T. D. Jose v. V. S. Somasundaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 RCRev..No.91 of 2010(A) ----------------------------RCA.3/2005 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.75/00 OF RENT CONTROL COURT, THRISSUR. .................... ## PETITIONER/APPELLANT/RESPONDENT ------------------------------------------- T.D.JOSE, S/O.LATE DEVASSY, THEKKANATH PANDARAVALAPPIL HOUSE, KARAMUCK VILLAGE, KANDASSANKADAVU.P.O, THRISSUR DISTRICT. BY ADV. SRI.PHILIP ANTONY CHACKO SRI.K.A.ANAS ## RESPONDENT(S): RESPONDENT/PETITIONER -------------------------------------------------- V.S.SOMASUNDARAN, S/O.VALATH SREEDHARAN, THALIKULAM VILLAGE, EDASSERY DESOM, THRISSUR DISTRICT. ADV. SRI.N.P.SAMUEL FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.91 of 2010 -----------------------------------------------Dated this the 6[th] day of April, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant against whom an order of eviction was concurrently passed by the Rent Control Court and the Appellate Authority on the ground of own occupation is the petitioner in this revision petition under Section 20 of Act 2 of 1965. The landlord sought to evict him on the ground of arrears of rent also. But it appears that since the entire rent in arrears was discharged by the tenant by the time the proceedings reached the Rent Control Appellate Authority, the landlord did not press for an order of eviction under Section 11 (2)(b). It is agreed that in this revision we need be concerned only with the correctness of the -2- R. C. R. No.91 of 2010 order of eviction passed under Section 11(3). The need projected by the landlord under Section 11 (3) was that the building in question is needed bona fide for occupation by Girish Kumar brother of the landlord so that Sri.Girish Kumar can conduct an Internet Cafe in the building. The case of the landlord as pleaded was that his brother Girish Kumar who was previously working in Gulf countries has lost his job and returned to India. Girish Kumar depends on the landlord for the purpose of getting premises for starting and conducting an Internet Cafe. According to the landlord, the petition schedule premises is suitable for conducting the proposed Internet Cafe and neither the landlord nor the landlord's brother -3- R. C. R. No.91 of 2010 Girish Kumar who is a dependent family member of the landlord has possession of any other vacant building suitable for the proposed business. Anticipating a contention that the tenant is entitled for the second proviso of the sub section 3 of section 11, it was averred in the RCP itself that the tenant does not depend on the income that he derives from the business he carries on in the building and also that other suitable buildings are available in the locality for the tenant to shift his business, if he so desires. The tenant filed counter disputing the bona fides of the need and the claim. It was contended that it is false to state that Girish Kumar is unemployed. It was also contended that Girish Kumar is not experienced in -4- R. C. R. No.91 of 2010 starting or conducting Internet Cafe. It was further contended that other vacant buildings are available with the landlord as well as with Girish Kumar for enabling him to start the proposed business, if he so wants to. It was also contended that Girish Kumar is not a dependent of the landlord. It was then contended that the tenant is conducting fast food business, STD booth, lamination and fax services in the petition schedule premises and is depending on the income derived from these businesses for his livelihood. It was also contended that no other buildings are available in the locality for him to shift his business from the scheduled premises. 2. At trial before the Rent Control Court R. C. R. No.91 of 2010 -5- evidence on the landlord's side consisted of oral testimonies of PWs.1 to 7 and documentary evidence of Exts.A1 and A17. On the side of the tenant the evidence consisted of tenant's oral evidence as RW1 and Exts.B1 to B9. The Commissioner's Report were marked as Exts.C1 and C2. After analysing the entire evidence adduced by the parties, the Rent Control Court ordered eviction not only on the ground of bona fide need for own occupation but also on the ground of arrears of rent. An appeal was preferred to the Rent Control Appellate Authority by the tenant. On the basis of the grounds raised in the memorandum of appeal and the submissions addressed at the Bar, the learned Rent Control R. C. R. No.91 of 2010 -6- Appellate Authority formulated the following as the points arising for decision in the appeal. - 1) Whether PW1 Girish Kumar is a dependent - on the landlord ? - 2) Whether the need urged by the landlord - under Section 11(3) is bona fide ? 3) Whether the need urged by the landlord under sub Section 3 of Section 11 is hit by the first proviso to sub section 3 of section 11 ? - 4) Whether the tenant is entitled to the - protection of the second proviso to sub section 3 of Section 11 ? 3. Relying on the judgments of this Court in Prathapan v. Rama Warrier (2004(2) KLT 559) the Appellate Authority found that dependency as R. C. R. No.91 of 2010 -7- contemplated by sub section 3 of Section 11 is not financial dependency and that younger brother who is dependent on the elder brother for the purpose of obtaining accommodation for conducting business will also fall within the ambit of “dependent” for the purpose of sub section 3 of Section 11. The learned Appellate Authority also noticed the judgment of the Full Bench of this Court in Thalayodi Raghavan v. Koorantavitta Kelappan (2005(4) ILR Kerala 705) which endorses the view taken in Prathapan v. Rama Warrier (cited supra). According to the Appellate Authority, just because the two brothers were residing separately in two different residential houses, it cannot be concluded that PW1 is not R. C. R. No.91 of 2010 -8- depending on the landlord for the purpose of accommodation for conducting business. An argument was raised before the Appellate Authority that the RCP having been instituted by Girish Kumar in his capacity as the power of attorney holder for his brother/the petitioner in the RCP/Sri.Girish Kumar who gave evidence as PW1 is not a competent witness. The learned Appellate Authority did consider the judgment of the Supreme Court in 2005 (2) SCC 217 which was cited before that Authority by the counsel for the tenant. According to the Appellate Authority, the ratio of the Supreme Court judgment is only to the effect that the Power of Attorney holder cannot be a substitute for the petitioner in the -9- R. C. R. No.91 of 2010 RCP but can only be a witness in his own right. The Appellate Authority noticed that in the nature of the landlord's plea, PW1/the brother/Girish Kumar was the most competent witness to testify regarding the bona fides of the need since it was for accommodating Girish Kumar that the brother landlord namely Sri.Somasundaran sought for eviction. On appreciating the evidence of PW1, it was found that the evidence was convincing and was not shaken in cross examination. Thus, agreeing with the Rent Control Court, the Appellate Authority found that the need spoken to by PW1 was a genuine one. The main point that was argued before the Appellate Authority was that the landlord has possession of a room and R. C. R. No.91 of 2010 -10- therefore, it is for the landlord to show special reason within the meaning of the first proviso to Section 11(3) for maintaining the claim for eviction under sub Section 3 of Section 11. Analysing the evidence it was found that the evidence will not support a conclusion that the landlord is in vacant possession of any room. Accordingly, it was held that the first proviso to sub section 3 did not apply in this case. The Appellate Authority went through the Commissioner's Report and found that the other rooms in the building are not at all suitable for the conduct of the proposed business of Internet Cafe. On the above reasoning the Appellate Authority concluded that even if the other rooms pointed R. C. R. No.91 of 2010 -11- out in the Commissioner's Report are reckoned with for the purpose of the first proviso to sub section 3 of Section 11, then also there are special reasons as to why the landlord is justified in seeking eviction of the petition schedule building. The Appellate Authority made a re-appraisal of the evidence adduced by the tenant in the context of the second proviso and held that the tenant was unsuccessful in proving that he satisfies either of the two ingredients of that proviso. Accordingly dismissing the appeal, the order of eviction was confirmed. 4. In this Revision under Section 20, the tenant has raised various grounds and Sri.Philip Antony Chacko addressed arguments before us on R. C. R. No.91 of 2010 -12- the basis of all those grounds. Even though the learned counsel for the revision petitioner addressed arguments on the basis of the various grounds raised in the memorandum of revision he gave more thrust to the grounds based on the first proviso to sub section 3 of Section 11. 5. It was on 22[nd] March, 10 that we considered the RCR for admission. On that day Mr.Philip Antony drew our attention to the first proviso to sub Section 3 of Section 11 as well as to the Commissioner's Report in the case which was produced as Annexure-H along with the revision memo. According to him, room Nos.IX/76, IX/78 and IX/79 are under the vacant possession of the landlord. When it was pointed R. C. R. No.91 of 2010 -13- out to him that there is evidence to hold that room IX/76 is let out by the landlord to Gopinathan/his brother-in-law, Mr.Philip Antoney Chacko submitted that even if the above finding is correct, then also room Nos.IX/78 and IX/79 continue to be under the vacant possession of the landlord. Since this Court which considered the revision for admission was prima facie impressed, Sri.T.K.Chinnan who had lodged a caveat in anticipation of the revision was directed to seek instructions from the landlord on the following points:- - 1) Whether there is any document which will - prove that room Nos.IX/78 IX/79 are let out ? - 2) Whether the landlord will be prepared to R. C. R. No.91 of 2010 -14- let out either of those rooms to the present revision petitioner on condition that he pays an attractive rent ? 6. When the RCR was considered again on 26/03/10, Sri.Philip Antony Chacko, the learned counsel for the revision petitioner asserted that room having Door No.IX/76 is remaining vacant even now. Sri.T.K.Chinnan counsel for the landlord took exception of the above submission of Mr.Philip Antoney. We, therefore, directed Sri.T.K.Chinnan to produce the documents which will show that room Nos.IX/76 is in the possession of the tenant. Accordingly, we posted the RCR to 31/03/10. Later, when we considered the RCR for final hearing on 06/04/10 Mr.Philip Antony Chacko R. C. R. No.91 of 2010 -15- would submit on the basis of the Commissioner's Report that building having Door No.IX/78 is the room which is remaining vacant. According to Mr.Chinnan the above room is in the possession of one Anto who was examined as PW4. We went through the evidence of PW4. We notice that Sri.Anto has given convincing evidence to the effect that he is in possession of Door No.IX/78 and that his evidence was not shaken in cross examination. Under the above circumstances, we are unable to accept the argument of Mr.Philip Antoney Chacko that the Rent Control Petition ought to be rejected in view of the first proviso to sub section 3 of Section 11. R. C. R. No.91 of 2010 -16- 7. In this jurisdiction under Section 20 of Act 2 of 1965, we are not expected to re-appraise the evidence and substitute factual conclusions arrived at by the fact finding authorities under the statutory scheme especially when those findings are founded on evidence. 8. Having scanned the judgment of the Appellate Authority which under the statutory scheme is the final court on facts, we are of the view that the relevant findings i.e. regarding the bona fides of the need, the applicability of the first proviso to sub Section 3 of Section 11 and also the tenant's eligibility for the protection of the second proviso to sub Section 3 of Section 11 have been entered by the Appellate Authority on R. C. R. No.91 of 2010 -17- appreciation of the evidence, are founded on evidence. We did not find any illegality, irregularity or impropriety about those findings as envisaged by Section 20 of Act 2 of 1965. 9. As already indicated the revision petitioner gave more thrust to the grounds based on the first proviso to sub section 3 of Section 11. The ultimate submission was with reference to the door No.IX/78 only. The above submission has to be rejected in view of the convincing evidence given by PW4/Sri.Anto. 10. The result of the above discussion is that we do not find any warrant for interference with the judgment of the Appellate Authority. The revision necessarily has to fail and will stand R. C. R. No.91 of 2010 -18- dismissed. 11. As a last plea Sri.Philip Antony Chacko requested that at least one year's time be granted to surrender the building. The above request was very stiffly opposed by Sri.T.K.Chinnan. We, however, feel on the totality of the circumstances attending on this case that there is justification for granting time till 31/01/11. Accordingly, we are inclined to grant time till 31/01/11 subject to the following conditions:- The revision petitioner shall file an affidavit on or before 25/05/10 before the Rent Control Court or the execution court as the case may be, undertaking to give peaceful surrender of the building to the respondent on or before R. C. R. No.91 of 2010 -19- 31/01/2011 and undertaking further to discharge the arrears of rent, if any, on or before 25/05/10 and also to pay occupational charges with effect from 01/05/2010 at the rate of Rs.400/- per month till such time as he surrenders the premises. The RCR is thus, dismissed. No costs. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/- -20- R. C. R. No.91 of 2010 PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.91 of 2010 -----------------------------------------------Dated this the 26[th] day of March, 2010 ## **ORDER** _Pius C. Kuriakose, J_ Sri.Philip Antony Chacko, the learned counsel for the revision petitioner asserted before us that room having Door No.IX/76 is now also remaining vacant. Sri.T.K.Chinnan having taken exception to the above submission submitted that the above room is also in the possession of tenant. Sri.T.K. Chinnan will produce documents, if any, which will show that room No.IX/76 is in the possession of tenant. Post on 31/03/2010. Issue copy of this order to both sides. PIUS C. KURIAKOSE JUDGE R. C. R. No.91 of 2010 -21- C. K. ABDUL REHIM JUDGE kns/- -22- R. C. R. No.91 of 2010 PIUS C. KURIAKOSE & S. S. SATHEESACHANDRAN, JJ. -----------------------------------------------R. C. R. No.91 of 2010 -----------------------------------------------Dated this the 22[nd] day of March, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ Heard Sri.Philip Antony Chacko, the learned counsel for the Revision Petitioner for some time. He drew our attention to the first proviso to sub section 3 of section 11 as well as to Annexure-H Commission Report. He submitted that even if the case of the landlord that room No.IX/76 is let out to Gopinathan, his brother-in-law is true, then also room Nos.IX/78 and IX/79 continues to be under the vacant possession of the landlord. Sri.N.P.Samuel, who has lodged a caveat in R. C. R. No.91 of 2010 -23- anticipation of this revision is directed to seek instructions from the landlord on the following points:- - 1) Whether there is any document which will - prove that room Nos.IX/78 and IX/79 are let out. 2) Whether the landlord will be prepared to let out either of those rooms to the present revision petitioner on condition that he pays an attractive rent. Post on 26/03/10. H/o copy of this order to both sides. PIUS C. KURIAKOSE JUDGE S. S. SATHEESACHANDRAN JUDGE R. C. R. No.91 of 2010 -24- kns/-