IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 166 of 2006()
1. BRIJEETH,
... Petitioner
2. OUSEPH, DO. DO.
3. THOMAS, DO. DO.
Vs
1. KOCHANTHONY,
... Respondent
For Petitioner :SRI.G.UNNIKRISHNON
For Respondent :SRI.MATHAI M PAIKADAY(SR.)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :05/02/2010
O R D E R
PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.
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RCR. Nos.140, 141, 164, 166, 167, 168, 169,
170, 171, 177, 179, 194, 196 & 197 of 2006
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Dated this the 5th day of February, 2010
O R D E R
Pius C. Kuriakose, J.
The tenants are in revision being aggrieved by the
judgment of the Rent Control Appellate Authority ordering
eviction against them on the ground of bona fide need for
own occupation under sub-section (3) of Section 11 of
Kerala Buildings (Lease and Rent Control) Act (hereinafter
referred to for short as the Act). The original landlord/
petitioner in the rent control petitions is no more and is
survived by his legal heirs who have been impleaded as
additional respondents 2 to 8 in these revision petitions.
The original landlord instituted rent control petition Nos.100,
101, 102, 104, 105, 106, 107, 110, 113, 114, 115, 116,
117, 118, 119, 120, 131 and 132 of 1987 against the
revision petitioners and four other tenants in occupation of
the buildings described in the schedule of the respective
RCR. Nos. 166/06 etc.
– 2 –
rent control petitions they being portions of the original
family house of the landlord and appurtenant structures
being structures put up subsequently as extensions of the
original family house or put up adjacent to the existing
structures. Significantly, the 18 buildings or building
portions which are subject matter of the rent control
petitions occupied a plot which has roughly 5.25 cents (2300
sq. ft.) of land. The contract rent payable by the tenants for
their respective portions possessed by them was paltry
amounts ranging between Rs.10/- per mensem and
Rs.150/- per mensem. RCR. No. 140 of 2006 pertains to
RCP. No. 131 of 1987 which relates to an area of 75 sq. ft.
used by the revision petitioner therein for sale of
spectacles. The contract rent in respect of that portion is
Rs.25/- per mensem. RCR. No. 141 of 2006 pertains to
RCP. No. 100 of 1987. The area involved in that RCP is 150
sq. ft. and the revision petitioner therein is conducting
tailoring business paying a monthly rent of Rs.30/-. RCR.
RCR. Nos. 166/06 etc.
– 3 –
No. 196 of 2006 pertains to RCP. No. 102 of 1987 used
presently by the legal heirs of the tenant therein as a
godown paying a monthly rent of Rs.50/-. RCR. No. 171 of
2006 pertains to RCP. No. 104 of 1987 which is in respect of
the staircase room in the tarwad house and in that room
presently the legal heirs of the tenant are conducting sale of
lottery tickets paying a monthly rent of Rs.25/-. RCR. No.
164 of 2006 pertains to RCP No. 105 of 1987 where the area
is 50 sq. ft. The tenant therein is conducting a telephone
booth and selling cool drinks paying a monthly rent of
Rs.50/-. RCR. No. 177 of 2006 pertaining to RCP No.106 of
1987 is in respect of an area of 50 sq. ft. the tenant therein
is selling rice gruel (Kanji) paying a monthly rent of Rs.40/-.
RCR. No. 166 of 2006 pertains to RCP. No. 110 of 1987
which is in respect of an area of 30 sq. ft. where soda
manufacturing is conducted by the tenant on a monthly
rental of Rs.20/-. RCR. No. 179 of 2006 relates to RCP. No.
113 of 1987 which is in respect of an area of 25 sq. ft.
RCR. Nos. 166/06 etc.
– 4 –
where the tenant is conducting a Thattukada paying a
monthly rental of Rs.50/-. RCR. No. 194 of 2006 relates
RCP. No. 114 of 1987 which is in respect of an area of 20
sq. ft. where the tenant is conducting the work of repairing
locks paying a monthly rental of Rs.25/-. RCR. No. 197 of
2006 relates to RCP. No. 115 of 1987 which is in respect of
an area of 40 sq. ft. where the tenant makes appam and
noolappam paying a monthly rent of Rs.30/-. RCR. No. 169
of 2006 pertains to RCP. No. 119 of 1987 which is in respect
of an area of having two rooms of 20 sq. ft. each (one a part
of the tarwad building and one outside) where the tenant
sells tea and snacks paying a monthly rental of Rs.60/-.
RCR. No. 168 of 2006 relates to RCP No. 132 of 1987 which
pertains to two rooms, one inside the tarwad building and
one outside, each of 30 sq. ft. where the tenant conducts
akri business paying a monthly rental of Rs.150/-. RCR. No.
167 of 2006 relates to RCP. No. 116 of 1987 which is in
respect of an area of 70 sq. ft. where the tenant is
RCR. Nos. 166/06 etc.
– 5 –
conducting tailoring machine repair paying a monthly rental
of Rs.10/-. RCR. No. 170 of 2006 pertains to RCP. No. 120
of 1987 which is in respect of 60 sq. ft. of area where the
tenant is conducting soda manufacturing paying a monthly
rental of Rs.50/-.
2. It will be noticed immediately that RCR. Nos. 171 of
2006, 169 of 2006, 168 of 2006 and 141 of 2006 pertain to
portions of the main tarwad building. In RCR. No. 169 of
2006 the tenant has two rooms, one in the tarwad and one
outside and in RCR. No. 168 of 2006 also the tenants have
two rooms one in the tarwad and one outside.
3. The rent control petitions were instituted in the year
1987 by the landlord, a retired employee of the postal
department invoking the ground of arrears of rent [under
Section 11(2)(b)] and the ground of own occupation under
subsection (3) of Section 11. It was submitted at the Bar
that since the contract rent is nominal and orders of eviction
passed on the ground of arrears of rent are provisional in
RCR. Nos. 166/06 etc.
– 6 –
the sense that they can be got vacated by making the
requisite deposits under section 11(2)(c) it is sufficient that
we consider the claim for eviction on the ground under
subsection (3) of Section 11, viz., bona fide need for own
occupation. The need projected by the landlord was that he
should have vacant possession of the premises which are
subject matter of these rent control petitions for the
purpose of residence with family urging that he was at that
time residing in a rented premises situated to the back side
of Stanly Institute where his wife was conducting a
Typewriting Institute. It was the case of the landlord that
he or any other member of his family had no other building
of their own in their possession where they could set up
residence. The tenants filed counter statements raising
homologous contentions. It was contended that the need is
not bona fide, that the landlord’s case that he has no other
building of his own for starting residence is not correct, that
even after eviction notice was issued the landlord has sold
RCR. Nos. 166/06 etc.
– 7 –
away other buildings belonging to him, that the petition
schedule premises is not suitable for the residential
purposes of the landlord, and that the tenants are entitled
for the protection of the second proviso to subsection (3) of
Section 11. The Rent Control Court consolidated all the rent
control petitions and tried them jointly. The evidence at
trial consisted on the side of the landlord of Exts.A1 to A45
and the oral evidence of the landlord as PW1. On the side
of the tenants the same consisted of Exts.B1 to B14 and oral
evidence of various tenants as Rws. 1 to 19. The report
submitted by an Advocate Commissioner appointed by the
Court for local inspection was marked in evidence as Ext.
C1. The Rent Control Court by common order dated 27-8-
1990 held that the need projected by the landlord was not
bona fide and ordered eviction on the ground of arrears of
rent only. The court however, held that the tenants are not
entitled to the protection of the second proviso to subsection
(3) of Section 11. However, in view of the finding that the
RCR. Nos. 166/06 etc.
– 8 –
need is not bona fide, order of eviction was declined on the
ground of bona fide own occupation. The landlord preferred
appeals before the Rent Control Appellate Authority.
Appeals were dismissed confirming the order of the Rent
Control Court. The landlord preferred revision to this court.
This court by order dated 5-7-2000 remanded all the rent
control petitions to the Rent Control Court for reconsidering
the claim of the landlord for eviction under subsection (3)
of Section 11. While doing so, this court confirmed the
concurrent findings of the Rent Control Court and the
Appellate Authority that the tenants have not established
their claim for protection of the second proviso to subsection
(3) of Section 11. Under the remand order both sides were
given opportunity to adduce further evidence they may want
on the question of bona fide need and on the applicability of
the first proviso to subsection (3) of Section 11 of the Rent
Control Act. After remand, PW1 the landlord was recalled
and examined. He produced Ext. 46 series. RW1, one of
RCR. Nos. 166/06 etc.
– 9 –
the tenants was also recalled and examined. He produced
Exts. B15, B16 and B16(a). The Advocate Commissioner
filed a further report Ext. C2. The Rent Control Court held
that the need is bona fide, however, took the view that the
petition was liable to fail by virtue of the first proviso to
subsection (3) of Section 11. In other words, it was found
that the landlord had not established special reasons
justifying an order of eviction despite the landlord being in
possession of other buildings. Accordingly an order
declining eviction on the ground of bona fide need was
passed by the Rent Control Court. The Appellate Authority
under the impugned common judgment dated 20-2-2006
would allow all the 18 rent control appeals filed by the
landlord reversing the finding of the Rent Control Court. It
was found that the rent control petitions were not liable to
fail by virtue of the first proviso to subsection (3) of Section
11 and accordingly all the tenants were ordered to be
evicted on the ground of bona fide need for own occupation
RCR. Nos. 166/06 etc.
– 10 –
also. Only 14 tenants being aggrieved by the order of
eviction have filed these revision petitions assailing the
judgment of the Appellate Authority on various grounds.
During the pendency of the rent control revision on 8-2-
2007 the landlord died and upon his demise his legal heirs
sons and daughters were impleaded as additional
respondents 2 to 8.
4. Extensive arguments were addressed before us by
the learned counsel for the parties viz., Sri.G.Unnikrishnan,
Advocate for the revision petitioners tenants and Sri.Mathai
M.Paikaday, Senior Advocate for the landlord. According to
Mr.Unnikrishnan the judgment of the Rent Control Appellate
Authority is vitiated by illegality, irregularity and impropriety
as envisaged by Section 20 of Act 2 of 1965. He referred to
the first proviso to subsection (3) of Section 11 and
submitted that the implications of that proviso were not
considered properly by the learned Appellate Authority.
Referring to Exts. B15, B16 and B16(a) the learned counsel
RCR. Nos. 166/06 etc.
– 11 –
submitted that the first two documents will reveal that at
the time when the rent control petition was instituted the
landlord was in possession of a building with three rooms
and he referred to the evidence of PW1 in cross
examination and submitted that the version of the landlord
was that after getting vacant possession the landlord sold
away that building. Such sale can only be after 1999,
according to the learned counsel and the Rent Control Court
was justified in dismissing the RCP on the reason that the
landlord had not pleaded or proved any special reason for
preferring to evict the tenant. The Rent Control Court’s
order was in fact in accordance with the first proviso to
subsection (3) of Section 11 which will show that there is an
embargo on the power of the Rent Control Court to order
eviction in the absence of establishment of special reasons
by the landlord. This aspect of the matter has been
overlooked by the Appellate Authority which has ordered
eviction taking into account the sentimental value for the
RCR. Nos. 166/06 etc.
– 12 –
tarwad building from the landlord’s point of view. The
approach of the Appellate Authority is contrary to law,
according to Mr. Unnikrishnan.
5. Mr. G. Unnikrishnan highlighted that at any rate the
need for own occupation projected by the landlord does not
subsist. According to him, the need pleaded by the landlord
was his personal need for residing in his tarwad building.
Now that the landlord is no more, the said need no longer
subsists. The legal representatives of the landlord who have
been impleaded as additional respondents in the RCRs are
all happily put up in other residential abodes and hence the
father’s need accepted by the Appellate Authority will not
survive and enure to their benefit. Mr.Unnikrishnan would
refer to a catena of decisions starting from the judgment of
the supreme Court in P.Venkateswarlu v. The Motor &
General Traders, 1975 SC 1409 to support his argument
that subsequent events have relevance while taking decision
in rent control proceedings. Mr. Unnikrishnan would lastly
RCR. Nos. 166/06 etc.
– 13 –
submit that at any rate the projected need of the landlord
wanting to occupy all the buildings which are subject matter
of these rent control petitions is highly artificial and cannot
be bona fide. Such a common ground has been invoked in
all the rent control petitions with the objective of ensuring
that all these tenants who are paying only relatively small
amounts by way of rent are evicted and the landlord is able
either to sell off all the buildings for very high price or let
them out to other tenants on high rents. Mr. Unnikrishnan
submitted that the tarwad building to which only some
sentimental attachment may be there for the landlord can
be surrendered readily so that any one among the present
landlords who is without a building of his own for his
residence can occupy. The other tenants in occupation of
the buildings which do not form part of the main tarwad
building may be allowed to continue. The learned counsel
submitted that those tenants will be prepared to pay any
reasonable rent which may be tentatively fixed by this court
RCR. Nos. 166/06 etc.
– 14 –
subject to fixation of fair rent by the Rent Control Court.
6. All the submissions of Mr.Unnikrishnan could be
answered effectively by Sri.Mathai M.Paikaday, learned
senior counsel for the respondent landlord. In fact before
arguments were concluded on 8-1-2010 we passed the
following order:
“The arguments are almost over. We feel that a point
which arises seriously is one pertaining to the
operation of the first proviso to sub-section (3) of
Section 11 of the Rent Control Act, 1965. Exts.B15 &
B16 will show that during the period from 1988-94 the
landlord was in possession of a building belonging to
him, the door number of which was initially 353 in
Ward No.X and thereafter 1227 in Ward No.X and
lastly (going by Ext.B16) 569 in Ward No. IX. In the
cross-examination, PW1 was asked regarding the
availability of the above building. His answer was that
as on as he got vacant possession of that building he
sold the same off. The youngest son of PW1 is present
and we enquired of him as to when the above building
was sold by his father and also as to by which
document the sale was effected. He was unable to
give a specific answer. But he stated that the sale was
by means of one among the documents already
marked as Ext.A46 series. We have made a scrutiny of
the entire Ext. A46 sale deeds. We do not think that
they pertain to the above building (the building
covered by Ext.B16). Mr.G.Unnikrishnan, learned
counsel for the revision petitioner submitted that theRCR. Nos. 166/06 etc.
– 15 –
revision petitioner does not have a case that the
landlord continues to possess the above building since
the landlord himself admitted that the building is
already sold off. Under the above circumstances we
direct both parties to produce before this court the
certified copy of the sale deed by which PW1 sold the
above building 9the building covered by Ext.B16). Post
on 22-1-2010.”
7. It will be noticed that no fresh documents were
produced by either of the parties and the submissions of the
learned senior counsel for the respondent landlord was that
A46 series of 10 sale deeds are the only sale deeds
executed by the original landlord in respect of buildings
belonging to him. He would refer to the commissioners’
reports C1 and C2 and submit that the building which is
subject matter of Ext.B16 was at all relevant times
possessed by a tenant and therefore the said building is not
liable to be reckoned with for the purpose of the first proviso
to subsection (3) of Section 11. According to Mr.Paikaday,
even though the landlord instituted 18 rent control petitions
in respect of buildings occupied by his tenants including the
RCR. Nos. 166/06 etc.
– 16 –
present revision petitioners the total area occupied by all
these buildings is hardly 5.25 cents. The tarwad building
occupied by the tenant revision petitioners in RCR Nos.
171/06, 169/06, 168/06 and 141/06 is the main structure
and all the other buildings and the buildings which are
subject matter of the other rent control revisions are
relatively small structures. In order that a reasonably
convenient residence is possible it is necessary that the
landlord gets possession of all the buildings which are
subject matter of all the RCPs. Meeting the argument of
Mr.Unnikrishnan that the need projected by the landlord no
longer subsists and that the need for own occupation under
subsection (3) of Section 11 should subsist till the
culmination of the proceedings Mr. Paikaday would refer to
various decisions such as the judgment of the Supreme
Court in Sakunthala Bai and other v. Narayan Das and
others (2004) 5 SCC 772, Om Prakash Gupta v. Ranbir
B.Goyal (2002) 2 SCC 242, Gaya Prasad v. Pradeep
RCR. Nos. 166/06 etc.
– 17 –
Srivasthava (2001) 2 SCC 604, and submit that bonafides
of the need projected by the landlord under Section 11(3)
has to be decided as on the date of filing of the application.
The learned counsel submitted that subsequent events are
to be brought to the notice of the court by raising additional
pleadings which has not been done in this case by the
tenants. Landlord may not be penalised for the slowness of
the legal system. Landlord is not responsible for the
inordinate delay of 23 years which has accrued since the
institution of the RCPs in the present case.
8. Mr.Paikaday submitted that it is not correct to say
that it was for leading a solitary life that the landlord sought
eviction. Referring to the entirety of the pleadings in the
RCP and the oral evidence of PW1 as well as the judgment
of the appellate authority where reference is made to the
arguments addressed by counsel for both sides, Mr.Paikaday
submitted that both sides understood that the need
projected by the landlord was need for residence of himself
RCR. Nos. 166/06 etc.
– 18 –
and his younger son and family. Mr. Paikaday referred to
paragraph (2) of the statement of facts in the present
revision petitions and submitted that it is clear from the
same that the need projected by the landlord was for the
convenient enjoyment of the landlord and his family.
According to Mr.Paikaday it is not now open to the tenant to
contend that the need for own occupation by the son is not
something pleaded by the landlord.
9. Answering the arguments of Mr.Unnikrishnan that
the buildings which are subject matter of rent control
revision petitions other than RCR. Nos. 171, 169, 168 and
141 of 2006 (buildings in the tarwad building) are not
suitable and needed for the residential occupation by the
landlord. Mr.Paikaday would refer to the judgment of this
court in Ramachandran Nair v. Gopinathan, 2003(2) KLT
694 and argued that it is not for the tenant to decide or
dictate whether a building is suitable for the use of the
landlord in the instant case. The buildings sought to be
RCR. Nos. 166/06 etc.
– 19 –
evicted are the tarwad house of the landlord where the
landlord’s father and grandfather resided, the landlord was
born and brought up and other small structures put up in
close proximity of the tarwad building.
10. Mr.Paikaday would argue that the tenants are
taking advantage of a lone sentence in the cross
examination of PW1, an octogenarian to argue that room
No.1227 in Ward No. X (the building which is subject matter
of Ext.B16) was got vacated and sold away. The evidence
of PW1 is to be read and appreciated as a whole and it has
been clearly stated by PW1 that none of the line rooms in
Parappilly Angadi (relating to Ext.B16 also) was ever got
vacated. The commissioner’s report is very clear to the
effect that a tenant by name Peter is staying in the building
for the past 50 years and to this commission report no
objections were filed by the tenant. Lastly Mr.Paikaday
submitted that the idea of only the tarwad building being
surrendered and the buildings occupied by the other tenants
RCR. Nos. 166/06 etc.
– 20 –
who are conducting petty trades not being surrendered will
cause great inconvenience. The buildings where trade is
being conducted by the revision petitioners are actually on
the back courtyard of the tarwad building and the access to
those buildings is directly through the tarwad building. In
the family of the youngest son of the landlord who proposes
to reside in the building once surrender is obtained, there
are grown up children including a girl and a peaceful life will
not be possible in the tarwad house with the traders in the
courtyard passing through the corridors of the tarwad
house.
11. As for the apprehensions of Mr.Unnikrishnan that
the idea of the landlord is to sell off the building or to let out
the same to others on higher rent. Mr.Paikaday would refer
to subsection (12) of Section 11 and submit that the
landlord is ready to suffer any direction which this court may
pass in the context of such apprehensions of the tenants.
12. We have very anxiously considered the rival
RCR. Nos. 166/06 etc.
– 21 –
submissions addressed at the Bar in the light of the
relevant statutory provisions and the judicial precedents
cited at the Bar. The jurisdiction in which we are presently
sitting is revisional in nature. This court in revision is not
expected ordinarily to reappraise the evidence for the
purpose of substituting our conclusions of fact for the
conclusions arrived at by the Rent Control Appellate
Authority which under the statutory scheme is the final
court on facts. The landlord petitioner in the RCP was a
retired employee of the postal department and at the time
of institution of the RCP he was residing in a rented
premises on the back side of a Typewriting Institute which
was being conducted by his wife. The buildings which are
subject matter of the RCP are his tarwad building, where his
father and grandfather resided and he himself was born and
brought up. His marriage took place while he was residing
there. The Appellate Authority believed his version that if
the temporary partitions effected by the tenants are
RCR. Nos. 166/06 etc.
– 22 –
removed the building will come to have all the facilities for
residential life. It is clear that the Appellate Authority has
taken into account the sentimental attachment of the
landlord towards the building. In our opinion also the
sentimental attachment which one may have towards a
particular building itself may arouse a need in his mind to
occupy that particular building. We notice that the
Honourable Supreme Court had in Ram Dulary Bhai and
another v. Madanlal Bajaj (1998) 8 SCC 504 considered and
accepted the bonafides of a landlord’s sentiment based
need. In the instant case it is not just a sentiment based
need that has been recognised by the Appellate Authority,
but a genuine need since the landlord was at the relevant
time residing in a rented building. This court remanded the
case to the Rent Control Court mainly to decide whether the
rent control petition is liable to fail by virtue of the operation
of the first proviso to subsection (3) of Section 11. The
contention raised by the tenants was that the landlord was
RCR. Nos. 166/06 etc.
– 23 –
having another building of his own which has 14 line rooms
at Parappilly Bazar with actual possession over four such
line rooms. Ext. A46 series of documents will show that 10
line rooms were sold and the recitals in these documents
are clear to the effect that the purchasers are none other
than the tenants who were in occupation of the rooms for
the past four decades. Ext.C2 commission report will show
that the other remaining four rooms continue to be under
the possession of tenants for the past more than four
decades. In fact, before this court the argument of the
learned counsel for the revision petitioners was mainly with
reference to building having old door No.1227 and present
door No.IX/569 the building which is subject matter of
Ext.B16. True, the landlord in his oral evidence has stated
that the above building was got vacated and sold by him.
But we are convinced that the above statement of the
landlord was the slip of the tongue of an octogenarian since
C2 commission report dated 7-7-2001 will show that that
RCR. Nos. 166/06 etc.
– 24 –
building was for the past 50 years under the possession of a
tenant by name Peter. Therefore even that building cannot
be taken into account for the purpose of the first proviso to
subsection (3) of Section 11 since the first proviso would
operate only when the landlord is having vacant possession
of a building of his own. We do not find any warrant for
interfering with the Appellate Authority’s finding that the
rent control petition is not liable to fail due to the operation
of the first proviso to subsection (3) of Section 11. Even
otherwise, we are of the view that the landlord has special
reasons for insisting on getting possession of the buildings
which are subject matter of these revision petitions which
take in mostly the tarwad building which is the only
substantial residential building which fit enough to be
occupied by a person of the landlord’s social and financial
status.
13. It is now necessary to consider whether the death
of the original landlord on 8-2-2007 about an year after the
RCR. Nos. 166/06 etc.
– 25 –
rent control revision petitions were filed before this court is
a subsequent event that completely eclipses the need. The
only rule of civil law as stated by the Hon. Supreme Court in
Om Prakash Gupta v. Ranbir B. Goyal (2002(2) SCC 242) is
that the rights of the parties stand crystallised on the date
of the institution of the suit and therefore, the decree in a
suit should be in accordance with the rights of the parties as
they stood at the commencement of the list. It is clear in
this case that the petitioner in the RCP was entitled for right
as on the date of the Rent Control Petition. The question
which immediately arises is whether by reason of his death,
the relief that he had claimed in the RCP has become
inappropriate or impossible to be granted. But, the case of
the original landlord was that the building is required not for
leading a solitary life but instead for his younger son and
family can also reside along with him. It is customary in
Syrian Christian community to which the petitioner in the
RCP belonged that the family house is given to the youngest
RCR. Nos. 166/06 etc.
– 26 –
son and the parents also reside along with him in the family
house cared and protected by the youngest son. Even in the
statement of facts forming part of the Revision Petition, the
tenants have stated that the need of the landlord was to
have a residence not only for the landlord but, also for his
family. The learned counsel for the revision petitioners was
not in a position to assert before us that the youngest son of
the landlord who appeared before us for clarifying the
confessions regarding Ext.B16 building is possessed of any
residential building of his own. Even otherwise it will be
unjust to deprive the legal heirs of the deceased landlord of
the benefits of an eviction order passed in favour of their
father on valid grounds after a long drawn out legal battle.
The delay of 23 years that has occurred in the final disposal
of their case is not attributable to the original landlord or his
legal heirs, the present landlords.
14. Remand order was passed by this Court mainly to
consider the question whether the first proviso to sub
RCR. Nos. 166/06 etc.
– 27 –
Section 3 of section 11 will have application in this case in
view of the apparent position revealed by Ext.B16 that the
landlord is in possession of a line building of three rooms.
We are not prepared to read the statement of the landlord
in a part of his evidence that the above building was sold off
by the landlord on obtaining vacant possession from the
tenant. Ext.A46 series of ten sale deeds were produced by
the landlord claiming them to be the deeds relating to all
the sales conducted by him. We gave opportunity to the
tenant also to produce any document which will show that
the building covered by Ext.B16 was sold by the landlord as
a vacant building. The tenant was unable to produce any
document. The learned counsel for the tenant stuck on to
the stand that in the teeth of the admission by the landlord
in oral evidence further evidence need not be insisted upon.
We are inclined to accept the explanation by Mathai M.
Paikeday that the so called admission of PW1, an
octogenarian was just a slip of his tongue and that the
RCR. Nos. 166/06 etc.
– 28 –
building covered by Ext.B16 continues to be under the
possession of the tenant. Ext.C2 supports the above
explanation and significantly to Ext.C2, the tenant did not
file any objection at all.
15. Once it is found that the need of the landlord is
bona fide and that the Rent Control Petition is not liable to
be rejected due to the operation of the first proviso to sub
section 3 of section 11, then the question for consideration
is only whether the tenant is entitled to the protection of the
second proviso to sub section 3 of section 11. Regarding this
the finding has all along be concurrent that the tenants were
not successful in establishing that they are entitled for the
protection of the second proviso to sub section 3 of section
11. The result, therefore, necessarily has to be that the Rent
Control Revision Petitions shall fail.
16. The result is that all the revision petitions fail and
stand dismissed. However, the Execution Court is directed
not to order and effect delivery of the buildings in question
RCR. Nos. 166/06 etc.
– 29 –
till 31-01-2011 subject to the following conditions.
1) The revision petitioner in RCR No. 140 of 2006 shall
pay occupational charges to the landlord with effect from 1-
3-2010 at Rs.250/- per mensem. The revision petitioner in
RCR No. 141 of 2006 shall similarly pay at the rate of
Rs.300/- per mensem. The revision petitioner in RCR No.
196 of 2006 shall similarly pay at the rate of Rs.250/- per
mensem. The revision petitioner in RCR No. 171 of 2006
shall pay at the rate of Rs.100/- per mensem. Similarly, the
revision petitioner in RCR No. 164 of 2006 shall pay at the
rate of Rs.300/- per mensem. The revision petitioner in
RCR No. 177 of 2006 will pay at the rate of Rs.325/- per
mensem. The revision petitioner in RCR No. 166 of 2006
shall pay at the rate of Rs.150/- per mensem. The revision
petitioner in RCR No. 179 of 2006 shall pay at the rate of
Rs.150/- per mensem. The revision petitioner in RCR No.
194 of 2006 shall pay at the rate of Rs.100/- per mensem.
The revision petitioner in RCR No. 197 of 2006 shall pay at
RCR. Nos. 166/06 etc.
– 30 –
the rate of Rs.125/- per mensem. The revision petitioner in
RCR No. 169 of 2006 shall pay at the rate of Rs.150/- per
mensem. The revision petitioner in RCR No. 168 of 2006
shall pay at the rate of Rs.250/- per mensem. The revision
petitioner in RCR No. 167 of 2006 shall similarly pay at the
rate of Rs.300/- per mensem. The revision petitioner in RCR
No. 170 of 2006 shall pay at the rate of Rs.300/- per
mensem.
2). There will be yet another condition. The revision
petitioner in all the cases shall file affidavit before the Rent
Control Court or the Execution Court as the case may be,
under taking to give peaceful surrender of the buildings in
their possession to the youngest son of PW1, the original
petitioner in the RCP on or before 31-01-2011. Through the
affidavits the revision petitioners will undertake to discharge
arrears of rent which has already accrued in respect of the
buildings at the original rates till 31-01-2010 within one
month from the date of the filing of the affidavit and will pay
RCR. Nos. 166/06 etc.
– 31 –
occupational charges at the rates stipulated above as and
when the same falls due. The affidavits shall be filed within
three weeks from today. It is clarified that unless affidavits
are filed on time the petitioners will not be entitled for the
benefit of time granted as above.
PIUS C.KURIAKOSE, JUDGE
C.K. ABDUL REHIM, JUDGE
ksv/-