Varghese v. Abdul Vaheed

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 2ND MARCH 2010 / 11TH PHALGUNA 1931 RCRev..No. 28 of 2010 (E) -----------------------------RCA.6/2008 of D.C. , KOLLAM RCP.7/2006 of MUNSIFF COURT (RENT CONTROL), KARUNAGAPPALLY .................... ## REVISION PETITIONER/APPELLANT/COUNTER PETITIONER ----------------------------------------------------------------- VARGHESE, S/O.KURUVILA, VARELIVILAYIL THEKKETHIL, THEKKUMMURI KIZHAKKU, THAZHAVA VILLGE, FROM VADAKKEPARAMBIL VEEDU, MARKET ROAD, AMBALAPPUZHA VILLAGE. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): RESPONDENT/PETITIONER -------------------------------------------------- ABDUL VAHEED, S/O.ASANARU KUNJU, KOCHUVILAYIL VEEDU, MANAPPALLY VAKKEMURI, PAVUMBA VILLAGE, THAZHAVA. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------RCR.NO.28 of 2010 --------------------------------Dated this the 2nd day of March, 2010 ## JUDGMENT ## Pius C.Kuriakose,J. The tenant is in revision. He challenges the judgment of the Rent Control Appellate Authority ordering eviction against him on the ground under sub section 3 of section 11 of Act 2 of 1965. The landlord filed the rent control petition invoking the ground under section 11(2)(b) i.e. arrears of rent and need for own occupation under section 11(3). Since one of the issues which became contentious is the sufficiency of the pleadings raised by the landlord in the context of the ground under section 11(3) we feel it necessary to extract the relevant pleadings which are contained in para 3 of the rent control petition. Translated to English the pleadings are as follows:- 2. “The petition schedule premise as well as shed and other structures standing on the same were purchased by the petitioner/landlord with the intention of constructing a shopping complex so that super market, restaurant etc. can be RCR.28/2010 2 conducted in the ground floor and lodging and allied establishments can be conducted in the first floor and the petition schedule premises can be put to more profitable use and good income generated therefrom. Respondent had taken the shed standing on the petition schedule premises from the previous owner Sri. Mohammed Kunju for the purpose of conducting a saw mill in the shed. But since the petitioner is in bonafide need of the entire petition schedule premises inclusive of the site upon which the shed stands, the respondent was requested to vacate the shed where he is conducting saw mill by 20.5.2005 when a period of one year expires from the date of the sale deed in favour of the petitioner after adjusting the entire arrears of rent with interest and after removing the equipments and implements in the saw mill by issuing lawyer notice dated 15.6.2005 by registered post. But the respondent on receiving the notice would only cause a reply stating untrue facts. He never vacated the premise on realising the genuine need of the landlord.” Elsewhere in para 6 of the RCP also in the very first sentence this is what the landlord has stated “In order enable the petitioner to construct the shopping complex so that in the RCR.28/2010 3 ground floor super market and restaurant and in the first floor lodging etc. can be conducted profitably and more income can be generated the landlord has no premises other than the petition schedule premises in the locality”. In para 6 itself there are averments regarding the financial capacity of the landlord for accomplishing his projected need of shopping complex as well as regarding the steps initiated by the landlord for obtainment of the requisite plan and licence required for the purpose. Anticipating a contention from the tenant that he is entitled to protection by the 2[nd] proviso, it is averred in the very same para that the tenant has other sources of income and also that other vacant buildings are available in the locality for the conduct of business of the tenant. In the relief portion of the rent control petition also the landlord has projected his need and sought for an order of eviction in recognition of such need. 3. It is in para 5 of the statement of objections filed by the tenant before the rent control court that he disputes the landlord's claim under section11(3). The bonafides of the need and claim projected by the landlord has certainly been disputed by the tenant. But according to us the averments in para 5 of the RCR.28/2010 4 statement of objection will clearly reveal that the tenant has understood the landlord's case to be one for own occupation under section11(3) by putting up a shopping complex and by conducting super market and restaurant in the ground floor and lodging etc. in the first floor. In para 9 of the statement of objections the tenant has incorporated the requisite pleadings as to claim protection of the second proviso to section 11(3). These pleadings will show that both sides understood that eviction was sought on the ground under section 11(3) for own occupation. The tenant through his statement of objections raised other contentions also including a contention that he is entitled to the protection of section 10 of the Land Reforms Act and a further contention that he has acquired fixity of tenure in respect of a total extent of 15 cents of land inclusive of the petition schedule premises which has an extent of just 2 cents. Evidence at trial before the rent control court in the first instance consisted of Exts.A1 to A17, Exts.B1 to B11, C1 Commission report, Ext.X1 building tax assessment register. Witnesses PWs.1 to 5 and RWs. 1 to 4. On appreciating the evidence the rent control court concluded that the need was bonafide, that the tenant was not RCR.28/2010 5 entitled to any protection under the Land Reforms Act and that he was unsuccessful in proving that he satisfies the ingredients under the 2[nd] proviso to section 11(3). Accordingly the order of eviction was passed under section 11(3). The order of eviction was confirmed by the rent control appellate authority. The judgment of the rent control appellate authority was challenged in revision before this court. In that revision RCR.76/2009 this court did not interfere with the concurrent findings entered by the rent control court and the appellate authority that the need urged by the landlord is bonafide. However on going through the rent control petition as well as the oral evidence of the landlord as PW2 it was noticed that the landlord has not stated about “own occupation of the building to be reconstructed”. 4. The landlord filed an affidavit before this Court reiterating that he will occupy the building after re-construction for use as stated in the RCP. 5. The averments in the above affidavit were refuted by the tenant who filed a counter affidavit. On noticing the affidavit and on hearing both sides with reference to the affidavit this court thought that “an opportunity should be given to the RCR.28/2010 6 landlord to prove his care of his own occupation of the premises after reconstruction”. Accordingly this Court remanded the appeal to the rent control appellate authority for deciding the question of own occupation directing the appellate authority to grant opportunity to both parties to adduce further evidence on the above point. PW2 was allowed to be recalled and allowed to adduce further evidence regarding the need. This Court also observed that the tenant will be entitled to cross examine the landlord if the landlord is recalled and examined again. Pursuant to the above judgment of remand PW2 was recalled before the appellate authority and he gave evidence that after reconstruction he intends to use the ground floor for a super market and a restaurant and the upstair portion for conducting a lodge. By way of counter evidence RW5, son of the tenant was examined as a witness on the side of the tenant. Apart from that, the appellate authority deputed a commission also for getting a report as to whether as alleged by the tenant the landlord is possessed of another premises suitable for accomplishing the need. The appellate authority on appreciating the entire evidence including the evidence adduced after remand RCR.28/2010 7 by this court came to the conclusion that the eviction ground of section 11(3) is established and passed order of eviction against the tenant under section 11(3). 6. In this revision under section 20 various grounds have been raised by the tenant assailing the judgment of the appellate authority. 7. We have heard the submissions of the learned counsel for the revision petitioner Sri.K.Sasikumar and those Sri.Sajit P.Kurup, learned counsel for the respondent landlord who has already lodged a caveat in anticipation of the revision petition. Sri.Sasikumar read over to us the entire evidence that was adduced by PW2 after he was recalled by the appellate authority. He drew our attention to the avements in the RCP. He submitted that through leading questions only it was elicited from PW2 that he intends to occupy the proposed shopping cum lodging complex. This will not constitute legal evidence and hence such answers had to be eschewed from such evidence. Mr.Sasikumar submitted that though this court did not specifically set aside the finding regarding the bonafides of the need in the judgment in RCR.76/2009, the virtual effect of the remand judgment passed RCR.28/2010 8 is to upset that finding. It was absolutely unnecessary for this court to permit adduction of further evidence for the purpose of deciding the question whether there is a genuine need for the landlord to occupy the building after reconstruction. Very strong reliance was placed by Mr.Sasikumar on the judgment of the Supreme Court in Sanghavi and Sons vs. Ambalal Tribhuwan Das (1974 (1) SCC 708). Referring to paras 8 and 9 of the judgment learned counsel asserted that the word 'own' employed in sub section 3 of section 11 means that the building should be under the landlord's own occupation after the tenant is evicted and that the tenant will have to prove that the accommodation is needed directly and personally for his own occupation or for the purpose of conducting his business. 8. All the submissions of Mr.Sasikumar were resisted by Sri.A.Sajit P Kurup, the learned counsel for the landlord. Reading over to us the remand judgment passed by this Court in RCR 76/09, Mr.Sajit submitted that this Court has clearly found that there was no reason to interfere with the finding entered by the Rent Control Court and the Appellate Authority that the need RCR.28/2010 9 urged by the landlord is genuine and that the tenant is not entitled to the protection of the second proviso to sub section 3 of section 11. Nevertheless, this Court passed the order of remand only because the oral evidence of PW2/the landlord did not mention anything as to whether the landlord himself will be occupying any portion of the building after re-construction. In other words, this Court noticed some lacuna in the evidence adduced by the landlord not in the context of his need for reconstruction of the building but only in the context of his need to occupy the building for his own purposes after such reconstruction. According to Mr.Sajid, this Court at that time was only exploring the possibility of accommodating the tenant also in a portion of the building after re-construction, but the landlord filed an affidavit stating that after re-construction, the landlord is going to occupy the entire premises. Permitting the tenant an opportunity to cross examine the landlord, with reference to that affidavit only, the matter was remanded. Since the matter was being remanded, both sides were given opportunity to adduce further evidence on the points as to whether landlord needs to occupy the entire building after re-construction. This was the RCR.28/2010 10 scope of the remand order. After remand, PW2/the landlord gave clear evidence to the effect that after the building is reconstructed, the ground floor will be used as a super market and restaurant and the entire upstair portion will be used for conduct of a lodge. There was no effective cross examination of the landlord on this version. As against this, the tenant did not choose to adduce counter evidence. On the contrary, tenant's son/RW5 was examined. He only formally denied the claim of PW2. He was unable to show that the need projected by PW2 is actuated by oblique motives. The Appellate Authority rightly found on the basis of Exts.A19, A19(a), and A20 that RW5 cannot boast of much credibility. Counsel submitted that the final authority on facts under the Kerala Rent Control Act is the Rent Control Appellate Authority. That authority has correctly appreciated the evidence and come to the right conclusion. 9. We have anxiously considered the rival submissions addressed at the Bar. As rightly argued by the learned counsel for the landlord and as correctly quoted by the Rent Control Appellate Auithority this Court found in the judgment in RCR RCR.28/2010 11 ## No.76/09 dt.06/07/09 as follows:- 10. “Both the courts below have been found that the bona fide need urged by the landlord (PW2) is genuine and that the tenant is not entitled to protection under the second proviso to sub section 3 of section 11 of the Act. We find no reason to interfere with the said finding of both the courts below.” 11. In fact, the entire paragraph 5 of the judgment in the above RCR is correctly quoted by the learned Appellate Authority and it is clear to our mind that notwithstanding the finding that the need urged by the landlord is a bona fide one and that the tenant is not entitled for the protection of second proviso to sub section 3 of section 11, this court became inclined to pass an order of remand only because this Court thought that the evidence adduced by PW2 as to what he was going to do with the building after the tenant is evicted and re-construction is completed was incomplete though it is not clear from the judgment in the RCR as to whether this Court explored the possibility of accommodating the tenant also in a portion of the building after re-construction. It is clear to us that the submission of Mr.Sajid Kurup, counsel for the landlord regarding the RCR.28/2010 12 circumstances under which the remand order came to be passed by this Court are substantially correct. Whatever that be, an order of remand was passed giving opportunity to both sides to adduce evidence. It is seen that PW2 was recalled and he gave further evidence before the Appellate Authority. The evidence of PW2 was that he wants to occupy the ground floor of the newly constructed building for Super Market and for restaurant and that the upstairs portion will be used for conducting a lodge. The above evidence was not shaken in Cross examination. The above evidence inspired the Rent Control Appellate Authority, the final fact finding authority under the scheme under the Rent Control Act. As against this further evidence adduced on the side of the landlord, the tenant for reasons best known to him did not mount the box to adduce counter evidence though, he himself before the Rent Control Court had given evidence in the first round of litigation. In stead as a substitute his son gave evidence. The evidence adduced by RW5 did not inspire the Appellate Authority at all. Referring to certain documents relating to certain other litigations in which he was involved the Appellate Authority has even indicated that RW5 is not a person who can boast of much RCR.28/2010 13 credibility. What is more important is that the oral evidence adduced by RW5 was not capable of rebutting the further evidence adduced by PW2/ the landlord. 12. Under the statutory scheme, the final authority on facts is the Rent Control Appellate Authority. When the findings of that authority are founded on evidence this Court is not normally expected to re-appraise the evidence and come to a different conclusion unless it can be said that the finding of the Appellate Authority is vitiated by illegality, irregularity or impropriety as envisaged by section 20 of Act 2 of 1965. We must say that we do not find any such illegality, irregularity or impropriety about the findings entered by the Rent Control Appellate Authority. We are unable to accept the argument of Mr.Sasikumar that when eviction of a tenant is sought under sub section 3 of section 11 for the own occupation of a landlord, it is obligatory that the landlord himself should personally and physically occupy the building. In the instant case, the need projected in the Rent Control Petition is not the occupation of the building from which the tenant is going to be evicted instead the need projected is one of re-constructing the existing building and putting up a multi RCR.28/2010 14 storied building. What is brought out in evidence is that the proposed multi-storied building will be used by the landlord for conduct of a super market, restaurant and the lodging house. Occupation by the landlord as envisaged by sub section 3 of section 11 in a fact situation like the present one need not be his own personal occupation. It was submitted that the landlord occupies the same either directly or through his agents or employees. Necessarily, in the present case, he will have to engage employees or agents. Sri.Sajid Kurup learned counsel for the landlord assured us that the proposed super market, restaurant and lodging house all will belong to the landlord himself and that the landlord will not dispose of the building or let out the building except to the limited extent of accommodating lodgers in the lodging house which will come up in the upstair portion of the building. We record the above submission of the learned counsel. 13. The judgment of the Supreme Court in D.N.Sanghavi v. Ambalal Tribhuwan Das (1974(1) SCC 708) was rendered by the Supreme Court in the context of section 12(1) (e) and (f) as well as section 39(1) and (2) of the Madhya Pradesh Accommodation RCR.28/2010 15 Control Act, 1960. We are of the view that those provisions are not in pari materia which sub section 3 of section 11 of the Kerala Statute and, at any rate, the ratio of the judgment of the Supreme Court does not support the argument of the learned counsel for the tenant that in a fact situation like the present one the landlord himself will have to personally occupy the whole multi storied building which is to come up in place of the existing building. 14. The result of the above discussion is the RCR fails and the same will stand dismissed confirming the order of eviction passed by the Appellate Authority. However, considering the request of the learned counsel for the revision petitioner for time to surrender the premises, we direct the execution court to defer delivery to 31/10/10 subject to the following conditions:- 15. The revision petitioner files an affidavit before the execution court within three months from today undertaking to discharge arrears of rent, if any, within the aforesaid period and also to pay occupational charges at the current rent rate till actual surrender is made. Revision petitioner will be given the benefit of time granted as above only if he files the affidavit on RCR.28/2010 16 time. PIUS C. KURIAKOSE ,JUDGE C.K.ABDUL REHIM,JUDGE pmn & kns/