was for the landlord to establish special reasons. We have gone through the evidence of PWs 1 and 2 in full. We did not notice any unqualified admission from the mouth of either PW1 or PW2 to the effect that the landlord was having in the landlord's possession other buildings belonging to the landlord at the time of commencement of the RCP. At best it can be stated that it is admitted that at some point of time two or three rooms are got vacated by the landlord by initiating proceedings against the tenants in occupation of those rooms. The pertinent question is whether at the time when the RCP was instituted, the landlord was having vacant possession of the landlord's own building in the same city, town or village. It is clear to our mind that the evidence on record falls short of holding as the Appellate Authority and the Rent Control Court did that the landlord had vacant possession of his own buildings at that time. Therefore, the findings of the Appellate Authority to the extent it is rendered on a assumed admission made by the landlord and his son is improper and irregular. That finding necessarily has to be RCR.No.316/2006 -12- vacated. But, we feel that if both sides are given opportunity on this vital aspect, they may be in a position to adduce evidence and convince the Court regarding the correct decision to be taken on this question. 9.Now we shall deal with the correctness of the findings entered by the Appellate Authority and the Rent Control Court in the context of the second proviso to sub section(3) of Section 11. Even though Sri.G.S.Reghunath argued before us by referring to the cross examination of RW1 that even his version that he is depending mainly on the income derived from the business carried on in the building has been challenged, we are in agreement with the learned counsel for the respondent that as regards the first ingredient of the second proviso, there is no effective challenge in cross examination. But we are unable to agree with the learned counsel for the respondent that there is no challenge regarding RW1's version about the second ingredient of the second proviso to sub section 3 of section 11. We notice that even in chief examination RW1 did not say that other suitable buildings are not available in the locality for him to shift the business. In stead, what was stated was only that in RCR.No.316/2006 -13- proximity to the building in question other buildings are not remaining vacant. “Locality” as envisaged by second proviso to sub section 3 of Section 11 does not mean the immediate proximate area of the building in question. It means a larger local area. Now coming to cross examination, we find that questions have been asked disputing the correctness of what was stated by RW1 in chief and also suggesting that there is much demand for buildings thereby indicating that there is some supply also. It is trite by various decisions including the judgment of the Full Bench in Francis v. Sreedevi Varassiar(cited supra) that the burden to establish that tenant satisfies both the ingredients of the second proviso is that of the tenant. When law cast burden of proving a particular fact in issue on a particular person, the law expect him to prove that fact in issue by adducing the best evidence. We are of the view that whether or not other suitable buildings are available in the locality is an aspect of capable of being proved by evidence of better quality than mere ipse dixit of parties. At any rate, it is very clear to our mind that the learned Appellate Authority and for that matter, the Rent Control Court were not at all mindful of the various RCR.No.316/2006 -14- decisions of this Court starting from Kochappan Pillai v. Chellapan (1976 KLT 1) taking the view that the burden to establish that the tenant satisfies his entitlement to the protection of the second proviso is that of the tenant. Even then we feel that the tenant should be given opportunity to adduce evidence and substantiate his contention that he is entitled for the protection of the second proviso. Sri.Reghunath incidentally voiced a grievance that the rent which the respondent is paying for the building in question, situated in a commercially important area of the Thiruvananthapuram city Corporation, is ridiculously low. We find some merit in the above submission of the learned counsel. Hence, we are inclined to refix the rent payable by the respondent tentatively even as we are relegating the RCP to the Rent Control Court. 10. The result of the above discussion is therefore as follows; ## i). The RCR succeeds. ii). The order of the Rent Control Court and the Judgment of the Appellate Authority are set aside to the extent they pertain to the RCR.No.316/2006 -15- decision to dismiss the RCP by virtue of the first and second provisos of sub section (3) of Section 11. iii). The finding entered by the Appellate Authority that the need is bona fide is confirmed. The Rent Control Court will afford opportunity to the tenant/respondent to adduce further evidence in the context of the first and second proviso to sub section (3) of Section 11. Once the tenant adduces further evidence, that Court will afford opportunity to the revision petitioner/landlord to adduce evidence in rebuttal of the above evidence. Once the enquiry is over, the Court will take fresh decision on the question as to whether the RCP is liable to fail by virtue of either the first proviso or the second proviso to section 11(3) and will pass final orders in the RCP accordingly. iv). The rent payable by the respondent RCR.No.316/2006 -16- for the building in question is tentatively refixed with effect from 1[st] August 2010 at Rs.1,000/- per month. The respondent shall pay rent at that rate irrespective of the final result of proceedings for eviction. However, we make it clear that the above fixation is tentative and if either party is aggrieved, they are free to move the Rent Control Court by initiating separate proceedings under Section 5 of the Rent Control Act. v). The parties will appear before the Rent Control Court on 26/7/2010. The Rent Control Court will expedite matters and ensure that the final order is passed in the RCP at least by 31/10/2010. ## **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM , JUDGE** okb/dpk RCR.No.316/2006 -17-