Ponmanichintakath Mariyumma v. Valiyaveettill Sreedharan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932** **-----------------------RCA.148/2004 of ADDL.DISTRICT COURT (ADHOC)-III, THALASSERY RCP.92/2003 of MUNSIFF COURT, THALASSERY** ## **REVN.PETITIONER/RESPONDENT/LANDLADY** **PONMANICHINTAKATH MARIYUMMA, W/O.P.R.MOIDU HAJI, AGED 54 YEARS, "FATHIMA MANZIL", NO OCCUPATION, KADIRUR AMSOM,DESOM,THALASSERY TALUK.** **BY ADV. SRI.C.KHALID** ## **RESPONDENT/ APPELLANT/TENANT** **VALIYAVEETTIL SREEDHARAN,S/O.GOVINDAN, AGED 66 YEARS,CARPENTER,DHARMADAM AMSOM, PALAYAD DESOM,THALASSERY TALUK.** ## **ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SMT.REKHA VASUDEVAN SRI.K.RAMACHANDRAN (THYKOODAM)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY PASSED THE** ## **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------R.C.R.No.155 OF 2009 ----------------------------------Dated this the 3[rd] day of December, 2010** ## **O R D E R ~~~~~~~** ## **Pius C. Kuriakose, J.** Under challenge in this revision filed by the landlady is the judgment of the Rent Control Appellate Authority declining eviction on the two grounds sought for by her in the Rent Control Petition. The ground sought for by her were the ground under sub-section 3 of Section 11 bonafide need for own occupation and the ground of cessation of occupation under Section 11(4)(v). The bonafides of the need was disputed and the tenant contended that the Rent Control Petition is barred by Section 15 of Act 2 of 1965 as in a previous Rent Control proceeding initiated by the landlady, it was held that the need projected by the landlady in that proceeding was not bonafide and eviction was declined. It was also contended that the need projected by the landlady which is to accommodate her son Aseem for starting of a stationery business is not bonafide as he is employed in the canteen of the Pariyaram Medical College. It was further contended that the tenant who is a carpenter by trade is entitled for the protection of the 2[nd] proviso to sub- RCR.No.155/2009 2 section 3 of Section 11. The allegation of the landlady in the context of the ground under 11(4)(v) was that the tenant has ceased to occupy the building continuously for more than six months without reasonable cause. This allegation was stoutly denied and it was explained that the tenant could not open the building for a short period of one week as he was laid up due to acute fever. The Rent Control Court enquired into matter and at trial, the evidence consisted of Exts.A1, B1 to B5 series, PW1, RW1 and Ext.C1 Commissioner's report. PW1 was Asseem, the dependent son of the landlady, for whom the building was sought for. RW1 was the tenant himself. The Rent Control Court on evaluation of the evidence would conclude that both the eviction grounds invoked by the landlady is established and accordingly ordered eviction under both the grounds. The Rent Control Appellate Authority considering the appeal preferred by the tenant has passed the impugned judgment vacating the finding of the learned Rent Control Court and has dismissed the Rent Control Petition. RCR.No.155/2009 3 2. In this revision filed by the landlady, various grounds have been raised assailing the judgment of the Appellate Authority. Sri.T.P. Sajid, learned counsel for the revision petitioner, would address arguments based on the various grounds. He submitted that it was convincing oral evidence which was given by PW1 and that despite searching cross examination his evidence was not shaken. Learned counsel pointed out that learned Appellate Authority interfered with the finding that the need is bonafide mainly on the reason that the landlady has suppressed the fact that she had moved the Rent Control Court earlier unsuccessfully. The above reason is not a valid reason as this Court while disposing of the revision petition in respect of the earlier proceeding had granted permission to the landlady to file fresh Rent Control Petition and had observed that the Rent Control Court trying the fresh Rent Control Petition should not be influenced in any manner by the dismissal of the earlier petition. Learned counsel would attack the finding that the tenant is entitled for the protection of the 2[nd] proviso. Counsel submitted that no evidence has been produced by the tenant to show as to what is the income derived from the RCR.No.155/2009 4 carpentry work allegedly done in the petition schedule building. It was also pointed out that it is evident that two of the tenant's sons were employed in military service and two were carpenters. The tenant and his children are living together under the same roof and were sharing the same mess. There is no case for the tenant that there is any bad blood between him and his children. It is clear that atleast a certain extent the tenant is depending on the income that is derived by the children also. In the absence of cogent evidence it could not have been held that the tenant is mainly depending on the income from the works conducted in the petition schedule building. Counsel would attack the finding that suitable buildings are not available in the locality. Counsel would highlight Ext.C1 report and submit that the only inference which can be drawn from Ext.C1 is that the building has not been occupied for more than six months. 3. All the submissions were stiffly opposed by the learned counsel for the respondent. He would support the judgment of the learned Appellate Authority. He would argue that the Appellate Authority is the final court on facts under the RCR.No.155/2009 5 scheme of the Rent Control Act. Within the revisional jurisdiction there is warrant for interference. 4. We have very anxiously considered the rival submissions made at the Bar. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority. We have considered the evidence in the case, particularly, those items of evidence to which our attention was drawn by the counsel in their respective submissions. The question which arises is whether the judgment of the Appellate Authority warrants interference within the revisional jurisdiction of this Court under Section 20. 5. On going through the judgment of the Appellate Authority, we find that the main reason on which that authority concluded against the landlady regarding the bonafides to the need which were projected in the RCP was that the landlady had not disclosed in the RCP that she had initiated earlier proceedings unsuccessfully for evicting the tenant. The above reason in our opinion cannot be a valid reason in view of the RCR.No.155/2009 6 specific permission given to the landlady by this Court in CRP No.2033/1993 pertaining to RCP 55/1991. We notice on a reading of that order in CRP that this Court has specifically directed the Rent Control Court to decide the fresh RCP taking into account all circumstances of the case “untrammelled by the findings in the case as the appellate authority decided mainly because petitioner's husband was not examined and proper pleadings were absent”. Therefore, the learned appellate authority was bound to examine the bonafides of the need projected in the second RCP independently. 6. On going through the evidence, we are convinced that Aseem, PW1, for whom the building was sought for, is presently without any employment. Infact, the tenant's version was that he is working in the canteen of the Pariyaram Medical College. But, tenant's evidence in that regard was only oral and hearsay. If the tenant was sure that Aseem was employed in the canteen of Priyaram Medical College, nothing prevented him to produce documents to substantiate the above contention. We, therefore, hold that Aseem is an unemployed young man. When an RCR.No.155/2009 7 unemployed young man or his mother seeks eviction so that he can conduct business, the need projected has to be presumed to be bonafide. In the absence of oblique motives, the need has to be upheld also. We don't find any specific oblique motive attributed against the bonafides of the need. We put a query to the learned counsel for the respondent as to the apprehensions, if any, the tenant has, regarding as to how the building would be dealt with by the landlady once she secures eviction. There was no clear answer. We notice in this regard sub-section 12 of Section 11, which gives adequate protection to the tenant who is evicted on frivolous ground under sub-section 3 of Section 11, if, ultimately, it is realised that the landlady does not use the building for the need projected. We hold on a reappraisal of the evidence that the need projected by the landlady is bonafide and that the Appellate Authority was not justified in upsetting the finding in that regard by the Rent Control Court. 7. At the same time, we are of the view that the finding of the Appellate Authority that the tenant is entitled for the protection of second proviso to sub-section 3 of Section 11 is RCR.No.155/2009 8 also not satisfactory. In fact, the finding of the Rent Control Court in this regard in favour of the landlord is also not satisfactory. It is trite by various decisions including the judgment of the Full Bench of this Court in **Fransis v. Sreedevi Varassiar** [2003(2)KLT 230] and that of the Supreme Court in **Kunhamma v. Akkali Purushothaman** [2007(3)KLT 599] that the burden to establish that a tenant satisfies both the ingredients of the 2[nd] proviso to sub-section 3 of Section 11. It is in evidence that the tenant's children are well employed and they are living together as one family. Under these circumstances, the tenant ought to have adduced some evidence as to what is the actual income that is derived by him from the works that he conduct in the petition schedule building. The question to be decided is whether the income that he derives from the petition schedule building can be said to be the main income in comparison to whatever financial assistance is getting by him from his children. This aspect requires further enquiry. We are inclined to relegate this aspect of the matter to the Rent Control Court for fresh consideration. RCR.No.155/2009 9 8. As for the finding of the learned Appellate Authority that eviction ground under section 11(4)(v) is not made out in this case, having reappraised the evidence, we don't find any warrant for interference with that ground. We confirm that finding and hold that the tenant is not liable to be evicted on the ground under section 11(4) (v). 9. But, we notice another aspect of the matter. The building is situated in a commercially very important area of Thalassery. The monthly rent of Rs.50/- being paid by the tenant is ridiculously low, and was fixed in 1983. We are inclined to refix the rent payable by the respondent at Rs.1500/- per month with effect from 1/11/2010. This refixation is tentative and if either party is aggrieved, it is open to them to move the Rent Control Court under Section 5 for regular fixation of fair rent. Till such time as fair rent is fixed the respondent shall pay rent to the revision petitioner at the rate of Rs.1500/-. RCR.No.155/2009 10 ## 10. Result is as follows: Judgment of the Appellate Authority to the extent it declines eviction on the ground under section 11(4)(v) is confirmed. The judgment of the Appellate Authority dismissing the RCP under Section 11(3) is set aside. It is found that the need is bonafide. RCP is remanded back to the Rent Control Court for taking a fresh decision on the question whether the tenant is entitled for the protection of the 2[nd] proviso to subsection 3 of Section 11. Tenant can adduce further evidence on the above question and it is open to the landlady also to adduce further evidence in that regard. Learned Rent Control Court will complete further enquiry at the earliest and pass fresh orders. Rent payable by the respondents is fixed tentatively at Rs.1500/per month with effect from 1/11/2010. Party shall enter appearance before the Rent Control Court on 15.11.2011. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(P.S.GOPINATHAN, JUDGE)** **ps**