Kerala High Court
Revision vs Ittammal Abdulla on 5 June, 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
TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934
RCRev..No. 193 of 2010 (E)
--------------------------------
RCA.23/2005 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),
KASARAGOD
RCP.5/2002 of RENT CONTROL COURT (MUNSIFF COURT), HOSDRUG
----------------
REVISION PETITIONERS/APPELLANTS/PETITIONERS
----------------------------------------------------------
1. ITTAMMAL ABDULLA, AGED 58 YEARS
S/O.T.M.KUNHAMMAD, GUARDER VALLAPPIL, BELLA VILLAGE
HOSDURG TALUK, KASARAGOD DISTRICT.
2. ITTAMMAL HASSAN K AHAMED ALIAS
MOILAKIRIRIATH HASSAN, AGED 56 YEARS
S/O.T M KUNHAMMAD, GUARDER VALAPPIL, BELLA VILLAGE
HOSDURG TALUK, KASARGOD DISTRICT.
3. ITTAMMAL HAMSA ALIAS MOILAKIRIYATH HAMSA
AGED 54 YEARS, S/O. T M KUNHAMMAD, GUARDER VALAPPIL
BELLA VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT.
[PETITIONERS 1 AND 2 REPRESENTED BY POWER OF ATTORNEY HOLDER,
NAYIKKARA VALAPPIL AYISSU, D/O NAYIKKARA VALAPPIL MUHAMMED AND
NAFEESAS, R/A CHITHARI HOUSE, MANIKKOTH, AJANOOR VILLAGE, HOSDURG
TALUK, KASARAGOD DISTRICT, 3RD PETITIONER REP. BY POWER OF ATTORNEY
HOLDER, ZUHARA HAMSA, D/O MADATHIL ABBAS, R/A ITTAMMAL HOUSE, BALLA
VILLAGE, HOSDURG TALUK, KASARAGOD DIST.]
BY ADV. SRI.SURESH KUMAR KODOTH
RESPONDENT/RESPONDENT/RESPONDENT:
------------------------------------------------
DAINABI, AGED 59 YEARS
W/O. N. M AHAMMED, RESIDING AT GUARDER VALAPPIL
KOTTACHERY, BALLA VILLAGE, HOSDURG TALUK
KASARGOD DISTRICT.
BY ADV. SRI.T.K.VIPINDAS
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
05-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
------------------------------------------------
R. C. R. No.193 of 2010
------------------------------------------------
Dated this the 5th day of June, 2012
ORDER
Pius C. Kuriakose, J The landlords are the revision petitioners in this revision under Section 20 of Act 2 of 1965 wherein they challenge the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court declining eviction on the ground under sub Section 3 of Section 11 for the reason that the first proviso to sub section 3 of section 11 operates against the landlords. Even though the landlords had invoked the ground of arrears of rent also in view of the finding that the entire rent at the rate admitted by the tenant was discharged by the tenant during the pendency of the proceedings and that the landlords were unable to prove their case that the rent was enhanced on mutual agreement eviction order was declined R. C. R. No.193 of 2010 -2- concurrently by the Rent Control Court and the Appellate Authority under the ground of arrears of rent.
2. It was submitted at the very outset by Sri.Suresh Kumar Kodoth, the learned counsel for the revision petitioners/landlords that in this revision this Court need be concerned only with the eligibility of the landlords to get eviction on the ground under sub section3 of Section 11. The need projected by the landlords in the RCP under sub section 3 of Section 11 was that the petition schedule room is required bona fide for the wives of revision petitioners 1 and 2 (petitioners 1 and 2 in the RCP) to start a ladies tailoring- cum-garment shop. These ladies are unemployed. Though rooms are available on the rear side of the larger building a part of which is the petition schedule room, it is the petition schedule room which is suitable for the proposed business. The tenants have other rooms available in the locality for them to shift their business. The tenant's husband is a very rich business man having vast properties and other sources of income. He possesses three other vacant rooms on the R. C. R. No.193 of 2010 -3- side of the Railway Station road. The tenant does not depend on the income carried on in the petition schedule room.
3. The tenant resisted the above claim by contending that the need is not bona fide and that the same is only a ruse for eviction. The wives of petitioners 1 and 2 are only housewives. They have no intention to start business as alleged. The proposed business cannot be successfully set up in the petition schedule room. In the first and second floors besides ground floor other rooms are lying vacant. The landlords have two other rooms in their ownership by the side of the Railway Station. The tenant is entitled for the protection of the second proviso to sub Section 3 of Section
11. The tenant's husband is not rich. He is conducting business in beds and pillows and is getting only a meagre income. Other buildings are not available in the locality for them to shift the business.
4. In the enquiry conducted by the Rent Control Court the evidence consisted of the oral evidence of PWs.1 and 5, R. C. R. No.193 of 2010 -4- Exts.A1 to A26, oral evidence of RW1 and B1 to B9. Commission Report was marked as Exts.C1 and C2. The Rent Control Court though not in so many words would accept the oral evidence of PWs.1, 2 and 3 and hold that there was no reason to reject the evidence of PWs.1, 2 and 3 as far as their intention to start the business is concerned. Thus virtually holding that the need projected is a bona fide one. Nevertheless taking the view that other buildings are available in the possession of the landlords in the very same building and that special reasons have not been proved by the landlords the Rent Control Court would conclude that the RCP under Section 11(3) was liable to be rejected.
5. Even though the landlords preferred an appeal to the Rent Control Appellate Authority as RCA No.23/05 that learned Appellate Authority notwithstanding re-appreciation of the pleadings and the evidence in the case would confirm the finding of the Rent Control Court under Section 11(3). Thus the appeal was dismissed.
6. In this revision under Section 20, the landlords have R. C. R. No.193 of 2010 -5- challenged the findings of the Rent Control Court and the Appellate Authority in the context of the first proviso to sub Section 3 of Section 11 and they seek an order of eviction under Section 11(3) in reversal of the order and judgment of the Rent Control Court and the Appellate Authority.
7. We have heard the submissions of Sri.Suresh Kumar Kodoth, the learned counsel for the revision petitioners and those of Sri.T.K.Vipindas the learned counsel for the respondent. Sri.Suresh Kumar Kodoth would assail the findings of the Rent Control Court, particularly the Rent Control Appellate Authority in the context of the ground under sub section 3 of Section 11. According to him, it was evident that the petition schedule room in respect of which eviction was sought for was a room in the ground floor abutting the main road with direct frontage of the road unlike the rooms found to be in possession of the landlords which were either on the rear side without direct road frontage or in the first floor. It was the definite case of landlords that it is the petition schedule room which is R. C. R. No.193 of 2010 -6- ideally suited for accomplishing the need projected in the RCP. The learned counsel referred to the pleadings raised by the parties in the context of the first proviso to sub Section 3 of Section 11. The learned counsel also took us to that part of the evidence available in the case relevant to the first proviso to sub section 3 of section 11.
8. Per contra Sri.T.K.Vipindas would support the judgment of the Appellate Authority. According to Sri.Vipindas, the findings entered by the statutory fact findings authorities - the Rent Control Court and the Appellate Authority are the correct findings based on evidence. The learned counsel would submit that within the scope of the present revisional jurisdiction under Section 20, this court will not be justified in upsetting those findings. Sri.Vipindas relied on a number of decisions in support of the arguments he addressed in defence of the judgment of the Appellate Authority. The learned counsel referred to the judgment of a Division Bench of this Court in Raghavan v. Govindan Nambiar (1995 (1) KLT 596), wherein this court R. C. R. No.193 of 2010 -7- laid down that in the absence of special reasons, the fact that the landlord is having possession of another building of the landlord's own in the same city, town or village will tell upon even the genuineness of the need projected by the landlord. Sri.Vipindas, relied on the judgment of another Division Bench of this court in Janatha Drugs v. Maithri Construction and Others (2007 (4) KHC 260 (DB) , wherein their Lordships have held that when the landlord has more than one building in his possession, it is the landlord's duty to explain the special reasons for not choosing to occupy the other building and for insisting on getting possession of the tenanted building itself and also that special reasons will have to be brought out either through the pleadings or in evidence. In this context Mr.Vipindas relied also on the judgment of another Division Bench of this court in Abdul Kader v. George Joseph and Another (2009 (1) KHC 296 (DB). He referred also to the judgment of this court in Dasan v. Janardhanan (2009 (2) KLT 726) authored by one among us [PCK(J)], wherein this court held that the point of R. C. R. No.193 of 2010 -8- time at which the Rent Control Court becomes concerned with first proviso is the point of time when the court takes up the petition for decision.
9. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully read through the order of the Rent Control Court and the Judgment of the Appellate Authority. We have made a quick survey of the evidence on record as well as the pleadings raised by the parties. It is seen from the rent control petition that the landlords have raised specific pleadings regarding the availability of other rooms, particularly the availability of rooms in the first and second floors as well as the on the rear side. The landlords have stated in the rent control petition that they require the petition schedule room directly abutting the road and easily visible to passers by, for conducting the proposed business - combined business of textiles and fancy articles. It is stated in the rent control petition itself that in the first and second floors tailoring school-cum-dress manufacturing unit is proposed to R. C. R. No.193 of 2010 -9- be set up and the petition schedule room is proposed for the conduct of sale of textiles and fancy articles. The special reason pleaded by the landlords, for insisting on getting possession of the petition schedule room for the purpose of conducting sale, is that unlike other rooms the petition schedule room abuts the road and there is clear visibility to the prospective customers. When the landlord is having such a room, it was not proper on the part of the statutory authorities to have disallowed eviction of that room on the basis of the proviso to sub section (3) of Section 11. One of the arguments Sri.Vipindas addressed before us was that in the ground floor itself towards northern end there was a room occupied by Zam- Zam Pharmaceuticals. According to Sri.Vipindas, this room is in the possession of the 3rd petitioner in the rent control petition who is admittedly a partner of Zam Zam Pharmaceuticals. It is very clear to us that the occupation of the above room by the third petitioner in the rent control petition in his capacity as one of the partners of Zam-Zam Pharmaceuticals will not entail R. C. R. No.193 of 2010 -10- rejection of the present rent control petition by virtue of the first proviso to sub section (3) of Section 11. In this context, we notice the judgment of this court in Asher v . Hassankutty Hajee(2004 (2) KLT 446) to which one among us [PCK(J)] is also a party. What has been clearly laid down in that decision is that in order that the first proviso operates with reference to a particular building, the above building should be absolutely owned by the landlord and should be under the vacant possession of the landlord. Here admittedly, the above building is not under the vacant possession of the landlords. On the contrary, it is under the occupation of a partnership firm by name Zam Zam Pharmaceuticals. The 3rd petitioner in the rent control petition is in possession of the same in his capacity as one of the partners of Zam-Zam Pharmaceuticals. At any rate, the above room is not a vacant room. Even though it has been concurrently found by the two fact finding authorities that notwithstanding the bona fides of the need, the rent control petition will fail by virtue of the first proviso to subs section (3) of Section 11, it R. C. R. No.193 of 2010 -11- is very clear to our mind that the first proviso does not apply to this case. We vacate the finding regarding the operation of the first proviso to sub section (3) of Section 11 and order eviction against the respondent under sub section (3) of Section 11. According to us, the landlords had justifiable special reason for insisting on getting possession of the subject building itself for accomplishing their projected need.
10. We allow this revision and order eviction. However, we grant to the tenant/respondent one year's time from today i.e. time till 15/6/2013 to surrender the premises subject to the following conditions;
i). The occupational charges payable by the tenant will stand revised from ` 3,450/- to ` 5,000/- per mensem.
ii). The tenant shall file an affidavit before the Rent Control Court or the Appellate Authority as the case may be within one month from today undertaking to give peaceful surrender of the petition schedule building and also to pay occupational charges with effect from 1st July 2012 at the R. C. R. No.193 of 2010 -12- rate of ` 5,000/- per mensem.
iii). There will be a further direction that before giving delivery warrant to the amin for evicting the tenant, the learned Munsiff will explore the possibilities of a settlement by the tenant being inducted into in other rooms belonging to the landlords.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE kns & dpk/-
//TRUE COPY// P.A. TO JUDGE