RCR Nos. 139 & 192 of 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 RCRev..No. 139 of 2011() -----------------------RCA.50/1997 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.67/1996 OF RENT CONTROL COURT, KANNUR .................... REVISION PETITIONERS/RESPONDENTS/TENANTS ------------------------------------------------------------ 1. APPAKKONDAN PAPPAMMA,D/O. APPAKONDAN, AGED 69 YEARS, RESIDING NEAR ENGLISH CHURCH,TALAP,KANNUR-2. 2. MANIRAJ, S/O. MULLATHUKANDY VAAJA PALANI NAIKER, AGED 53 YEARS, RESIDING NEAR ENGLISH CHURCH,TALAP,KANNUR-2. 3. HEMA, D/O. MULLATHUKANDY VAAJA PALANI NAIKER, AGED 51 YEARS, RESIDING NEAR ENGLISH CHURCH,TALAP,KANNUR-2. 4. VIJAYAN, S/O. MULLATHUKANDY VAAJA PALANI NAIKER, AGED 48 YEARS, RESIDING NEAR ENGLISH CHURCH,TALAP,KANNUR-2. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): APPELLANT/LANDLORD --------------------------------- PUTHANPURAYIL RAJAN, S/O. KANNAN, AGED 73 YEARS, RESINDNG AT SHREYAS, NEAR PUZHATHI HOUSING COLONY, KANNUR-2. ADV. SRI.B.KRISHNAN SRI.RAJESH VELAYUDHAN SRI.R.PARTHASARATHY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 31/05/2011, ALONG WITH RCR.192/11 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ----------------------------------------------RCR. No. 139 & 192 of 2011 ----------------------------------------------Dated this the 31[st] day of May, 2011 ## **O R D E R** ## **Pius C.Kuriakose, J.** The unsuccessful tenants are the revision petitioners in both these cases. They are now ordered to be evicted on the ground under sub-section (3) of Section 11. The need projected was that the buildings were to be occupied by the landlord after reconstruction. The tenants in R.C.R.No.192 of 2011 disputed the bonafides of the need, but, did not specifically contend that they are entitled for the protection of the second proviso to Section 11(3). The tenants in RCR No.139 of 2011 would only dispute the bonafides of the need, but, would also specifically contend that they are entitled for the protection of the second proviso to Section 11(3). The Rent Control Court and the Appellate Authority would concurrently find that the need projected by the landlord for own occupation is not bonafide. In view of that RCR. Nos. 139 & 192 of 2011 -2- finding, the Rent Control Court and the Appellate Authority did not enter findings on the further question whether the tenants should entitle for the protection of second proviso to Section 11(3). The landlord filed revisions before this court and this court by order dated 27.4.2010 disposed of the revisions. Under the above order, this court found that the need projected by the landlord under sub-section (3) of Section 11 is bonafide. As it was noticed that no findings have been entered on the question of the tenants' contention that they are eligible for protection of second proviso to Section 11(3), this court remanded the Rent Control Appeals to the Appellate Authority for entering findings on the above question. The operative portion of the remand order passed by this court is in para 25 and the same is as follows: “We notice that in the three rent control revisions 439, 440 & 441/2005 the authorities below have not considered the question whether the tenants were entitled to the benefit of the second proviso to Section RCR. Nos. 139 & 192 of 2011 -3- 11(3) of the Act. Therefore, while allowing the revisions, we remit these cases back to the Rent Control Appellate Authority, Thalassery to decide the above question.” It is apparent from the remand order passed by this court that this court was under the impression that both the tenants had claimed protection of the second proviso to Section 11(3). After remand, the parties entered appearance before the Appellate Authority. The revision petitioners-tenants attempted to let in further evidence to show that they are entitled for the protection of the second proviso to Section 11(3). The learned Appellate Authority did not permit further evidence taking the view that allowing the parties to adduce further evidence beyond the scope of the remand order. According to the Appellate Authority, in terms of the remand order, the Appellate Authority was expected to enter findings on the basis of the available pleadings and the evidence. On the above reasons, it dismissed the application for amendment of pleadings filed RCR. Nos. 139 & 192 of 2011 -4- by the tenants in RCR No.192 of 2011 who as already indicated had not specifically raised the plea. 2. In these revisions various grounds are raised assailing the judgment of the Rent Control Appellate Authority. Sri.Grashious Kuriakose, learned counsel for the revision petitioner in RCR. No. 139 of 2011 and Sri. R.Surendran, learned counsel for the revision in RCR. 192 of 2011 addressed submissions before us based on the grounds raised in the respective revision memoranda. Both of them submitted that the judgment of the Appellate Authority is vitiated by illegalities, irregularities and improprieties as envisaged by Section 20 of Act 2 of 1965. The learned counsel argued that the Appellate Authority was not at all justified in dismissing the application for amendment. The scope of the remand order was misunderstood by the Appellate Authority. When the remand order directs the Appellate Authority to consider the RCR. Nos. 139 & 192 of 2011 -5- tenant's eligibility for protection of the second proviso, any amendment which is intended to enable the Appellate Authority to comply with the directions in the remand order should have been allowed. Prejudice has been caused to the tenants on account of the decision taken by the Appellate Authority. Sri. Parthasarathy, learned counsel for the respondent per contra would submit that there is no infirmity about the judgment of the Appellate Authority. Appellate Authority has faithfully complied with the directives under the remand order. Mr. Parthasarathy referred to the judgment of the Full Bench in Francis v. Sreedevi Varassiar, 2003(2) KLT 230 F.B. and submitted that the evidence on record will show that other suitable buildings are available in the locality and hence the tenants in these two cases can never become eligible for the protection of the second proviso. 3. Having anxiously considered the submissions RCR. Nos. 139 & 192 of 2011 -6- addressed at the Bar and having gone carefully through the impugned judgment of the Appellate Authority and the related papers including the remand order issued by this Court we are of the view that there is no warrant for interference with the impugned judgment. In this context we keep in mind the attenuated nature of the jurisdiction in which we sit at present. In this jurisdiction, this court is not expected to make a reappraisal of the evidence. This court is expected only to examine whether the findings entered by the Appellate Authority are legal, regular and proper. As already indicated the issue as to the bona fides of the need has attained finality. The only issue which survives is whether the tenants are entitled for the protection of the second proviso. One of the tenants did not even claim the protection of the second proviso. True, it would appear from the remand order that this court was under the impression that both the tenants had claimed the protection. RCR. Nos. 139 & 192 of 2011 -7- Whatever that be, on the basis of the evidence on record the Appellate Authority cannot be blamed for having concluded that the tenants are not entitled for the protection of the second proviso. The finding on the basis of which it is so held in the case of the tenant who had claimed the protection is that other buildings are available in the locality. As both the buildings are in the same locality the finding that other building are available in the locality entered in the case of the tenant who had specifically claimed the protection will apply afortiori in the case of the other tenant also. 4. The result is that both the R.C.Rs. fail. The order of eviction passed under Section 11(3) is confirmed. The execution court is directed to keep in abeyance proceedings for execution till 31.12.2011. This will be subject to the following conditions: The revision petitioners file an affidavit before the RCR. Nos. 139 & 192 of 2011 -8- execution court or the rent control court, as the case may be, undertaking to give peaceful surrender of the building in question to the respondent on or before 31.12.2011 and undertaking further to discharge the arrears of rent, if any, within six weeks from today and also to pay occupational charges at the existing contract rent rate to the respondent without fail. We make it clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings therein. The execution court is directed to refer both the cases for mediation by one of the accredited mediators of the District Mediation Centre, Thalassery. The court shall proceed further with the E.P. only after obtaining report from the mediator appointed in these cases. If the court notices that it is a failure report that is submitted by the mediators, then the court shall summon the parties to the court hall and explore the possibilities of a settlement of the RCR. Nos. 139 & 192 of 2011 -9- issues by the parties. Only when it is noticed that the endeavours are unsuccessful, the court can issue delivery warrant. ## **PIUS C.KURIAKOSE, JUDGE.** ## **N.K.BALAKRISHNAN, JUDGE.** srd/ksv/27/8/11