Sivadasan v. Ansari and Abdul Salam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 RCRev..No. 251 of 2006() -----------------------RCA.54/2001 of RENT CONTROL APPELLATE AUTHORITY , PALAKKAD RCP.13/1999 of RENT CONTROL COURT, PALAKKAD .................... REVISION PETITIONER (RESPONDENT/RESPONDENT) --------------------------------------- SIVADASAN, S/O.LATE K.N.KRISHNAN NAIR, PROPRIETOR, VEDIO PALACE, ROOM NO.7/56, COLLEGE ROAD, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA SRI.S.SACHITHANANDA PAI RESPONDENT(S): APPELLANTS/PETITIONERS ------------------------------------- 1. ANSARI, S/O.R.V.UMMER, "BETH AI JASMIL", LITTLE NAGAR, NOORANI, PIRAYIRI AMSOM, PALAKKAD TALUK, REP. BY THEIR POWER OF ATTORNEY HOLDER BASHEER, S/O.R.V.UMMER, R.V.MANZIL, CHAKKANTHARA, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. ABDUL SALAM, S/O.R.V.UMMER, MERCY COLLEGE ROAD, PIRAYIRI AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT, REP. BY THEIR POWER OF ATTORNEY HOLDER BASHEER, S/O.R.V.UMMER, R.V.MANZIL, CHAKKANTHARA, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2 SRI.T.C.SURESH MENON FOR R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. -----------------------R.C.R.No. 251 OF 2006 ------------------------** Dated this the 10[th] day of June, 2011 ## **O R D E R** Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority, Palakkad ordering eviction against the revision petitioner on the ground under sub section (3) of Section 11. The need projected by the landlords, who are two brothers, is that the building, where the revision petitioner is presently conducting a vedio cassette shop, is needed bona fide for their brother one Basheer to conduct the very same business. The Rent Control Court found the need to be bona fide on appreciating the evidence adduced by the parties. However, on the reason that in a nearby compound, the wife of one of the landlords had put up a building and that it was the landlord who was in possession of that building, the Rent Control Court took the view that the rent control petition is liable to be rejected by virtue of the first proviso to sub section (3) of Section 11. The RCR.No.251/2006 2 Rent Control Court found that the tenant was unsuccessful in proving that he is entitled for the protection of the second proviso to sub section (3) of Section 11. However, in view of the finding in the context of the first proviso the rent control petition was dismissed. 2. Considering the appeal preferred by the landlords, the Appellate Authority has passed the impugned judgment. Under the impugned judgment, the Appellate Authority noticed that the new building, with reference to which the Rent Control Court found that the first proviso to sub section (3) of Section 11 will operate against the landlords, was put up by the wife of one of the landlords. In that view of the matter, the Appellate Authority took the view that the first proviso cannot have any application. Accordingly, the appeal was allowed and the order of eviction was passed under sub section (3) of Section 11. The other findings regarding the bona fides of the need and also regarding the tenant's eligibility for protection of the second proviso are confirmed. 3. In this revision various grounds are raised assailing the judgment of the Appellate Authority. The revision petitioner has RCR.No.251/2006 3 filed I.A. No.741/2011 before this court producing Annexure I photograph. It is stated in the affidavit in support of that I.A. that recently, two rooms, which are situated adjacent to the petition schedule rooms previously under the occupation of other tenants, fell vacant. Thereafter, the separating wall between the two rooms was removed and they have been converted as a large room. Thereafter, the above room was let out by the landlords to another tenant who is conducting ladies shop by name” Limra Collections”. Availability of those two rooms and the subsequent letting out of those two rooms, according to the petitioners, is a subsequent event which eclipses the need projected in the present rent control petition. According to the tenant, if the need were bona fide, the landlords could have accomplished the same by accommodating their brother Basher in at least one of those two rooms. 4. A detailed counter was filed to the above IA. by the first respondent landlord, in which it is explained that in that part of Palakkad town small rooms like the petition schedule room, which has an extent of just 200 sq.ft, is not in much demand and that it is bigger rooms which are in demand. This was why when two RCR.No.251/2006 4 small rooms became available, they were converted as one large room and was let out to one Mohammed Ali who is presently conducting shop by name 'Limra Collections.' According to the counter, the above event will not affect the bona fides of the need projected in the present rent control petition which has been concurrently found in favour of the landlords by the two statutory authorities. 5. We have heard the submissions of Sri. S.Sachithananda Pai, learned counsel for the revision petitioner and those of Sri. V.Chitambaresh, learned senior counsel for the landlords/respondents in extenso. 6. Mr.Sachithananda Pai submitted that under the social conditions, which are prevalent in the State, there is practically no difference between husband and wife and therefore, availability of a building under the ownership of the wife is as good as availability of a building under the ownership of the husband himself. The first proviso to sub section (3) of Section 11 will operate against the present claim in view of the availability of the building in the nearby compound though the ownership of the same is with the landlord's wife. The learned RCR.No.251/2006 5 counsel submitted that, at any rate, the subsequent event brought to the notice of this court by filing the I.A.will eclipse the need even if the finding that the same is a bona fide one is correct. 7. Mr.V. Chitambaresh, learned senior counsel appearing for the respondents/landlords would resist the submissions of the counsel for the revision petitioner. According to him, both possession and ownership of a room should be combine in the landlord for the first proviso to operate against him in a claim under sub section (3) of Section 11. In the instant case, need of the two brothers, who are the landlords, is to accommodate their brother. Mr.Chitambaresh submitted that the subsequent event brought to the notice of this court by filing the I.A. cannot have any impact and much less any fundamental impact on the bona fides of the claim which is recognized by the two statutory authorities. According to him, there is no warrant at all for the invocation of revisional jurisdiction. 8. We have very anxiously considered the submissions addressed at the Bar. We have gone through the order of the Rent Control Court and the Judgment of the Rent Control RCR.No.251/2006 6 Appellate Authority. The two questions, which arise for consideration by us, are (i) whether there is any warrant for invocation of the revisional jurisdiction under Section 20 for interfering with the judgment of the Appellate Authority. (ii). Whether the subsequent event of the respondents letting out the two rooms, which were situated adjacent to the petition schedule building to the proprietor of “ Limra Collections” will have any impact on the bona fides of the need projected in the rent control petition. According to us, both the above questions will have to be answered in favour of the landlords. 9. We fail to see how the first proviso to Section 11(3) can have any application in this case where admittedly and evidently the building in the adjacent compound is put up by the wife of one of the landlords(even if it belongs to the landlord) after the commencement of the rent control petition. Even assuming that the above building belongs to one of the landlords, then also the first proviso will not apply as the landlord was in possession and ownership of that building at the time of commencement of the rent control petition though the same may be a circumstance affecting the bona fides of the need. In this case, the RCR.No.251/2006 7 subsequent event of the new building being put up in the adjacent compound cannot affect the bona fides of the present claim as it has become evident that the building belongs not to either of the landlords but to the wife of one of the landlords. Though under our social conditions the husband may have all freedom in the matter of enjoyment of his wife's property, we cannot easily assume such freedom in this case as the need is to accommodate the brother of the landlords. We are sure that the above subsequent event will not affect the bona fides of the need which is concurrently found in favour of the landlords by the two statutory authorities. 10. Now, we shall deal with the subsequent event which is brought to the notice of this court by the revision petitioner by filing I.A. No.741/2011. It is trite by various decisions that causes have to be decided normally on the basis of the state of affairs which obtained at the time of commencement of the lis. The judgment of the Supreme Court in Gaya Prasad v. Pradeep Srivastava (2001 (1) KLT 753(SC) is a leading light regarding the relevance of subsequent events in rent control proceedings. What is laid down by the Supreme Court is that only such RCR.No.251/2006 8 subsequent events, which have a fundamental impact on the right of the landlord to obtain eviction or liability of the tenants to suffer eviction, need be noticed by the authorities under the Statute. In the instant case, the specific need projected in the rent control petition is to start a small vedio cassette shop, similar to the one the revision petitioner tenant is presently conducting, by the landlords' brother Basheer. The landlords have been consistently maintaining that what is required for the proposed business is a small room like the petition schedule room. Of course, the two rooms which fell vacant during the pendency of the proceedings, were almost similar in size to the above room. But, the explanation of the landlords through the counter affidavit filed in the I.A. No.741/2011, that in that part of Palakkad town bigger rooms are more in demand appears to be convincing. At any rate, the landlords cannot be blamed for having disposed of that building in the manner of their choice in view of the findings concurrently entered by the two statutory authorities that their need to accommodate their brother in the petition schedule room is bona fide. The above subsequent event also will not affect the right of the landlords to obtain RCR.No.251/2006 9 eviction or the liability of the tenant to suffer eviction. The other findings entered in the context of the second proviso to sub section (3) of Section 11 are unassailable in view of the judgment of the Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) and that of the Supreme Court in Kunhamma v. Akkali Purushothaman (2007 (3) KLT 599 (SC). In short, the revision is liable to fail and the same will stand dismissed. 11. After we made our decision known, Mr.Sachithananda Pai learned counsel for the revision petitioner/tenant requests that at least one year's time be granted to the revision petitioner for surrendering the premises. Opposing that request, Mr.Chitambaresh learned senior counsel for the landlords submitted that the tenant is not presently conducting any business in the petition schedule building. Mr.Pai would respond by submitting that if the tenant was not conducting any business, he would not have obeyed this court's direction to discharge the rent in arrears. Whatever that be, we feel that there is justification for granting time to the revision petitioner for surrendering the premises till 31/3/2012 subject to certain RCR.No.251/2006 10 conditions. 12. Accordingly, even as we dismiss the revision petition, we direct the Execution Court to keep in abeyance proceedings for delivery till 31/3/2012 subject to the following conditions; The revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court as the case may be within three weeks from today undertaking to give peaceful surrender of the petition schedule building on or before 31/3/2012 and undertaking further through the same affidavit that arrears of rent if any will be discharged within one month from today and occupational charges at the existing current rent rate of Rs.350/- will be paid till he surrenders the building. We make it clear that the revision petitioner will get benefit of time granted as above only if he files the affidavit on time and honours the undertakings therein without fail. ## **PIUS C.KURIAKOSE,JUDGE** **N.K.BALAKRISHNAN, JUDGE** dpk