Selvam S/o Nagamuthu and Anilkumar S/o Nagamuthu v. Jayanth V. Ved and K. J. Joseph

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 RCRev..No. 435 of 2011() -----------------------RCA.53/2009 of RENT CONTROL APPELLATE AUTHORITY , ERNAKULAM RCP.43/2008 of RENT CONTROL. COURT,KOCHI .................... REVISION PETITIONERS/ADDL. APPELLANT NO. 2 & 3 ----------------------------------------- 1. SELVAM, S/O.NAGAMUTHU, AGED 45 YEARS, X/1131, DHARMASALA ROAD, VELI, KOCHI-682 001, KOCHI TALUK, ERNAKULAM DISTRICT. 2. ANILKUMAR, S/O.NAGAMUTHU, AGED 41 YEARS X/1131, DHARMASALA ROAD, VELI, KOCHI-682 001, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.L.P.ARAVINDAKSHAN SRI.SIBI THOMAS JACOB RESPONDENT(S)/RESPONDENTS/PETITIONER & RESPONDENT NO.2: --------------- 1. JAYANTH.V.VED, S/O.VITHAL DAS PRAGI, AGED 55, LAKSHMI VILAS HINDU LODGE, PALLIYARAKAVU ROAD, KOCHI-682 002. 2. K.J.JOSEPH, DOOR NO.VIII/1321, SURESH TAILORING AND BHARATH DRY CLEANERS, PALLIYARAKAVU ROAD, KOCHI-682 001. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & K. HARILAL, JJ. -----------------------R.C.R.No. 435 OF 2011 ------------------------** Dated this the 16th day of November, 2011 ## **O R D E R** Pius C.Kuriakose, J. Under challenge in this revision filed by the tenants is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the grounds under sub section (3) of Section 11. The landlord/respondent has sought to evict the revision petitioners on the ground of arrears of rent and the ground of sub letting under Section 11 (4)(i) also. Eviction was declined on the ground of sub letting. Eviction granted on the ground of arrears of rent has already been got vacated by the tenants by making deposits. 2. In this revision, we need have to be concerned only about the correctness of the order of eviction passed under RCR No.435/2011 2 Section 11 (3). The need projected by the landlord was that he is conducting three lodges by name Lakshmi Vilasam Hindu Lodge, Mahalakshmi Hindu Lodge and Srikrishna Hindu Lodge. He intends to start business in provision and stationery in the petition schedule room and he does not have any other room in his possession for accomplishing the above need. The bona fides of the need was disputed by the revision petitioners who also claimed that they are entitled for the protection of the second proviso to sub section (3) of Section 11. It was also contended that the landlord has other buildings of his own in his possession, which disentitles him to relief in view of the first proviso to sub section (3) of Section 11. The Rent Control Court conducted an enquiry in which the evidence consisted of Exts.A1 to A3, Exts.B1 to B3 , Ext.C1 commission report and the oral evidence of PWs1 and 2 and RW1. The commissioner in Ext.C1 reported inter alia that the other vacant buildings are available in the locality. The revision petitioners/tenants did not file even objections to the commission report nor did they make any endeavour to bring out from the cross examination of PW2, the commissioner, that the buildings which were reported to be RCR No.435/2011 3 vacant were not available to the tenants on lease. On appreciating the entire evidence, the Rent Control Court came to the conclusion that the need is bona fide and that the tenants were unsuccessful in showing that they are entitled to the protection of the second limb of the second proviso to sub section (3) of Section 11. As regards the contentions based on the first proviso to sub section (3) of Section 11, it was found that the other buildings pointed out by the tenants in the possession of the landlord were not vacant buildings . They were buildings under use by the landlord for other purposes. Accordingly, the order of eviction was passed under Section 11 (3) of the Act. 3. The tenants preferred an appeal to the Appellate Authority. The Appellate Authority made a reappraisal of the entire evidence and concurred with all the conclusions of the Rent Control Court. Accordingly, the appeal was dismissed. 4. In this revision under Section 20, the revision petitioners have raised various grounds challenging the eviction order passed under Section 11(3). Sri.L.P.Aravindakashan learned counsel for the revision petitioners addressed extensive submissions before us on the basis of all those grounds. The RCR No.435/2011 4 learned counsel submitted particularly that a reading of the commission report and the averments in the rent control petition will show that the petition schedule building is not an independent building. It is a part of a larger structure and the remaining portions of which are being used by the landlord as lodging house. In such fact situation, the apposite ground, which might have been available to the landlord, is ground under sub section (8) of Section 11 and not one under sub section (3) of Section 11. Further it is submitted that the petitioner in the rent control petition is not the absolute owner of the building and there is nothing on record to show that the other co-owners are agreeable to the proposal to have the building occupied by the petitioner/landlord alone. Mr.Aravindakshan submitted further that the finding of the statutory authorities that, the tenants have not proved that the other suitable buildings are not available in the locality, is erroneous. According to him, such a finding is entered on the basis of the commission report. The commissioner's evidence as PW2 should not have inspired confidence in the mind of the statutory authorities. The commissioner had not reported in Ext.C1 that the so called RCR No.435/2011 5 vacant buildings carry to let boards. He gave such version only when he mounted the witness box. The oral evidence given by the tenants regarding the non availability of the suitable buildings is quite impressive , so submitted the learned counsel. 5. We have very anxiously considered all the submissions of the learned counsel Mr. Aravindakshan. We have gone through the judgment of the Appellate Authority as well as the order of the Rent Control Court. We should remind ourselves of the very outset of the well delineated contours of our present jurisdiction under Section 20. In the present jurisdiction this court is not expected to make a reappraisal of the evidence for the purpose of arriving conclusions of facts different from those arrived at by the two facts finding authorities under the scheme of the Rent Control Act. In the present case, two facts finding authorities have concurrently found that the need is bona fide and that the rent control petition is liable to fail by virtue of any of the provisions of sub section (3) of Section 11. On going through the judgment of the Appellate Authority, we find that all those findings are entered on the basis of the evidence available on record. RCR No.435/2011 6 6. Coming to the points on which more thrust was given by Mr.Aravindakshan in his submissions, we notice that the question whether it is the ground under Section 11 (8) or 11 (3) which applies in a given case is essentially a question of fact. As rightly noticed by the Appellate Authority, the tenants had not contended through his statement of objection that the petition schedule building is not a separate building and that it is only part of a larger building. In the evidence also no endeavour was seen made by the tenants to show that the buildings sought to be evicted is not an independent building, but is only a part of a larger building. 7. We shall now come to the argument that the Rent Control Petition cannot be maintained without the junction of other co-owners. This issue is correctly answered by the learned Appellate Authority. The finding of the Appellate Authority in this regard again is founded on evidence including the evidence adduced by RW1 himself. 8. The learned Rent Control Appellate Authority found that the first ingredient of the second proviso is in favour of the revision petitioners. The benefit of the second proviso is denied RCR No.435/2011 7 for the reason that the two ingredients are in conjunctive. The finding that the tenants have not established the second ingredient of the second proviso is entered mainly on the basis of Ext.C1 commission report and RW2' evidence. Though it was not reported by the commissioner that the vacant buildings carried to let boards, it is a fact that the commissioner had reported that he had noticed vacant buildings in the vicinity of the petition schedule building. When such a report is filed with notice to the tenant, the tenant was expected to file objections to the commission report. No objection was filed by the tenants in this case. Even during cross examination, the commissioner is not seen asked as to whether the buildings reported by him were actually vacant . Having regard to the burden of proof aas settled by the decisions such as Kunhamma v. Akkali Purushothaman (2007 (3) KLT (SC) and Francis v. Sreedevi Varassiar (2003 (2) KLT 230)tenants should have cited the owners of the other buildings reported by the commissioner to prove the fact that those buildings are not available to the tenants. In short, we do not find any warrant for interference. The RCR No.435/2011 8 revision fails and the same will stand dismissed. ## **K. HARILAL, JUDGE.** dpk