VARGHESE vs SEBASTIAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 RCRev..No. 301 of 2007() -----------------------AGAINST THE ORDER DATED 24/03/2007 IN IA.586/06,636(A)/06 IN RCA.3/2005 of ADDL. DISTRICT COURT, PARAVUR RCP.21/2003 of MUNSIFF COURT,ALUVA .................... REVISION PETITIONER/APPELLANT/RESPONDENT : ----------------- VARGHESE, AGED 50 YEARS, S/O. VARGHESE, PARIYADAN HOUSE, NEAR RC CHURCH, ANGAMALY. BY ADV. SRI.PIUS C.MUNDADAN SMT.ANJU DIVAKAR RESPONDENT/RESPONDENT/PETITIONER: ------------- SEBASTIAN, S/O. JOSE KALLOOKKARAN, KALLOORKKARAN HOUSE, PEECHANIKKAD KARA, ANGAMALY VILLAGE. BY ADV. SRI.S.SREEKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24/6/2008, THE COURT ON 4/7/2008 PASSED THE FOLLOWING: I.A. NOS.2257 & 3156 OF 2007 DISMISSED. 4/7/2008 SD/- P.R. RAMAN, JUDGDE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.301 of 2007** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the day of July, 2008.** ## **O R D E R** ## Ramachandran Nair, J. The tenant in a petition for eviction under the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'), is the revision petitioner herein. The revision is filed challenging the judgment of the Rent Control Appellate Authority in R.C.A.No.3/2005. The landlord sought eviction of the building under Sections 11(2)(b) and 11(3) of the Act. Eviction was ordered under Section 11(3) of the Act by the Rent Control Court and eviction sought under Section 11(2)(b) was refused. The above order stands confirmed by the Appellate Authority. 2. The short facts necessary for the disposal of the revision are the following: 3. The schedule room No.227 forms part of a large building named Kallookkaran Shopping Complex. The said room belong to the landlord by virtue of sale deed No.2141/2002 of Angamaly Sub Registrar's office. The room was let out to the tenant by the father of the landlord on 5.9.1993. The tenant was informed by the father of the landlord as well as by himself RCR 301/2007 -2- about the sale of the petition schedule building to him. The landlord at that time, was a final year student of Business Management course. He intended to start a business of hardware items and paints in the petition schedule room. He has no other room in the locality to start his business. This in short are the averments supporting the grounds for eviction. The petitioner/tenant mainly contended that he has paid rent upto October, 2002 and the document created in favour of the landlord was never acted upon. It is a sham document which does not confer any title on him. In fact, the landlord's father had consented to transfer the petition schedule room to him. The bonafide need pleaded was also not genuine and the petition is filed with the only intention to evict the tenant. 4. The Rent Control Court in paragraph 7 of the order, rejected the contention raised by the tenant that the sale deed, Ext.A6 is a sham document. It was found, by relying upon Exts.A2 to A4 that the document was executed with the real intention to transfer the property. It was found that the bonafide need pleaded is genuine. The evidence of P.W.1, the landlord and P.W.2, his father was relied upon in support of the above findings. 5. Heard learned counsel for the petitioner Shri Pius C. Mundadan and Shri S. Sreekumar, learned counsel for the respondent. Learned counsel for the petitioner vehemently contended that a reading of the judgment of RCR 301/2007 -3- the Appellate Authority will show that the real question argued by the petitioner was not addressed and the Appellate Authority has wrongly concluded that going by the objection filed by the tenant in the Rent Control Petition, the landlord – tenant relationship is clearly admitted and therefore it was not necessary to decide whether the document of title is a sham document. It is pointed out that the finding by the Appellate Authority that the tenant is estopped from disputing the title by virtue of Section 116 of the Evidence Act, is clearly erroneous and perverse one. It is also pointed out that the tenant had brought to the notice of the Appellate Authority an important subsequent event that the landlord got employment in Canada and thus it is a crucial aspect which should have been considered to deny the eviction sought. It is further submitted that the findings rendered by the Appellate Authority regarding the bonafide need and on the two limbs of the second proviso are also faulty. It is therefore pointed out that as the Appellate Authority has rejected the main contention that the document of title is a sham one without going into the merits of the matter and on the erroneous findings as noted above, the matter will have to be remanded to the Appellate Authority for a fresh decision. 6. Per contra, learned counsel for the respondent supported the findings rendered by the Appellate Authority. Alternatively it is contended that even if the finding of the Appellate Authority regarding the alleged RCR 301/2007 -4- admission of the tenant that the landlord – tenant relationship is found to be erroneous, eviction ordered is supportable on the various evidence available in this case and this court sitting in revision, is not precluded from going into that question, without remanding the matter. It is further pointed out that the landlord had gone to Canada only for pursuing higher studies and he was never in employment there. 7. The question regarding the alleged sham nature of the title deed in favour of the landlord was considered by the Appellate Authority in paragraph 14 of the order under point No.3. A reading of the order shows that the Appellate Authority after considering paragraphs 8 and 9 of the objection submitted by the tenant, was of the view that a reading of the averments in those paragraphs will show that the landlord – tenant relationship has been admitted by the tenant and therefore he is estopped from challenging the defective title of the landlord. Our attention was invited by the learned counsel for the petitioner to the above paragraphs and also the averments contained in the detailed objection submitted by the tenant before the Rent Control Court. In paragraph 7, the tenant contended that the document of title has been executed with malafide motive and it is only a paper transaction. In paragraph 8, after referring to the notices sent by the father of the landlord and the landlord himself dated 9.9.2002 and 7.10.2002, it is asserted that the tenant had sent a reply stating that the RCR 301/2007 -5- landlord/petitioner has no right to seek enhancement of rent. In paragraph 9, while explaining how the rent remained in arrears from October 2002, the tenant pleaded that after creating the sham document, as the petitioner had refused to accept the rent, the same remained in arrears. Again in paragraph 10, it is reiterated by him that the registered sale deed is a sham one, without any bonafides and without any intention to be operative. 8. Therefore, an over all reading of the objection filed by the tenant will show that the assumption made by the Appellate Authority that there was a clear admission on his part regarding the landlord – tenant relationship, is not correct. The Appellate Authority has only relied upon some parts of paragraphs 8 and 9 of the objection, to conclude that the tenant had admitted the landlord – tenant relationship. In our view, the said approach was patently erroneous in the light of the pleadings contained in the detailed objection filed by the tenant. 9. But the question is whether the matter has, therefore, to be remanded to the Appellate Authority as vehemently pleaded by the learned counsel for the petitioner. The learned counsel relied upon two Division Bench decisions of this court in **Joseph v. George Ittoop** (2002 (3) KLT 909) and **Fathima Muhammed v. V.M. Salim** (2002 (2) KLJ 719) to contend for the position that when an eviction petition is filed on the ground of bonafide need, the tenant is well within his rights to contend for the RCR 301/2007 -6- position that the document of title amounts to a sham transaction. The observations of the Apex Court in **Salim v. Fathima Muhammed** (2006 (3) KLT 813 (SC)) wherein the Division Bench decision of this court in Fathima Muhammed's case (supra) was reversed, was also relied upon in support of the argument. 10. The factors relied upon by the learned counsel for the petitioner to show that the document, Ext.A6 is a sham one, are mainly that: (a) consideration is too low, i.e. for 460 sq. ft. room, the consideration shown is only Rs.44,000/-; (b) the landlord had no financial capacity at that time; © P.W.1's evidence will not inspire confidence as he has failed to disclose the details of the shop room, etc. which shows that it is only executed for the purpose of filing the case; and (d) that the document has been executed collusively and fraudulently by the father of the landlord. 11. The learned counsel for the respondent pointed out, by referring to the document Ext.A6 that the shopping complex was built in the property extending 31.713 cents and going by the document, five persons have joined in the document to transfer their rights and the father of the landlord was also power of attorney holder of the others. A reference to the document shows that it was executed by the grand parents of the landlord, son Joy and his wife Mary, daughter Valsa Mathew apart from the father of the landlord as power of attorney holder. It is therefore pointed out that the RCR 301/2007 -7- father of the petitioner alone was not the predecessor-in-interest and therefore it cannot be said that the document had been executed collusively and fraudulently for the purpose of evicting the tenant. It is also pointed out that since the right is transferred in favour of the respondent herein, love and affection will also be a consideration and that the consideration of Rs.44,000/- shown in the document cannot be said to be too low to reject the transaction as a sham one. 12. The Rent Control Court, as noticed already, clearly entered a finding that going by Exts.A2 and A3 land tax and building tax receipts and Ext.A4 extract of the building tax register, it cannot be said that the document was never intended to be acted upon. We find, on a reading of the judgment of the Appellate Authority also, that the Appellate Authority has considered in paragraph 17 of the judgment the question whether the sale deed is a sham one. It is found that inadequacy of the consideration will not by itself affect the validity of the same, once it is executed and registered as per the provisions of law. While rejecting the contention of the tenant, the Appellate Authority was of the view that there is no merit in the contention and it was concluded that the tenant was failed to establish any element of deception in the execution of Ext.A6 (Ext.A1 is its certified copy) sale deed in favour of the landlord and as such it will not in any way eclipse the bonafides of the landlord. Therefore, as rightly contended by the RCR 301/2007 -8- learned counsel for the respondent, the Appellate Authority has also entered a clear finding on the merits of the contentions raised by the petitioner that the document is not a sham one. The question is whether this court will be justified in reversing the finding on a re-appraisal of the evidence adduced by the parties. 13. In this context, we will refer to the decisions relied upon by the learned counsel for the petitioner. It is true that in **Joseph's case (2002 (3) KLT 909),** this court, after referring to various items of evidence in that case, found that the document of title executed by the landlady to her son was a sham one. Reference was made to the decision of the Apex Court in **Devi Das v. Mohan Lal** (AIR 1982 SC 1213). An important circumstance relied upon by this court to find that the document is a sham one, is that the mother had earlier sent a notice demanding enhancement of the rent and the evidence indicated that the landlord's mother had got several vacant shop buildings of her own. 14. In **Fathima Muhammed's case** (supra) also, the question was considered on the pleas raised and ultimately the matter was remanded for fresh consideration to the Rent Control Court to examine whether the document Ext.A1 produced therein is a sham document or not. But the said decision stands reversed by the Apex Court in **Salim's case (2006 (3) KLT 813 (SC).** Therein, the earlier decision of the Apex Court in **Devi Das's** RCR 301/2007 -9- **case (AIR 1982 SC 1213 = (1982) 1 SCC 495)** which was relied upon by this court, has been distinguished. In paragraph 8, it was held as follows: “A document will be 'sham' if it ostensibly creates rights/obligations, which are not intended to be acted upon by the parties to the deed, and is executed in pursuance of a secret arrangement, with the ulterior motive of securing an undisclosed advantage to the owner (or executant as the case may be). It involves collusion between the parties to the document to achieve an illegal objective. Therefore, if anyone wants to establish that a sale transaction was sham and collusive, he ought to plead and prove a secret arrangement between the vendor and the purchaser, that the sale was nominal and that no right, title or interest passed or intended to pass to the purchaser under the sale, and the deed was executed with the sole intention of securing the eviction of the tenants or securing some other benefit to the vendor. Where direct evidence of such secret arrangement is not available, it may be possible to establish the sham nature of a document by some clinching circumstantial evidence. This may be done by showing that no sale consideration was paid to the vendor though shown to have been paid and that the expenses relating to stamp duty and registration of the sale-deed were incurred by the vendor himself. It may also be established by proving that even after the sale, the vendor himself was recovering the rents and paying the property taxes and exercising all rights of an owner.” The Apex Court also referred to the observations in **Lingala Kondala Rao** **v. Vootukuri Narayana Rao** {(2003) 1 SCC 672} which will be relevant while considering the arguments raised by the learned counsel for the RCR 301/2007 -10- petitioner herein also. The said dictum is in the following terms: “In an eviction suit between the landlord and the tenant the motive behind execution of the document conferring title on the landlord cannot be allowed to be gone into so long as the document has been executed and registered in accordance with law and the transaction is otherwise legal.” Therefore, the motive behind execution of a document, Ext.A6 cannot be gone into, as the same had been executed and registered in accordance with law. Therefore, the argument of the learned counsel for the petitioner that the document was executed only to seek eviction of the tenant, cannot be sustained. Learned counsel attacked the motive on the plea that there were several vacant rooms in the shopping complex and therefore the father of the landlord could not have successfully pursued an application for eviction of the tenant and therefore he has created a document in favour of his son to seek eviction. In the light of the principles stated above, we find that the motive cannot be gone into as it has been registered in accordance with law and as found by the Rent Control Court, Exts.A2 to A4 will also show that the sale deed has come into effect. 15. Apart from that, two other aspects are also noticeable. Even though it is contended by the tenant that the father of the landlord has executed the rent deed, a reading of the rent deed will show that he was only a co-owner of the room in question. This is clear from a reading of RCR 301/2007 -11- Ext.B4 agreement of lease dated 31.5.1989. The above lease deed shows that it is executed between Kallookkaran Shopping Complex, Angamaly represented by Sri K.P. Jose, Co-owner, Kallookkaran Shopping Complex, Angamaly on the one part and the petitioner herein on the other part. The recitals contained in Ext.B4 show that Kallookkaran Shopping Complex was constructed by its partners. As noticed already, the sale deed Ext.A6 will also show that the father of the landlord alone was not the real owner of the shopping complex and others have joined to transfer their rights over the property to the landlord herein. For these reasons also, it cannot be said that the document is a sham one. As already noticed, the Appellate Authority has also found that the document is not a sham one, for the reason of low consideration or that the power of attorney is defective, etc. The Appellate Authority in paragraph 17 of the judgment found that the tenant had failed to establish any element of deception while executing Ext.A1 sale deed in favour of the landlord, the bonafide need stands established. In that view of the matter, we find that it is not necessary to remand the matter again to the Appellate Authority for a fresh decision, as both the authorities have concurred on the said point. 16. The landlord in a petition for eviction, is well entitled to support the order of eviction on various grounds, even if one of the reasons pointed out by the authorities below may be an erroneous one and if the order can be RCR 301/2007 -12- supported on other grounds. It is well settled that the scope of the power under Section 20 of the Act is wider than Section 115 of the C.P.C. The Apex Court in **Nalakath Sainuddin v. Koorikadan Sulaiman** {(2002) 6 SCC 1}, while examining the scope of the power of revision under Section 20 of the Act, held in paragraph 10 that “when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Subject to limitations placed on the exercise of revisional jurisdiction, it remains a part of the general appellate jurisdiction of a superior court in a wider and larger sense.” Therein, while considering the scope of the expression “any aggrieved party” in Section 20(1) of the Act, their Lordships held in paragraph 17 that the respondent is entitled to support the order and pray for the ultimate decision being sustained and hence, can seek reversal of any findings recorded against him. The legal position was explained thus: “Any aggrieved party”, the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not a party aggrieved though the order contains a finding or two adverse to him. The respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded RCR 301/2007 -13- against him.” Therefore, the power under Section 20 of the Act is not a narrow or limited one and this court will be justified in examining the facts and evidence to find out whether the order of eviction passed by the authorities below is on acceptable grounds. It can also consider whether even if one of the reasons pointed out by the Appellate Authority may be an erroneous one, the order of eviction can be justified by other grounds found by the very same authority itself. Therefore, when materials are available before this court in the form of pleadings and evidence as well as the orders of the authorities below, an automatic remand of the matter to the lower authority is not justified in all circumstances. Hence, we reject the contention of the learned counsel for the petitioner on that score. In this case, all the authorities have found that the need projected by the landlord to start his own business is a genuine one and especially since he has no other job or any means for his livelihood or income for himself. It cannot be said that the said view is not a plausible view and we find no ground to interfere with the said finding. 17. The other contention raised is regarding the benefit of the second proviso claimed by the tenant. It is true, as pointed out by the learned counsel for the petitioner, that the Rent Control Court has not entered any finding on that aspect. But a reading of the order of the Appellate Authority shows that the entire evidence was considered in detail and it was found that RCR 301/2007 -14- the tenant failed to prove that he is entitled for the benefit of the second limb of the proviso even though the first limb has been found in his favour. As regards the first limb of the second proviso to Section 11(3), the Appellate Authority found that in the absence of any satisfactory evidence to show any other income earned by the tenant, he is entitled for the benefit of the first limb of the second proviso. 18. The second limb of the second proviso regarding availability of other rooms in the locality was found against by the Appellate Authority in paragraph 19 of the order, in view of the admission made by the tenant in his cross examination that he had seen 20 rooms kept closed in a shopping complex by name Paul Arcadu with a board in front of it with letters “to let”. Learned counsel for the petitioner contended that the tenant only meant that a board showing “to let” was there, but it will not automatically imply that rooms remained vacant. The Appellate Authority noticed that the landlord of the said building, viz. Shri Paul was not examined by the tenant. The tenant when examined as R.W.1, deposed that he had enquired about the availability of these rooms with one Biju Joseph, a tenant of one of the shop rooms in that building. The Appellate Authority was of the view that the tenant had admitted that he had seen more than 20 rooms in a shopping complex with a board in front of it “to let”, and he had to show that these rooms were not actually vacant. But no other evidence was adduced. RCR 301/2007 -15- Therefore, the Appellate Authority rightly placed reliance upon the admission made by the tenant to find that he is not entitled to the benefit of the second proviso to Section 11(3) of the Act. It cannot be said that on the admitted facts and evidence in the case, the view taken is not a plausible one warranting interference at our hands. 19. Learned counsel for the tenant relied upon the averments made in I.A.Nos.1172/2008 and 1236/2008 which are petitions to receive additional documents in evidence and seeking amendment of the objections that subsequent events will show that the bonafide need pleaded is not genuine one. The averments are to the effect that the father of the landlord has entered into an agreement of sale in respect of room No.V/227 (Old No.V/811) (petition schedule room) along with some other rooms to one Prince. It is stated that on the basis of the said agreement, the said Prince has filed O.S.No.225/2008 for a permanent prohibitory injunction restraining the defendants from selling, leasing, etc. of the plaint schedule rooms. The contention apparently is that since the landlord's father has entered into an agreement to sell the premises the bonafide need pleaded is not existing. 20. True copy of the plaint in O.S.No.225/2008 is produced as Annexure 1 along with I.A.No.1172/2008. Other annexures include the alleged agreement and a lawyer notice. RCR 301/2007 -16- 21. Learned counsel for the landlord pointed out that the suit is not filed arraying him as a defendant and the plea raised in the suit has no bearing on the issues raised herein. 22. For considering these, we allow both applications. We notice that in O.S.No.225/2008 the landlord herein is not a defendant and he has not executed any agreement for sale also. Therefore, it cannot be said that he has lost title to the room in question as one affecting the bonafide need pleaded. No decree is seen passed in the said suit. Therefore, we find no merit in the said contention. 23. Learned counsel for the petitioner also pleaded that the landlord remained employed in Canada as pointed out by the tenant before the Appellate Authority and therefore, the Appellate Authority was not correct in rejecting the said contention. In fact, the Appellate Authority has, in detail, considered the said contention raised by the tenant in paragraph 11 while rejecting I.A.No.586/2006 filed to amend the appeal memorandum. In fact, the landlord had filed an objection to the above I.A. explaining that he had gone to Canada after taking M.B.A., for higher studies and not for employment. Learned counsel for the petitioner submitted that the Appellate Authority has not approached the question in the correct perspective. In fact, he had filed an affidavit stating that the landlord had not joined the University where he had claimed to be pursuing his higher RCR 301/2007 -17- studies and therefore it should not be implied that he was employed in Canada, in the absence of other evidence. 24. In fact, the Appellate Authority has considered the arguments raised above, in paragraph 15 of the judgment. The Appellate Authority found that merely because of the pendency of the petition for eviction, the landlord cannot be compelled to remain idle and there is nothing wrong in pursuing higher studies during the interregnum and it will not affect his bonafides unless the subsequent event is of a nature and dimension sufficient enough to eclipse the need as pleaded in the application. Reliance was placed on various decisions of the Apex Court to enter such a finding. We find that the said view taken by the Appellate Authority cannot be faulted, as there is no evidence on the part of the tenant to prove that the landlord had got an employment in Canada. Therefore, we reject the said contention. It cannot be said that the approach made by the Appellate Authority is erroneous or perverse. For all these reasons, we dismiss the revision petition confirming the orders passed by the authorities below. In the light of the facts and circumstances of the case, we grant five months' time to the tenant to vacate the premises on condition that he files an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry RCR 301/2007 -18- of five months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. The petitioners shall deposit the entire arrears of rent, if any, within the aforesaid period of three weeks and shall continue to pay an amount equivalent to the rent payable, towards compensation for use and occupation, till possession is surrendered. If any of the conditions aforesaid is violated, then the order of eviction will become enforceable at once. ## **( P.R.Raman, Judge.)** **(T.R. Ramachandran Nair, Judge.)** ## **kav/**