Kerala High Court
Shareef P vs P.Valsala on 21 February, 2012
Author: Pius C. Kuriakose
Bench: Pius C.Kuriakose, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI
TUESDAY, THE 21ST DAY OF FEBRUARY 2012/2ND PHALGUNA 1933
RCRev..No. 414 of 2011 ( )
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RCA.90/2009 of II ADDL. RENT CONTROL APPELLATE AUTHORITY/
DISTRICTJUDGE, KOZHIKODE- II
RCP.10/2009 of ADDL.M.C.,KOZHIKODE
REVISION PETITIONER(S)/RESPONDENT:
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SHAREEF P, AGED 40 YEARS,
S/O.ABDU RAHIMAN, RESIDING AT SHAMINA MANZIL,
VENGERI AMSOM AND DESOM, KOZHIKODE TALUK.
BY ADVS.SRI.A.BALAGOPALAN
SRI.A.RAJAGOPALAN
SRI.M.N.MANMADAN
SRI.M.S.IMTHIYAZ AHAMMED
SRI.K.SANEESH KUMAR
RESPONDENT(S)/APPELLANT/PETITIONER:
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P.VALSALA, DAUGHTER OF KRISHNAN
RESIDNG AT CHEVAYOOUR AMSOM AND DESOM
KOZHIKODE TALUK, PIN 687637
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-
02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ.
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R.C.R. No. 414 of 2011
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Dated this the 21st day of February, 2012
O R D E R
Pius C. Kuriakose, J.
Tenant is the revision petitioner. He challenges the judgment of the Rent Control Appellate Authority ordering eviction against him under sub-section (3) of section 11 of the Kerala Buildings (Lease and Rent Control) Act ("Act" for short) reversing an order passed by the Rent Control Court dismissing the Rent Control Petition, on the basis of a finding that the need projected by the landlady is not bona fide.
2. The need projected by the land lady was that she wants to accommodate her dependent daughter, a Post Graduate Diploma holder in Computer Science, so that her daughter can conduct a Computer Training Institute in the petition schedule building. The landlady averred in the Rent Control Petition that her daughter was employed as a Part- time Computer Instructor in M.E.S. College at Kozhikode RCR 414/2011 2 and her income from which she derived was not sufficient to sustain her in livelihood. The bona fides of the need was disputed and it was contended that the landlady's daughter is employed in full-time with the M.E.S. College. The revision petitioner also claimed that he is entitled for the protection of the second proviso to sub-section (3) of section 11 of the Act. In the enquiry conducted by the Rent Control Court which giving evident that landlady's daughter (PW2) was employed full-time with the M.E.S. College. The learned Rent Control Court noticed that documentary evidence in the custody of PW2 revealing the details of income which she actually due from her employment was not forthcoming to find that the need projected was bona fide. As the basic premise that PW2 was employed only part-time and getting only a meagre income could not be established by the landlady. However, enquiring into the tenant's eligibility for the protection of the second proviso to section 11(3) of the Act, the Rent Control Court found that the tenant was not entitled to get the benefit. Finding that the need was not RCR 414/2011 3 bona fide, the Rent Control Court dismissed the R.C.P. The landlady preferred an appeal before the Appellate Authority. The Appellate Authority after making a reappraisal of the pleadings and the evidence passed the impugned judgment finding that the landlady's need is bona fide and ordering eviction under sub-section (3) of section 11 of the Act. The Appellate Authority noticed that the landlady's daughter (PW2) was employed full-time with the M.E.S. College. But, according to the Appellate Authority, PW2 can at any time resign her job and start a Computer Training Institute. In that view of the matter, the finding regarding bona fides was reversed and the finding regarding eligibility of the protection of the second proviso was confirmed. Accordingly, the order of eviction was passed.
3. In this revision petition under section 20 of the Act various grounds have been raised assailing the judgment of the Appellate Authority. Even though notice was served on the respondent, she has not turned up before this court for RCR 414/2011 4 resisting this revision. At the very outset Sri.A. Balagopalan, the learned counsel for the revision petitioner, submits that PW2 is no longer available in India. She has left the country for joining her husband who is working in a Gulf country. She has availed long leave from the M.E.S. College. This, according to the learned counsel, is the reason why the respondent is not coming forward to this court for resisting the revision. The above submission is not disputed at the Bar. Nevertheless we feel that it is necessary that we examine the legality, irregularity and propriety of the judgment of the Appellate Authority in terms of our jurisdiction under section 20 of the Act. In this context, we have carefully gone through the order of the Rent Control Court as well as the impugned judgment of the Appellate Authority.
4. On going through the order of the Rent Control Court, we find that it was on sound reasons that the Rent Control Court came to the conclusion that the landlady did not succeed in proving the bona fides of the need that she RCR 414/2011 5 had projected in the appeal. As rightly noticed by the Rent Control Court, the basic premise, on which the landlady wanted to evict the tenant, was that her daughter PW2 was getting only meagre income from her part-time employment which she was having with M.E.S. College. The landlady did not adduce any evidence to show as to what is the income which PW2 was getting from M.E.S. College. It was freely admitted by PW2 that her employment with M.E.S. College was on full-time basis. In the light of such admission, the non-production of documentary evidence easily at the disposal of PW2 as to what is the income that she derives from her job with the M.E.S. College is significant. According to us, it was on very good reasons that the Rent Control Court held that the landlady was unable to prove the bona fides of the need projected by her.
5. Now on reading through the judgment of the Appellate Authority, we find that the Appellate Authority has taken the view that the landlady's daughter can at any time resign her job. We are surprised to find such an RCR 414/2011 6 observation made by the Appellate Authority, even in the absence of any evidence from the mouth of PW2 in that line. It is for PW2 to have sworn before the Rent Control Cort that when she gets possession of the building, she will quit her job with the M.E.S. College. PW2 not having chosen to do so, the Appellate Authority was not justified in reading into PW2's evidence something she has not stated. The approach of the Appellate Authority was irregular and improper. According to us, the finding of the Appellate Authority that need is bona fide warrants interference. We reverse the above finding and restore the finding of the Rent Control Court and hold that the need projected by the landlady is not bona fide.
6. At the same time we notice another aspect of the matter. The building in question situated in commercially a very important area of Kozhikode Corporation having a size of about 550 sq. feet is fetching to the landlady a monthly rent of Rs.675/- only. We are sure that the building if rent out today, the same will fetch much more than Rs.675/-. We RCR 414/2011 7 are therefore inclined to revise the rent payable by the revision petitioner with effect form 1-3-2012 at Rs.3,000/- per mensem. Till fair rent is fixed by the Rent Control Court on application filed by either party, the revision petitioner shall pay rent to the respondent at the rate of Rs.3,000/- per mensem.
7. Subject to the fixation of rent as above, we allow the revision and vacate the order of eviction passed under section 11(3) of the Act by the Rent Control Appellate Authority. Parties are directed to suffer their respective costs.
PIUS C. KURIAKOSE, JUDGE P.Q.BARKATH ALI, JUDGE mn.