Kerala High Court
Revision vs Unknown on 8 January, 2013
Author: A.V. Ramakrishna Pillai
Bench: T.R.Ramachandran Nair, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935
RCRev..No. 76 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN RCA.25/2012 RENT CONTROL APPELLATE
AUTHORITY, THRISSUR DATED 08-01-2013
AGAINST THE ORDER/JUDGMENT IN RCP.113/2007 of RENT CONTROL
COURT,THRISSUR DATED 28-02-2012
REVISION PETITIONER(S)/PETITIONER IN R.C.R.-APPELLANT IN R.C.A.-
RESPONDENT IN R.C.P.:
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ABDUL NAZAR
S/O.KILLIYATH ABOOBACKER, KARUPAM VEETTIL
PAVARATTY VILLAGE, DESOM, PAVARATTY P.O.
CHAVAKKAD TALUK, THRISSUR-680507.
BY ADVS.SRI.P.B.KRISHNAN
SMT.GEETHA P.MENON
SRI.N.AJITH
SRI.P.B.SUBRAMANYAN
RESPONDENT(S)/RESPONDENT IN R.C.A.- PETITIONER IN R.C.P.:
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SIDDIQUE
S/O.KALLINGAL VEETTIL MUHAMMED, AZHIKODE P.O.
AZHIKODE DESOM, AZHIKODE VILLAGE, KODUNGALLUR TALUK
PIN 680673.
R1 BY ADV. SRI.K.P.SREEKUMAR(CAVEATOR)
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18.3.2013,
THE COURT ON 11-04-2013, PASSED THE FOLLOWING:
T.R.RAMACHANDRAN NAIR &
A.V. RAMAKRISHNA PILLAI, JJ.
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R.C.R. No. 76 of 2013
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DATED THIS THE 11TH DAY OFAPRIL, 2013
O R D E R
Ramachandran Nair, J.
This is a revision petition filed by the tenant of a building, aggrieved by the concurrent orders of eviction, passed by the Rent Control Court as well as by the Appellate Court. We have heard learned counsel for the revision petitioner, Shri P.B.Krishnan and learned counsel appearing for the respondent Shri K.P. Sreekumar.
2. At the outset, learned counsel for the petitioner submitted that the Appellate Authority has not gone into the details of the contentions raised by the tenant and the judgment is totally cryptic and therefore it requires a remand for consideration by the Appellate Authority itself. He invited our attention to certain parts of the oral evidence of the landlord also to contend that being a revisional court, this Court will not be justified in going into the evidence, but it needs a proper consideration by the Appellate Authority itself.
3. Learned counsel for the respondent, Shri K.P. Sreekumar RCR No.76/2013 -2- submitted that there is elaborate consideration of the evidence by the Rent Control Court and there is a proper consideration of the findings of the Rent Control Court, by the Appellate Authority, after adverting to the necessary evidence. It is therefore submitted that the orders do not suffer from any infirmity. Learned counsel also submitted that it is well settled law that while confirming the order and dismissing the appeal, elaborate reasons need not be there always.
4. The bare facts necessary for the disposal of the revision petition are the following: The landlord filed R.C.P.No.113/2007 seeking eviction of the tenant for starting a business of his own. He was conducting business in Gulf country, lost the same and returned to his native place and is now settled in Thrissur. He is not having any employment or business of his own and thus the requirement is for having a business in stationery articles. He has no other building in the locality to start the business.
5. The tenant denied the same by pointing out that the landlord is having many business of his own abroad and he is seen frequently travelling abroad. He has no skill or experience to conduct a business as pleaded by him and is having vacant buildings in his possession to start a business. RCR No.76/2013 -3-
6. P.Ws.1 to 3 have been examined and Exts.A1 to A33 have been marked on the side of the landlord. On the side of the respondent, R.Ws.1 to 3 have been examined and Exts.B1 to B10 have been marked.
7. Learned counsel for the petitioner submitted, by referring to the details from the cross examination of the landlord, that the landlord has admitted that he came back from Gulf country on 11.1.2012, that he is having a visa from Oman and the evidence will show that he has been travelling through different periods. It is submitted that the landlord also admitted that his visa will show that therein his post is recorded as Manager. Learned counsel, by relying upon various parts of the deposition, further submitted that the eviction petition was filed in 2007. But frequently he has been travelling abroad and therefore the plea of the tenant is clearly supported by these facts. Learned counsel invited our attention to the discussion of the Appellate Authority in paragraphs 9 and 10 and submitted that after referring to the respective pleas, no proper finding has been rendered. It is submitted that the Appellate Authority being a final court on facts, an elaborate consideration is required. It is also submitted by the learned counsel that there are no bonafides in the plea raised by the landlord RCR No.76/2013 -4- as he has been in Gulf countries for a long time and continues to be so, as evident from the Passport details and the purpose of eviction lacks genuineness.
8. In reply to the argument of the learned counsel for the respondent, learned counsel for the petitioner pointed out that the status of the landlord for the period from 2004 to 2007 is clearly important as he was having a permanent visa with renewals also and the Rent Control Petition was filed on 7.12.2007. With regard to the change of status, if any, he has not led any evidence also. Therefore, it is submitted that this is a case where the plea of bonafide need could not have been found in his favour. In the absence of real explanation with regard to the activities done by the landlord from 2004 to 2007 a finding otherwise will be bad in law.
9. Shri K.P. Sreekumar, learned counsel for the respondent submitted, by relying upon paragraph 7 onwards of the order passed by the Rent Control Court that there is clear evidence to show that the total number of days during which the petitioner was abroad is only 212, from 9.12.2007 to 11.1.2012. Ext.B1 is the certified copy of the Passport of the landlord. It is submitted that the Rent Control Court has elaborately considered the RCR No.76/2013 -5- facts and evidence in paragraphs 7 and 8 as well as the details spoken to by P.W.1 in his cross examination.
10. In para 7 of the order passed by the Rent Control Court, there is an elaborate discussion of the evidence adduced by the landlord in this case. The Rent Control Court has found that what at best has come out in evidence is that he used to travel from India to UAE on many occasions from 9.12.2007 till 11.1.2012. He was holding a permanent resident Visa of UAE. But, for the above five years and odd days, the total number of days on which he was abroad is 212. The longest stay was for a period of two months and almost on all occasions the stay lasted only for 2 or 3 days. His permanent resident Visa is valid till December, 2013. The explanation by the landlord that after he lost business, he went to Oman in search of a job, is also referred to. The explanation that if a person remains in home country for more than 180 days at a stretch, his permanent resident visa in Oman will be cancelled, is also adverted to. His evidence is that he has not done any business after 2004 in Oman.
11. Another piece of evidence relied upon is that of R.W.2, the sister of the landlord who was examined on the side of the tenant. She RCR No.76/2013 -6- was examined to prove that the landlord is doing business in Gulf itself. They had a strained relationship. But she deposed that she does not know whether the landlord has any business in Gulf at present. To a question whether he was conducting a super market, she answered that she does not know. She also deposed that she does not know where the landlord was, from 2005 to 2007. In the light of the above evidence, the Rent Control Court observed that her evidence actually helps the petitioner landlord as it has lent corroboration that he has no business at present. The Rent Control Court also observed that it has not been proved that the petitioner is doing any business in Gulf after 2004 and is not permanently employed in Gulf also. Relying upon the decision of the Apex Court in Baldev Singh Bajwa v. Monish Saini (AIR 2006 SC 59), it was held that the term 'bonafide need' in Section 11(3) and the interpretation of the same will show that the need projected by the landlord shall not be a pretext for eviction of the tenant.
12. We will refer to the judgment rendered by the Appellate Authority in the light of the above finding rendered by the Rent Control Court, to find out whether the view taken is so perverse warranting correction by the revisional court. Point Nos.1 and 2 have been considered RCR No.76/2013 -7- in para 9. After referring to the evidence by way of Ext.B1, viz. the copy of the Passport and the case pleaded by the tenant as well as the landlord and the arguments addressed, it has been held as follows in para 10:
"Thus, what comes out is that only because he travelled during a period when the petition is pending consideration to Gulf countries or only because the building in which the eviction is sought is having other floors also, it cannot be held that the need projected by the petitioner is not a bonafide one or a ruse to get eviction of the petition schedule building. The corollary is that the ground projected or the need projected is only a bonafide one."
In para 11, it has been found that the tenant has not proved the limbs for getting protection under the second proviso to Section 11(3) of the Act and accordingly the order of eviction was confirmed.
13. We find from the judgment of the Appellate Authority that the pleas of the parties have been discussed in paragraphs 3 and 4 and in paragraphs in 6 and 7 the arguments of the respective counsel have been noted. The crucial evidence that was projected by the tenant was by relying upon Ext.B1.
14. As rightly pointed out by the learned counsel for the respondent, by relying upon the decision of this Court in Abdul Nazar v. Mammed RCR No.76/2013 -8- Koya (2011 (2) KLT 914), it is not the law that the landlord will have to remain idle till he gets vacant possession of the petition schedule building. Therein, the Division Bench was of the view that "even if it is assumed that during the pendency of the Rent Control Petition he was doing some business, it cannot be held that on that ground the landlord should be non suited, for the tenant cannot expect the landlord to sit idle till he gets vacant possession of the petition schedule building." The law being the same, we will have to understand the pleadings in the light of the above legal position. Learned counsel for the respondent also relied upon another decision of this Court in Bhaskaran Nambi v. Suresh Babu (2011 (3) KLT 876) wherein it has been held that "the expression "his own occupation" does not mean that the landlord should be physically present at his business place every day or seven days a week." Of course, it was a case where both husband and wife sought the premises for doing business.
15. Shri K.P. Sreekumar, learned counsel for the respondent invited our attention to certain parts of the oral evidence also to point out that the respondent was not doing anything from 2004. It is also submitted that the tenant has not proved that the respondent was employed or doing business RCR No.76/2013 -9- during the entire period. In fact, in cross examination also he has stated that the business was stopped in 2004. We find that there was extensive cross examination on various aspects of P.W.1. He has explained that he is not having any licence to conduct business in a foreign country. Of course, he has given the details of his travels during different periods. But he has explained the reasons for the said travels also. As noted by the Rent Control Court, the same will not show that he was travelling throughout as he was having permanent employment or business there, for which there is no evidence. His explanation that the visa will expire and that he has been travelling only for two or three days maximum except at one point of time, is also clear.
15. Therefore, it is not a case where relevant evidence has been missed by the final fact finding authority. Then, the question is whether the judgment rendered by the Appellate Authority should have been so elaborate on all these aspects as pleaded by the learned counsel for the petitioner. In fact, there was consideration by the Appellate Authority of the evidence in the matter as well as the elaborate findings of the Rent Control Court. The Appellate Authority also accepted the bonafide need pleaded in RCR No.76/2013 -10- the light of the evidence adduced including Ext.B1 Passport. Going by the judgment of the Appellate Authority also, it is not a case where only because he travelled during the period when the petition was pending consideration, the need cannot be treated as bonafide. We agree with the view taken by the Appellate Authority.
17. The decisions relied upon by the learned counsel for the respondent in support of the plea that there need not be elaborate findings at the hands of the Appellate Authority, that too while confirming the order of the original authority, are: Girijanandini Devi and others v. Bijendra Narain Chaudhary (AIR 1967 SC 1124), S.N. Mukherjee v. Union of India (AIR 1990 SC 1984) and Joseph v. State of Kerala (1994 (2) KLT
64).
18. In the revisional jurisdiction we will have to find out whether the view taken is so perverse warranting interference. Even after scanning the entire oral evidence, we do not find any reason to interfere with the findings of the authorities below. Therefore, we are not acceeding to the request of the learned counsel for the petitioner for a remand to the Appellate Authority.
RCR No.76/2013 -11-
19. One of the points raised by the learned counsel for the petitioner is that the landlord was having upper floors of the building. The same have not been remaining vacant, going by the report of the Commissioners. There is evidence to show that in the upper floor a business in tea is conducted by another tenant. The second floor is being used as a godown. It was held by the Rent Control Court that there is no evidence to show that the second and third floors are remaining vacant. With regard to the question whether the tenant is depending upon the income from the schedule building for his livelihood, the finding is against the tenant. The account books, income tax returns and sales tax returns have not been produced in evidence. With regard to the availability of alternate buildings also, the reports of the Commissioners, Exts.C1 and C2 and the evidence of P.Ws.2 and 3 and Exts.A15 to A20 were relied upon to find out that other buildings are available in the locality. Apart from that, the tenant will have to prove both limbs in his favour to get the benefit of the second proviso to Section 11(3) of the Act.
20. For all these reasons, we find no reason to interfere with the orders passed and the revision petition is dismissed. We grant six months RCR No.76/2013 -12- time to the tenant to vacate the premises and to hand over vacant possession to the landlord on the following conditions:
a) If any arrears of rent are there, the same will be paid or deposited within a period of one month from today;
b) The tenants will continue to pay at the same monthly rate to the fifth respondent for use and occupation of the building till vacant peaceful possession is granted within the time stipulated above; and
c) An affidavit will be filed before the execution court undertaking to vacate the premises and hand over peaceful possession within the time granted by this Court, which will be filed on or before 25.5.2013.
(T.R.RAMACHANDRAN NAIR, JUDGE) (A.V. RAMAKRISHNA PILLAI, JUDGE) kav/