P.P. Sulfikar and E.T. Shamsudeen v East Kottamparambu Ibrahim and Pulikkalakath Mariyambi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 RCRev..No. 251 of 2011() -----------------------RCA.126/2008 of RENT CONTROL APPELLATE AUTHORITY , KOZHIKODE-III RCP.38/2005 of RENT CONTROL COURT .,KOZHIKODE-I .................... PETITIONERS/APPELLANTS IN RCA 126/2008 /RESPONDENTS IN RCP ------------------------------- 1. P.P.SULFIKAR, S/O AHAMED KOYA, IDEAL COLLECTIONS, 7/1052, COURT ROAD,KOZHIKODE DIST. REP. BY P/A HOLDER & SISTER P.P.KAMARUNISHA, D/O P.P.AHAMEDKOYA, R/AT BICHAMINAS, K.P.ROAD, SOUTH BEACH P.O. NAGARAM AMSOM DESOM, KOZHIKODE-1. 2. E.T.SHAMSUDEEN, S/O ALIKOYA, IDEAL COLLECTIONS, 7/1052, COURT ROAD, KOZHIKODE DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN RESPONDENT(S)/RESPONDENTS IN RCA 126/2008/PETITIONERS IN RCP: --------------- 1. EAST KOTTAMPARAMBU IBRAHIM, S/O ANEEFA, JIJULA MANZIL, MARIKUNNU P.O., CHEVAYUR AMSOM,DESOM, KOZHIKODE-12. 2. PULIKKALAKATH MARIYAMBI, W/O EAST KOTTAMPARAMBU IBRAHIM, RIJULA MANZIL, MARIKUNNU P.O., CHEVAYUR AMSOM, DESOM, KOZHIKODE-12. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. -----------------------R.C.R.No. 251 OF 2011 ------------------------** Dated this the 24th day of June, 2011 ## **O R D E R** Pius C.Kuriakose, J. Under challenge in this revision filed by the tenants is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the grounds of arrears of rent and bona fide need for own occupation. As for the eviction order concurrently passed on the ground of arrears of rent, we are of the view that there is no infirmity at all about that order and being a tentative order, the same can be got vacated by the tenants by making requisite deposits and by invoking Section 11 (2) (c). Therefore, according to us, in this revision we need to be concerned seriously only about the correctness of the eviction order passed on the ground under sub section (3) of Section 11. 2. The petition schedule buildings are two rooms one in the ground floor and another in the first floor of a larger building RCR.No.251/2011 2 belonging to the landlord. The need projected by the landlord was the need to allow his dependent son to conduct business in ready made garments. Various contentions are raised disputing the bona fides of the need and claiming the protection of the second proviso to sub section (3) of Section 11. However, no specific contention under the first proviso to sub section (3) of Section 11 was raised. During the pendency of the rent control petition, another building, in respect of which the same landlord had obtained an order of eviction on the ground of his own occupation, fell vacant and the landlord sold that building to the tenant who was in occupation of that building. When the landlord was confronted during his examination with this subsequent event the landlord's explanation was that he became constrained to sell the other building (the building which was subject matter of RCP NO.37/2005) due to financial constraints and the urgent necessity to pay off the debts incurred in connection with the marriage of his daughter recently conducted by him. The above explanation of the landlord was found convincing by the Rent Control Court and the Appellate Authority. Both these authorities on appreciating the evidence held that the need is RCR.No.251/2011 3 bona fide and that the tenants are not entitled for protection of the second proviso. Accordingly, order of eviction was concurrently passed by the Rent Control Court and the Appellate Authority. 3. In this revision under Section 20, various grounds have been raised assailing the judgment of the Appellate Authority. Even though Sri.M.S.Narayanan learned counsel for the revision petitioners/tenants addressed arguments before us on the basis of all those grounds, he gave more thrust in his submissions to the ground based on the applicability of the first proviso to sub section (3) of Section 11 in this case. According to Mr.Narayanan, even if the finding of the statutory authorities that the need projected by the father, the landlord, is a bona fide one is correct, then also the eviction order could not have been passed in view of the first proviso to sub section (3) of Section 11. The building which fell vacant (the building which was subject matter of RCP No.37/2005) could have been provided to the son if the need was bona fide. At any rate, the landlord was bound to offer special reasons as to why he is insisting on evicting the revision petitioners. In the affidavit in lieu of the RCR.No.251/2011 4 chief examination the landlord did not mention anything about the building which is subject matter of RCP 37/2005. It is only in cross examination that he explained that he was compelled to sell that building. But his version in cross examination runs contrary to what is pleaded in the present rent control petition. The learned counsel drew our attention to the pleadings in the rent control petition. Strong reliance was placed by Mr.Narayanan on the judgment of another Division Bench of this court in Janatha Drugs v. Maithri Construction(2007 (4) KLT 625). The learned counsel submitted that it has been very clearly laid down by the Division Bench of this court in that case that landlord is bound to plead and prove special reasons when he gets possession of other rooms and such special reasons should not be evasive reasons, but should be germane to the issue in question. 4. We have very anxiously considered the submissions addressed before us by Mr.Narayanan. We remind ourselves at the very outset of the attenuated nature of the jurisdiction in which we are presently sitting. In the present jurisdiction under Section 20 ,which is revisional in nature, this court is not RCR.No.251/2011 5 expected to venture upon a de novo reappraisal of the evidence for the purpose of substituting factual conclusions arrived at by the statutory authorities especially when such conclusions are reasonable conclusions founded on the evidence on record. On going through the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts, we do not find any warrant for invocation of the revisional jurisdiction as according to us the findings entered therein on the essential issues are reasonable findings based on the evidence adduced in this case especially the oral evidence of the landlord and that of his dependent son. 5. The question then arises for consideration is whether the first proviso to sub section(3) of Section 11 will stand in the way of eviction order being passed. Admittedly, the building which is subject matter of RCP No.37/2005, was in the possession of the tenant at the time when the rent control petition was filed. This was why the tenant could not raise the contention in his pleadings that the rent control petition is liable to be rejected by virtue of the first proviso . But what was happened is only the subsequent event of the above building falling vacant, the above 6 RCR.No.251/2011 tenant being evicted in the execution of the eviction order passed in RCP No.37/2005. The question is whether the landlord was bound to accommodate his son in that building. RCP 37/2005 was a case where the tenant was evicted on the bona fide need for own occupation of the landlord himself. When the landlord is cross examined with reference to the subsequent event, he says that he became constrained to sell that building to the tenant who was in occupation of that building due to the necessity of raising necessary funds for liquidating the loans which he had contracted in connection with the marriage of his daughter. He also stated that in the meanwhile he contracted ailment of Asthma. The above explanation was found convincing by the Rent Control Court and the Appellate Authority. According to us, the compulsion of the landlord to sell the other building, which fell vacant after the landlord had projected the need to accommodate his son in the present building, i.e. liquidating the debts contracted for conducting the marriage of daughter can be a special reason even if this was a case where the first proviso applied. Janatha Drugs v. Maithri Construction (cited supra) was a case where the first proviso to sub section (3) of Section RCR.No.251/2011 7 11 very clearly applied. In that case the landlord had not disclosed availability of another building. Nor had he offers special reasons for that. The tenant had specifically raised the plea based on the first proviso to sub section (3) of Section 11. During the course of evidence he was confronted to the question regarding the availability of the other building. Answer which he gave was evasive. Thus the facts situation in the decision in Janatha Drugs v. Maithri Construction (cited supra) has absolutely no application in the present case. We do not find any illegalities, irregularities or impropriety about the judgment of the Appellate Authority. In short, we do not find any warrant for invocation of the revisional jurisdiction under Section 20. The revision necessarily has to fail and the same will stand dismissed. ## **PIUS C.KURIAKOSE,JUDGE** **N.K.BALAKRISHNAN, JUDGE** dpk