IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 200 of 2009()
1. A.C.JOSEPH, AGED 59 YEARS, S/O.CHERIYAN,
... Petitioner
Vs
1. LALITHAMMA GEORGE, AGED 59 YEARS,
... Respondent
2. ANILA GEORGE,
3. SUNILA GEORGE,
4. PRAMILA GEORGE, AGED 30 YEARS,
5. ANISH GEORGE, AGED 28 YEARS,
For Petitioner :SRI.M.V.BOSE
For Respondent :SRI.PIRAPPANCODE V.S.SUDHIR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :23/09/2009
O R D E R
PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ.
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RCR. No. 200 of 2009
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Dated this the 23rd day of September, 2009
O R D E R
Pius C. Kuriakose, J.
This revision petition under Section 20 of Act 2 of 1965
filed by the tenant who was appellant in RCA. No. 27 of
2006 before the Rent Control Appellate Authority, Kottayam
and the respondent in RCP. No. 55 of 2004 of the Rent
Control Court, Kottayam, arises out of common judgment in
RCA Nos. 27 and 37 of 2006. RCA. No. 37 of 2006 arose
out of the order of the Rent Control Court, Kottayam in RCP.
No. 53 of 2004. The parties will be referred to for sake of
convenience as landlord and tenant.
2. The need of the landlord as alleged was that he
needs the buildings which were subject matter of the two
rent control petitions for the purpose of providing
accommodation to his widowed (divorcee) daughter Sunila
George who was residing along with him and was
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dependent on him for the purpose of commencing the
conduct of a Beauty Parlour and Lady Store. It was
contended by the tenants that the rent control petitions are
barred by the principles of res judicata as envisaged by
Section 15 of Act 2 of 1965. It was pointed out that RCP.
Nos. 10 of 1992 and 11 of 1992 had been filed by the
landlord earlier on the ground that the two rooms were
needed for the landlord’s own occupation, but eventually
dismissed by the Rent Control Court. Apart from that, it
was also contended that after the earlier RCP was instituted,
the landlord had constructed two storeys more in the
petition schedule building and had thereby converted the
building as a three storeyed building with several rooms in
the upstairs. It was contended that if the landlord’s
daughter wanted to start Beauty Parlour or Ladies Store any
of the rooms which were in the possession of the landlord in
the upstairs could have been made use of. The bonafides of
the need and the claim were disputed and it was contended
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that the petitioner’s daughter had employment and had
other sources of income. It was also contended that the
place where the petition schedule building is situated is not
suitable for starting Beauty Parlour as the same was a
commercial area. Alternatively the tenant claimed the
protection of the second proviso to sub-section (3) of
Section 11 of Act 2 of 1965.
3. The evidence at trial by the Rent Control Court
consisted of Exts.A1 to A5 and the oral evidence of PW1 and
PW2 on the side of the landlord while the same consisted of
Ext.B1 and the oral evidence of CPW1, tenant on the side of
the tenant. It became evident that the landlord’s daughter
PW2 was a divorcee who had some experience as a
beautician and that she is presently without any
independent source of income of her own. The Rent Control
Court on evaluating the evidence and on considering the
rival contentions raised would come to the conclusion that
the need projected by the landlord was a bona fide one, that
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in the nature of the business and activity proposed to be
done by the landlord’s daughter, a divorcee, the landlord
was justified in insisting the petition schedule room and the
room which was subject matter of the other rent control
petitions which were in the ground floor with immediate
frontage of the road. It was also found that the tenant did
not adduce any evidence to prove that he is depending
mainly for his sustenance on the income derived from the
business carried on by him in the petition schedule building.
It was also found that he was unsuccessful in proving that
other suitable buildings are not available in the locality.
Thus it was held that the tenant is not entitled for the
protection of the second proviso to sub-section (3) of
Section 11. Accordingly eviction was ordered under Section
11(3). Before the Rent Control Court the two rent control
petitions were tried separately and were allowed by
separate orders. But the Appellate Authority considered the
appeal preferred by the tenants simultaneously and by the
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impugned common judgment dismissed both of the appeals.
The Appellate Authority made a reappraisal of the evidence
in both the cases and concurred with all the conclusions of
the Rent Control Court. Impugning the judgment of the
Appellate Authority on the various grounds raised in the
memorandum of revision the tenant has filed the present
revision petition.
4. Sri.Vinod Madhavan, learned counsel for the revision
petitioner addressed us very strenuously when the RCR
came up for admission. However, having regard to the
contours of this Court’s revisional jurisdiction under Section
20 we were not persuaded to admit the revision petition.
Mr.Vinod Madhavan, however, asserted referring to
paragraph 7 of the judgment of the Appellate Authority that
the residential apartment situated just behind the petition
schedule building continues to be under the vacant
possession of the landlord. Since the impression which we
gathered on reading the judgment was otherwise, we
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requested the learned counsel on 8-9-09 to seek
instructions from his party specifically as to whether the
above residential apartment is under the vacant possession
of the landlord and posted the case to 9-9-09. On 9-9-09
Mr.Vinod Madhavan submitted after seeking instructions
from his party that it is after the disposal of the rent control
petition that the above residential apartment, which
according to him was also suitable for conduct of Beauty
Parlour, was let out by the landlord to the present occupant.
Accordingly we issued notice to the landlord by special
messenger for answering the question as to whether the
building referred to in paragraph 7 of the judgment of the
Appellate Authority as residential apartment situated behind
the petition schedule building was let out to the present
tenant. It was also ordered that in the meanwhile, the
proceedings for delivery of the building to the landlord
should be deferred. On receiving notice, the landlord
entered appearance through Advocate Saju John. It was
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submitted by Mr.Vinod Madhavan that though it is true that
the apartment just behind the petition schedule building is
presently occupied by one Anilkumar, the letting in favour of
Sri.Anilkumar, the present tenant was only in February,
2008 (at the time when the rent control appeal was
pending). Sri.Saju John submitted that even in November,
2004 when the rent control petition was instituted, the
above apartment was in the possession of another tenant by
name of Smt.Meenu Mary Cyriac and that Sri.Anilkumar
came into occupation on the basis of an arrangement
between him and Smt.Meenu Mary Cyriac. Accordingly, by
order dated 15-9-09 we directed Sri.Saju John to make
available for perusal any document which will reveal that in
November, 2004 the apartment just behind the petition
schedule building was in the possession of a tenant. Today,
Sri.Saju John has made available for our perusal the original
of the lease deed executed by Smt. Meenu Mary Cyriac on
1st September, 2004 and we are convinced there from that
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at the time of commencement of the rent control
proceedings the the above apartment situated just behind
the petition schedule premises was under the occupation of
another tenant.
5. On going through the impugned judgment of the
Rent Control Appellate Authority and the order of the Rent
Control Court which was confirmed by the judgment of the
Appellate Authority we notice that all the contentions raised
by the revision petitioner found properly considered and
decided by those authorities. The bar under section 15 of
the Rent Control Act will not apply to the present case since
in the earlier rent control petitions the need which was
projected by the landlord was an entirely different one, his
own need to have an office for himself as agent of LIC of
India. But the need projected in the present rent control
petition is the need to provide accommodation for his
divorced daughter. The circumstances had changed
considerably during the period between the disposal of the
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previous rent control petitions and the institution of the
present rent control petitions. The oral evidence adduced
by the landlord as PW1 and that of his dependent daughter
as PW2 inspired confidence in the minds of the two fact
finding authorities under the Rent Control Act, viz., the Rent
Control Court and the Appellate Authority. In fact, before
the Appellate Authority which is the final court on facts
under the statutory scheme, the bonafides of the need was
not even challenged. Stress was given to the contention
that the present proceedings are barred under section 15,
that the RCP is liable to fail by virtue of the first proviso to
sub-section (3) of Section 11 and also by virtue of the
second proviso to sub-section (3) of Section 11. It has
come out in evidence that the petition schedule premises
situated as they are in the ground floor enjoying direct
frontage are ideal for the business proposed by the landlord
and his daughter. It also became evident in the case that
the tenant was unsuccessful in proving that he satisfies
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either of the ingredients of the second proviso to sub-
section (3) that he is depending for his livelihood mainly on
the income derived from the business carried on in the
building and that other suitable buildings are not available in
the locality for him to carry out business. This being the
position, we are unable to say that the judgment of the Rent
Control Appellate Authority is vitiated by any illegality,
irregularity or impropriety warranting invocation of the
revisional jurisdiction under section 20.
6. The revision petition is liable to fail and we dismiss
the same without any order as to costs. However, in view of
request of Mr.Vinod Madhavan that time be granted at least
till 30-6-2010 to the revision petitioner to surrender the
premises (the request was very stiffly opposed by Mr.Saju
John) we are inclined to grant time to the revision petitioner
to surrender the premises till 30-6-2010 subject to the
following conditions:
The revision petitioner shall file an affidavit before the
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execution court or the rent control court as the case may
be, undertaking to peacefully surrender the petition
schedule premises to the respondent landlord on or before
30-6-2010 and also to discharge the entire arrears of rent
which has fallen due in respect of the building within two
months from today and undertaking to pay occupational
charges at the current rent rate as and when the same falls
due till such time the actual surrender is made. It is made
clear that the revision petitioner will be entitled for the
benefit of the time granted under this order only if the
above conditions are complied with.
PIUS C.KURIAKOSE, JUDGE
K.SURENDRA MOHAN, JUDGE
ksv/-