IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 316 of 2006()
1. M.S.M.KASIM,
... Petitioner
Vs
1. A.SADIQUE, T.C./38/841,
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.P.A.AHAMMED
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :01/07/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.R.No. 316 OF 2006
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Dated this the 1st day of July, 2010
O R D E R
Pius C.Kuriakose, J.
The landlord is the revision petitioner. He sought to evict
the respondent tenant on the ground of arrears of rent and
ground under Section 11(3). It is conceded by both sides that we
in this revision need not be concerned with the ground for
eviction under Section 11(2)(b).
2. The need projected by the landlord in the context of
the ground under Section 11(3) was that the building in question
is needed bonafide by him for accommodating his son Zahir, who,
according to him, was without any employment or avocation for
life. The tenant through his statement of objections disputed
the bonafides of the need. He also contended that the landlord at
the time of filing the Rent Control Petition was possessing other
buildings in the city, town or village and hence the need of the
landlord is not bonafide. The above contention was construed by
the Rent Control Court and also by the Rent Control Appellate
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Authority as a contention under which the tenant was taking
protection under the first proviso to Section 11(3). The tenant
further contended that he is entitled to the protection of second
proviso to Section 11(3) as according to him the income derived
from the business carried on by him in the building in question
was his main source of livelihood and since other buildings are
not available.
3. The evidence before the Rent Control Court consisted of
the oral evidence of PW1 the dependent son the defacto claimant
and that of the landlord PW2 as against which there was oral
evidence of tenant, who was examined as RW1. The
documentary evidence on the side of the landlord consisted of
Ext.A1 to A5 as against Ext.B1 on the side of the tenant. The
Rent Control Court on appreciating the evidence came to the
conclusion that the need projected by the landlord in the Rent
Control Petition is not bonafide. It was also concluded that the
tenant is entitled to the protection of the second proviso to
Section 11(3) (though not in so many words). This conclusion
was arrived at assuming that the burden to establish that the
tenant satisfies the two ingredients of second proviso is on the
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landlord. The Rent Control Court however, did not enter any
specific finding as to whether the RCP was liable to fail by virtue
of the first proviso to Section 11(3). in the light of the other
findings the RCP was dismissed. The Appellate Authority would
come to the conclusion that the tenant was unsuccessful in
proving that as alleged by him PW1 the defacto claimant was
having some other business of his own and also that “there is
nothing on record to disbelieve the bonafide of the need put
forward by the petitioner”. Thus, the Appellate Authority actually
concluded that the need projected by the landlord under Section
11(3) is a bonafide one. However, considering the operation of
the first proviso to Section 11(3) the learned Appellate Authority
would observe as follows:
“When there is admission to the effect that the
tenant at the shop rooms was evicted through
court, and when there is admission by PW1 to the
effect that there are 4 shop rooms therein and also
the evidence of CPW1 that shop building
No.TC38/842 and 843 are in the vacant possession
of the petitioner himself, materials are to be
scrutinized very carefully.”
RCR.No.316/2006 -4-
Learned Appellate Authority would thereafter refer to the
evidence of PWs 1 and 2 in cross-examination and conclude as
follows:
“Thus it can be seen that when the case is filed the
petitioner or under his command was having shop
rooms. It is true that in Section 11(3) first proviso
applicable if only the landlord has in the possession
of building in the same city, town or village.”
The Appellate Authority would leave the issue of first proviso
there and go on to consider the tenant’s entitlement to the
protection to second proviso observing immediately thereafter as
follows:
“But all the attending circumstances has to be kept
in mind while considering at least the second
proviso.”
The Appellate Authority would then consider the oral evidence of
the parties, particularly the oral evidence of CPW1 the tenant,
and concluded that there is nothing to disbelieve CPW1 in this
regard. On the basis of that conclusion the Appellate Authority
would specifically find that the tenant is entitled for the
protection of the second proviso to Section 11(3) of the Rent
RCR.No.316/2006 -5-
Control Act. Resultantly the Appellate Authority would dismiss
the RCA preferred by the landlord.
4. In this revision filed under Section 20 the landlord has
raised various grounds assailing the judgment of the Appellate
Authority. It is urged that the burden of proof in the context of
the second proviso to Section 11(3) has been wrongly cast by the
Appellate Authority on the landlord, that binding judicial
precedents governing that aspect of the matter has been ignored
by the Appellate Authority; it is urged that the observation by the
Appellate Authority that the landlord has admitted that he has in
his possession other vacant buildings at the time of
commencement of the litigation is wrong and it is also urged that
the finding of the Appellate Authority that the tenant is entitled to
the protection of the second proviso is clearly erroneous. On the
basis of these grounds it is prayed that the finding of the
Appellate Authority in the context of the second proviso be
reversed and an order of eviction be passed under Section 11(3).
5. Sri.G.S.Reghunath, learned counsel for the revision
petitioner would address strenuous and extensive arguments
before us. The learned counsel drew our attention to the
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judgment of the Full Bench in Francis v. Sreedevi Varassiar
(2003 (2) KLT 230 (F.B) and submitted that it is trite by that
judgment and by various other judgments of this court and the
Supreme Court that the ingredients of the second proviso are in
the conjunctive and the burden to establish that a particular
tenant satisfies both the ingredients is on the tenant himself.
Inasmuch as the findings by the Appellate Authority that tenant
is entitled to the protection of the second proviso has been
rendered ignoring the law as settled by binding judicial
precedents including Full Bench Judgment in Francis v.
Sreedevi Varassiar (cited supra) the above finding is to be
vacated, according to the learned counsel. Learned counsel
would submit that the observation of the Appellate Authority that
there is admission by the landlord and his son that other vacant
buildings belonging to them were available with them at the time
of institution of RCP is contrary to the evidence on record.
According to him, in spite of that observation of the Appellate
Authority has not entered a specific finding in the context of the
first proviso to Section 11(3).
6. Per contra, Sri.Liju Stephen, learned counsel for the
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respondent/tenant would defend the impugned judgment very
strongly. According to him, even in cases where the Court finds
that the need projected by the landlord is bona fide, unless the
landlord is able to surmount the two provisos of sub section(3) of
Section 11, the RCP is liable to be dismissed. Reading over to us
certain portions in testimonies of PWs 1 and 2, wherein those
witnesses admitted that two or three buildings were got evicted
(point of time of getting eviction not stated), counsel submitted
that the observation of the learned Appellate Authority, to which
exception is taken by Sri.G.S.Raghunath, is very correct. The
learned counsel would defend the finding of the Appellate
Authority, that the tenant is entitled to the protection of the
second proviso to sub section (3) of Section 11, even more
forcefully. The counsel submitted that there was no cross
examination and much less effective cross examination on the
version of RW1 in chief examination that he and his family are
depending solely on the income they derived from the business
carried on by them in the petition schedule building and on the
further version that other suitable buildings are not available in
the locality. The learned counsel would place strong reliance on
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the judgment of a Division Bench of this court in Sadanandan v.
Kunheen (1991 (2) KLT 628) in support of the proposition that
when there is no effective cross examination, it can be taken that
what was deposed to by a witness has been proved. The learned
counsel relied on the judgment of this Court in Thomas v. Joseph
(1986 KLT 392,) and the judgments of the Supreme Court in
M.M.Quasim v. Manohar Lal Sharma and others ( AIR 1981 SC
1113) and Sudama Prasad v. Ashok Kumar (2007 (15) Supreme
Court cases 554) for various propositions canvassed by him.
7. We have very anxiously considered the the rival
submissions addressed at the Bar. We have gone through the
impugned judgment of the Rent Control Appellate Authority as
well as the order of the Rent Control Court which was confirmed
by the Appellate Authority. We have also taken due note of the
evidence particularly those items of evidence to which our
attention was drawn by the learned counsel for the parties. This
Court under Section 20 of Act 2 of 1965, which is a revisional
jurisdiction, is concerned essentially with the legality, regularity
and propriety of the findings entered and decision taken by the
Rent Control Appellate Authority which under the statutory
RCR.No.316/2006 -9-
scheme is the final fact finding Authority. As already stated, the
significant aspect of the decision of the Appellate Authority in
deviation from the decision of the Rent Control Court is that the
Appellate Authority has found on appreciating the evidence that
the need projected by the landlord which is for accommodating
his depending son who was examined as PW1 is a bona fide.
This finding is not challenged by the respondent by a separate
revision or even by filing a memorandum of cross objection. In
his submissions also the learned counsel for the respondent did
not make any serious endeavour to assail the above finding. His
endeavour rather was to support the decision of the Appellate
Authority rendered in the context of the first and second
provisos to sub section (3) of Section 11. We are therefore of
the view that our enquiry in this revision need only be confined
to the question whether the decision of the Appellate Authority
that the Rent Control Petition is liable to fail by virtue of the first
and second provisos of sub section (3) of Section 11 is illegal
irregular and improper.
8. We shall refer to the pleadings raised by the tenant.
The tenant has certainly raised specific pleadings claiming
RCR.No.316/2006 -10-
protection of the second proviso to sub section (3) of Section
11. But, as far as the first proviso to sub section (3) of Section
11 is concerned, what is pleaded is only that the landlord has
several other buildings in the landlord’s possession for
accomplishing the projected need. It is not pleaded that the
other buildings allegedly possessed by the landlord belong to the
landlord. If we are construe the pleadings strictly, it will have to
be held that no proper pleadings are raised by the tenant
claiming the protection of the first proviso to sub section (3) of
Section 11. However, it is seen from the order of the Rent Control
Court and the Judgment of the Appellate Authority that both the
authorities and even the parties including the landlord construed
the pleadings raised by the respondent as pleadings claiming
protection of the first proviso to sub section (3) of Section 11.
We are, therefore, of the view that the pleadings raised by the
respondent can be liberally construed as pleadings claiming
protection of the first proviso to sub section (3) of Section 11.
The question that arises now is whether the first proviso does
operate in favour of the tenant in this case. The Appellate
Authority held that if does operate saying that it was admitted
RCR.No.316/2006 -11-
by the landlord and the sons PW1 and 2 in evidence that other
buildings are in their possession and in view of that admission,
it was for the landlord to establish special reasons. We have
gone through the evidence of PWs 1 and 2 in full. We did not
notice any unqualified admission from the mouth of either PW1
or PW2 to the effect that the landlord was having in the landlord’s
possession other buildings belonging to the landlord at the time
of commencement of the RCP. At best it can be stated that it is
admitted that at some point of time two or three rooms are got
vacated by the landlord by initiating proceedings against the
tenants in occupation of those rooms. The pertinent question is
whether at the time when the RCP was instituted, the landlord
was having vacant possession of the landlord’s own building in
the same city, town or village. It is clear to our mind that the
evidence on record falls short of holding as the Appellate
Authority and the Rent Control Court did that the landlord had
vacant possession of his own buildings at that time. Therefore,
the findings of the Appellate Authority to the extent it is rendered
on a assumed admission made by the landlord and his son is
improper and irregular. That finding necessarily has to be
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vacated. But, we feel that if both sides are given opportunity on
this vital aspect, they may be in a position to adduce evidence
and convince the Court regarding the correct decision to be
taken on this question.
9.Now we shall deal with the correctness of the findings
entered by the Appellate Authority and the Rent Control Court in
the context of the second proviso to sub section(3) of Section 11.
Even though Sri.G.S.Reghunath argued before us by referring to
the cross examination of RW1 that even his version that he is
depending mainly on the income derived from the business
carried on in the building has been challenged, we are in
agreement with the learned counsel for the respondent that as
regards the first ingredient of the second proviso, there is no
effective challenge in cross examination. But we are unable to
agree with the learned counsel for the respondent that there is no
challenge regarding RW1’s version about the second ingredient
of the second proviso to sub section 3 of section 11. We notice
that even in chief examination RW1 did not say that other
suitable buildings are not available in the locality for him to shift
the business. In stead, what was stated was only that in
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proximity to the building in question other buildings are not
remaining vacant. “Locality” as envisaged by second proviso to
sub section 3 of Section 11 does not mean the immediate
proximate area of the building in question. It means a larger
local area. Now coming to cross examination, we find that
questions have been asked disputing the correctness of what was
stated by RW1 in chief and also suggesting that there is much
demand for buildings thereby indicating that there is some supply
also. It is trite by various decisions including the judgment of
the Full Bench in Francis v. Sreedevi Varassiar(cited supra) that
the burden to establish that tenant satisfies both the ingredients
of the second proviso is that of the tenant. When law cast
burden of proving a particular fact in issue on a particular
person, the law expect him to prove that fact in issue by
adducing the best evidence. We are of the view that whether or
not other suitable buildings are available in the locality is an
aspect of capable of being proved by evidence of better quality
than mere ipse dixit of parties. At any rate, it is very clear to our
mind that the learned Appellate Authority and for that matter,
the Rent Control Court were not at all mindful of the various
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decisions of this Court starting from Kochappan Pillai v. Chellapan
(1976 KLT 1) taking the view that the burden to establish that
the tenant satisfies his entitlement to the protection of the
second proviso is that of the tenant. Even then we feel that the
tenant should be given opportunity to adduce evidence and
substantiate his contention that he is entitled for the protection
of the second proviso. Sri.Reghunath incidentally voiced a
grievance that the rent which the respondent is paying for the
building in question, situated in a commercially important area
of the Thiruvananthapuram city Corporation, is ridiculously low.
We find some merit in the above submission of the learned
counsel. Hence, we are inclined to refix the rent payable by the
respondent tentatively even as we are relegating the RCP to the
Rent Control Court.
10. The result of the above discussion is therefore as
follows;
i). The RCR succeeds.
ii). The order of the Rent Control Court
and the Judgment of the Appellate Authority
are set aside to the extent they pertain to the
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decision to dismiss the RCP by virtue of the
first and second provisos of sub section (3) of
Section 11.
iii). The finding entered by the Appellate
Authority that the need is bona fide is
confirmed. The Rent Control Court will afford
opportunity to the tenant/respondent to
adduce further evidence in the context of the
first and second proviso to sub section (3) of
Section 11. Once the tenant adduces further
evidence, that Court will afford opportunity to
the revision petitioner/landlord to adduce
evidence in rebuttal of the above evidence.
Once the enquiry is over, the Court will take
fresh decision on the question as to whether
the RCP is liable to fail by virtue of either the
first proviso or the second proviso to section
11(3) and will pass final orders in the RCP
accordingly.
iv). The rent payable by the respondent
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for the building in question is tentatively
refixed with effect from 1st August 2010 at
Rs.1,000/- per month. The respondent shall
pay rent at that rate irrespective of the final
result of proceedings for eviction. However, we
make it clear that the above fixation is
tentative and if either party is aggrieved,
they are free to move the Rent Control Court
by initiating separate proceedings under
Section 5 of the Rent Control Act.
v). The parties will appear before the
Rent Control Court on 26/7/2010. The Rent
Control Court will expedite matters and ensure
that the final order is passed in the RCP at
least by 31/10/2010.
PIUS C.KURIAKOSE,JUDGE
C.K.ABDUL REHIM , JUDGE
okb/dpk
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