Unnikrishna Menon v. P. Nithyanandan

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 TUESDAY, THE 3RD DAY OF APRIL 2012/14TH CHAITHRA 1934 RCRev..No. 131 of 2012 ------------------------RCA.113/2009 of III ADDL.DISTRICT COURT(RENT CONTROL APPELLATE AUTHORITY) KOZHIKODE RCP.55/2007 of PRL.MUNSIFF/RENT CONTROL-I.KOZHIKODE-I REVISION PETITIONER(S): ---------------------- UNNIKRISHNA MENON, AGED 55 YEARS S/O.APPUKUTTY MENON, ARUN SOTRES, 22/378 MINI BYE PASS ROAD, P.O.,THIRUVANNUR PANNIYANKARA AMSOM & DESOM; KOZHIKODE TALUK BY ADVS.SRI.K.M.FIROZ SMT.SHAJNA M RESPONDENT: -------------- P.NITHYANANDAN, AGED 62 YEARS S/O.LATE P.BHASKARAN, 22/380, PUNNATH HOUSE PANNIYANKARA AMSOM AND DESOM,KOCHIKODE-673008 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ. =====================** R.C.R. NO. 131 OF 2012 **=====================** Dated this the 3[rd] April 2012 ## ORDER ## **Pius C.Kuriakose,J.** Under challenge in this revision under Section 20 of the Kerala Buildings(Lease & Rent Control) Act, 1965 (Act 2 of 1965), (hereinafter referred to as 'the Act) filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground of arrears of rent(Section 11(2)(b)) and on the ground of bona fide need for own occupation (Section 11(3)). As for the ground of arrears of rent, we find that the Rent Control Court and the Appellate Authority have concurrently entered a finding that the rent is in arrears to be paid and ordered eviction on the basis of such a finding. As the eviction order passed under RCR 131/2012 2 Section 11(2)(b) is always liable to be got vacated under Section 11(2)(c) of the Act, we confirm the eviction order passed by the Rent Control Court and the Appellate Authority under Section 11(2)(b) giving to the revision petitioner two months time from today to invoke Section 11 (2)(c) of the Act and getting eviction order passed under Section 11(2)(b) vacated. 2. The substantial ground on which the eviction order passed is the ground under Section 11(3). The need projected by the landlord, who has two sons, was that the building in which the revision petitioner is presently conducting stationary and provision business is required by him bona fide so that both his sons who are presently without employment can conduct business in mobile telephone servicing centre. The bona fides of the above need was disputed by the tenant who contended that the elder son of the landlord is employed in Madras. It was RCR 131/2012 3 also contended by the tenant that he is entitled for the protection of the second proviso to Sub-section (3) of Section 11. In the enquiry conducted by the Rent Control Court, the evidence consisted of oral evidence of PW1, the landlord; PW2, younger son of the landlord and Exts.A1 to A7 and RW1, the tenant and Ext.B1 and also commissioner's report, Exts.C1 and C2 and plans Exts.C3 and C4 submitted by the Commissioner. The learned Rent Control Court on evaluating the above evidence would hold that the need is bona fide. It was further held that the tenant was not successful in showing that he satisfies the two ingredients of the second proviso to Sub-section (3) of Section 11. To enter such a finding, reliance was placed on Exts.C2 and C4 and also on the circumstance that the landlord and tenant did not adduce any evidence which would show, (notwithstanding the burden of proof on him) that other suitable buildings are not available in the locality for the RCR 131/2012 4 tenant to shift his business. Accordingly, the order of eviction was passed by the Rent Control Court under Section 11(3) of the Act. The learned Appellate Authority considered appeal preferred by the revision petitioner, made a thorough re-appraisal of pleadings and evidence. Nevertheless, the Appellate Authority concurred with all the findings of the Rent Control Court. Accordingly the appeal was dismissed confirming the order of eviction passed under Section 11(3) of the Act. 3. In this appeal various grounds are seen raised challenging the judgment of the Appellate Authority. It was argued by Smt.Shajna, learned counsel for the revision petitioner that the judgment of the Appellate Authority tainted with illegalities, irregularities and improprieties as envisaged by Section 20 of the Act. She highlighted that the landlord came forward with a case that both of his sons are unemployed and they are to be accommodated in RCR 131/2012 5 the petition schedule building. Later, at the time of evidence the case pursued was the need to accommodate the younger son only . Smt. Shajna would further assail the finding of the statutory authorities in favour of the landlord in the context of the second ingredient of the 2[nd] proviso to Sub-section (3) of Section 11 of the Act. The learned counsel submitted that commission was issued by the court for the second time only in the light of the objections raised by the revision petitioner to the first commissioner's report. In the first commission, the commissioner had reported and pointed out that a few buildings are vacant. The objection by the revision petitioner was that those buildings are not remaining vacant though they remained closed at the time when the commissioner conducted inspection. Ext.B1 also shows that those buildings were actually occupied by the tenants. This being the position, the statutory authorities are not at RCR 131/2012 6 all justified in finding that the other buildings are available in the locality and that the tenant has not discharged his burden. 4. The learned counsel submitted that even if this Court is inclined to confirm the finding regarding bona fides, then also as the finding regarding the eligibility of the tenant for the protection of the second proviso is wrong. Hence the eviction order under Section 11(3) is to be interfered with. We have very anxiously considered the submissions addressed at the Bar by Smt. Shajna. We have carefully perused the order of the Rent Control Court and the Appellate Authority. We remind ourselves of the well delineated contours of our jurisdiction under Section 20 of the Act. In the present jurisdiction, we are not expected to make a de novo reapppraisal of the evidence for the RCR 131/2012 7 purpose of substituting the factual conclusions arrived at by the final fact finding authority under the statutory scheme, namely the Rent Control Appellate Authority. On going thorough the judgment of the Appellate Authority, we find that the need is bona fide and further findings that the tenant has not established that he satisfies the second ingredient of the second proviso are findings entered on the basis of the appreciation of evidence oral, documentary and circumstantial. True it came out in evidence that the elder son of the landlord was employed in Madras. But the fact remains that the second son, PW2 who gave inspiring evidence, wanted to start his own business after giving up the employment. The above need is a reasonable need as held by the two authorities concurrently. According to us, when reasonable findings are entered by the two statutory authorities, it is not for us to upset those findings. We do not find any infirmity about the finding that the need RCR 131/2012 8 projected by the landlord is bona fide. It is trite by judgment of the Full Bench of this Court in **Francis v. Sreedevi Varassiar (2003(2)K.L.T.230)** and that of the Supreme Court in **Kunhamma v. Akkali Purushothaman (2007(3)K.L.T. 99)** that the burden to prove that the tenant satisfies both the ingredients of the second proviso to Sub-section (3) of Section 11 is on the tenant. It is true that on the basis of the second report submitted by the commissioner and Ext.B1 produced by the revision petitioner, it came out on record that the buildings which were reported by the commissioner to be vacant at the time of the first inspection were not actually vacant. But what we find from the judgment of the Appellate Authority and the Rent Control Court is that the two statutory authorities were not at all inspired by the oral evidence adduced by RW1. RW1's evidence clearly shows that he had not conducted any serious enquiry as to the availability of other RCR 131/2012 9 buildings in the locality so as to enable him to shift his business. Since it is in evidence that RW1, the tenant has not conducted any enquiry regarding the availability of the other rooms in the locality, the concurrent findings of the two fact finding authorities cannot be faulted. We have also noticed that the learned Rent Control Court and the Appellate Authority have concurrently found on appreciating RW1's evidence itself that several other buildings have come up in Kozhikode City at the relevant time. We do not find any infirmity in the finding that the tenant is not entitled for the second ingredient of the second proviso which is conjunctive. In short we do not find any justification for interfering with the order passed by the Rent Control Court and the Appellate Authority. 5. When our decision was made known, the learned counsel for the revision petitioner requested 1 ½ years time for surrendering the building. Even though we find RCR 131/2012 10 justification for granting reasonable time, we are not inclined to grant the time sought for without issuing notice to the respondent/landlord. Hence, issue notice to the respondent to determine the extent of time to be given to the revision petitioner for surrendering the premises. Post after service of notice. **Sd/PIUS C.KURIAKOSE, JUDGE** **Sd/A.V.RAMAKRISHNA PILLAI, JUDGE** **ks.** **True copy** **P.S.To Judge** RCR 131/2012 11