SHYNY PRAKASH v. T.J. ANTONY and LLOYD FRANCIS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 RCRev..No. 62 of 2011() ----------------------RCA.110/2008 OF RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM RCP.24/2007 OF RENT CONTROL COURT,KOCHI .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- SHYNY PRAKASH,W/O.P.JOSE PRAKASH, MATHA SANGAM MEDICALS,DOOR NO.C.C.XVI/1535, THOPPUMPADY,KOCHI-682005. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): APPELLANTS/PETITIONERS ------------------------------------- 1. T.J.ANTONY,S/O.LATE JOSEPH,THYVEETTIL HOUSE,THOPPUMPADY,KOCHI-682005. 2. LLOYD FRANCIS,S/O.T.J.ANTONY, THYVEETTIL HOUSE,THOPPUMPADY,KOCHI-682005. ADV. SRI.M.GOPIKRISHNAN NAMBIAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/06/2011, ALONG WITH RCR NO. 63 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ----------------------------------------------- RCR. Nos. 62 & 63 of 2011 ----------------------------------------------Dated this the 23[rd] day of June, 2011 ## **O R D E R** ## **Pius C.Kuriakose, J.** Under challenge in these revisions is the common judgment of the Rent Control Appellate Authority by which the learned Appellate Authority allowed the appeal preferred by the landlord and dismissed the appeal preferred by the tenant. The ground on which eviction was sought by the landlord was the ground under sub-section (3) of Section 11 of Act 2 of 1965. The need projected was that the landlord who is an octogenarian needs the building for occupation by his son (the second petitioner in the R.C.P.) for the conduct of business in paint and hardware. It is averred in the R.C.P. that the son, a Chemical Engineer who was employed in a gulf country is presently in his home town and is without any job or avocation for about 10 years. Hence, the need of the father shared by the son that the son should conduct RCR. No. 62 & 63 of 2011 -2- business in the petition schedule room. The tenant who is conducting a medical shop disputed the bonafides of the need and contended that the R.C.P. was liable to fail by virtue of the first and second provisos to sub-section (3) of Section 11. It was pointed out that the landlord, the father, the dependent son and his elder brother who has executed a Power of Attorney in favour of father of the landlord own and possess other buildings in and around Thoppumpady, the place where the building is situated. It was then contended in the context of the second proviso that the tenant is eking out her livelihood by conducting medical shop and that other suitable buildings are not available in the locality for her to shift the business. The parties went for trial on the above pleadings and the evidence consisted of Exts.A1 to A9 series, Ext.C1, the Commissioner's report, Ext.X1 and the oral evidence of the landlord as P.W.1 and the dependent son as P.W.2, the tenant as R.W.1 and the former tenant as R.W.2. The Rent Control Court formulated RCR. No. 62 & 63 of 2011 -3- necessary points and would hold under its order that the need projected by the landlord is bereft of bonafides. In fact in paragraph 14 of the order, the Rent Control Court enumerated ten reasons to support its view that the need projected in the R.C.P. is not bona fide. They are as follows: 1. The evidence tendered by the petitioners clearly proved that PW1 is the dependent of PW2. 2. In spite of earnest desire to start business in 1997, the building was let to respondent in 2004. The story of alleged threat is to be brushed aside as falsehood. 3. As the building is of 400 sq. feet without provision for parking, it is doubtful whether the proposed business can be conducted in the tenanted premises. 4. The story of ill-health and alleged undue influence are not pleaded. 5. The petitioners are in possession and control of six rooms owned by eldest son of PW1. Instead of starting any business they have opted to let it to tenants. 6. RW1 is a permanent employee of Rajagiri School. All evidences show that the letting of premises was for business to be conducted for Johnson and his wife. The petitioners are guilty of delay and acquiescence. RCR. No. 62 & 63 of 2011 -4- 7. Though PW2 stay with PW1 for a period of 10 years, he has not helped PW1. So bonafides of such a person to start any new business venture is doubtful. 8. Both in Exts.A1 and X1, the surrender of possession is clearly written. There was no need to execute a document like Ext.X1. That evidently shows the connivance of petitioners in all these transactions. 9. PW1 and PW2 are in possession of the tarawad house, house built by PW2, places let to Asianet, Post Office, ESI etc. They are controlling the lodge and gold business. They are in possession of six rooms in the extent of 4 ½ cents owned by eldest son of PW1. So PW2 left abroad leaving his father to look after all these business enterprises. 10. The present petition is the outcome of private feud between P.W2 with Johnson. The court further held on analysing evidence that the tenant was unsuccessful in showing that she is entitled for the protection of any of the provisos to sub-section (3) of Section 11. However, in view of the finding that the need is not bonafide, the R.C.P. was dismissed. The tenant preferred appeal against the finding of the Rent Control Court in the context of the second proviso to sub-section (3) RCR. No. 62 & 63 of 2011 -5- of Section 11. The landlord preferred appeal against the order declining eviction under sub-section (3) of Section 11. The learned Appellate Authority considered both the appeals together and has by the impugned common judgment allowed the landlord's appeal and dismissed the tenant's appeal. 2. In this revision under Section 20 various grounds are raised challenging the judgment of the Appellate Authority. It is urged that the Rent Control Appellate Authority which was expected to make a reappraisal of the evidence has not reappraised the evidence at all. It is urged that the finding of the Rent Control Court in the context of the bonafides of the need was interfered without any reason and hence the judgment of the Appellate Authority is vitiated by illegalities, irregularities and improprieties. It is also urged that concurrent, though they may be, the findings in the context of the first and second provisos to sub-section(3) of Section 11 are also contrary to the evidence on record. Mr.Abraham RCR. No. 62 & 63 of 2011 -6- Mathew, learned counsel for the revision petitioner-tenant addressed us extensively on the various grounds raised in the memoranda of appeal. As permitted by us, he took us through the entire evidence in the case, particularly the oral evidence adduced by P.Ws.1 and 2 and R.Ws.1 and 2. Mr.Abraham Mathew submitted that the evidence of P.W.2 is to the effect that even at the time when the building was let out to the revision petitioner, he was harbouring the need to occupy this building for conducting the proposed business and had actually conveyed the above need to his father. According to P.W.2, it is very same need which is projected in the present R.C.P. Learned counsel argued that if there was bonafides in the sense of honesty in the above need, the building would not have been let out to the revision petitioner at all. Learned counsel submitted that the explanation offered by the father and the son for letting in favour of the revision petitioner notwithstanding the socalled need of the son was not at all convincing and stands RCR. No. 62 & 63 of 2011 -7- disproved by R.W.2. Counsel submitted that the evidence reveals that P.W.1 is conducting a lodging house in as many as 27 rooms in the larger building consisting of the petition schedule room also. According to the learned counsel, the tenor of the answers given by the son in cross-examination would reveal that he is unwilling to speak the truth. P.W.1, the father also cannot claim any credibility for the evidence that he gave. Learned counsel further submitted that it has come out in evidence that father is the Power of Attorney Holder for his elder son who is a doctor settled down in England with family. The father and the elder son own buildings which can be utilised for commercial purposes though they do not avert the main road as the petition schedule building. As Power of Attorney Holder the father has been in possession of the buildings belonging to the elder son and no special reasons are pleaded in the R.C.P. as to why rooms in that building cannot be utilised for accomplishing the need of P.W.2. Mr.Abraham Mathew also RCR. No. 62 & 63 of 2011 -8- submitted that P.W.2 himself has put up a three storied building which can also be utilised for commercial purposes. This plea also demands explanation from both the petitioners in the R.C.P. as required under the provisos to sub-section (3) of Section 11. 3. All the submissions of Mr. Abraham Mathew were resisted very strongly by Sri. M.Gopikrishnan Nambiar, learned counsel for respondents 1 and 2. Mr. Gopikrishnan Nambiar would support the judgment of the Appellate Authority on the various reasons stated by the learned Appellate Authority. Reminding us of the limits of our jurisdiction under Section 20 Mr. Nambiar submitted that it is not open to us in the present jurisdiction to make a reappraisal of the evidence for the purpose of substituting factual findings arrived at by the learned Appellate Authority which is the final court on facts under the scheme of the Rent Control Act. 4. We have given anxious consideration to the rival RCR. No. 62 & 63 of 2011 -9- submissions addressed at the Bar. We have carefully gone through the impugned judgment of the Appellate Authority and the order of the Rent Control Court. We are not able to accept the arguments of the learned counsel for the respondents that this court in revision is not competent to look into the evidence. In our view, in the fact situation which obtains in the present case where the learned Appellate Authority reversed the finding of the Rent Control Court, this Court in revision will have to consider whether such reversal was justified on the evidence available on record. As the findings are divergent we have made a quick survey of the evidence to decide whether the learned Appellate Authority appreciated the evidence correctly and whether the interference by the Appellate Authority on the finding of the Rent Control Court was justified. Having done so, we are of the view that there is no warrant for interference. We have also gone through the oral evidence of PW-1 and PW-2, the father landlord and the son for whom RCR. No. 62 & 63 of 2011 -10- the building is sought for. We don't find anything in the evidence of those two witnesses to doubt their credibility. As observed by the learned Appellate Authority, PW-2 has deposed that he was working abroad and due to various ailments he had to come back to his Village and that for the past 10 years he was without any job or income and that he intends to start business in hardware and paints in the petition schedule building to get which, he is dependent on his father the landlord. Absolutely no evidence is available to show that PW-2 is presently having any business or employment. Ext.A7 medical certificate issued by a qualified Orthopaedic Surgeon shows that PW-1's case of suffering from ailments which disables him from taking up strenuous activities is correct. The learned Appellate Authority was justified, in our opinion, on relying on Ext.A7 and PW-2's evidence. The tenant's contention that PW-2 is assisting his father who has so many rooms rented out as a lodge is not supported by any evidence, except the oral RCR. No. 62 & 63 of 2011 -11- evidence of the tenant. PW-2's evidence that he intends to start business in hardware and paints was rightly found to be genuine by the learned Appellate Authority. According to us, the learned Appellate Authority's finding that the need is bonafide was after appreciating the pleadings and evidence in the light of the law relating to such appreciation in rent control proceedings. Coming to the question whether the tenant is entitled for the protection of the second proviso to sub-section 3 of Section 11, we are of the view that the learned Appellate Authority (Rent Control Court also) has rightly concluded that the tenant is not so entitled keeping in mind various binding judicial precedents, including the judgment of a Full Bench of this Court in Francis v. Sreedevi Varassiar, 2003(2) KLT 230 (F.B). 5. The result of the above discussion is that the R.C.Rs. are dismissed. Eviction order passed under sub-section (3) of Section 11 will stand confirmed. But the tenant is given time till 16.8.2012 to surrender the building to the landlord RCR. No. 62 & 63 of 2011 -12- subject to the following conditions: 1. The rent is revised with effect from 1.8.2011 at Rs.5000/- per mensem. 2. An affidavit undertaking to give peaceful surrender of the building on or before 16.8.2012 and to pay the occupational charges at the rate of Rs.5000/per mensem with effect from 1.8.2011. The affidavit as above will be filed within one month from today. Before delivery warrant is issued, the execution court will explore the possibilities of a settlement between all the parties, if need be, by summoning the parties or those among them who are available to the Court Hall and delivery warrant will be issued only when it is noticed that settlement is not possible. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(N.K.BALAKRISHNAN, JUDGE)** srd/ksv/28/10/11