R.C.R. No.128 of 2011 (Rent Control Revision)

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 RCRev..No. 128 of 2011() -----------------------RCA.141/08 OF THE RENT CONTROL APPELLATE AUTHORITY, VADAKARA RCP.19/2008 OF THE RENT CONTROL COURT, VADAKARA .................... ## REVISION PETITIONERS/RESPONDENTS/RESPONDENTS: 1. THEKKUMBATH MOHANAN, S/O.ACHUTHAN, AGED 58 YEARS,KUNNUMPURATH THAZE KUNIYIL HOUSE, VATAKARA(P.O),VATAKARA AMSOM AND DESOM, KOZHIKODE DISTRICT. 2. SURESH BABU, AGED 40 YEARS, S/O.RAJAGOPALA KURUP,VANMERI VEETTIL HOUSE, CHORODE AMSOM,VARISYAKKUNI DESOM, VYKKILISSERY DESOM. 3. KAKKAT SHEELA, AGD 52 YEARS, D/O.INDIRAMA,KAKKATT HOUSE,KARITHIKAPPALLY(P.O), KATCHERRY AMSOM AND DESOM,VILLIAPPALLY VIA. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): APPELLANT/PETITIONER MALOL ABDURAHIMAN, AGED 68 YEARS, S/O.MAYINKUTTY,MALOL HOUSE,ONCHIYAM AMSOM AND DESOM,VATAKARA TALUK,KOZHIKODE DISTRICT, VADAKARA P.O., PIN-673 028. BY ADV.MR.U.K.DEVIDAS. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE ORDER ON I.A.NO.742 OF 2011 IN R.C.R.NO.128 OF 2011 DISMISSED. 14.6.2011 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- N.K.BALAKRISHNAN, JUDGE. ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------R.C.R.No.128 of 2011 ---------------------------------------------------Dated this the 14th day of June, 2011** ## **Order** ## **Pius C.Kuriakose, J.** Under challenge in this revision filed by the tenants is the judgment of the Rent Control Appellate Authority ordering eviction on the ground under sub-section (3) of Section 11. The need projected by the landlord in the present R.C.P. (RCP No.19/08) and R.C.P.No.20/08 pertaining to the adjacent room was that these two rooms are needed bonafide for occupation by Mohammed, the son of the landlord for the conduct of jewellery business. The bonafides of the need was disputed and various contentions including the claim for protection of the second proviso were raised by the tenants. The Rent Control Court, on evaluating the evidence, came to the conclusion that the landlord was unsuccessful in proving the bonafides of the need. To enter such a finding, reliance was placed by the Rent Control Court on the circumstance that Mohammed, the son of the landlord for whom eviction was sought for was not examined. The Appellate RCR 128/11 2 Authority under the impugned judgment has relied on various decisions including the judgment of the Supreme Court in **C.Karunakaran v. T.Meenakshi** [ (2005) 13 S.C.C. 99] and held that mere non-examination of the person for whose need the building was required by itself was no ground to non-suit the landlord. According to the Appellate Authority, the oral evidence adduced by the landlord as P.W.1 was quite convincing and the landlord's father was quite competent to depose regarding the state of his son's mind. The learned Appellate Authority referred also to the judgments of this court in **Madhava v. Pathumabi** (2005(3) KLT 369) and **Muhammed Basheer v. Mujib Rahman** (2005(4) KLT 697). In that view of the matter, the Appellate Authority reversed the finding of the Rent Control Court regarding the bonafides of the need, confirmed the findings already entered regarding the tenants eligibility for the protection of the proviso and ordered eviction under sub-section (3) of Section 11. 2. In this revision under Section 20 the tenants have raised various grounds assailing the judgment of the Appellate Authority. We have heard the submissions of Mr.V.N.Ramesan Nambisan, learned counsel for the revision petitioners. RCR 128/11 3 Mr.Nambisan addressed us on the basis of all the grounds. Though arguments were addressed on the basis of all the grounds, the learned counsel gave more thrust to the ground that the non-examination of Mohammed, the needy son is fatal to the R.C.P. Our attention was drawn to the answers given by P.W.1 in cross-examination and it was submitted that those answers will clearly show that even according to the father, it is the son, Mohammed, who alone will be in a position to depose regarding the volume and nature of the business that is proposed to be conducted by his son. P.W.1 further deposed that he has never conducted jewellery business and also that there will be documents to show as to what is the nature of the employment which his son, Mohammed, is presently having in the gulf country and as to what is the income he is deriving from the said employment. According to Mr.Nambisan, it is clear from the above evidence that Mohammed, the needy son is the only person who could have been given responsible evidence regarding the bonafides of the need projected in the R.C.P. 3. Resisting the submissions of Mr.Nambisan, Mr.U.K.Devidas, learned counsel for the landlord would draw our RCR 128/11 4 attention to the judgment of the Supreme Court in **C.Karunakaran's** case cited supra. According to the learned counsel, it has been clearly held by the Honourable Supreme Court in the context of sub-section (3) of Section 11 of the Kerala statute itself that mere non-examination of the person for whose need the building was required by itself was no ground to nonsuit the landlord. According to the learned counsel, what is required is only that a competent witness should swear to the need of the needy person. In the instant case, P.W.1 was none other than the father of the needy son and was in that way quite competent to testify regarding the bonafides of the need. 4. We have very anxiously considered the submissions addressed at the Bar. It is true that it is not absolutely necessary that in all cases where the landlords seek eviction under subsection (3) of Section 11 for the occupation of a dependent family member, the above family member himself gives oral evidence. What is required is that a witness who is competent to testify regarding the bonafides of the need of the landlord (which should necessarily be shared by the needy dependent family member also) should give evidence. The question is whether in the facts RCR 128/11 5 and circumstances obtaining in the present case and in the light of the evidence already adduced by P.W.1 regarding the bonafides of the need, it can be said that the bonafides stand established by cogent evidence. We feel that the above question will have to be answered against the landlord. The need projected is the conduct of a jewellery business. Mohammed, the needy son, is working in a jewellery. P.W.1 has stated that he had nothing to do with the conduct of jewellery business. He stated further that only his son will be able to testify regarding the nature and volume of business which is proposed to be conducted by his son. He has certainly denied the suggestion that his son alone will be able to testify as to what is really in his mind. But, we feel that in the light of the other evidence adduced by P.W.1, it is Mohammed, the needy son who alone will be testify the need to conduct jewellery business as projected in the R.C.P. 5. In this connection, we notice that Mohammed has been working in a foreign country for about 8 years. The defence contention is that Mohammed is making money and will not come back for conducting small type jewellery business in Vadakara. P.W.1 has stated that there are documents which would show as RCR 128/11 6 to what is the nature of the work which his son Mohammed is doing and as to what is the income that Mohammed is deriving from that job. We feel that Mohammed and not his father is most competent to testify regarding these aspects which also may be relevant while deciding the crux issue in this case. Therefore, we are inclined to remit the R.C.A. back to the Rent Control Appellate Authority. Under the statutory scheme, the power of the Rent Control Court and the Appellate Authority in the matter of recording of evidence are co-equal. According to us, as the remand is for the limited purpose of allowing the landlord to bring on record the oral evidence of Mohammed the needy son, the R.C.A. can be remanded to the Appellate Authority itself and not to the Rent Control Court. 6. We notice yet another aspect of the matter. The building is situated in an important area of Vadakara town which is the second largest town in Calicut District. The rent of Rs.1350/- per month presently being paid by the tenants is, in our view, far below the rent the building may fetch. As we are remanding the matter to the Appellate Authority, we refix the rent payable by the petitioners at Rs.2500/- per month with effect from 1.7.2011. RCR 128/11 7 We make it clear that this refixation is subject to regular fixation of fair rent by the Rent Control Court at the option of the either party. 7. The result of the above discussion is that the judgment under revision is set aside and the R.C.A. (R.C.A.No.141 of 2008) is remanded to the Rent Control Appellate Authority, Vadakara. The learned Appellate Authority is directed to permit the landlord to let in further evidence by examining his son Mohammed as an additional witness on his side. The landlord should be permitted to adduce further documentary evidence also, if any. If the landlord adduced further evidence, the tenants should be permitted to adduce counter evidence. The learned Appellate Authority is directed to complete the enquiry and pass revised judgment in the R.C.A. as expeditiously as possible. 8. The rent payable by the revision petitioners is fixed with effect from 1.7.2011 at Rs.2500/- per mensem. Till fair rent is fixed, revision petitioners shall pay the rent at the above rate. Parties will enter appearance before the Rent Control Appellate Authority on 30[th] June, 2011. Transmit the records forthwith to the Rent Control Appellate Authority, Vadakara. We make it clear RCR 128/11 8 that this judgment applies only to RCA No.141 of 2008 and not to the judgment in RCA No.142 of 2008 which we have already confirmed. ## **PIUS C.KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** kns/srd RCR 128/11 9