Poomanichintakath Chathadi Zuhara v. Poonkankandy Suresh Babu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 RCRev..No. 46 of 2008(B) ----------------------------RCA.29/2002 of ADDL. DISTRICT COURT, THALASSERY RCP.173/1999 of MUNSIFF COURT/RENT CONTROLLER, THALASSERY .................... ## REVISION PETITIONER/RESPONDENT/PETITIONER -------------------------------------------------------- POOMANICHINTAKATH CHATHADI ZUHARA, TELLICHERRY AMSOM, VADIKKAKAM DESOM, TELLICHERRY-671 101. BY ADV. SRI.G.UNNIKRISHNON SRI.K.SANEESH KUMAR RESPONDENT(S): APPELLANT/RESPONDENT ------------------------------------------------ POONKANKANDY SURESH BABU, KADAMBUR AMSOM, DESOM, P.O.KADAMBUR, TELLICHERRY-670 663. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. -----------------------------------------------R. C. R. No.46 of 2008 -----------------------------------------------Dated this the 1[st] day of November, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ Under challenge in this revision filed by the landlady is the judgment of the Rent Control Appellate Authority dismissing a Rent Control Petition filed by her against the respondent/tenant on the ground under sub Section 3 of Section 11. In spite of service of notice, the respondent/ tenant has not entered appearance before this Court. The petition schedule building is situated in Edakkad, a hamlet some 12 kilometres away from Thalassery town where the petition schedule building is situated. The petition schedule building R. C. R. No.46 of 2008 -2- is a residential building. The landlady's husband Dr.Noorudeen is a renowned skin specialist of Thalassery. He has been practising Dermatology in Thalassery, since 25 years prior to the institution of the Rent Control proceedings. In his first wife he has two children, a son and a daughter. The daughter is married to a Doctor who belongs to Kozhikode and is conducting a Clinic at Kozhikode. Dr.Noorudeen has a daughter aged 9 years at the time of filing of the RCP, in the revision petitioner who is his second wife. It is averred in the RCP that in spite of her marriage, Dr.Noorudeen's daughter in the first marriage and her husband are residing in the building at Thalassery itself. According to the landlady, the petition schedule building belongs to her R. C. R. No.46 of 2008 -3- absolutely and she wants to shift her residence to the petition schedule building as she is finding it inconvenient, continuing to reside together with the grown up children in the first marriage of her husband. The bona fides of the need was resisted by the tenant raising various contentions. At trial by the Rent Control Court, the landlady was examined as PW1 and her husband was examined as PW2. The tenant got himself examined as RW1. Documentary evidence on the side of landlady consisted of Exts.A1 to A7. The evidence of PW2/Dr.Noorudeen that he wants to shift his practice from Thalassery to Edakkad, did not inspire the Rent Control Court. However, that court was inspired very much by the evidence of PW1 that she has the need to start residence in R. C. R. No.46 of 2008 -4- the petition schedule building which belongs to her absolutely. Accordingly, the Rent Controller passed order of eviction. The Appellate Authority considered an appeal preferred by the respondent and re-appraised the pleadings and the evidence thoroughly. That Authority found it difficult to concur with the conclusions of the Rent Control Court. Giving reasons, the Appellate Authority has concluded that the need is not bona fide and accordingly, the Appellate Authority has set aside the order of eviction passed by the Rent Control Court and has by the impugned judgment dismissing the RCA. 2. In this revision under Section 20 various grounds are raised and Sri.G.Unnikrishnan, the learned counsel for the revision petitioner R. C. R. No.46 of 2008 -5- addressed strenuous arguments before us on the basis of those grounds. According to Sri.Unnikrishnan, the judgment of the Appellate Authority is tainted by illegality and irregularity of the nature contemplated by Section 20 of Act 2 of 1965. The learned counsel submitted that it was mainly relying on Exts.A3 and A4 judgments relating to earlier Rent Control Petition filed by the landlady that the learned Appellate Authority passed the impugned judgment. According to the learned counsel what the Appellate Authority was expected to do was to re-appraise the evidence adduced by PWs.1 and 2 and come to a conclusion as to whether the need is bona fide. This is not what was done by the Appellate Authority. The learned counsel would draw our attention to R. C. R. No.46 of 2008 -6- various portions of the judgment of the Appellate Authority and submit that it is trite by various decisions of this Court that in these matters the law allows to the landlord considerable latitude. It is for the landlord to decide as to where he should stay. It is ignoring binding judicial precedents that the Appellate Authority has passed the impugned judgment. The learned counsel placed very strong reliance on the judgment of this Court in Madhava v. Pathumabi (2005 (KHC) 993) in support of various propositions canvassed by him. 3. We have very anxiously considered the submissions of Sri.G.Unnikrishnan. We have scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court. In a case where eviction of a residential building is -7- R. C. R. No.46 of 2008 sought for, on the ground under sub Section 3 of Section 11, the first and the foremost question to be decided by the statutory authorities is whether the need projected is bona fide. Bona fides being a state of mind the question whether the need is bona fide can be decided by the statutory authorities only by appreciating the evidence on record and the circumstances attending on the case. On going through the judgment of the Appellate Authority, we find that the various circumstances highlighted by the Appellate Authority for arriving at the conclusion that the need is not bona fide are all clinching circumstances. Dr.Noorudeen has been successfully practising Dermatology in Thalassery, an ancient municipal town for the past 25 years. R. C. R. No.46 of 2008 -8- Even as per his evidence he is not going to close down his practice in Thalassery. What he has stated is that he will have part time practice in Edakkad. The learned Appellate Authority has observed that the evidence of PWs.1 and 2 that PW2's daughter in first marriage married to a Doctor having a Clinic in Kozhikode town is residing in their present residential building in Thalassery cannot be swallowed without a pinch of salt. We also are in agreement with the above observations of the learned Appellate Authority. We do not find any illegality, irregularity or impropriety about the finding of the Appellate Authority that the evidence adduced by the landlady fall short of holding that the need projected is bona fide. It is significant to note that R. C. R. No.46 of 2008 -9- the daughter of PW2 in the first marriage and her husband who is a Doctor in Kozhikode were not examined in this case. In this Court, the landlady has filed an application I.A.1180/10. It is brought to the notice of this Court by filing the I.A. that the tenant has come to acquire possession of another building upon the demise of his father. The Property Tax Assessment Register pertaining to that building is produced as Annexure-1. Annexure-1 shows that the father of the respondent was having a building. There are no material before us to accept the submission of Sri.Unnikrishnan that upon the demise of his father the respondent has come to possess the building. Moreover, the ground under Section 11 (4)(iii) is not invoked in the RCP at all. If such a R. C. R. No.46 of 2008 -10- ground has presently become available to the landlady it is for the landlady to initiate fresh proceedings invoking that ground. 4. The revision necessarily has to fail. But we notice another aspect of the matter. The building in question going by the evidence in the case is a fairly big home having as many as five bedrooms. We feel that though Edakkad is not an important town as Thalassery, the rent of Rs.250/- which is being paid by the respondent is very low. According to Sri.Unnikrishnan, if the building is let out today, the same will fetch at least Rs.2,500/per mensem. As already stated, the respondent has not appeared before this Court to resist the submissions of the revision petitioner. We also feel that the building if let out today should fetch R. C. R. No.46 of 2008 -11- at least Rs.1,500/- per mensem. We are therefore, inclined to re-fix the rent prospectively at Rs.1,500/- per mensem. 5. The result of the above discussion is; RCR is dismissed confirming the judgment of the Appellate Authority. The rent payable by the respondent is fixed with effect from 01/12/10 at Rs.1,500/- per mensem. We make it clear that this re-fixation is tentative and it is open to either party to move the Rent Control Court for fixation of fair rent. We also make it clear that this judgment will not stand in the way of the revision petitioner invoking fresh proceedings for eviction against the respondent on all available grounds including the ground under Section 11(4)(iii). The petitioner will send a copy of this judgment to the R. C. R. No.46 of 2008 -12- respondent by registered post with acknowledge due as soon as she receives the same. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-