T. M. Mathew v. N. Viswanatha Iyyer and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 RCRev..No. 251 of 2010(D) -----------------------------RCA.3/2008 of DISTRICT COURT,THODUPUZHA RCOP.1/2006 of MUNSIFF COURT, PEERMADE .................... ## RIVISION PETITIONER/1ST RESPONDENT/1ST RESPONDENT ------------------------------------------------------------------- T.M.MATHEW, S/O.MATHAI, AGED 71 RESIDING AT THENGANA KUNNEL (H) MURIKADY P.O.,KUMILY VILLAGE, PEERUMEDU TALUK BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT(S)/APPELLANT & R2 TO R6/PETITIONER & R2 TO R6: -------------------------------------------------------------------------- 1. N.VISWANATHA IYYER, S/O.AUNDI IYYER, AGED 97, RESIDING AT MAMKOMBU, KIZHAKKEMADATHIL, MURIKADY P.O.,KUMILY VILLAGE, PEERUMEDU TALUK 2. M.A.HARIHAR, S/O.ANANTHASIVAN, AGED 53 HIMAGIRI, VRINDAVAN GARDENS, CHALAKKAMBOLAM, TRIVANDRUM. 3. VIJAYASUBRAMANIAM., - W/O.SUBRAMANINAM, AGED 72,HIMAGIRI, VRINDAVAN GARDENS, CHALAKKAMBOLAM, TRIVANDRUM 4. VASANTH GANAPATHY, W/O.GANPATHY RAJALAKSHMI COMPLEX NO.51,JANAKIRAM STREET, MANPALATH NO.7,CHENNAI WEST RCRev..No. 251 of 2010(D) -2- 5. LALITHA MATHEW, W/O.T.E.MATHEW, AGED 60 THEVERVELIL, THAIKAVU 185-G-JAWAHARLAL NAGER, MUTTOM, ALUVA WEST VILLAGE,ALUVA TALUK 6. MAHALAKSHMI SUNDARAM, W/O.SUNDARAM, AGED 63 YEARS, CHALAKAMBOLAM,TRIVANDRUM. ADV. SRI.C.K.VIDYASAGAR FOR R1 SRI.P.CHANDY JOSEPH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.251 of 2010 -----------------------------------------------Dated this the 12[th] day of October, 2011 ## **ORDER** ## _Pius C. Kuriakose, J_ The tenant is the revision petitioner and he challenges in this revision under Section 20 the judgment of the Rent Control Appellate Authority ordering eviction against him on the ground under Section 11(3) of Act 2 of 1965. The need projected by the landlord, a nonogenarian aged 98 when the Rent Control Appellate Authority decided the appeal in his favour was that he needs the petition scheduled building, a substantial building situated on a plot having an extent of 20 cents for the purpose of residence and also for the purpose of commencement of a clinic for the benefit of the local public mostly workers in the nearby estates. The bona fides of the need was disputed and it was contended that inclusive of the building where the landlord was put up at the time when the RCP was instituted the landlord was R. C. R. No.251 of 2010 -2- having possession and ownership of other buildings and extensive areas of land. The tenant also denied the title of the landlord. It was also contended that the RCP was barred by virtue of Section 15 of Act 2 of 1965 and by the principles of res judicata for the reason that the landlord/landlord's brother had instituted two unsuccessful Rent Control Petitions invoking substantially the same ground.The Rent Control Court formulated a point as to whether the denial of the title of the landlord is bona fide and also enquired into the existence or otherwise of the eviction ground invoked. The evidence at trial by the Rent Control Court consisted of Exts.P1 to P7 on the side of the landlord and the oral evidence of PW1, the landlord's son and power of attorney holder one Neelakandan and also the tenant's oral evidence as RW1. Enquiring into the bona fides of the denial of title raised by the tenant, the Rent Control Court found that the denial is not bona fide. That court also found that the present Rent Control Petition was not barred by the R. C. R. No.251 of 2010 -3- provisions of Section 15 of Act 2 of 1965 or by the principles of res judicata. However, on the basis of appreciation of the oral evidence adduced by PW1 and RW1 the Rent Control Court came to the conclusion that the landlord was unsuccessful in proving that the need projected by him was bona fide and accordingly, dismissed the Rent Control Petition. In fact, though not in so many words, the Rent Control Court accepted the tenant's case that the landlord is having possession of other buildings for accomplishing the need projected by him. 2. The landlord carried the matter in appeal before the Rent Control Appellate Authority. The learned Appellate Authority made a de novo re-appraisal of the evidence on record and would interfere with the findings of the Rent Control Court regarding the bona fides of the need and grantability of the eviction under Section 11(3). Accordingly, reversing the decision of the Rent Control Court, the learned Appellate Authority would order eviction under sub Section 3 R. C. R. No.251 of 2010 -4- of Section 11. 3. In this revision filed under Section 20, the tenant has urged various grounds assailing the judgment of the Appellate Authority and Sri.S.Sreekumar, the learned senior counsel for the revision petitioner addressed us on the basis of all those grounds. Per contra, Sri.C.K.Vidya Sagar, the learned counsel for the contesting respondent/landlord would support the impugned judgment on the various reasons stated by the learned Appellate Authority. 4. According to Sri.Sreekumar, the learned senior counsel for the revision petitioner even the pleadings of the landlord as to his need were vague and that while in the earlier part of the Rent Control Petition, the need projected is one for having a building for residence for himself and his wife, elsewhere in the Rent Control Petition the need projected is the need to have a dispensary for the benefit of the local public. It was urged that the bona fides of the need being a state of landlord's mind, could be manifested R. C. R. No.251 of 2010 -5- authentically by the landlord only and in the instant case the landlord has not chosen to give oral evidence itself. The evidence of PW1 the power of attorney holder cannot be adequate substitution. Strong reliance was placed by Sri.Sreekumar on the judgment of the Supreme Court in Joseph Mathew v. Jose Thomas (2005(4) KLT 764 SC) in this regard. Sri.Sreekumar placed reliance also on some of the principles laid down by the judgment of a Division Bench of this Court in JCR Trading (P) Ltd. v. Varghese (2009(1) KLT 963), a judgment which is authored by one among us [PCK (J)] in this context. Sri.Sreekumar highlighted that it had become evident in this case that the landlord and wife were put up in a palatial house within the limits of the very same local authority which was much better and convenient as a residential accommodation than even the petition schedule building which was more in the nature of line buildings intended as habitat for estate workers. Sri.Sreekumar also pointed out referring to the evidence of PW1 himself that it R. C. R. No.251 of 2010 -6- was admitted that the 1[st] respondent/landlord is having at least two other buildings of his own in his possession. Under such a situation the landlord had the obligation to plead and prove special reasons as to why the landlord is insisting on getting possession of the petition schedule building itself. According to Sri.Sreekumar, appreciation of the evidence by the learned Appellate Authority was highly improper and this has resulted in injustice to the revision petitioners, the tenants. According to the learned senior counsel, the evidence adduced by PW1 could not have inspired any confidence in the mind of any court searching for truth. It had come out from the mouth of PW1 that contrary to what he has stated earlier in this evidence that he owns his own flat in Madras and that his family is settled down at Madras. The overall impression which any conscientious court could gather on an analysis of the pleadings and evidence was that the case projected by the 1[st] respondent has already completed more than 100 years was only a ruse to evict the R. C. R. No.251 of 2010 -7- tenant who is paying rent lesser than the prevailing rate. 5. Sri.C.K.Vidyasagar, the learned counsel for the 1[st] respondent/landlord would remind us of the attenuated nature of our present jurisdiction under Section 20. According to Sri.Vidyasagar in the present jurisdiction this Court is not expected to upset the conclusions of fact arrived at by the learned Rent Control Appellate Authority which under the statutory scheme is the final court on facts. Sri.Vidyasagar would read over to us the entirety of the cross examination of PW1 and submit emphatically that no serious dent could be made by the cross examiner on the case spoken to by PW1 in chief examination. According to Sri.Vidyasagar, PW1 was not an ordinary power of attorney holder. PW1 was the only son of his father who on account of age and audibility and like problems could not have given oral evidence himself. Strong reliance was placed by Sri.Vidyasagar on the judgment of Supreme Court in C.Karunakaran v. T. Meenakshi (2005 13 SCC 99) as well as R. C. R. No.251 of 2010 -8- on certain passages in the judgment of this Court in JCR Trading (P) Ltd. v. Varghese (cited supra) to argue that there is no hard and fast rule that for establishing the bona fides of the need under sub Section 3 of Section 11 the landlord himself should mount the witness box. Answering the argument based on the first proviso to sub Section 3 of Section 11 Sri.Vidyasagar submitted that no specific plea based on the first proviso to sub Section 3 of Section 11 was raised by the revision petitioners. Sri.Vidyasagar submitted that at any rate the first proviso to sub Section 3 of Section 11 can have application only in situations where the landlord is in vacant possession of other buildings. In the instant case, there was no pleading and much less evidence to show that the landlord was in vacant possession of any other building which could be utilized by the landlord for accomplishing the need projected by him. The findings entered by the Appellate Authority are founded on evidence and hence, interference will be unjustified. Sri.Vidyasagar R. C. R. No.251 of 2010 -9- submitted that it will be very unkind to deny the landlord who has already crossed the age of 100 his cherished dream of having residence in the petition schedule building. 6. We have very anxiously considered the rival submissions addressed at the Bar. As the findings of the two statutory authorities are divergent we have made a thorough scanning of the pleadings as well as the evidence adduced by the parties. We have kept in mind the statutory provisions as well as the ratio emerging from the decisions cited at the Bar apart from other decisions which are relevant in the context of the first proviso to sub section 3 of Section 11 as well as the necessity for the landlord himself giving evidence to prove the bona fides of his need. We feel on a reappraisal of the pleadings and evidence that the following issues 1) the bona fides of the need under Section 11(3). 2) the applicability of the first proviso to sub section 3 of Section 11 and related issues, require re-consideration by the Rent Control Appellate Authority. We notice that under R. C. R. No.251 of 2010 -10- the statutory scheme the Rent Control Appellate Authority has co-equal powers with the Rent Control Court in the matter of conduct of enquiry. We decide to remand the issue to the Rent Control Appellate Authority considering the advanced age of the 1[st] respondent. 7. We also find that the monthly rent of ` 40/- presently being paid by the revision petitioner is ridiculously low. We also notice that even that rent is not being paid by the revision petitioners. We are incorporating proper conditions keeping in mind these aspects of the matter while passing the order of remand. 8. The result of the above discussion is therefore as follows:- The judgment of the Rent Control Appellate Authority is set aside and RCA No.3/08 is remanded to the Rent Control Appellate Authority for fresh decision after affording opportunity to both sides to adduce evidence on - 1) the bona fides of the need projected under sub R. C. R. No.251 of 2010 -11- Section 3 of Section 11 and - 2) as to whether the RCP is liable to be rejected by - virtue of the first proviso to sub Section 3 of Section 11. It is open to the landlord also to adduce medical evidence which will show that due to physical infirmity he is unable to give evidence himself as to the bona fides of the need projected by him. It is open to the tenants to adduce evidence to show that the landlord is in possession of other vacant buildings suitable for accomplishing the need projected in the Rent Control Petition. Needless to say that if such evidence is adduced by the tenant it is open to the landlord to adduce evidence to show that there are special reasons for the landlord insisting on getting possession of the petition schedule building itself for the need projected by him. This judgment remanding the RCA to the Rent Control Appellate Authority will become operative only subject to the following conditions:- - 1) The revision petitioner shall pay to the respondents R. C. R. No.251 of 2010 -12- either directly or through his counsel within three weeks from today a sum of ` 10,000/- which we have fixed as the amount due to the landlord as on today by way of arrears of rent at the rate of ` 40/- inclusive of the statutory interest due from the revision petitioner. 2) The revision petitioner shall pay rent to the respondent with effect from 01/11/11 at the rate of ` 1,500/per mensem, rent which we have tentatively fixed as the rent payable by the revision petitioner to the respondent. If either party is having any grievance regarding the tentative re-fixation of rent done by us it is open to them to seek regular fixation of fair rent by the Rent Control Court under Section 5. Till fair rent is fixed in terms of Section 5, the revision petitioner shall pay rent every month at the rate of ` 1,500/-. An affidavit shall be filed by the revision petitioner before the Appellate Authority within one week of his entering appearance before the Appellate Authority pursuant to this judgment undertaking to pay rent to the R. C. R. No.251 of 2010 -13- respondent at the above rate of ` 1,500/- per mensem. 9. Parties will enter appearance on 28/10/11. The learned Appellate Authority will expedite matters, complete the enquiry and pass revised judgment early and at any rate within 3 months thereafter. We are sure that the learned Appellate Authority will give top priority to the present appeal where a landlord who has crossed the age of 100 is seeking relief. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-