Rahelamma v. Saraswathy Amma and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 RCRev..No. 274 of 2007() -----------------------RCA.26/2006 OF RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.33/2005 OF RENT CONTROL COURT, TRIVANDRUM .................... REVISION PETITIONER/RESPONDENT/PETITIONER: -------------------------------------------------------------- RAHELAMMA, W/O. LATE C.K. MATHAI, AGED 77 YEARS, RESIDING AT JOY HOUSE, SECRETARIAT WARD, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): APPELLANTS/COUNTER PETITIONERS: ---------------------------------------------- 1. SARASWATHY AMMA, AGED 47 YEARS, RESIDING AT EASWARAVILASOM ROAD, T.C.26/1497, OOTTUKUZHI, VANROSE JUNCTION,THIRUVANANTHAPURAM. 2. KANNAN, S/O. SARASWATHY AMMA, AGED 19 YEARS, -DO- -DO-. 3. LAKSHMI, D/O. SARASWATHY AMMA, AGED 17 YEARS OF -DO- -DO-. - (3RD APPELLANT IS MINOR AND SHE IS REPRESENTED BY HER MOTHER GUARDIAN AND NEXT FRIEND 1ST APPELLANT) ADV. SRI.V.PHILIP MATHEW FOR R1 & 2 SRI.E.RADHAKRISHNAN FOR R1 & 2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## ORDER ON IA. NO. 2573 OF 2007 ## DISMISSED 25-5-10 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. (TRUE COPY) PS TO JUDGE ## **PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.** ----------------------------------------------RCR. No. 274 of 2007 ----------------------------------------------Dated this the 25[th] day of May, 2010 ## **O R D E R** ## **Pius C.Kuriakose, J.** The landlady is in revision. She sought to evict the respondents/tenants on the grounds of arrears of rent and bonafide need for own occupation. The allegation regarding arrears of rent was that the rent is in arrears from April, 1997. It is however conceded in the rent control petition itself that against the above arrears, rent for the period of 20 months from February 2003 till September 2004 is received. On the allegation that despite demand through notice Ext.A1, the arrears of rent was not discharged, eviction is sought. The tenant's defence to the ground under section 11(2)(b) was that the allegation that the rent is in arrears is not correct, that the tenant has been very promptly paying the rent, that the landlady did not receive rent, and that the entire arrears was sent to the landlady by RCR. 274/07 -2- money order which was received by her. The need projected by the landlady in the context of section 11(3) was that the building is required for occupation of Omana Mathew, the wife of her son Mathew who had passed away. It was alleged that Omana Mathew is a dependent of the landlady and that she does not have sufficient income to support for herself and her children. 2. The tenants through the statement of objections disputed the bonafides of the claim. It was specifically contended that Omana Mathew is not a dependent of the landlady. It was also contended that the landlady is having other vacant building in which Omana Mathew can be accommodated if necessary. It was also contended that the tenants are entitled for the protection of the second proviso to section 11(3). Before the Rent Control Court PW1 Omana Mathew was the only witness on the side of the landlady. As against that the first respondent tenant was RCR. 274/07 -3- examined as CPW1. Documentary evidence on the side of the landlady consisted of Exts.A1 to A3. Ext.A1 was a copy of the statutory intimation letter regarding arrears of rent. Documentary evidence on the side of the tenant consisted of Exts.B1 to B10 (a). Ext.B6 series was receipts issued by the landlady against the rent which was sent to the landlady by money order. The total value of the amount sent as per Ext.B6 series comes to Rs.8500/-. The Rent Control Court on evaluating the evidence came to the conclusion that the rent was in arrears as alleged by the landlady. That the court also found that the evidence of PW1 was inspiring and held that the need projected by the landlady is bonafide. It was found that the tenant was unsuccessful in producing any evidence to show that the landlady was in possession of any other vacant building in which PW1 could be accommodated. The Rent Control Court referred to various judgments of this court including the judgment of the Full RCR. 274/07 -4- Bench in Francis vs. Sreedevi Varasiar, 2003 (2) KLT 230 (FB) and held that the tenant was unsuccessful in proving that either of the ingredients of the second proviso. Accordingly order of eviction under section 11(3) and 11(2) (b) was passed. The landlady invoked the grounds under section 11(4)(ii) and 11(4)(iii) also. But the rent control court did not allow eviction on those grounds since the landlady did not challenge the same before the Appellate authority, we are not concerned about those grounds. The tenants preferred appeal against the order of eviction passed against them. The appellate authority reappraised the evidence. The appellate authority interfered with the order of eviction passed by the Rent Control Court. That authority found that Ext.B2 rent receipt was a genuine receipt issued by the landlady to the tenant. That receipt is to the effect that arrears up to September 2004 was discharged by the tenant. The Appellate Authority took the RCR. 274/07 -5- view that in the teeth of Ext.B2, the landlady is not entitled to allege that rent for the period prior to Ext.B2 continued to be in arrears. The appellate authority found that the rent payable for the period subsequent to Ext.B2 was paid by Ext.B6 series. Thus taking the view that the rent was not in arrears the appellate authority vacated the order of eviction passed under section 11(2)(b). 3. Coming to the order of eviction passed under section 11(3) the learned appellate authority noticed that the landlady Rahelamma had not mounted the witness box for testifying regarding the bonafides which was essentially a state of the landlady's mind. The appellate authority further noticed that the evidence of PW1 was that herself was collecting a sum of Rs.1000/- as monthly rent from a building which belonged to the family and had been allotted to the share of her husband under a family arrangement. Referring to the statutory definition of landlord, the RCR. 274/07 -6- appellate authority took the view that if PW1 is receiving rent in respect of another building, she is a landlord in her own right. According to the appellate authority when a person is a landlord in her own right and is in need of a building for doing business he or she should evict his or her tenant rather than look up to his parent or parents in law for evicting their tenants on the premise that the building is required for occupation by a dependent family member. The learned appellate authority was in confusion as to whether the building wherefrom PW1 is collecting rent was suited for her need projected in the RCP. In view of that confusion the learned appellate authority has observed that if room wherefrom PW1 is collecting rent is not suitable, then it may be possible to justify the action of the landlady in seeking eviction on the reason that the building is required for the purpose of her daughter in law who is dependent on her for a suitable building for carrying RCR. 274/07 -7- business on the above reasoning. The appellate authority set aside the order of eviction passed under section 11(3) to the extent finding that the need is bonafide and remanded the RCP to the Rent Control Court for deciding the question of bonafides of the need. The Appellate Authority set aside the findings regarding the provisos also and left all questions open. 4. Smt.M.A. Sohara, counsel for the petitioner highlighted that Ext.B6 series themselves will reveal the fallacy of the tenants' claim that she was a prompt payer of rent. The total value of Ext.B6 series is around Rs.8500/-. If as a matter of fact the rent was not in arrears for the period prior to Ext.B2, it was unnecessary to pay so much of rent by way of money orders. Ext.B6 series themselves would show that the amounts covered by those money orders were actually being sent towards rent arrears due for the period prior to Ext.B2 also. Mr.Philip Mathew, RCR. 274/07 -8- counsel for respondent submitted that finding regarding arrears of rent was founded on Ext.B2. According to him Ext.B2 was a document admitted by the landlady. He referred to Ext.B3 and submitted that on the same day, the landlady has issued consent letter to the Thiruvananthapuram City Corporation expressing her consent to the tenant in the matter of issuance of trade licence. According to Mr.philip Mathew when Ext.B2 is issued it is clear that the rent for the period prior toExt.B2 is cleared. If rent was in arrears B3 would not have been issued. 5. We have considered the rival submissions. The argument of Mr.Philip Mathew which found favour of the appellate authority would look attractive. But then as already stated the total value of the amount sent by the tenant under Ext.B6 series comes to Rs.8500/-. If as a matter of fact the rent was not in arrears as alleged by the RCR. 274/07 -9- landlady, it was absolutely unnecessary for the tenant to have sent so much of amount by way of money order by the landlady. When Exts.B2, B3 and B6 series are considered conjointly we find the landlady's version in this regard to be more probable. We accept that version of the landlady regarding arrears of rent and restore the order of eviction passed by the Rent Control Court under Section 11(2(b). 6. The learned Appellate Authority noticed from the evidence that the landlady had not given evidence in the case. At the same time the Appellate Authority interfered with the order of eviction on the ground under sub-section (3) of Section 11 not on that reason though it's interference with the eviction order under Section 11(2)(b) to a considerable extent was on that reason. There is no hard and fast rule that the landlady herself should give oral evidence when the ground invoked is under sub-section (3) of Section 11. What is required is only that a witness RCR. 274/07 -10- competent to testify regarding the genuineness of the need should give evidence. In the instant case PW1 Omana Mathew is the needy person and it is, to accommodate her that her mother-in-law the landlady sought eviction. Therefore the non-examination of the landlady will not be fatal to the claim under sub-section (3) of Section 11. The Appellate Authority noticed from the evidence that PW1 was collecting rent at the rate of Rs.1000/- per mensem from the tenant in occupation of another room which belongs to the family. The Appellate Authority relied on the statutory definition of the term 'landlord' and took the view that PW1 herself is a landlady. According to the Appellate Authority, under such a situation she cannot be a dependent of her mother-in-law for getting a building for doing business. She will have to seek eviction of her own building rather than the petition schedule building of which the landlady is her mother-in-law. On our re-apprising the evidence (which we RCR. 274/07 -11- did in view of the divergence in the findings entered by the two authorities below) we find that it is not very clear from the evidence as to whether there is a landlord tenant relationship between the tenant who pays Rs.1000/- to PW1 and PW1. It is also possible that PW1's mother-in-law herself is the landlady and on the basis of some arrangement in the family the rent which is due to the mother-in-law is paid to PW1, the daughter-in-law so that she can support herself and her children with the same. The learned Appellate Authority remanded the matter to the Rent Control Court to consider the legal implications of a situation where PW1 herself is the landlady of another building. The Appellate Authority has indicated that if the other building occupied by a tenant paying Rs.1000/- is not suitable for the conduct of the business proposed by PW1 it may still be possible for PW1 to evict the respondent herein, being a dependent of the mother-in-law for a suitable RCR. 274/07 -12- building. We feel that the decision of the Appellate Authority to interfere with the positive finding of the Rent Control Court in favour of the landlady under sub-section (3) of Section 11 is justifiable. We approve that finding and sustain the order of remand clarifying that the Rent Control Court will first have to find whether PW1 is the landlady of the building occupied by the tenant who pays rent of Rs.1000/-. After finding so, the Rent Control Court will have to find whether that building is suitable for the need projected by PW1 and the landlady. If on these two aspects the finding comes to be against PW1 and the landlady (if the finding is to the effect that PW1 is the landlady and that the building occupied byPW1's tenant is suitable for her present purpose) then the RCP under Section 11(3) necessarily will have to be dismissed. But if the findings are otherwise, the will re-appraise the entire once evidence again and decide whether the need is bona fide. RCR. 274/07 -13- 7. We are unable to approve the action of the Appellate Authority in having vacated the findings entered in favour of the landlady in the context of the first and second provisos of sub-section (3) of Section 11. It appears to us that the Appellate Authority thought that since the matter is going back to the Rent Control Court, all issues can be kept open. Since the finding in favour of the landlady in the context of the provisos were entered by the Rent Control Court on the basis of evidence adduced by the parties and since those findings are supported by judicial precedents, it was absolutely unnecessary that the Appellate Authority vacated those findings. We restore the finding of the Rent Control Court that the rent control petition was not liable to fail by virtue of any of the provisos to sub-section (3) of Section 11. To this extent we interfere with the order of remand. 8. The contract rent of Rs.150/- presently being paid RCR. 274/07 -14- was fixed two decades ago. We notice that the tenant had raised a contention at the stage of evidence that the rent was enhanced to Rs.500/-. This contention is not accepted by either of the authorities below. We have no doubt that the rate of Rs.150/- per mensem is too low having regard to importance of the locality where the building is situated and the current rent rates. Even as we sustain the order or remand passed by the Appellate Authority to the extent stated above, we re-fix the monthly rent payable by the respondent with effect from 1-7-2010 at Rs.750/- per mensem. 9. Result of the above discussion therefore is as follows: 1) The judgment of the Rent Control Appellate Authority interfering with the order of eviction passed under Section 11(2)(b) is set aside. The order of eviction passed by the Rent Control Court under Section 11(2)(b) is RCR. 274/07 -15- restored. The respondent can get this order vacated by filing requisite application under Section 11(2)(c) within one month from today. 2) The contract rent payable by the respondent for the building in question is re-fixed with effect from 1-7-2010 at Rs.750/- per mensem. This re-fixation is subject to regular fixation of fair at the instance of either party by the Rent Control Court. Till fair rent is fixed respondent shall pay rent at the rate of Rs.750/- per mensem. 3) RCP is remanded to the Rent Control Court for considering whether the need projected under Section 11(3) can be upheld. While considering this, the question as to whether PW-1 is a dependent of the landlady; whether PW1 is the landlady in her own right in respect of the building occupied by the tenant who pays Rs.1000/- and the question as to whether that building is suitable for PW1's purpose will be considered. The parties will be permitted to RCR. 274/07 -16- adduce evidence and on the entirety of the evidence that comes of record a decision will be taken by the Rent Control Court regarding the respondent's liability to suffer order of eviction under Section 11(3). 4) The finding of the Rent Control Court that the RCP will not fail by virtue of any of the provisos to Section 11(3) is restored. The Rent Control Court is directed to conduct further enquiry and take a fresh decision within four months of entering appearance by the parties. The parties will enter appearance before the Rent Control Court on 15-62010. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(C.K.ABDUL REHIM, JUDGE)** ksv/-