R.C.R. Nos. 382 and 467 of 2004

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 RCRev..No. 382 of 2004() -----------------------RCA.57/2002 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.64/2000 of RENT CONTROL COURT, CHAVAKKAD .................... ## : PETITIONER/RESPONDENTS: ---------------------------------------- 1. BHASKARAN, S/O. ATHIKOT APPUKUTTAN, NAMMIYOOR DESOM, GURUVAYOOR AMSOM CHAVAKKAD TALUK. 2. VELAYUDHAN, S/O. DO. DO. BY ADV. SRI.T.KRISHNAN UNNI (SR.) RESPONDENTS: APPELLANT/PETITIONER: ---------------------------------- KRISHNADAS, S/O. KANDIRITHI DAMODARAN, KARAKKAD DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.RAMACHANDRAN FOR R1 SMT.R.MEERA FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 7/07/2008, ALONG WITH RCR NO. 467 OF 2004 THE COURT ON 16.7.2008 PASSED THE FOLLOWING: ORDER IN IA NO.3491/2004 IN RCR 382/2004 DISMISSED 16.7.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R.Nos.382 & 467 of 2004** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of July, 2008.** ## **O R D E R** ## Ramachandran Nair, J. These revision petitions are filed by the respective tenants in R.C.P.Nos.64/2000 & 66/2000 before the Rent Control Court, Chavakkad. These Rent Control Petitions were disposed of by a common order. The appeals, R.C.A.Nos.57/2002 and 59/2002 were also disposed of by a common judgment. The tenants have approached this court aggrieved by the common judgment passed by the Appellate Authority. Since common issues arise for decision, the revision petitions are also disposed of by a common order. 2. The landlord sought eviction of the tenants under Sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court dismissed both the petitions and the said order has been reversed by the Appellate Authority, in the appeals filed by the landlord. 3. Necessary facts for the disposal of the revision petitions are the following: RCR 382 & 467 of 2004 -2- 4. The landlord obtained the property as per partition deed No.548/1999. The tenancy started long prior to that by the predecessor of the landlord. He was employed in Gulf countries and in September, 1998 he returned after losing his employment. As he did not get any visa, he could not go back. In these circumstances he sought eviction of the premises for starting a business in bakery items and a cool drink bar by utilising the space available by evicting the two tenants who are occupying the adjoining rooms. The tenants resisted the petition for eviction mainly contending that the need alleged is only a pretext to evict them. It was contended that the landlord and his brother have business interest abroad and he has got other landed properties and buildings in his native place and he is also getting a large amount by way of rent from other premises. It was also contended that the rooms in question cannot be altered for the purpose of doing business in bakery items and cool drinks. 5. The evidence consists of oral evidence by P.Ws.1 and 2 in favour of the landlord apart from documentary evidence Exts.A1 to A15. On the respondents' side R.Ws.1 to 3 were examined and Exts.B1 to B132 have been marked. Exts.X1 to X18 and C1 to C4 have also been marked in evidence. 6. The Rent Control Court found in favour of the tenants in respect of the ground raised under Section 11(2)(b) (arrears of rent). In RCR 382 & 467 of 2004 -3- R.C.P.No.64/2000, it was found that as the entire amount of rent which were in arrears, was deposited during the pendency of the eviction petition, the said ground is not available. In R.C.P.No.66/2000, it was found that there were no arrears on the date of filing of the petition. As regards the bonafide need pleaded, the Rent Control Court found against the landlord mainly for the following reasons: (a) Even though he had given evidence that he was not conducting any business, in the deposition paper against the column to fill up his avocation it has been written as “business”; (b) Two vacant rooms belonging to his brother were leased out to one Radhakrishnan on 2.12.1998, i.e. before filing of the eviction petition; © He had sent a notice to the tenant seeking to increase the rent which really indicate that his intention was only to get enhanced rent; and (d) His passport and N.R.I. Account are kept alive which shows that he has got an intention to go abroad. 7. The Appellate Authority found that the said reasons pointed out by the Rent Control Court cannot be supported in the light of the clear evidence available and that the approach made by the Rent Control Court is clearly erroneous. 8. The Appellate Authority reversed the findings rendered by the Rent Control Court on both grounds, i.e. arrears of rent and bonafide need in R.C.A. No.57/2002 arising out of R.C.P.No.64/2000 and allowed eviction RCR 382 & 467 of 2004 -4- on the said grounds. In R.C.A.No.59/2002 also the appeal filed by the landlord was allowed, on the ground of bonafide need. 9. We have heard learned Senior Counsel Shri T. Krishnanunni and Shri K. Ramakumar for the petitioners and Shri K. Ramachandran, learned counsel appearing for the respondents. Learned Senior Counsel for the petitioners contended that going by the requirements of Section 11(2)(b) of the Act, if the tenant had deposited the entire arrears of rent and if as on the date of passing of the order by the Rent Control Court, there are no arrears, then the court is bound to reject the prayer for eviction on that ground. As regards the finding on the bonafide need, it was contended that the trial court had opportunity to see the witnesses as well as to observe the demeanour of the said witnesses and therefore the Appellate Authority ought not have interfered with the reasoning adopted by the Rent Control Court. The learned Senior Counsel relied upon the decisions of this court in **Ayyappan v. Fr. Thomas** (1989 (2) KLT SN page 26, case No.32) and **Eanu Haji v. Mustafa** (2004 (2)KLT 668) in support of the above argument. 10. The first question to be considered in R.C.R.NO.382/2004 is whether the eviction ordered under Section 11(2)(b) of the Act is correct. The Appellate Authority has considered the said aspect in paragraph 11 of the judgment. In view of the vehement plea raised by the learned Senior RCR 382 & 467 of 2004 -5- Counsel for the petitioner, we consider it necessary to examine the matter in the light of the specific provisions, viz. Sections 11(2)(b) and 12 of the Act. Section 11(2)(b) of the Act is in the following terms:- “If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him.” Sub-section (c) confers an opportunity to the tenant to get the order vacated by depositing the arrears within the time granted by the court or during the extended time. 11. The legal position in this respect is well settled by various decisions of this Court and that of the Apex Court. Reference may be made to the following decisions:- **Gopalakrishna Pillai v. Philipose Abraham [1994(2) KLT 396]** , **Chinnamma v. Gopalan [1995 (2) KLT 755]** , **Davy v. Indu and others [1999 (2) KLJ 879]** , **Sulochana v.Kalyani [2006 (1) KLT SN.Pg.85 Case No.123]** . A Division Bench of this Court in **Gopalakrishna Pillai's case** (supra), held that the Rent Control Court has RCR 382 & 467 of 2004 -6- to make an order directing the tenant to put the landlord in possession of the building if it is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy or by the last day of the month next following for which the rent is payable in case there is no such agreement. An enquiry as to the arrears of rent which accrue due after the issue of notice or the arrears payable at the time when the petition came up for enquiry is not contemplated under the Act. An examination of Section 11 (2)(b) read with S.11(2)(c) of the Act will show that once the eviction is ordered on finding that the rent is in arrears, the tenant is entitled to move under Section 11(2)(c) of the Act to get the order vacated. The argument that since the tenant has chosen to deposit the accrued arrears of rent during the pendency of the Rent Control Petition, the Rent Control Court while passing the order, should reckon such deposit also cannot be accepted. In **Chinnamma's case** (supra), the Apex Court considered the scope of Sections 11 and 12 of the Act. After examining in detail the relevant provisions, it was held in paragraph 7 in the following terms: “7. A mere look at Sections 11 and 12 of the Act would show that they operate in different situations. Under Section 11(2)(b) of the Act the court passes a final order of eviction, directing the tenant to put the landlord in possession of the building, if there is default as provided therein. The execution of such final order is statutorily suspended for a period of one month. Within that time or such RCR 382 & 467 of 2004 -7- further time as the court may allow, the tenant is given an opportunity to deposit the arrears of rent with interest and cost of the proceedings and, if so done, the court is bound to vacate the order passed under Section 11(2)(b) of the Act. One the other hand, the provisions of Section 12 are applicable during the pendency of the proceedings for eviction. It permits the tenant against whom an application has been made by the landlord under Section 11 to contest the application or to prefer an appeal only if the tenant has paid or pays to the landlord or deposits in the court all arrears of rent admitted by the tenant to be due in respect of the building up to the date of payment or deposit and also continues to pay or deposit any rent which may subsequently become due in respect of the building till the termination of the proceedings before the court. Section 12 is a special provision applicable during the pendency of the proceedings and the provisions thereof point out that an order has to be made by the court fixing a time and the manner for payment or deposit of the amount. If the tenant fails to pay or deposit the rent so specified, unless sufficient cause is shown to the contrary, the Rent Control Court shall stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. In other words, Section 12 provides a summary procedure whereby during the pendency of the proceedings the court can direct the tenant to pay the current rent as admitted by the tenant and if it is not so done, the main eviction proceedings itself will come to an end and the court is enabled to pass an order directing the tenant to put the landlord in possession of the building. For the applicability of Section 12 it is evident that the proceedings for eviction should be pending, and the court should, by an order, direct the tenant to pay RCR 382 & 467 of 2004 -8- or deposit all arrears of rent that have been admitted by the tenant to be due and the tenant shall continue to pay the admitted rent that may subsequently become due till the termination of the proceedings and if it is not so done, that itself is treated as an independent default which will enable the court to stop further proceedings and make an order directing the tenant to put the landlord in possession of the building. Section 12 will not apply to a proceeding which is already over under Section 11(2)(b) of the Act.” 12. A reading of Sections 11(2)(b) and 12 of the Act will show that these two provisions are totally independent. In **Sulochana's case** (supra), also it was held that the amounts which the tenant is liable to deposit for the purpose of Section 11(2)(c) of the Act is the amount due on the date of notice. In the light of the above legal position, we are of the view that the finding rendered by the appellate authority is perfectly justified. The payment of rent during the pendency of the proceedings, cannot be of any advantage to the tenant if there was actual arrears for the purpose of Section 11(2)(b) of the Act. Therefore, we find that the view taken by the appellate authority that the tenant in Rent Control Petition No.64/2000 has kept the rent in arrears does not require any interference. 13. The next question argued is regarding the sufficiency of the evidence to sustain the order of eviction passed under Section 11(3) of the Act. The argument raised by the learned Senior Counsel is mainly that the Rent Control Court which had an opportunity to see the witnesses has RCR 382 & 467 of 2004 -9- appreciated their oral evidence in a proper manner and, therefore, the Appellate Authority ought not have interfered with the said findings simply because it has chosen to take a different view. The learned Senior counsel relied upon the decision of a learned Single Judge of this Court in **Ayyappan v. Fr.Thomas [1989 (2) KLT SN.26 Case No.32]** . Our attention was invited to the following observations:- “When the question for consideration for the appellate court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence, the appellate court has to bear in mind that it has not the advantage which the trial judge had in having the witnesses before him in action and observing their demeanours and the manner in which they are deposing in court.” 14. It is therefore contended that when there is conflict of oral evidence of the parties unless there is some special feature about the evidence of a particular witness which has escaped the trial court Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial court Judge on a question of fact. The learned counsel for the respondent contended that the appellate court being the final court of fact it has got every power and authority to differ from the view taken by the trial court by reappreciating the evidence and to come to its own conclusion. It is pointed out that in exercise of the power of appeal RCR 382 & 467 of 2004 -10- the appellate court is not controlled by any strings either as regards the appreciation of oral evidence or as regards the findings rendered by the trial court. The learned counsel submitted that this Court by sitting in revision in exercise of the powers under Section 20 of the Act can only see whether the order passed by the appellate authority is regular or proper. This Court cannot, while exercising the said power, reappreciate the evidence to come to its own conclusion and substitute it in the place of the finding of the Appellate Authority, in the facts and circumstances of this case. Therefore, we have to examine whether the view taken by the appellate authority is justified on the evidence adduced by the parties. 15. As noticed already, one of the reasons which persuaded the Rent Control Court to doubt the bonafide need is that the landlord even though in his examination in chief and during the cross-examination maintained that he was not conducting any business, in the deposition paper his profession is noted as “business”. The Appellate Authority has reversed the said finding on the reasoning that the writing of the profession as business in the deposition paper cannot have any significance as against his evidence tendered in court, on oath. The Appellate Authority considered the oral evidence of PW.1 and the statement made by him in the deposition that he has returned from Gulf country after losing the job and that he has no other income or employment. There was no evidence adduced by the RCR 382 & 467 of 2004 -11- tenants to prove that he was conducting his own business in money lending. It was also found that the mere fact that he was having a passport will not show that he will be getting employment there, especially, in the light of the explanation offered by him that he has no plans to go abroad. These factors coupled with other factors, namely, that he has no other job or avocation in life; that he is not conducting any business and further that his income from other tenanted premises is meagre were appreciated by the appellate authority to find that the _bona fide_ need pleaded is genuine. The appellate authority has clearly found in paragraphs 18 and 19 of the judgment that the Rent Control Court had given undue significance on certain factors which were rather irrelevant in view of the clear evidence available before it. Even in the decision in **Ayyappan's case** (supra), it was held that “the duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from the proved circumstances which, in the opinion of the court, outweighs such finding.” In our view, the approach made by the Appellate Authority in this case is in the correct perspective. 16. In regard to the argument that he was having other business, by way of money lending also, it has been found clearly by the appellate authority in paragraph 20 that going by the admission of RW.1 in his RCR 382 & 467 of 2004 -12- evidence that he had not seen any documents to show whether PW.1 had advanced any amount to any persons as loan and in view of the admission that he does not know whether the landlord had filed any suit for recovery of money from any person etc., the finding rendered by the Rent Control Court is not correct. It is well settled that even if the landlord is conducting any business, that will not prevent him from seeking eviction of a tenant for starting another one. Of course, the matter has to be judged in the light of the plea raised before the court and the bonafide nature of it. But still as noticed already, in this case there is no evidence to show that the landlord has any other business or any other avocation in life. Therefore, the appellate authority rightly held that the contention raised by the tenants cannot hold good. We are of the view that the approach made by the appellate authority cannot be said to be perverse and the reasons stated are cogent and convincing. 17. The other aspect, which went against the landlord before the Rent Control Court was that, as per Ext.A3 a room was let out on 02/12/1998 to one Radhakrishnan. This aspect is brought against the landlord to contend that if he had real intention to start business he could have occupied that room. The appellate authority noted that as on that day he had only half right in that building along with the brother and partition between brothers was admittedly in 1999. Rent Control Petition was also RCR 382 & 467 of 2004 -13- filed two years after Ext.A3 was executed. The question is whether as on the date of the filing of the petition, the need pleaded is _bona fide_ . Going by PW.1's evidence he developed his intention to do business after his return, i.e., in the year 2000. The rooms let out by Ext.A3 belongs to his brother. For all these reasons, the view taken by the Rent Control Court on that aspect was also reversed by the appellate authority, in our view rightly. The reasoning adopted by the Appellate Authority on the other findings of the Rent Control Court are also sound and legal. 18. The question is whether we can interfere with the above findings of the Appellate Authority in exercise of the powers of revision under Section 20 of the Act. Going by Section 20 of the Act, this Court can only go to the legality, regularity or propriety of the order. 19. The learned counsel for the landlord contended that in the light of the various decisions of this Court laying down the parameters of the powers of revision, this is not a fit case for interference. Reference was also made to a decision of the Apex court reported in **Sarla Ahuja v.United India Insurance Co.Ltd.** ( **AIR 1999 SC 100)** , wherein it was held that reappraisal and re-appreciation of evidence by High Court to reach different findings is not permissible. As noted already in this case the view taken by the Rent Control Court is reversed by the Appellate Authority after finding that the said view taken cannot be justified on the facts pleaded RCR 382 & 467 of 2004 -14- and the evidence available before the Rent Control Court. We find, on an analysis of the evidence that the said view taken by the Appellate Authority is a plausible one. It cannot be said that the view taken by the appellate authority is so perverse warranting interference in exercise of the powers of revision. Here is a case where the landlord after more than two decades of job abroad, has lost his job and came back to the native place. Apart from the fact that he has no real avocation in his life, the meagre income that is available to him is from the rent that is paid by the tenants. The tenants have not been successful in pleading or proving that he has other business or substantial income while contending for the position that the petition is only a ruse to evict the tenants. In fact, he has spoken in detail about the business proposed to be conducted, namely that of bakery items and cool drinks in the premises in question. The order will show that he has deposed about the alterations that can be made by availing the space of these two rooms profitably for the conduct of the business. The appellate authority found that the above evidence is worthy and there are no vitiating circumstances as far as the _bona fide_ need is concerned. Since we are only sitting in revision, we find that the view taken by the appellate authority cannot be said to be so perverse and no interference is needed. 20. The Rent Control Court found that the tenants are not entitled to get any protection under the two provisos to Section 11(3) and the same RCR 382 & 467 of 2004 -15- view has been concurred by the appellate authority also. In fact, only the respondent in R.C.P.No.64/2000 alone has challenged the findings in appeal. This point was considered by the appellate authority in paragraphs 25 and 26 of the judgment. It is found that there are other buildings available in the locality which facts have been proved by the landlord when examined as PW.1 supported by Exts.C3 and C4. The Commissioner was also examined who stated that he had found two rooms 70 feet away from the petition schedule building. After elaborate analysis of the evidence the appellate authority also found that the tenants have failed to prove both the limbs of Section 11(2) and Section 11(3). We are not persuaded to take a different view at all. 21. In the light of the above, we dismiss both the revision petitions confirming the judgment passed by the appellate authority. At this stage, the learned counsel for the petitioners sought for some time to vacate the premises. We grant five months time from today to the petitioners to vacate the premises on condition that they file an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of five months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. The petitioners shall deposit the entire RCR 382 & 467 of 2004 -16- arrears of rent, if any, within the aforesaid period of three weeks and shall continue to pay an amount equivalent to the rent payable, towards compensation for use and occupation, till possession is surrendered. If any of the conditions aforesaid is violated, then the order of eviction will become enforceable at once. **( P.R.Raman, Judge.)** **(T.R. Ramachandran Nair, Judge.)** **kav/**