Thulasi v. George

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 20TH DAY OF JANUARY 2012/30TH POUSHA 1933 RCR.No. 26 of 2012 ----------------------RCA.6/2009 of DISTRICT COURT, PATHANAMTHITTA RCP.7/2006 of RENT CONTROL COURT,ADOOR --------------- REVISION PETITIONER(S)/APPELLANT/RESPONDENT: ----------------------------------------------------------- THULASI, S/O.RAGHAVAN,ODAPPETTIVILAYIL,CHERUPUNCHA MURI PERINGANADU VILLAGE DOING HOTEL BUSINESS WITH NAME GEETHA'S HOTEL NEAR VILLAGE OFFICE,ADOOR. BY ADVS.SRI.N.D.PREMACHANDRAN SMT.AMBILY K.ARAVIND RESPONDENT(S)/RESPONDENT/PETITIONER: -------------------------------------------------- 1 GEORGE S/O.KOSHY,KADATHETHAYA,PULIPARATH VEETTIL PANDALAM NADUVILE MURI PANDALAM THEKKEKARA VILLAGE. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------R. C. R No.26 of 2012 -----------------------------------------------Dated this the 20[th] day of January, 2012 ## **ORDER** ## _Pius C. Kuriakose, J_ Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court against the revision petitioner under sub Section 3 of Section 11. The need projected by the landlord was that the building is required bona fide for occupation by his son so that the son who is a Physiotherapist can start a physiotherapy Centre in the petition schedule building. The contention which was raised prominently was that the Rent Control Petition is not maintainable for want of non-joinder of all necessary parties. It was contended that the original tenant was the father of the revision petitioner who passed away leaving behind him as many as four children including R. C. R No.26 of 2012 -2- the revision petitioner. It was contended that due to nonimpleadment of the other three children of the deceased original tenant the RCP is not maintainable. Apart from that the bona fide need was disputed the revision petitioner also claimed that he is entitled to the protection of the second proviso to sub Section 3 of Section 11. In the enquiry evidence consisted of Exts.A1 to A11, X1 series and the oral evidence of Pws.1 and 2 and RW1. The Rent Control Court relying on Ext.A7 took the view that the other legal heirs of the deceased original tenant had given consent to the revision petitioner to possess and conduct business in the petition schedule building. Accordingly, it was held that the tenancy right in respect of the building is presently with the revision petitioner alone. The oral evidence given by PW1, the landlord was found quite inspiring by the Rent Control Court. In fact despite cross examination he stood firm and was not shaken. On the basis of PW1's evidence it was held that the need is a bona fide one. Obviously keeping in mind the judgments pertaining to burden of proof in the context of R. C. R No.26 of 2012 -3- the tenants' eligibility for the protection of the second proviso it was held that the tenant was unsuccessful in showing that either of the two limbs was satisfied in his favour. Accordingly, it was held that the tenant is not entitled for the protection of the second proviso. Accordingly, order of eviction was passed. An appeal was preferred by the revision petitioner against the order of the Rent Control Court. The Appellate Authority made a reappraisal of the evidence and would concur with all the findings of the Rent Control Court. Accordingly appeal was dismissed. 2. In this revision under Section 20, various grounds have been raised assailing the judgment of the Appellate Authority. Sri.N.D.Premachandran, the learned counsel for the revision petitioner addressed submissions based on all the grounds. Sri.Premachandran would particularly submit that the finding concurrent though the same be, that the Rent Control Petition is maintainable and that the revision petitioner alone is the tenant is clearly erroneous. Our R. C. R No.26 of 2012 -4- attention was drawn by Sri.Premachandran to the definition of the expression of the tenant given under Section 2(6) of Act 2 of 1965 and submitted that all the legal heirs of a deceased tenant are statutorily tenants. Ext.A7 was given only for the purpose of being produced before the local authority as the local authority will not issue licence in the names of more than one person. Counsel also submitted that appreciation of evidence by the two authorities was erroneous and this has vitiated the finding rendered regarding bona fides of the need and also regarding the tenants' eligibility for the protection of the second proviso. 3. We have given our anxious consideration to all the submissions of Sri.Premachandran. We have carefully gone through the judgment of the Appellate Authority as well as the order of the Rent Control Court. We reminded ourselves of the well delineated contours of our revisional jurisdiction under Section 20. In the present jurisdiction this Court is not expected to make a re-appraisal of the evidence for the purpose of substituting findings of fact arrived at by the two R. C. R No.26 of 2012 -5- fact finding authorities under the Rent Control Act namely the Rent Control Court and the Appellate Authority especially when the findings entered by the authorities are reasonable findings having founded on evidence. On going through the judgment of the Appellate Authority which is the final court on facts under the statutory scheme it is very clear to us that the findings entered therein regarding the bona fide need and also regarding the tenant's eligibility for protection of the second proviso are reasonable findings having founded on evidence available on record. 4. We shall now deal with the legal question raised before us by the learned counsel for the revision petitioner. True, going by Section 2(6), the legal heirs of a deceased tenant are tenants for the purpose of Act 2 of 1965. But it is trite that binding judicial precedents including the judgment of the Supreme Court in G.C.Paul v. Pande (AIR 1989 SC 1470)that the tenancy which devolves upon the legal heirs of the deceased tenant is a joint tenancy and not a tenancy in common. The above joint tenancy is substantially R. C. R No.26 of 2012 -6- represented in the proceedings by the revision petitioner. Moreover as rightly found by the Rent Control Court and the Appellate Authority Ext.A1 is very clear to the effect that all the other legal heirs even if they are members and the joint tenants have given their express consent in the revision petitioner alone possessing and enjoying the building which is subject matter of the Rent Control Proceedings. 5. The result of the above discussion is that we do not find warrant for interference. Revision fails and the same will stand dismissed accordingly. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //True Copy// P. A. to Judge PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------R. C. R No.26 of 2012 -----------------------------------------------Dated this the 20[th] day of January, 2012 ## **ORDER** ## _Pius C. Kuriakose, J_ After our decision was made known, Sri.N.D. Premachandran, the learned counsel for the revision petitioner requested that considering the totality of the circumstances attending on this case, where a hotel is being conducted by the revision petitioner for several decades now one year time be granted. We will not be justified in granting so much time without notice to the respondent. Hence, issue notice to the respondent by speed post to determine the extent of time to be given to the revision petitioner for surrendering the premises. Post after service is complete. ## I.A. No.155/12 Interim stay for one month. PIUS C. KURIAKOSE JUDGE A. V. RAMAKRISHNA PILLAI JUDGE kns/- R. C. R No.26 of 2012 -8-