RCRev. No. 154 of 2011 (RCA.15/2008 of Rent Control Appellate Court, Thrissur; RCP.16/2003 of Rent Control Court, Thrissur) – Reetha v. Johnson and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **WEDNESDAY, THE 25TH DAY OF JULY 2012/3RD SRAVANA 1934** **RCRev..No. 154 of 2011 ( )** **--------------------------** - **(RCA.15/2008 OF RENT CONTROL APPELLATE COURT, THRISSUR RCP.16/2003 of RENT CONTROL COURT,THRISSUR)** ## **REVISION PETITIONERS/(APPELLANTS/RESPONDENTS 4 AND 3):** ## **----------------------** **1. REETHA, W/O. ALAPPADAN THOMAS JOSE, LOORDH PURAM DESOM, THRISSUR VILLAGE AND TALUK P.O EAST FORT-680 005, REPRESENTED BY MUKTHIAR AGENT AND SON THOMAS, 2ND REVISION PETITIONER.** **2. THOMAS, S/O. ALAPPADAN VEETTIL THOMAS JOSE, LOORDH PURAM DESOM, THRISSUR VILLAGE AND TALUK, P.O EAST FORT-680 005.** **BY ADVS.SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SMT.S.SANTHY** ## **RESPONDENTS(RESPONDENTS/PETITIONER AND RESPONDENT 2 AND 5 TO 8): ---------------------------------------------------------------** **1. JOHNSON, S/O. CHAKKOLA VEETTIL CHAKKUNNY, MOTHER THRESSIA STREET, T.C. NO.XVIII/3133, KURIACHIRA DESIOM THRISSUR TALUK, KURIACHIRA P.O-682006.** **2. JERY JOSE, S/O. ALAPPADAN VEETTIL THOMAS JOSE, LOORDH PURAM DESOM, THRISSUR VILLAGE, TALUK P.O, EAST FORT-680 005.** **3. REJI, D/O. ALAPPADAN VEETTIL THOMAS JOSE, LOORDH PURAM DESOM, THRISSUR VILLAGE TALUK P.O EAST FORT-680 005.** **4. REEJA, D/O. ALAPPADAN VEETTIL THOMAS JOSE, LOORDH PURAM DESOM, THRISSUR VILLAGE, TALUK P.O EAST FORT - 680 005.** **RCRev..No. 154 of 2011 ( )** **5. REENA, D/O. ALAPPADAN VEETTIL THOMAS JOSE, LOORDH PURAM DESOM, THRISSUR VILLAGE, TALUK P.O, EAST FORT-680 005.** **6. BEENA, W/O. PARAMBAN VEETTIL EAPPAN, ANCHERY DESOM, OLLUR VILLAGE, THRISSUR TALUK P.O, EAST FORT-680005.** **R1- BY ADV. SRI.M.K.DILEEP KUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SCL.** ## **PIUS C. KURIAKOSE & A.V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------RCR No: 154 OF 2011 -----------------------------------------Dated this the 25[th] day of July, 2012** ## **O R D E R** ## Pius C. Kuriakose, J. Under challenge in this revision filed by the tenants under Section 20 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against them by the Rent Control Court under sub section 3 of Section 11 and also under clause (b) of sub section 2 of Section 11, bona fide need for own occupation as well as arrears of rent. The revision petitioners filed objections before the Rent Control Court disputing the claim of the first respondent Sri.Johnson that he is having ownership over the building by the operation of the Will executed by his father late Chakkunni. It was pointed out that apart from claiming exclusive ownership by virtue of a Will, the first respondent was also pleading ownership by virtue of a RCR No: 154 OF 2011 ..2.. partition in the family after the demise of his father. It was then contended that the present Rent Control Petition was barred in view of the dismissal of RCP No.65/82, another Rent Control Petition filed by the father Chakkunny claiming eviction on the selfsame need of his son Johnson to occupy the building and to conduct business of money lending. The tenants also claimed the protection of the second proviso to sub Section 3 of Section 11. The Rent Control Court conducted an enquiry in which Sri.Johnson, the petitioner in the RCP got himself examined as PW1 as against which the second revision petitioner gave evidence as RW1. The documentary evidence consisted of Exts.A1 to A5 and B1 to B8. Ext.A1 is the order of the Thrissur Corporation by which the Jenma of the building in question was transferred in favour of Sri.Johnson. Ext.A2 is certified copy of the judgment of this Court in CRP.1453/92 and Ext.A3 is certified copy of the order of this Court in a review petition filed by Sri.Johnson seeking review of Ext.A2. Ext.A4 was copy of the lawyer notice and Ext.A5 is the reply RCR No: 154 OF 2011 ..3.. notice. The documents produced on the side of the tenants were mostly documents pertaining to the business carried on by them in the petition schedule building and also Ext.B3 which was the receipt against sending of rent by money order. On evaluating the evidence the Rent Control Court would come to the conclusion that both the eviction grounds invoked by the landlords stood established. It was held that Section 15 of Act 2 of 1965 does not bar the present RCP. It was also held that the tenants were unsuccessful in showing that they are entitled to the protection of the second proviso to sub Section 3 of Section 11. Accordingly, eviction order was passed on both the grounds invoked by the landlord. 2. The tenants carried the matter in appeal as RCA No:15/08 to the Rent Control Appellate Authority. The Rent Control Appellate Authority made a re-appraisal of the evidence as well as the pleadings and would concur with all the findings entered by the Rent Control Court. Accordingly the RCA was dismissed. 3. In this revision under Section 20, the revision RCR No: 154 OF 2011 ..4.. petitioners assail the judgment of the Appellate Authority on various grounds. The learned counsel for the revision petitioners would address submissions before us based on those grounds. It was submitted at the very outset by the learned counsel that the revision petitioners had claimed title to the building in question by virtue of a Will and also by virtue of a partition deed in the family. These claims were mutually contradictory to each other. When mutually contradictory claims are raised by the landlord and both the claims are disputed by the tenant, it was obligatory on the part of the respondents to produce the Will or partition deed. 4. The learned counsel would then submit that the present RCP in so far as it raises the selfsame claim, which was raised by Sri.Chakkunni in RCP No:65/82 and was finally declined by this Court in revision, is clearly barred by Section 15 of the Act. The learned counsel submitted that there is no change of circumstances justifying invocation of the selfsame ground. At best, there has been only a change RCR No: 154 OF 2011 ..5.. in the nature of the evidence adduced. Strong reliance was placed by the learned counsel on the judgment of this Court in **Jayaram v. Achuthan Thampi** (1997 (2) KLT 909), to argue that the burden to establish that the fresh RCP has been instituted on changed circumstances, is on the landlord. The learned counsel also argued that at any rate, the finding of the statutory authorities that the tenant is not entitled for the protection of the second proviso to Subsection 3 of Section 11, is erroneous. Such a finding is a result of an erroneous appreciation of the evidence adduced by the parties before the Rent Control Court. 5. We have given our anxious consideration to the rival submissions addressed at the Bar. Neither the grounds raised in the memorandum of revision nor the further submissions made by the counsel for the revision petitioner appeal to our jurisdiction under Section 20 of the Act 2 of 1965, which is delineated not only by the statutory provision but also by many a judicial precedence. We are not at all impressed by the submission of the learned RCR No: 154 OF 2011 ..6.. counsel for the revision petitioners that the 1[st] respondent Sri.Johnson ought to have produced either the partition deed or the Will referred to by him in the Rent Control Petition for maintaining the RCP. According to us, it is not open to the petitioner to contend that Sri.Johnson is not entitled to maintain the RCP. In fact, upon the demise of Sri.Chakkunni, the father, who was admittedly the owner/landlord of the building, Sri.Johnson alone got himself impleaded as the legal heir of Sri.Chakkunni in CRP No:1453/1992 and it was Sri.Johnson who filed RP No:236/2002 seeking review of the above judgment. The locus standi of Sri.Johnson, to get himself impleaded as an additional party in the proceedings, was not questioned by the revision petitioners, who were parties to the earlier proceedings also. Moreover, it is seen that the persons, who can have the legitimate dispute regarding Sri.Johnson's locus standi in the matter, are his siblings who are all arrayed in the RCP as co-respondents. It is seen that all of them entered appearance before the reference court and RCR No: 154 OF 2011 ..7.. supported Sri.Johnson's claim. 6. Under the above circumstances, we repel the contention that Sri.Johnson is not entitled to maintain the present proceedings against the revision petitioners by revision. We are not impressed by the submission that the present proceedings are barred by Section 15 of the Act of 1965. In fact, this Court, by the common judgment in CRP No:804/1992-G and CRP No:1453/1992-H, allowed the eviction petition filed by the original landlord, Sri.Chakkunni in respect of one room, where the need projected was the need to accommodate Sri.Johnson's brother. This Court declined the eviction, which was sought by Sri.Chakkunni in respect of the subject premises, which was a need to accommodate Sri. Johnson, the present petitioner/1[st] respondent/landlord. RP No:236/2002 was filed by Sri.Johnson seeking review of the judgment in CRP No:1453/1992. The specific request was that the RCP be remitted back to the Rent Control Court so that Sri.Johnson can adduce evidence. It was on the reason that neither RCR No: 154 OF 2011 ..8.. Sri.Chakkuni nor Sri.Johnson had adduced any evidence in support of Sri.Johnson's need to occupy the building that relief was not granted in RCP No:65/82. This Court dismissed the RP observing as follows; “Counsel for the review petitioner, however, made a fervent request for remanding the matter to the Rent Control Court so as to enable the review petitioner to adduce further evidence. We find no reason to accede such a request. All the same, it is always open to the review petitioner to approach the Rent Control Court with a fresh petition, if there are sufficient grounds available and if so advised, in the event of which the Rent Control Court would consider all the aspects and pass orders in accordance with law.” 7. In fact, the present RCP is filed by Sri.Johnson on the strength of the permission granted to him by this Court in RP No:236/2002. It is seen on a reading of the impugned judgment of the Appellate Authority and Rent Control Court that the Rent Control Court and the Appellate Authority were impressed by the evidence adduced by Sri.Johnson to the effect that he bona fide needs the building in question as he is without any avocation for eking out his livelihood, even in 2003, i.e., 21 years after his father had filed the earlier RCP No:65/1982. We find that implications of RCR No: 154 OF 2011 ..9.. Section 15 of the Act 2 of 1965 has been properly considered by the Rent Control Court and the Appellate Authority and those two authorities have rightly found that the present rent control proceedings are not barred. 8. Coming to the plea that the tenant is entitled to the protection of the second proviso to Subsection 3 of Section 11, we are of the considered view that, that issue has been correctly decided by the two statutory fact finding authorities keeping any mind judicial precedence will govern the issue such as **Francis v. Sreedevi Varassiar** (2003(2) KLT 230) and **Kunhamma v. Akkali Purushothaman** (2007 (3) KLT 599 (SC)). 9. The only question that we are called upon to decide in this revision is, whether there is any illegality, irregularity and impropriety in the judgment of the Appellate Authority. Having read through the judgment of the Appellate Authority, we are of the view that all the findings contained therein are reasonable findings founded on evidence available on record. The Rent Control Court RCR No: 154 OF 2011 **==> picture [26 x 9] intentionally omitted <==** and the Appellate Authority which alone are the two fact finding courts under the scheme of the Rent Control Act, were very much impressed by the convincing evidence adduced by Sri.Johnson. It came out in evidence that Sri.Johnson is without any employment for eking out his livelihood. According to us, the findings are quite reasonable and do not warrant interference and accordingly the revision will stand dismissed. 10. After we made our decision known to the learned counsel for the revision petitioner, a request was made for granting time to surrender the building. We do not think that we will be justified in granting a long period to the revision petitioner to surrender the premises as the litigation is fairly old. At the same time, we feel that by imposing certain conditions, reasonable time can be given to the revision petitioners. Accordingly, we order as follows; 1.The RCR is dismissed. 2.The eviction order passed under Section 11(2)(b) and 11 RCR No: 154 OF 2011 ..11.. ## (2)(c) is confirmed. - 3.Execution court is directed to keep in abeyance the execution of the order passed under Section 11(3) till - 31.03.2013 subject to the following conditions; - 1.The 1[st] revision petitioner, representing herself and other revision petitioners, shall file an affidavit before the execution court within three weeks from today undertaking to give peaceful surrender of the building to the respondent on or before 31.03.2013 and undertaking further through the same affidavit that with effect from 01.08.2012 till the date of actual surrender, the revision petitioner shall pay occupation charges to the respondents at the rate of Rs.5,00/(Rupees five hundred only) per mensem. - 2.We make it clear that it is open to the revision petitioners to get the order of eviction passed under Section 11(2)(b) vacated by making requisite deposits under Section 11(2)(c) within three months. - 3.The eviction order passed under Section 11(2)(b) will RCR No: 154 OF 2011 **==> picture [26 x 9] intentionally omitted <==** also not be executed for a period of three months from today. - 4.We make it clear that the time till 31.03.2013 granted as above will be available to the revision petitioner only if the affidavit is filed and the undertakings in the affidavit are honoured without fail. Sd/- **PIUS C. KURIAKOSE, JUDGE** Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/- //True copy// PA to Judge