Kerala High Court
Kunhikkalanthantakath Abdul Salam vs J. Sebastian on 2 April, 2013
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 24TH DAY OF SEPTEMBER 2013/2ND ASWINA, 1935
RCRev..No. 259 of 2013 ()
--------------------------
AGAINST THE JUDGMENT IN RCA 217/2010 OF THE RENT CONTROL APPELLATE
AUTHORITY, THALASSERY DATED 2/4/2013
AGAINST THE ORDER IN RCP 12/2009 of RENT CONTROL COURT, PAYYANNUR
DATED 20/08/2010
REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/RESPONDENT:
----------------------------------------------------------------
KUNHIKKALANTHANTAKATH ABDUL SALAM, AGED 49 YEARS
S/O MUHAMMAD KUNHI HAJJI, RAMANTHALI AMSOM, ETTIKULAM
P.O. RAMANTHALI, KANNUR DISTRICT.
BY ADV. SRI.V.RAMKUMAR NAMBIAR
RESPONDENT(S)/RESPONDENT/RESPONDENT/PETITIONER:
-----------------------------------------------
J. SEBASTIAN, AGED 43 YEARS
S/O JOSEPH, JATHIKULATHIL, PRESIDENT
KERALA VYAPARAI VYAVASAYA EKOPANA SAMITHI
CHERUPUZHA UNIT, P.O. CHERUPUZHA
KANNUR DISTRICT-670 511.
R1 BY ADV. SRI.M.SASINDRAN(CAVEATOR)
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
24-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
T.R.RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
R.C.R. No.259 of 2013
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 24th day of September, 2013
O R D E R
Ramachandran Nair, J.
The defeated tenant, who is the revision petitioner herein has approached this Court aggrieved by the judgment of the Rent Control Appellate Authority and the order passed by the Rent Control Court.
2. The landlord, the respondent herein sought eviction of the petitioner under Sections 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short, the 'Act'). The landlord is the President of Kerala Vyapari Vyavasayi Ekopana Samithi, Cherupuzha Unit in Kannur District. According to the averments in the eviction petition, the room was let out to the tenant on 14/03/2000 for a monthly rent of 1,000/-. The requirement pointed out by the landlord is that in the ground floor the only room which faces the road is the petition schedule room and the office of the Vyapari Vyavasayi Ekopana Samithi is housed in an inconvenient room. They have no other rooms sufficient for the said purpose. R.C.R.No.259/2013
- :2:-
3. The above plea was accepted by both the authorities and eviction was ordered.
4. Before us, the learned counsel for the revision petitioner-tenant Shri V.Ramkumar Nambiar mainly submitted that it is a case where three rooms are in possession of the landlord in the very same building about which the tenant had made mention in the counter statement filed in R.C.P.No.12/2009 itself and PW1 when cross-examined admitted the existence of the same and possession of them with the landlord. It is submitted that the first proviso to Section 11(3) of the Act requires the landlord to offer special reasons in which it has miserably failed. It is submitted that overlooking the above, both the authorities have ordered eviction. It is also argued by the learned counsel that the Appellate Authority, in para.11 of the Judgment, after finding that the landlord is in possession of the said rooms went on a tangent and adverted to the reasons pointed out by the landlord for eviction of the petition schedule building which is not the requirement of the statute. The learned counsel R.C.R.No.259/2013
- :3:-
invited our attention to the oral evidence in the matter and the findings rendered by the authorities below.
5. Learned counsel Shri M.Sasindran appearing for the landlord submitted that the appreciation of evidence is perfectly justified and the conclusions have been arrived at correctly on the evidence adduced by both sides. Learned counsel in his vehement argument submitted that the entire conclusions entered by the Rent Control Court and the Appellate Authority are on a correct reading of the pleadings and evidence in the matter. Therefore, sitting in revision, this Court will not be justified in interfering with the findings on facts as the revisional jurisdiction is limited which position of law cannot be disputed in view of the various decisions of this Court and the Apex Court, namely, Mathu vs. Shamsudhin [2002 (2) KLT SN 101 Case No.121] and Rukmini Amma Saradamma vs. Kallyani Sulochana and others [AIR 1993 SC 1616]. Learned counsel also submitted that the choice of a building for occupation is that of the prerogative of the landlord, and the tenant cannot dictate how the landlord R.C.R.No.259/2013
- :4:-
should adjust to his requirement. In that context, learned counsel relied upon the following decisions:
R.C.Tamrakar and another vs. Nidi Lekha [(2001) 8 SCC 431], Madhava v. Pathumabi [2005 (3) KLT 369] and Mohamood Haji v. Devootty Amma [2004 (2) KLT 248].
6. Since the argument raised before us is that there is total misapplication of facts and law, we will be justified in scanning through the pleadings as well as the evidence of the parties. It is a case where the landlord is having its office in the very same building. The landlord is the unit of Kerala Vyapari Vyavasayi Ekopana Samithi, an organisation of traders and merchants. What is projected in para.5 of the eviction petition as reasons for seeking eviction are that the first floor of the building situates on the ground level; in the ground floor, the only room which faces towards main road is the schedule room; the office of the Kerala Vyapari Vyavasayi Ekopana Samithi unit is housed in an inconvenient room and they are not having any other rooms sufficient for the above purpose. R.C.R.No.259/2013
- :5:-
7. In the objections filed by the tenant in para.8 it is pleaded that the landlord is having three other rooms which are in the rear side of the petition schedule room. The immediate room behind the petition schedule room is a hall where for the functioning of the office a cabin has been constructed. The landlord is not having an office which is functioning throughout the day and there are no office staff members also. It is reiterated in the very same paragraph that behind the hall there are two large rooms which are in possession of the landlord.
8. PW1 is the President of the Kerala Vyapari Vyavasayi Ekopana Samithi Unit at Cherupuzha. In the cross-examination, to a specific question it was answered by him that there are three vacant rooms on the rear side of the petition schedule room to which there are independent entries and those are in their possession. The upstair of the same is a hall, the construction of which is not complete. One room is being used as an office. It is further explained by him that two Day Deposit Collectors and one office staff are there. Lower down in the cross he has stated that the President and Secretary are not expected to be there throughout and the R.C.R.No.259/2013
- :6:-
staff will be there in the office. In the re-examination it was clarified that there are tenants in another building of them having 4 rooms.
9. As far as the requirement of the landlord is concerned what is stated in the chief affidavit is the following in para.3:-
"The office of the Kerala Vyapari Vyavasayi Ekopana Samithi unit is functioning in an inconvenient room on the rear side of the petition schedule building."
10. Since the argument is mainly based on the first proviso to Section 11 (3) of the Act, we extract the said proviso hereunder:-
"Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons in any particular case it will be just and proper to do so."
The requirement of the said proviso will indicate that when the landlord is in possession of another building of his own, in the same city, town or village unless special reasons are there and the court is satisfied about the same, eviction cannot be ordered. It is well settled that special reasons should be R.C.R.No.259/2013
- :7:-
those supplied by the landlord for non occupation of the room already in possession and he must prove why that is not sufficient. As far as the said aspect is concerned, the Rent Control Court in para.17 under point No.3 while discussing the matter observed that "there is no specific mention of any availability of any room in the ground floor of the building in the counter statement of the tenant. If in fact rooms are available with the possession of the landlord best evidence the tenant can adduce is to produce the Municipal assessment in respect of the same. That was not done. No other independent evidence was also adduced to show that other rooms are available in the building for the purpose of shifting the office of the landlord. Though it is stated in the chief-examination of RW1- tenant that the landlord is in possession of another building in the same town during the cross-examination of RW1 admit that all the rooms in that building are occupied by other tenants. Thus there is no acceptable evidence before the court to show that the landlord is in possession of other rooms in the same building or any other buildings for the purpose of shifting the office". We will straightaway observe that the said finding is R.C.R.No.259/2013
- :8:-
totally wrong and perverse on the pleadings of the parties as well as the evidence adduced before the Rent Control Court. The Rent Control Court overlooked the fact that there is a specific objection by the tenant in the pleadings that the landlord is having in possession three vacant rooms. The evidence of PW1 which we have already adverted to and the admission in the cross-examination, have not at all been considered also.
11. As far as these aspects are concerned, discussion by the Appellate Authority is contained in para.11. The Appellate Authority has clearly entered a finding that "it has also come out that other vacant rooms are in possession of the landlord. So definitely, special reasons for not occupying the vacant rooms in possession are to be explained by the landlord". Then the Appellate Authority has pointed out three reasons specifically pleaded by the landlord for eviction of the petition schedule room. We have already noted the reasons which have been offered by the landlord for preferring the petition schedule room. May be that the landlord has its own reasons for choosing the petition schedule room for occupation. But in the context of first proviso to Section 11(3) of the Act, the special reasons should be R.C.R.No.259/2013
- :9:-
one with respect to the rooms which are in possession and remaining as vacant as on the date of filing of the eviction petition. That aspect was really over looked by the Appellate Authority also. After discussing the said reasons, the Appellate Authority rejected the contentions of the tenant and observed that the admission that there are three other vacant rooms does not mean that those three rooms are sufficient for functioning office of the landlord. In the absence of any special reasons pointed out by the landlord for the same, the said conclusion can only be said as perverse which is not supported by the pleadings or evidence by the landlord.
12. Of course, Shri M.Sasindran learned counsel for the landlord argued that in the chief affidavit it has been stated that the room in occupation by the landlord is not convenient. True that in the eviction petition the landlord has to only give the particulars but, at the time of evidence he will have to establish by proof as to how the inconveniences have occurred requiring landlord to shift its office to the room occupied by the tenant. No attempt has been made by the landlord while being examined by the court or while filing the chief affidavit to explain the inconveniences also. What has been R.C.R.No.259/2013
- :10:-
explained is a lone sentence in para.3 of the chief affidavit which we have extracted in para.9 above. It is argued by the learned counsel for the landlord that the burden is on the tenant to disprove it which we cannot agree. He has not discharged the burden by adducing evidence in support of the plea of inconvenience. In a case like this where the landlord clearly admitted in evidence that vacant rooms are in their possession which are having independent entries, the first proviso to Section 11(3) of the Act obliges the landlord to attribute special reasons for not occupying it. Then only the Court will be able to analyse it and can go into the sufficiency of the said reasons. Under Section 11(3) of the Act what the landlord is to establish is a genuine bona fide need and it is well settled that a mere desire is not sufficient.
13. In that view of the matter, it is a case where there is a total misreading of the pleadings of the parties as well as the evidence adduced by the two courts. Of course the discussions are elaborate as pointed out by learned counsel for the landlord Shri M.Sasindran. But, merely because there are elaborate discussions when there is a wrong approach on the R.C.R.No.259/2013
- :11:-
pleadings and evidence, it is a matter to be corrected in revisional jurisdiction. Even though the decisions of the Apex Court and this Court have held that in revisional jurisdiction there cannot be a re-appreciation of evidence to come to a different conclusion on the same set of facts, it is not a case where we are substituting our views to that of the Appellate Authority or of the Rent Control Court. When the view taken is perverse and the statutory scheme has not been kept in mind, the same requires correction. The argument of the learned counsel for the tenant is that on the same set of evidence, the conclusions arrived at are not legally supportable because of the inherent contradictions in the evidence of the landlord and the facts proved will support the specific objection raised by the tenant in the objections.
14. It is true that the legal position is that the choice is left to the landlord if different rooms are let out to different tenants and he wants to occupy a particular room. The said principle has been well laid down in Meenal Eknath Kshirsagar (Mrs) vs.Traders and Agencies and another [(1996) 5 SCC 344] and R.C.Tamrakar and another vs. Nidi Lekha [(2001) 8 SCC R.C.R.No.259/2013
- :12:-
431] . In the first case, the objection by the tenant was that the landlady's husband is in occupation of another building which fact was not brought to the notice of the court but, the Apex Court held that the same was also a lease hold premises which was already vacated by him. In that context it was held that if the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises. Herein the issue raised by the tenant is different, that is, the wrong approach made by the courts with regard to the absence of special reasons for not occupying the vacant rooms in the possession of the landlord. In R.C.Tamrakar's case [(2001) 8 SCC 431] also the same legal position was explained in a context where the objection of the tenant was that the son of the landlady is having another building to reside and the said contention was not accepted by the Apex Court.
15. We will now go to the dictum laid down in Mathu vs. Shamsudhin [2002 (2) KLT SN 101 Case No.121] where this Court held that interference in revision can only be when findings suffer from any inherent R.C.R.No.259/2013
- :13:-
defect or are based on inadmissible or irrelevant materials or are perverse. There cannot be any quarrel with the above proposition and we rest our conclusions in the light of the perverse findings by the authorities below. In Rukmini Amma Saradamma vs. Kallyani Sulochana and others [AIR 1993 S C 1616] the Apex Court disagreed with the way in which the evidence was reappreciated. But, in the said judgment, the Apex Court has held as follows:
"Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it."
When the argument is that the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether conclusions have been arrived at properly on the pleadings and evidence. R.C.R.No.259/2013
- :14:-
16. The last of the submission made by the learned counsel for the landlord is that the landlord may be given an opportunity to adduce fresh evidence before the Rent Control Court as according to the learned counsel the admissions made by the landlord in evidence are not correct and actually, those rooms are not in actual possession. What was intended is about ownership alone. But, we find that the tenant in the earliest point of time had raised a specific objection on the availability of vacant rooms and on the basis of the said objection in the cross- examination of PW1, questions were put and the landlord plainly admitted it. Of course, it was also revealed by PW1 that there is another building at Cherupuzha which had four rooms and in the re-examination, the fact that the tenants are in occupation of the same was further clarified. Therefore, according to us, the tenant is well justified in relying upon those portions of the deposition in cross-examination of the landlord and in the absence of any plea that proper and sufficient opportunity was not given to adduce evidence, we will not be justified in remanding the matter for fresh consideration. Therefore, we reject the said contention. R.C.R.No.259/2013
- :15:-
17. In that view of the matter, we allow the revision petition and set aside the orders and dismiss R.C.P.No.12/2009. This will not prevent the landlord from approaching the court under Section 11(8) of the Act for additional accommodation if they are advised so or on any other ground legally available. No costs.
Sd/-
(T.R.RAMACHANDRAN NAIR, JUDGE) Sd/-
(B.KEMAL PASHA, JUDGE)
ms
\\True copy// P.A to Judge