NARAYANAN v. M. ASSAINAR HAJI

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 RCRev..No. 89 of 2010() ----------------------RCA.98/2005 of ADDL. DISTRICT COURT, THALASSERY RCP.166/2003 of ADDL.MUNSIFF COURT, KANNUR .................... ## REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- NARAYANAN, ROOM NO.35/221, NEAR THALIKAVU, KANNUR. BY ADV. SRI.V.PREMCHAND ## RESPONDENT/APPELLANT/PETITIONER ----------------------------------- M.ASSAINAR HAJI, KOOVERI AMSOM, CHAPPARAPADAVU, THALIPARAMBA, KANNUR. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/06/2010 ALONG WITH RCR NO.90/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.** ## **--------------------------R.C.R Nos. 89 & 90 OF 2010 -------------------------Dated this the 21[st] day of June, 2010** ## **O R D E R** ## _**Pius C.Kuriakose, J.**_ The landlord is the respondent in both these revision petitions. He sought to evict his tenants/revision petitioners on the ground of arrears of rent under Section 11(2)(b) of the Rent Control Act and for bonafide own occupation under sub section 3 of Section 11. In these revisions we need be concerned only with the ground under sub section 3 of Section 11 since eviction on the ground of arrears of rent was declined and the same has become final. The need projected by the landlord in the three RCPs, which were filed, was that he needs possession of four rooms i.e., room Nos.221, 222, 223 and 224 so that his dependent son Sri. Sajeer can conduct wholesale as well as retail trade in plastic furniture, plastic goods and other utensils. The bonafides of the need was disputed by the revision petitioners highlighting various aspects. At trial, Sri. Sajeer himself was examined as the witness on the side of the landlord. It became evident that Sri. Sajeer's father, the petitioner in the RCPs was a business man and that the family was having other businesses and that even Sri. Sajeer was having fractional interest in some family business. It also became evident that the petitioner in the RCPs had recently constructed a building in which a lodge was about to be started and that in RCR Nos.89 & 90/2010 2 the said building two or three rooms had been set apart to the share of Sri. Sajeer. The Rent Control Court took the view that the landlord had not disclosed in the RCPs the availability of room having door No.223 already with him and held that the same amounted to non-disclosure of a material fact. The court also took the view that the case of the landlord that his son needed to do his own business for a living was incorrect. On these reasons, it was held that the need under sub section 3 of Section 11 was not bonafide. In view of that finding, the applicability of the first and second proviso of Section 11(3) was not considered by the Rent Control Court, which dismissed the RCPs. The Appellate Authority considering the appeals preferred by the landlord, reappraised the evidence and came to the conclusion that the circumstances highlighted by the Rent Control Court were not of such a moment as to militate against the bonafide need projected. The Appellate Authority noticed that despite searching crossexamination, the credit of PW1 was not shaken. In that view of the matter, the Appellate Authority would set aside the finding of the Rent Control Court that the need was not bonafide and would find that the need was bonafide. However, the Appellate Authority did not decide the RCPs finally since the applicability of the second proviso to Section 11(3) were not considered by the Rent Control Court. The Appellate Authority remanded the RCPs back to the Rent Control Court to consider whether the RCPs RCR Nos.89 & 90/2010 3 were liable to fail due to the operation of the first and second provisos. The Appellate Authority granted opportunity to both sides to adduce evidence in the context of the provisos. In these revisions, the tenants in possession of the rooms have door Nos.221 and 222 have raised various grounds challenging the decision of the Appellate Authority. Even though the respondent was served with notice, he has not entered appearance before this Court for supporitng the impugned judgments. 2. Sri. V.Premchand, the learned counsel appearing for the revision petitioners/tenants addressed extensively on the basis of the grounds. He drew our attention to the pleadings raised in the RCPs. He also drew our attention to the oral evidence adduced by PW1. He submitted that the non-disclosure in the RCPs about the availability of the room having door No.223 with the landlord amounts to suppression of a material fact and this suppression in his argument is fatal to the RCPs themselves. Sri. Premchand also submitted that the pleaded case of the landlord was that his son was without any income for a living. But the case that has been established in evidence is that his son PW1 was having a share in the family businesses and naturally to a share in the income derived from those businesses. He submitted that at any rate it has been admitted by PW1 that he is the allottee of atleast three rooms in the new building where the father claims to have made arrangements for starting a RCR Nos.89 & 90/2010 4 lodge. The finding by the Appellate Authority that the need is bonafide is a finding entered without noticing binding judicial precedents. Strong reliance was placed by Sri.Premchand on the judgment of the Supreme Court in **Kishan Chand v. Jagdish Pershad and Others** (2003 (9) SCC 151) and **Kizhakkayil Suhara and Others v. Manhantavida Aboobacker** (2001 (8) SCC 19). According to Sri.Premchand , a landlord who suppresses material facts is not entitled to any relief at the hands of the Rent Control Court and the bonafides to be established is bonafides of not only the landlord but also the dependent family member. 3. We have very anxiously considered the submissions addressed by Sri.Premchand and have gone through the averments in the RCPs as well as the oral evidence adduced by PW1, the solitary witness examined on behalf of the landlord. We have scanned the order of the Rent Control Court and the judgment of the Appellate Authority. It will be stated immediately that we did not notice any illegality, irregularity or impropriety as envisioned by Section 20 of Act, 1965 about the judgment of the Rent Control Appellate Authority. **Kishan Chand's case (supra)** was a case where the statutory provision considered was Section 14(1)(e) of the Delhi Rent Control Act, 1958. Section 14(1)(e) cannot be said to be in pari materia with sub section 3 of Section 11. Section 14(1)(e) provides for eviction of buildings let out for residential purpose if the building is “required RCR Nos.89 & 90/2010 5 bonafide by the landlord for his occupation as a residence for himself or any member of the family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.” The noticeable distinction between sub section 3 of Section 11 of the Kerala statute and Section 14(1)(e) of the Delhi statute is that under Section 14(1)(e) of the Delhi statute non availability of a suitable residential building with the landlord is a mandatory requirement even before findings are entered to the effect that the need projected by the landlord is bonafide, whereas under the Kerala statutes even after a finding is entered that the need is bonafide, an enquiry is to be held under the first proviso to sub section 3 as to whether the landlord is having in his possession any building of his own and as to whether there are any special reasons which will entitle the landlord to get eviction despite the landlord having possession of such other building. In other words, the availability or otherwise of other vacant building landlord owned and possessed by the landlord is a matter to be decided on the basis of an enquiry which could be postponed to be held after findings are entered regarding the bonafides of the need. In other words, under the Kerala statute even in a case where the need is found to be bonafide, the Rent Control Court can reject the RCP on the basis that the first proviso operates against the landlord. RCR Nos.89 & 90/2010 6 This may not be possible under Section 14(1)(e) of the Delhi statutes. 4. Leaving alone the decision of the Supreme Court and the difference in the language used in the two statutes, we can agree when it is argued that suppression of a material fact by a landlord can in a given situation dis-entitle him to relief. That is because the authorities under the Kerala Rent Control Statute are expected to be governed by the principles of equity, justice and conscience as provided in sub rule 8 of Rule 1 of the Kerala Buildings and Rent Control Rules. The question therefore is whether the so called suppression of the availability with the landlord of room having door No.223 in the RCPs can be relied on for holding that the need projected by the landlord is not bonafide. Our scrutiny of the RCPs reveals that the landlord has not in so many words stated in the RCPs that he has under his vacant possession building having door No.223. But then it is very clear to us that the need projected before the court was the need to accommodate his son in rooms having door Nos.221,222, 223 and 224. We notice that the landlord filed RCPs against tenants in occupation of rooms having door Nos. 221,222 and 224 and did not file any RCP in respect of Room No.223. All the three RCPs were instituted almost simultaneously and the landlord himself sought for and obtained a consolidation of all the three RCPs. Containing a uniform pleading to the effect that not only the three rooms which were the subject matters of the 7 RCR Nos.89 & 90/2010 RCPs but another room bearing door No.223 is also required for conduct of businesses by the land lord's son. Meticulous analysis of pleadings is to be insisted upon in proceedings under the Rent Control Act. Analysing the pleadings in a realistic and meaningful manner, it is very clear to our mind that the landlord not only did not suppress the availability of room bearing door No.223 with him but in fact conceded the availability of that room with him in as much as he did not file any eviction petition in respect of that room even as if he filed eviction petitions in respect of the other rooms. 5. There cannot be any quarrel regarding the proposition advanced by the learned counsel on the authority of the judgment of the Supreme Court in **Kizhakkayil Suhara and Others v. Manhantavida Aboobacker** (2001 (8) SCC 19) that in a case where the landlord is seeking eviction not for himself but for a dependant family member the bonafides of the dependent family member also will have to be established. We find that in this case it was the dependent family member who gave evidence as PW1. Though there was rigorous cross-examination on him, he stood firm and atleast in the context of his case that he needs to do business of his own, he was not shaken. It is his evidence which has been accepted by the Appellate Authority which under the statutory scheme is the final authority on facts for entering a finding that the need projected by his father which is for accommodating his needy son is bonafide. RCR Nos.89 & 90/2010 8 6. According to us, the revision petitioners cannot have any legitimate grievance about the judgment of the Appellate Authority. The Appellate Authority has relegated the question of deciding whether the RCPs is liable to fail by virtue of ether the first or the second proviso of sub section 3 of Section 11 to the Rent Control Act and opportunity has been given by the appellate authority to both sides to adduce whatever evidence they want to in the context of the two provisos. We are not inclined to interfere with the judgment of the Appellate Authority as we do not find anything illegal, improper or irregular about the same. Confirming those judgments, we dismiss both the appeals without any order as to costs. **PIUS C.KURIAKOSE (JUDGE)** **C.K.ABDUL REHIM (JUDGE)** vps RCR Nos.89 & 90/2010 9 RCR Nos.89 & 90/2010 10