T. Ramesh v. Prasadkumar 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 TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 RCRev..No. 26 of 2010() ----------------------RCA.14/1995 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI RCP.9/1993 of MUNSIFF COURT, TIRUR .................... ## REVISION PETITIONER/2ND RESPONDENT: ----------------------------------------------- T.RAMESH, S/O.LATE THOTTIYIL NARAYANIKUTTY AMMA, `NAVAMALIKA', P.O.PAINGANNOOR, VIA.KUTTIPPURAM, MALAPPURAM DISTRICT-679 590. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S)/APPELLANTS 2 TO 7: --------------------------------- 1. PRASADKUMAR, S/O.LATE GOPALAN, VADAKKEPURAKKAL HOUSE, EDAYUR AMSOM, PAVATHUMTHARA DESOM, MALAPPURAM DISTRICT. 2. V.G.VIJAYAKUMAR, S/O.LATE GOPALAN, VADAKKEPURAKKAL HOUSE, EDAYUR AMSOM, PAVATHUMTHARA DESOM, MALAPPURAM DISTRICT. 3. V.G.VINODKUMAR, S/O.LATE GOPALAN, VADAKKEPURAKKAL HOUSE, EDAYUR AMSOM, PAVATHUMTHARA DESOM, MALAPPURAM DISTRICT. 4. V.G.SPINEESH KUMAR ALIAS PRAMODKUMAR, S/O.LATE GOPALAN, VADAKKEPURAKKAL HOUSE, EDAYUR AMSOM, PAVATHUMTHARA DESOM, MALAPPURAM DISTRICT. 5. V.G.SMITHEESHKUMAR ALIAS PRADEEPKUMAR S/O.LATE GOPALAN, VADAKKEPURAKKAL HOUSE, EDAYUR AMSOM, PAVATHUMTHARA DESOM, MALAPPURAM DISTRICT. (..2) RCR.26/2010 (2) 6. K.K.SANTHAKUMARI, W/O.LATE GOPALAN, VADAKKEPURAKKAL HOUSE, EDAYUR AMSOM, PAVATHUMTHARA DESOM, MALAPPURAM DISTRICT. ADV. SRI.K.RAJESH SUKUMARAN FOR R2 TO R6 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.136/2010 IN RCR.26/2010 ## DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 25.5.2010 _okb_ /True copy/ P.A. to Judge ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------** ## **R.C.R. No.26 of 2010** ## **----------------------------------** Dated this the 25[th] day of May, 2010 ## **O R D E R** ## **--------------** ## **Pius C.Kuriakose,J.** The tenant challenges in this revision under Section 20 the judgment of the Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground of bonafide need for own occupation and arrears of rent. Ground No.5 in the memorandum of revision appeals to us in the context of eviction ground under Section 11(2)(b). It is urged that the order of eviction under Section 11(2)(b) was set aside by the Rent Control Court on the basis of order on I.A.No.1617/1994 filed by the tenant under Section 11(2)(c). It was without noticing the above order that the Appellate Authority confirmed the order of eviction passed under Section 11(2)(b). We find merit in the submissions of Mr.K.M.Sathyanatha Menon, learned counsel for the revision petitioner that the Appellate Authority should not have confirmed the order of eviction passed under Section 11(2)(b) **RCR.26/2010** **2** since the same already stood set aside by the Rent Control Court by the order on I.A.No.1617/1994. We therefore straight away vacate the order of eviction passed by the authorities under Section 11(2)(b). 2. The substantial ground on which the order of eviction is passed by the Rent Control Appellate Authority is the ground under Section 11(3). This order was passed by the Appellate Authority reversing the decision of the Rent Control Court to decline the order of eviction sought under Section 11 (3). The need projected in the Rent Control Petition, which was filed by a father and his elder son, who were owners of the building, was that the building was required bonafide for occupation by Mr.Vinodkumar, younger son who got himself impleaded as a party to the proceedings consequent to demise of his father, the first petitioner in the Rent Control Petition. Mr.Vinodkumar was examined as PW2 in the Rent Control Petition. The bonafides of the need was disputed. It was contended that at any rate the tenant is entitled to protection of the second proviso to sub-section (3) of Section 11. The Rent Control Court was inspired by the oral evidence adduced **RCR.26/2010** **3** by PW1, second petitioner in the RCP and by PW2 Sri.Vinodkumar, the defacto claimant. That court found that the need projected is bonafide. Even though a specific contention was not raised that RCP shall fail by virtue of first proviso to Section 11(3), arguments were seriously raised on the basis of evidence adduced in the case that RCP is liable to be fail since it had become evident that the landlords were having possession of two or three other buildings and they had not pleaded the special reasons justifying their seeking eviction of the subject building. The Rent Control Court, however, did not become inclined to accept the argument that the petition should fail by virtue of first proviso to Section 11 (3). The Rent Control Court accepted the explanation of the landlords that the other buildings admitted by them to be in the vacant possession were either rooms in the second and third floors or rooms which did not enjoy so much of locational advantages as the petition schedule building. The court noticed that even the petitioner was not prepared to shift his business to one of the rooms pointed out by him as possessed by the landlords saying that those buildings are not **RCR.26/2010** **4** suitable for tenant's business. Accordingly the question regarding eligibility for protection under the 1[st] proviso to Section 11(3) was answered by the Rent Control Court in favour of the landlords. 3. However, on the basis of the evidence adduced by RW1 and relying on the judgment of the Division Bench in **Sadanandan Vs. Kunheen (1991(2) KLT 628)** (which held the field at that time) Rent Control Court held that the tenant had adduced sufficient evidence and discharged his burden of proving that he satisfies both the ingredients of the 2[nd] proviso to sub-section (3) of Section 11. In fact one of the contentions raised by the landlords was that the tenant had become mentally infirm and was not personally carrying on any business at all in the petition schedule building and therefore it cannot be stated that the tenant is eking out her livelihood by the income derived from the business carried on in the building. Learned Rent Control Court did accept the contention of the landlord that tenant is not carrying on any business herself due to mental infirmity. But the court noticed that on behalf of mother who had become mentally **RCR.26/2010** **5** infirm, her son RW1 was carrying on business and the said business was accepted by the court to be the business carried on by the son on behalf of mother. We are able to approve rationale of the above view taken by the learned Rent Control Court. In the fact situation which obtained in the family of the tenant, the business was carried on by him on behalf of his mentally infirm mother. But then it had come out in evidence that the tenant owns and possesses 3.55 acres of landed property and some extents of paddy land. As regards the income from those properties, there was only oral evidence from RW1 that income from the business was the sole income. What the Rent Control Court did was to accept the oral evidence and to hold that income from the business was the sole income. In the same way, relying on the oral evidence adduced by RW1 the Rent Control Court concluded that other buildings are not available in the locality, blaming the landlord for not having pleaded that other suitable rooms are available in the locality for tenant to shift the business. Notwithstanding the finding that need is bonafide, the petition was dismissed holding that tenant was entitled to **RCR.26/2010** **6** protection of the second proviso to Section 11(3). Appellate Authority, under the impugned judgment, reappraised the evidence adduced by the parties and found that the evidence adduced by the tenant fell short of holding that the tenant was depending mainly on the income derived from the business in the building and also that other suitable buildings are not available in the locality. According to the Appellate Authority, the immovable properties owned by the tenant were very extensive and that being so, mere oral evidence will be insufficient to hold that there is no income therefrom. It was held that it was obligatory on the part of the tenant to have adduced better evidence to prove as to what is the actual income derived from the immovable properties and convince the court that the above income is not the main income and is far less than the income derived from the medical shop business. It was also found that no documentary evidence was adduced regarding the income actually derived from the medical shop business which is capable of being proved by documentary evidence. The Appellate Authority did not find any reason to disagree with **RCR.26/2010** **7** the Rent Control Court in its findings regarding bonafides of the need and also regarding operation of the first proviso. Before the Appellate Authority the tenant had filed memorandum of Cross Objection raising various grounds. Most of them were to the effect that the need was not bonafide. No specific ground had been raised that the Rent Control Court went wrong in the decision in the context of sub-section (3) of Section 11. 4. In this revision filed under Section 20 various grounds have been raised by the revision petitioner assailing the judgment of the Appellate Authority. We have heard the submissions of Sri.K.M. Sathyanatha Menon, learned counsel for revision petitioner and those of Sri.K.Rajesh Sukumaran, learned counsel for respondents. Sri.Sathyanatha Menon addressed very strenuous arguments on the basis of various grounds. Mr.Sathyanatha Menon drew our attention to the first proviso to Section 11(3) and also to the evidence adduced by PW1 which is to the effect that the landlords were having possession of two or three buildings. According to him, when it is admitted that the landlords are having possession of **RCR.26/2010** **8** vacant buildings it is the obligation of the landlords to specifically plead special reason. That has not been done in this case. In the absence of specific pleadings regarding special reasons, the appellate authority should not have accepted the finding of the Rent Control Court that there are special reasons for the landlord in insisting on getting of eviction. Mr.Sathyanatha Menon also challenged the findings regarding bonafide of the need. Mr. Sathyanatha Menon submitted that the findings of the authorities below is contrary to the evidence available in the case. All the above submissions were resisted by Sri.Rajesh. 5. We have anxiously considered all the submissions of both sides. We keep in mind the attenuated nature of the jurisdiction in which we are presently sitting. It is trite that the jurisdiction under Section 20 is revisional in nature and this court is not expected in this jurisdiction to reappraise the evidence and substitute factual conclusions especially when those conclusions have been arrived at by the authorities below on the basis of evidence. As already stated, the finding that the need is bonafide has been entered concurrently by **RCR.26/2010** **9** the authorities below on the basis of oral evidence adduced by PWs 1 and 2 which inspired the authorities below. 6. As for the arguments based on first proviso to Section 11(3), what had been pleaded was that landlord does not have any building in his possession suitable for conduct of the proposed business. It is true that, in evidence the landlord stated that he is in possession of two or three vacant buildings. But he explained that those buildings are not suitable for the purpose projected. It appears that the tenant was offered one of those buildings. The tenant was not prepared to accept the offer saying that those buildings are not suitable for tenant's purpose. We are of the view that when the alternate buildings pointed out by the landlord are not suitable for tenant's purpose, it is too much on the part of the tenant to contend that PW2 should occupy those buildings leaving the petition schedule building to be retained by the tenant. 7. On going through the judgment of the Rent Control Appellate Authority, which under the statutory scheme is the final court on facts, we find that its finding that the tenant has **RCR.26/2010** **10** not discharged his burden of establishing that he satisfies both the ingredients of second proviso to Section 11(3) is correct and founded on evidence. In fact the law as to burden of proof has been made clearer by the judgment of the Full Bench decision in **Francis v. Sreedevi Varassiar (2003 (2) KLT 230)** . It is trite that both the ingredients are conjunctive. Admittedly, apart from medical shop business carried on in the building in question, the tenant's family owns and possesses extensive areas of immovable properties. When it is shown that when there is more than one source of income for the tenant it is for the tenant to have adduced acceptable evidence showing that he is mainly depending on the income derived from the business carried on in the building. Apart from the oral evidence of RW1 no evidence was adduced. No serious endeavour was made by the tenant for discharging his burden to prove either of the ingredients of the second proviso. Not even the usual exercise of citing the accommodation controller has been resorted in this case. In short, we do not find warrant for interfering with the finding of the Appellate Authority since according to us the **RCR.26/2010** **11** findings are reasonable. 8. As a last plea Mr.Sathyanatha Menon requested that reasonable time be granted for surrendering the building, based on the respondent's case that rent is in arrears. We feel that the time till 31.12.2010 can be granted for surrendering the building, imposing suitable conditions. The result of the above discussions is as follows:- Revision is dismissed. Execution court is directed not to order delivery of the petition schedule building to the respondents till 31.12.2010 subject to the following conditions:- Revision petitioner shall file an affidavit before the execution court or Rent Control Court as the case may be within two weeks from today undertaking to give peaceful surrender of the petition schedule building to PW2 Vinodkumar on or before 31.12.2010 and undertaking further through the same affidavit that he will discharge the entire arrears of rent as found by the Rent Control Court and fallen due till today less any amount paid or deposited after the passage of eviction order by the Rent Control Court to be paid **RCR.26/2010** **12** to the respondents either directly or through the respondents' counsel in the court below within two months and undertaking further that future occupational charges at the current rate of Rs.350/- per mensum will also be paid on or before 31.12.2010. It is made clear that if affidavit is not filed on time, the revision petitioner will not get benefit of time granted by this order. ## **PIUS C.KURIAKOSE, JUDGE.** **C.K.ABDUL REHIM, JUDGE.** okb