Paleri Kunhikrishnan v. Kunhipurayil Rafeeque

**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 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932** **RCRev..No. 43 of 2008()** **-------------------------------** **RCA.30/2004 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.52/2002 of RENT CONTROLLER (MUNSIF) COURT, KUTHUPARAMBA** **....................** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT :-** **------------------------------------------------------------------------------** **PALERI KUNHIKRISHNAN,S/O.KUNHIRAMAN, AGED 70 YEARS, BUSINESS, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA THALASSERI TALUK.** **BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENT(S)/APPELLANT/PETITIONER :-** **----------------------------------------------------------------** **KUNHIPURAYIL RAFEEQUE S/O. USMAN, AGED 40 YEARS, AYSHA MANZIL KUTHUPARAMBA AMSOM, AMBILAD DESOM, THALASSERI TALUK.** **ADV. SRI.ANIL GEORGE** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/02/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** **RCRev..No. 43 of 2008** ## **ORDER IN I.A.No.406/2008 IN R.C.R.No.43/2008** Dismissed. **SD/- PIUS C. KURIAKOSE, JUDGE.** **SD/- N.K.BALAKRISHNAN, JUDGE.** 23.2.2011. //True Copy// P.A. to Judge ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ## **---------------------------------R.C.R. No.43 of 2008** **-----------------------------Dated this the 23[rd] day of February 2011** ## **O R D E R** ## N.K.Balakrishnan, J. The tenant has filed this revision petition under Section 20 of Act 2 of 1965. The landlord/respondent filed petition for eviction under Section 11(3) of the Act alleging that his brother-in-law who was conducting business at Veerajpetta intends to start a stationery business in the petition schedule building. The landlord further contended that he or his brother-in-law does not have any other building of their own for starting the business. 2. The need projected by the landlord was resisted by the revision petitioner stating that the brother-in-law of the landlord is not a dependent on the landlord and that the need set up by him is only a ruse for eviction. It was further contended that the assignment deed as per which the petition schedule R.C.R. No.43 of 2008 -: 2 :- building was purchased by the respondent herein was executed only for the purpose of evicting the revision petitioner. The tenant also contended that he is entitled to the protection under the Second proviso to Section 11(3). 3. Before the Rent Control Court, the landlord and his brother-in-law were examined as Pws.1 and 2 and Exts.A1 to A9(f) were marked. The revision petitioner herein was examined as RW1 and Exts.B1 to B3 were marked. The learned Rent Controller would conclude that the need projected by him is inconsistent with the need set up in the petition and that the evidence given by him is in total deviation of the need stated in the petition. The learned Rent Controller was not impressed by the evidence adduced by Pws.1 and 2 and hence the petition was dismissed. 4. The learned Appellate Authority after re-appreciating the evidence held that the finding entered by the Rent Control Court is erroneous and that PW2 is a dependent on PW1. It was further found that the evidence given by PW1 was actually with regard to the need projected by him for his brother-in-law and that the need stated by him was the need of his brother-in-law R.C.R. No.43 of 2008 -: 3 :- and thus reversed the finding entered by the Rent Control Court and granted order of eviction under Section 11(3). The finding entered by the Rent Control Court that the tenant is not entitled to the protection under the second proviso to Section 11(3) was confirmed by the learned Appellate Authority. 5. In this revision, the revision petitioner has contended that the learned Appellate Authority has not appreciated the evidence in its correct perspectives. The deviation and inconsistencies in the evidence given by PW1 should not have been overlooked by the learned Appellate Authority. There was no ambiguity in the evidence given by PW1 during the cross examination and as such the Appellate Authority should not have accepted the statement given by PW1 in re-examination. The respondent has supported the finding entered by the learned Appellate Authority. 6. Sri.K.V.Pavithran, the learned counsel for the revision petitioner took us through the averments in the RCP, in support of his first submission that there is no pleading that PW2, the brother-in-law is a dependent on PW1. It was further submitted by Sri.Pavithran that though PW1 has got two or 3 brothers-in- R.C.R. No.43 of 2008 -: 4 :- law, the name of the brother-in-law for whose need the petition schedule building was sought was not specified. But the learned counsel for the landlord/respondent would take us through the counter statement filed by the tenant in which it was stated that dependency pleaded by the landlord is not true. So much so, according to the learned counsel for the respondent, the revision petitioner clearly understood that the claim was made to accommodate PW2, the brother-in-law who is a dependent on PW1. It was pointed out that in the petition it was also stated that the landlord and his brother-in-law have no vacant building of their own in the same town or village to start the stationery business as proposed. 7. The learned counsel for the revision petitioner, Sri.Pavithran has cited the Supreme Court decision in **Koyilerian Janaki & Ors.** v. **Rent Controller, Cannanore & Ors.** [(2000) 9 SCC 406] to fortify his submission that as there is no specific pleading that PW2 is a dependent on PW1, the need projected by the landlord is unsustainable. The facts dealt with therein are to be distinguished in view of the fact that in this case the revision petitioner had understood the plea raised by R.C.R. No.43 of 2008 -: 5 :- the landlord that PW2 is a dependent. Not only that in the petition itself it was stated that the landlord and his brother-inlaw had no other building of their own to start the business. 8. In this connection, the decision in **Ismail** v. **Kesavan** [2004 (2) KLT 56] has also been cited by the learned counsel for the landlord. In the light of what has been stated earlier, the contention raised by the revision petitioner that the RCP is not sustainable in view of the absence of pleading regarding the dependency is devoid of any merit. 9. The next point to be considered is whether the bonafide need set up by PW1 is true. Though in the affidavit filed in lieu of chief examination, it was stated by him that he bonafide needs the petition schedule building for enabling his brother-in-law to start a stationery business and that his brother-in-law is not having any other building of his own, during the cross examination, PW1 gave a totally contradictory version. It was stated by him that the need was for starting a business by himself. When he was asked as to the nature of the business, the volume of business and the money to be invested for starting the business, it was stated by him that he would think of the same R.C.R. No.43 of 2008 -: 6 :- after getting eviction of the building. It was specifically stated by him that he himself wanted to start the business in that building. It was further stated that he intends to start the business so as to eke out the livelihood of himself and his family members with the income derived from the business intended to be conducted in the petition schedule building. It was not his case that the business was to be conducted by his brother-in-law for earning the livelihood of his brother-in-law and brother-inlaw's family. The admission or statement made by PW1 is categoric and unambiguous and as such there was nothing to be explained or clarified in re-examination. 10. The learned Rent Controller has critically analysed the evidence given by PW1 and come to the conclusion that evidence given by him is totally inconsistent with the pleading and that the need projected in the petition was for starting a business in the petition schedule building. During cross examination he completely resiled from what was stated in the petition and gave a totally different version that the need was to start a business by himself for the livelihood of himself and his family members. R.C.R. No.43 of 2008 -: 7 :- 11. The need set up in the petition was that the landlord bonafide needs the petition schedule building so as to enable his brother-in-law, who was later examined as PW2, to start a business in stationery items. Formerly PW2 was working in Veerajpetta and that at present he is not having any business or avocation. It was also stated in the petition that the landlord is not having any other building of his own in his possession. But during the cross examination PW1 stated that he himself intends and wants to start a business in the petition schedule building for eking out the livelihood of himself and his family members. It was not his case that the need is to provide the petition schedule building to PW2 to enable him to conduct business so as to eke out the livelihood of PW2 and his family. When it was specifically stated by him that he himself wants to conduct business in the petition schedule building after getting eviction, the need set up in the petition that the need is of PW2, who is a dependent on him cannot be sustained. 'Bonafide' is a state of mind. There is no single simple litmus test to test the bonafides. It has to be gathered from the evidence and circumstances obtained in each case. The learned counsel for the revision R.C.R. No.43 of 2008 -: 8 :- petitioner would submit that the approach made by the learned Appellate Authority would suggest that in all cases where a claim is made under Section 11(3), it has to be straight away allowed without bearing in mind the object intended to be achieved by the statute. 12. The learned counsel for the landlord has vehemently argued that what was stated by PW1 was actually his own need, in the sense that, the need to obtain eviction of the building is for himself whereas the intention is to provide the same to PW2 to start a business. The learned counsel further submits that it was clarified during re-examination. The need for own occupation of the landlord is different from the need for the occupation by any member of his family dependent on him. Therefore, according to the revision petitioner the subsequent somersault made by PW1 cannot nullify the incredibility attached to the version given by PW1. The learned counsel for the revision petitioner is perfectly justified in his submission that as there was absolutely no ambiguity in the evidence given by PW1 during cross examination, the learned counsel for the landlord should not have been permitted to put questions in re-examination to take R.C.R. No.43 of 2008 -: 9 :- away the effect of the answers given in cross examination. The purpose of cross examination is to test the veracity of a witness. The purpose of re-examination is only to clear the ambiguity if any. The unambiguous statement made by PW1 during cross examination would cut at the root of the case of bonafide need set up by PW1. 13. One more aspect has been projected by the learned counsel for the revision petitioner to fortify his submission that the bonafide need put forward by PW1 is only a pretense. Though the case of PW1 was that, because PW2 is a dependent on him, he intends to provide the petition schedule building to him to start a business, when PW2 was examined he stated that he intends to give premium/security to PW1 and that he would also pay rent to PW1 for conducting business in the petition schedule building. That also according to the revision petitioner would show that the real intention of PW1 was to let out the building to another person. Be that as it may, the evidence given by Pws.1 and 2 did not infuse confidence in the mind of the learned Rent Controller who had the opportunity to analyse the evidence in its correct perspective, especially because that Court R.C.R. No.43 of 2008 -: 10 :- had the added advantage of watching the demeanour of the witnesses also. 14. On a thorough scrutiny of the evidence given by Pws.1 and 2, we are of the considered view that the learned Appellate Authority has not dealt with the issue in its correct perspective. We are not persuaded to accept the argument advanced on behalf of the landlord. In short, we hold that bonafide need urged by the landlord is not proved and as such the order of eviction passed by the learned Appellate Authority has to be set aside. Of course the finding of the court below that the tenant is not entitled to the protection of the second proviso under Section 11(3) is founded on evidence and as such that finding is only to be confirmed. But as the bonafide need set up by the landlord is found unacceptable, he is not entitled to get an order of eviction under Section 11(3). 15. We notice that the rent presently paid by the tenant to the landlord is Rs.207/-. Though it is stated to be a very old building, admittedly it is situated in Koothuparamba town itself. We are persuaded to think that the rent that is paid now is very low. At any rate if the building is let out today it will fetch R.C.R. No.43 of 2008 -: 11 :- Rs.2,000/- per month. Accordingly, we are inclined to refix the monthly rent at Rs.2,000/- with effect from 1.4.2011. If either party is aggrieved, it will be open to them to move the Rent Control Court for regular fixation of fair rent under Section 5 of the Act. In the result, the revision petition is allowed. The order of eviction passed under Section 11(3) is set aside. But we make it clear that the landlord is at liberty to file a fresh RCP on all grounds including the ground under Section 11(3), provided there are change of circumstances, enabling the landlord to file a fresh petition under Section 11(3) of the Act. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt