IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 375 of 2005()
1. A.RAMESH SHENOY, S/O.AYYUTH SHENOY,
... Petitioner
Vs
1. SUSILA AND DAYANANDA MALLER,
... Respondent
2. VITHALDAS LEELADAR, S/O.LEELADAR
3. BROTHER SADASIVA LEELADAR,
4. BROTHER RAMA CHANDRA LEELADAR BHANDARI,
5. BROTHER DAMODAR LEELADAR BHANDARI,
For Petitioner :SRI.K.V.PAVITHRAN
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :01/06/2009
O R D E R
PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ.
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R.C.R. 375 OF 2005
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Dated: JUNE 1, 2009
ORDER
Pius C. Kuriakose, J.
Under challenge in this revision filed by the tenant is the
judgment of the Rent Control Appellate Authority reversing the
order of the Rent Control Court by which the RCP was dismissed
by that court. The parties will be referred to for convenience as
the tenant and the landlord. The landlord is a private religious
and charitable trust by name “Susila and Dayananda Maller
Religious and Charitable Trust” and the same is represented by
its present four trustees. The landlord invoked the grounds
under sub-sec.(3) and clause (ii) of sub-sec.(4) of sec.11 of Act
2/1965. The ground under clause (ii) of sub-sec.(4) of sec.11
was invoked in the context of erection of an unauthorised pandal
in front of the tenanted premises. The Rent Control Court as
well as the Appellate Authority have concurrently declined
eviction on that ground and, in the absence of any revision filed
by the landlord, that ground does not survive any longer. The
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need projected in the context of the surviving ground under sub-
sec.(3) of sec.11 was that none of the present trustees of the
landlord are able to manage the very valuable properties
belonging to the Trust and hence the Trust has resolved to
appoint a manager and further that the petition schedule building
is needed for accommodating the office of the manager. The
ground is expatiated by stating that the Trust owns extensive
properties in the town and it has been decided to construct
buildings, for the construction and management of which also a
manager with an office is necessary.
2. The tenant resisted the RCP contending inter alia that
the need and the claim are not bona fide and that the tenant is
entitled to the protection of the second proviso to sub-sec.(3) of
sec.11 of the Act.
3. The Rent Control Court on evaluating the evidence
adduced by the parties consisting of Exts.A1 to A4 and
testimonies of Pws.1 and 2 on the side of the landlord and
Exts.B1 to B4 and the testimony of RW.1 on the side of the
tenant would hold that the claim and the need projected by the
landlord is not bona fide.
4. The Rent Control Appellate Authority, however, on
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considering the appeal re-appreciated the evidence and
disagreeing with the Rent Control Court, found that the need and
the claim for own occupation under sec.11(3) was bona fide.
The tenant’s claim for protection of the second proviso to sub-
sec.(3) of sec.11 was turned down on the basis of Ext.A1, the
admitted rent chit, which discloses that the building in question is
a residential building and that the purpose of the lease was
residential only.
5. In this revision the tenant assails the findings and the
decision of the Rent Control Appellate Authority on various
grounds.
6. We have heard the submissions of Sri K.V.Pavithran,
learned counsel for the revision petitioner, and Sri Jayesh
Mohankumar, learned counsel for the respondent/landlord.
7. Drawing our attention to pages 9 and 10 of Ext.A2
Minutes Book maintained by the Trust, Mr. Pavithran submitted
that the first resolution adopted by the landlord Trust in this case
was to initiate proceedings for evicting the tenant and to appoint
a manager for the Trust properties only. In the first resolution
there is no decision at all to put up buildings. Mr. Pavithran
submitted that the total amount collected by the landlord Trust
R.C.R. 375 OF 2005 -4-
from all the tenants excluding the revision petitioner is only
Rs.370/- per mensem and, according to the learned counsel, the
decision to appoint a manager on a monthly salary of Rs.600/-
for collecting a total monthly rent of Rs.370/- from all the
buildings belonging to the Trust is implicitly bereft of bona fides.
Mr. Pavithran submitted that the so called decision to put up
buildings was introduced only on second thoughts and through a
subsequent resolution. Mr. Pavithran pointed out that though the
said decision was taken long ago, till the year 2001 when the
litigation reached the Rent Control Appellate Authority, the
landlord had not taken even the preliminary steps for
accomplishing the said decision. This again, according to the
learned counsel, is a circumstance indicative of complete absence
of bona fides in the need projected by the landlord. Referring to
sub-secs.(3) and (7) of sec.11, Mr. Pavithran would submit that
sub-sec.(3) of sec.11 will be available only to natural persons and
not to the present landlord which is a private religious trust.
The argument of the learned counsel was that sub-sec.(7) of
sec.11 provides for filing of eviction petitions for own use by
public, religious and charitable institutions and if it were to be
said that sub-sec.(3) of sec.11 is available to private institutions
R.C.R. 375 OF 2005 -5-
like the present landlord, the same will defeat the very purpose
and legislative intendment underlying sub-sec.(7) of sec.11.
8. Sri Jayesh Mohankumar, learned counsel for the
respondent, would draw our attention to the definition clause (3)
of sec.2 of Act 2/1965 and submit that the statute envisages all
types of Trusts and other institutions also as landlords and under
sec.11 of the Act, all landlords are entitled to maintain petitions
for eviction against their tenants on the various grounds
mentioned under that section. As regards the grounds raised on
the merits of the matter, Mr. Jayesh submitted that under the
statutory scheme, the Rent Control Appellate Authority is the
final court of facts and unless this Court finds any illegality,
irregularity or impropriety about the findings of the appellate
authority, there will not be any justification for interfering with
the same. There is not much time lag between the two decisions
recorded on pages 9 and 10 of Ext.A2. The necessity to have a
manager was experienced by the landlord Trust because none of
the Trustees were in a position to manage the affairs of the
Trust, themselves. Even without the decision to put up
constructions, a manager and an office for him is necessary.
Now that a decision has been taken to put up constructions, a
R.C.R. 375 OF 2005 -6-
manager and an office has become all the more necessary, so
submitted Mr. Jayesh.
9. We have anxiously considered the rival submissions
addressed at the Bar. The argument of Mr. K.V.Pavithran that
the eviction ground under sub-sec.(3) of sec.11 is available only
to those landlords who are natural persons, does not appeal to us
at all. As rightly pointed out by Mr.Jayesh Mohankumar, the
ground under sub-sec.(3) of sec.11 is available to all landlords
and in terms of clause (3) of sec.2 of the Act, which gives
an inclusive definition for the term “landlord”, landlords can also
be trustees and administrators of Trusts and other institutions,
registered or unregistered, public or private. Sub-sec.(7) of
sec.11 is a special provision intended for those landlords which
are religious, public and charitable institutions. The existence of
that provision in the statute book cannot be a valid reason to say
that the institutions which do not fall within the ambit of that
provision are not entitled to apply for eviction under sub-sec.(3)
of sec.11. A Division Bench of this Court, to which one of us
(PCK, J.) was also a party, has ruled by the judgment in Social
Service Guild of Assissi Sisters v. Ouseph Chacko (2009 (2) KLT
199) that the eviction grounds under sub-secs(7) and (3) of
R.C.R. 375 OF 2005 -7-
sec.11 are independent grounds and that the ground under sub-
sec.(7) of sec.11 is the ground which applies where a religious,
public or charitable institution needs the tenanted building for its
purposes. Here the landlord is neither a public trust nor a
religious, public or charitable institution. It is a private Trust.
Sec.11(7) will not have any application to the present landlord.
We do not find any other ground of eviction in the Rent Control
Act which enables a private institution or a private Trust to evict
their tenants when the Trust needs the building occupied by the
tenant bona fide for its own purposes than sub-sec.(3) of sec.11.
10. The bona fides in the context of sub-sec.(3) of sec.11 is
a state of mind which is capable of being proved mainly by
circumstantial evidence and by direct oral evidence by the party
who harbours the need. In the present case, it is seen that on
behalf of the Trust, one of its Trustees testified before the trial
court regarding the genuineness of the need of the landlord
Trust. The evidence of PW.1 was to the effect that none of the
present trustees are in a position to manage the extensive and
valuable Trust properties and that the Trust wants to improve its
properties by putting up new constructions and that the Trust has
decided to appoint a paid manager. It cannot be in dispute
R.C.R. 375 OF 2005 -8-
that if there is need to appoint a paid manager, there is need also
to provide the said manager with an office room. We are unable
to accept the argument of Mr. Pavithran that because the need to
put up buildings does not find a place in the first resolution
adopted by the Trust, the need projected is to be treated as
without bona fides. After all, the second decision was taken
on the very next day and, according to us, if the testimony of
PW.1 that none of the Trustees are in a position to manage the
affairs of the Trust properties and therefore the Trust has decided
to appoint a manager is believable, then the need can be
accepted as bona fide even in the absence of the subsequent
decision to put up buildings. It may be true that the existing
buildings of the Trust may not be fetching very high rent. But the
tenant does not dispute the case of the landlord that the
properties situated as they are in the heart land of the ancient
municipal town of Thalassery are of immense capital value. We
do not find anything unnatural in a Trust, whose trustees are not
able of looking after the properties themselves, in appointing a
manager. It has come out in evidence that the Trust has
decided to put up buildings also. Of course, it is seen that the
preliminary steps for putting up the buildings were taken at a
R.C.R. 375 OF 2005 -9-
slow pace only, but the landlord has its own explanation to offer.
Even the construction is to be overseen by the manager and for
want of the petition schedule building, they are unable to appoint
and accommodate the manager immediately.
11. In this jurisdiction under sec.20 of the Act, we are not
expected to re-appreciate the evidence and substitute our
conclusions for the factual conclusions entered by the Appellate
Authority which have become final. Having gone through the
judgment of the Rent Control Appellate Authority, we are of the
view that the conclusion entered by that authority are reasonable
and founded on evidence. We see no warrant for interfering with
the same. Hence the RCR will stand dismissed.
12. As his last submission Mr. Pavithran requested that six
months time be granted for vacating the building. Mr. Jayesh
submitted that the tenant is not conducting any commercial
activity in the building and that he is not even residing in the
building. According to him, the tenant’s wife and children are
possessed of a residential building and the tenant is residing in
that building. It was also submitted that before the Rent
Control Appellate Authority documents regarding the building
owned and possessed by the wife and children were actually
R.C.R. 375 OF 2005 -10-
produced, but not accepted by that authority. He opposed grant
of time. However, we are of the view that five months time from
today can be granted to the revision petitioner for surrendering
the petition schedule premises. Hence we decide the RCR in the
following terms:-
The RCR is dismissed. The Executing Court is directed not
to enforce execution and order delivery of the petition schedule
building in favour of the landlord till 31.10.2009 on condition
that the revision petitioner gives an undertaking to the court
below in the form of an affidavit stating that he will peacefully
surrender the building to any of the trustees of the landlord Trust
on or before 30.10.2009 within three weeks from today. There
will be a further condition that the revision petitioner discharges
the arrears of rent in respect of the building, which has fallen
due after the year 2001 including the rent which falls due
subsequently, till he gives actual surrender.
PIUS C. KURIAKOSE, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-