Nalini w/o late Gangadharan v A.G. Abraham and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934** **RCRev..No. 117 of 2012 ()** **--------------------- -------------RCA.4/2007 of DISTRICT COURT, (CONTROL APPELLATE AUTHORITY), PATHANAMTHITTA. RCP.6/2005 of MUNSIFF OURT, (RENT CONTROLLER COURT)PATHANAMTHITTA** **........** ## **REVISION PETITIONER(S):** **-----------------------------------** **NALINI W/O. LATE GANGADHARAN, SATHYA BHAVAN, PRAKKANAM MURI CHENNEERKKARA VILLAGE, KOZHENCHERY TALUK PATHANAMTHITTA.** **BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** ## **RESPONDENT(S):** **------------------------** ## **1. A.G.ABRAHAM** **S/O. LATE GEEVARGHESE, ADIMURIYIL HOUSE VETTIPURAM MURI PATHANAMTHITTA VILLAGE AND DISTRICT NOW RESIDING AT ADIMURIYIL, BUILDING NO. 26/F-15 HOUSING BOARD COLONY, NANNUVAKKADU MURI PATHANAMTHITTA.** **2. A.G. JOSEPH, S/O. LATE GEEVARGHESE, ADIMURIYIL HOUSE VETTIPURAM MURI PATHANAMTHITTA VILLAGE AND DISTRICT NOW RESIDING AT ADIMURIYIL, BUILDING NO. 26/F-15 HOUSING BOARD COLONY, NANNUVAKKADU MURI PATHANAMTHITTA.** ## **3. SATHYASEELAN** **W/O. LATE GANGADHARAN, SATHYA BHAVAN, PRAKKANAM MURI CHENNEERKKARA VILLAGE, KOZHENCHERY TALUK PATHANAMTHITTA.** **tss** ## **R.C.R. NO.117/2012** ## **4. MINI SNEHALAL,** **W/O. LATE GANGADHARAN, SATHYA BHAVAN PRAKKANAM MURI, CHENNEERKKARA VILLAGE KOZHENCHERY TALUK, PATHANAMTHITTA.** ## **5. SIVARAJAN** **KALILAVIL PUTHEN VEEDU, CHENNEERKKARA VILLAGE KOZHENCHERY TALUK, PATHANAMTHITTA.** ## **6. M.I. ABRAHAM,** **MAMPARAKUZHIYIL HOUSE, PERUNADU MURI AND VILLAGE RANNI TALUK, PATHANAMTHITTA.** **BY ADV. SRI.K.MOHANAKANNAN BY ADV. SMT.A.R.PRAVITHA BY ADV. SMT.RASHMI RAVINDRAN BY ADV. SMT.D.S.THUSHARA BY ADV. SRI. LIJU STEPHEN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23-05-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** **C.R.** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ** --------------------------------------------RCR No.117 of 2012 --------------------------------------------Dated this the 23[rd] day of May, 2012 ## **ORDER** ## Ramakrishna Pillai, J The revision petitioner who succeeded tenancy after the death of her husband Gangadharan, the original tenant of the petition mentioned room, is coming up in revision before this Court for the second time. 2. The respondents/landlords sought eviction of the revision petitioner and her children from the tenanted premises under Sections 11(2)(b) and 11(8) of the Kerala Buildings (Lease and Rent Control Act), 1965 (hereinafter referred to as the 'Act' for short) alleging that the tenants did not pay any rent with effect from 1.6.2005 and further that the respondents, who are residing at the rear portion of the building having two bed rooms and a kitchen, need additional accommodation for the son of the first respondent as negotiations for his marriage was going on RCR No.117 of 2012 2 and due to the inadequate residential convenience, nobody was willing to have an alliance with him. 3. The revision petitioner, who opposed the application, admitted the continuance of tenancy as the legal heir of late Gangadharan. However, she denied the allegation that she defaulted in paying the rent. It was further contended that the need alleged is only a ruse for eviction as the respondents are having other buildings for residence. It was the further case of the revision petitioner that the respondents are not using the tenanted premises for residential purposes. She also claimed that she is depending upon the income derived from the avocation that is being carried in the tenanted premises and no convenient buildings are there in the locality to shift the same. 4. The learned Rent Controller, after considering the evidence adduced, allowed eviction on both grounds. The appeal by the revision petitioner was allowed in part by the Rent Control Appellate Authority reversing the order of eviction under Section 11(2)(b). However, eviction under Section 11(8) was upheld. RCR No.117 of 2012 3 5. The revision petitioner took the matter in revision before this Court and a Division Bench of this Court of which one among us (Pius C.Kuriakose,J.) was a party, allowed the revision by order dated 13[th] October 2011 and remanded the case to the Appellate Authority as it was found that additional evidence was required for ascertaining the aspects relating to occupation of the tenanted premises by the respondents as they have subsequently purchased a new residential building in the Housing Board Colony. This Court felt that to have a proper decision on the question of the bonafides of the need for additional accommodation, the parties be permitted to adduce further evidence. 6. After remand, evidence was taken by the Rent Control Appellate Authority. An Advocate Commissioner was deputed and a report was obtained. The respondents as well as the revision petitioner were examined by the Rent Control Appellate Authority. The Commissioner was examined as PW2. The report was marked as Ext.A2 series. The learned Rent Control Appellate Authority, on the basis of the evidence already on record as well as the evidence that was led in by the parties subsequent to the remand, dismissed the appeal confirming the RCR No.117 of 2012 4 order of the Rent Control Court under Section 11(8). Thus, the present revision. 7. We have heard the learned counsel for the revision petitioner and the learned counsel for the respondents. We have also perused the impugned revised judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court. 8. While Mr.Jacob P.Alex, the learned counsel for the revision petitioner argued that the impugned judgment is not legally sustainable as certain admissions made by PW1 after remand which would establish that the need alleged by the respondents for additional accommodation is not bonafide, has escaped the attention of the learned Rent Control Appellate Authority, Mr.Liju Stephen, the learned counsel for the respondents/landlords justified the impugned order contending that the standard of bonafides expected to be established by a landlord in a petition under Section 11(8) is not so rigorous as in the case of petitions under Section 11(3) of the Act. 9. In order to appreciate the rival submissions addressed at the Bar, we made a quick survey over the evidence additionally adduced before the Rent Control Appellate Authority. Going RCR No.117 of 2012 5 through the deposition of PW1 in cross examination, we notice that the following matters were elicited: - i) Telephone connection (landline) in the petition schedule building was transferred to the newly purchased house in the Housing Board Colony four years back; - ii)At present there is no telephone connection (landline) in the petition schedule building; - iii)There are 80-85 units of average and regular consumption of electricity in the newly purchased house in the Housing Board Colony; - iv)New house has water connection. - v)Maruti Car that was purchased by the son of the first respondent is regularly parked at the Housing Board Colony; - vi)New furniture was purchased for the new house; - vii)New house is just 1½ kilometer away from Collectorate, where the only son of the Ist respondent is working. 10. The main argument advanced by the learned counsel for the revision petitioner is that subsequent to the purchase of the new residential building, the landlords are only in possession of the petition schedule building and not in its occupation so as to sustain a plea of eviction under Section 11(8) and hence the Rent Control Appellate Authority ought to have allowed the appeal. To substantiate this argument, the learned counsel for the revision petitioner, inviting our attention to Ext.C1 report, argued that the food items, utensils etc. said to have been found RCR No.117 of 2012 6 in the petition schedule building were placed temporarily only for the purpose of the case. According to the learned counsel for the revision petitioner, the son of the first respondent, who according to the respondents could not get any alliance in marriage, subsequently got married and his married life was blessed with children. It was pointed out that it is unimaginable that when the members in the family had increased, the respondents are still confined to the limited space available in the tenanted premises. It is also pointed out that no toys or other items used by children were found in the tenanted premises. So it was argued that the only intelligent inference possible on an objective assessment on evidence on record is that the landlords are not occupying the petition schedule building. 11. In the affidavit dated 4.10.2011 filed by the first respondent before this Court in the previous RCP, sentimental attachment to the old house and the locational advantage for the landlord’s son were cited as the reasons for staying in the old house. It was further pointed out by the learned counsel for the revision petitioner that the details of new house or his surroundings were not ascertained by the Advocate RCR No.117 of 2012 7 Commissioner nor were they sought to be ascertained in the Commission application. But, we are of the view that the respondents/landlords cannot be blamed for that. If the revision petitioner wanted to establish that the first respondent’s son is occupying the new house in the Housing Board Colony, the revision petitioner could have submitted a work memo to get those materials ascertained by the Commissioner. No effort to that effect is seen done by the revision petitioner. 12. It is true that the rigor of establishing bonafides is lesser in a petition under Section 11(8) compared to the one under Section 11(3). However the claim for additional accommodation under Section 11(8) should be bonafide and it is the duty of the Court to find out whether the need for additional accommodation is bonafide. 'Occupation' of part of the building adjacent to the tenanted premises by the landlord is the basis of claiming eviction under S.11(8) of the Act. The legislature in its wisdom has chosen the word 'occupation' instead of 'possession' to curtail unbriddled demands for eviction by landlords and hence a mere juridical possession of a part adjacent to the tenanted premises without actual occuaption will not justify a claim under section 11(8). Though the tenant cannot dictate to the landlord RCR No.117 of 2012 8 as to how the additional accommodation has to be used by the landlord, the factors which may have a bearing on the bonafides are to be evaluated by the court in the correct perspective. 13. A Division Bench of this Court in **C.M.Bonny and others** v **Koshy P.John** (2005(1) KLJ 796) held that when a finding is rendered without any evidence to support such finding as well as misreading or non-reading of evidence is an error of law which called for interference under Section 20 of the Act. 14. From the impugned judgment, we find that the seven matters referred to in paragraph-9 above elicited during the cross examination of PW1 which may have a bearing upon the bonafides of the need for additional accommodation were not considered by the learned Rent Control Appellate Authority. As S.20 of the Act does not expect a reappreciation of evidence by the court, we are inclined to remit the case back to the Rent Control Appellate Authority once again for fresh disposal. 15. In the result, the revision petition is allowed and the case is remanded to the Rent Control Court, Pathanamthitta for fresh disposal after reconsidering the evidence on record in the correct perspective and to give a verdict within two months from the date of appearance of the parties before the Rent Control RCR No.117 of 2012 9 Appellate Authority. The parties shall appear before the Rent Control Appellate Authority on 19.6.2012. **sd/- PIUS C.KURIAKOSE, JUDGE** **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** css/ true copy P.S.TO JUDGE