Kerala High Court
S.P.Ismail vs K.Sudhakara Shenoy on 11 April, 2012
Author: Pius C.Kuriakose
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
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
WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934
RCRev..No. 48 of 2012 ()
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RCA.1/2011 OF RENT CONTROL APPELLATE AUTHORITY,KASARAGOD
RCP.29/08 OF RENT CONTROL COURT, HOSDRUG
REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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S.P.ISMAIL
SON OF MUHAMOOD, BUSINESS
KMCW/11/515 OF KANHANGAD MUNICIPALITY
OPP.KAILAS THEATRE, P.O.KANHANGAD
KASARAGOD DISTRICT.
BY ADVS.SRI.M. GOPIKRISHNAN NAMBIAR
SRI.P. GOPINATH
SMT. THUSHARA JAMES
RESPONDENT(S)/RESPONDENT/PETITIONER:
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K.SUDHAKARA SHENOY
SON OF K.NARAYANA SHENOY, BUSINESS
RESIDING AT KMCW/II/518 OF KANHANGAD MUNICIPALITY
OPP. KAILAS THEATRE, P.O.KANHANGAD
KASARAGOD DISTRICT, PIN-671513.
BY ADV. SRI. SURESHKUMAR KODOTH
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
11-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.
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RCR. No. 48 of 2012
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Dated this the 11th day of April, 2012
O R D E R
Pius C.Kuriakose, J.
The tenant is the revision petitioner. He challenges the eviction order concurrently passed against him by the Rent Control Court and the Appellate Authority on the ground of additional accommodation for personal use (under sub- section (8) of Section 11). Apart from the above ground the ground of arrears of rent was also invoked. The above ground however, does not survive for consideration and in this revision we need be concerned only with the merits of the eviction order passed on the ground under sub-section (8) of Section 11. The need projected by the landlord is that he is in occupation of room having door No. KMC- W2/518 which is part of a larger building consisting of the above room and the petitioner schedule room. The above room is occupied by the landlord and his family. The same RCR.48/12 -2- is not sufficient to satisfy the growing needs of the landlord's family. The landlord's eldest son has attained majority and he is unable to engage himself in the present residence for his academic and extra academic purposes. The landlord's daughter is recently married and became pregnant. Due to lack of facilities in the building presently occupied by the landlord whenever the daughter comes home the landlord becomes constrained to hire rooms in lodges. During the pendency of the RCP the pleadings were amended. As per amended pleadings it is stated by the landlord that the daughter of the landlord delivered a female child and whenever she and her husband and relatives come to the landlord's house they are now constrained to board at nearby lodges. The landlord's son has attained the age of
27. He is employed in Merchant Navy. He wants to get married. He is therefore in need of a separate room. Though the tenant was requested through notice he has RCR.48/12 -3- sent a reply raising untenable contentions.
2. The tenant filed statement of objections contending that the landlord is a habitual litigant filing rent control petitions against him. Earlier RCP No. 8 of 2007 was filed on the ground of arrears of rent. The same was dismissed by the Rent Control Court. The building in question is a commercial building. It is not sufficient for residential purpose. The landlord had obtained the front room of the room in his possession which he rented out for conduct of an optical shop by another person. The tenant is conducting optical shop in the schedule building for the last 17 years. he is eking out his livelihood from the income derived from the business and he has no other income. The tenant has a large family and the entire family is dependent on the income from the business. The Rent Control Ccourt conducted enquiry in which the evidence consisted of oral evidence of PW-1 the landlord and RWs. 1 and 2 apart from RCR.48/12 -4- that of the commissioner as CW-1. The documentary evidence consisted of Exts.A1 to A5, B1 to B6 and C1 to C4, c1 being the commissioner's report. The Rent Control Court on evaluating the evidence came to the conclusion that the need for additional accommodation projected by the landlord was a bona fide one. The Court also found that the hardship which the tenant may suffer due to eviction will outweigh the advantage the landlord will gain by getting eviction. Accordingly order of eviction was passed. Under the impugned judgment the Rent Control Appellate Authority has confirmed the above of eviction.
3. In this revision under Section 20 various grounds are raised by the tenant and the ground which is prominently raised and pursued by Smt. Thushara James is that the Rent Control Appellate Authority has not discussed the evidence but has only mechanically endorsed the findings of the Rent Control Court. This according to Smt. Thushara RCR.48/12 -5- James has caused prejudice to the revision petitioner. She further argued that at any rate proper evidence have not been entered by the Rent Control Court and the Appellate Authority regarding the applicability of the first proviso to sub-section (10) of Section 11. The submissions of Smt. Thushara James were resisted by Sri. Suresh Kumar Kodoth, learned counsel for the landlord. According to Mr. Suresh Kumar when the judgment of the Appellate Authority read as a whole it will be seen that in the paragraphs preceding the operative portion of the judgment the learned Appellate Authority has certainly discussed the evidence on record. According to him, the one defence which was seriously pursued in evidence was that the landlord could have accomplished the need by utilising the front room which is now let out to another tenant for conducting business in opticals.
4. We have given our anxious consideration to the rival RCR.48/12 -6- submissions addressed at the Bar. Even though the findings are concurrent, in deference to the submissions addressed before us we have made a quick reappraisal of the evidence. We have carefully gone through the order of the Rent Control Court as well as the impugned judgment of the Appellate Authority. A reading of the evidence given by PW-1 the landlord will show that he has given a graphic account of the advantages which he and his family will gain if the tenant is evicted and his family is allowed to occupy the building. On the contrary the evidence adduced by the tenant regarding the hardship that he will suffer is only in the line that it will not be possible for him to find out an alternative accommodation for shifting his business. When the evidence of the tenant is critically analysed it will be seen that no serious enquiry has been conducted by the tenant as to whether suitable buildings are available in the locality.
RCR.48/12 -7-
5. The oral evidence adduced by PW-1 inspired confidence in the mind of the two fact finding authorities under the statute viz., the Rent Control Court and the Appellate Authority. When the order of the Rent Control Court and the judgment of the Appellate Authority are read as a whole it will be seen that the evidence was considered by those authorities before arriving at the vital finding regarding bonafides of the need and also regarding the applicability of the first proviso to sub-section (10) of Section 11.
6. We remind ourselves of the well delineated contours of our revisional jurisdiction under Section 20. According to us there is no scope for interference within the present jurisdiction as it is reasonable findings which have been entered by the two authorities and those findings are founded on evidence available on record. The revision will necessarily fail and will stand dismissed. However, we are RCR.48/12 -8- inclined to grant to the revision petitioner time till 30-6- 2013 to surrender the premises. This will be subject to the condition that the revision petitioner shall within two weeks of the execution court reopening after mid-summer recess file an affidavit before that court undertaking to give peaceful surrender of the building to the respondent on or before 30-6-2013. In the affidavit it will also be undertaken that arrears of rent will be discharged within a period of one month of filing the affidavit and that charges for occupation at the existing rent rate will be discharged as and when the same falls due. We make it clear that the revision petitioner will get benefit of time as allowed above only if he files affidavit on time and undertakings therein are honoured.
(PIUS C.KURIAKOSE, JUDGE) (A.V.RAMAKRISHNA PILLAI, JUDGE) ksv/-