IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 204 of 2007()
1. M/S.JCR TRADING PVT.LTD., A COMPANY
... Petitioner
2. MR.S.SUSEELAN, MANAGING DIRECTOR, OF
3. MR.JOHN JOSEPH, DIRECTOR OF
Vs
1. A.J.VARGHESE, S/O. A.V.JOSE,
... Respondent
2. A.J.PAUL, S/O. A.V.JOSE, ALAUKKA HOUSE,
3. A.J.JOHN, S/O. A.V.JOSE, ALUKKAS HOUSE,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :19/02/2009
O R D E R
PIUS C. KURIAKOSE & C.K.ABDUL RAHIM, JJ.
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R.C.R.Nos. 204 of 2007 & 35 of 2008
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Dated this the 19th day of February, 2009
O R D E R
Pius C.Kuriakose, J.
RCR. No. 204 of 2007 is instituted by the tenants and RCR. Nos.
35 of 2008 is instituted by the landlords. Both these revision petitions
are directed against the common judgment of the Rent Control
Appellate Authority dismissing the appeals filed by the tenants and the
landlords. The landlords filed the rent control petition invoking the
grounds of eviction under Sections 11(2)(b) (arrears of rent), 11(3)
(bona fide need for own occupation) and 11(8) (requirement for
additional accommodation for personal use).
2. The landlords’ case in the context of the ground for eviction
under Section 11(2)(b) was that the contract rent was Rs.4840/- per
mensem and that the same is in arrears since January 2002 and that
despite the statutory demand notice issued under Section 11(2)(b) the
tenant did not pay the arrears of rent within the period of 15 days of
receipt of the notice or even thereafter. The Rent Control Court on
appreciating the evidence adduced by the parties became inclined to
accept the landlords’ case that the tenant did not pay the arrears of
rent payable since January, 2002. However, that court found hat
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there was no evidence to hold that the contract amount of Rs.4400/-
payable as per Ext.A5 lease agreement was increased to Rs.4840/-
and accordingly concluded that rent is in arrears only at the rate of
Rs.4400/- per mensem. Considering the grounds for eviction under
Sections 11(3) and 11(8) the Rent Control Court noticed that the
evidence given by the power of attorney holder of the petitioner who
was examined as PW1 was only hearsay evidence regarding the
requirement of the petitioners to expand their jewellery business which
was being conducted by them in the adjacent northern rooms of the
petition schedule building. That court also found that no acceptable
evidence was let in for proving that the rooms available in the upstair
portion already in the possession of the landlords was not sufficient for
meeting the projected need of expansion of the landlords’ business.
That court relied on the evidence of CPW-2, a retired Chief Engineer of
Thiruvananthapuram Corporation to find that the area of the upstair
portion possessed by the landlords was equal to the corresponding
area in the first floor. More importantly that court noticed that none of
the landlords who are three in number have chosen to enter the
witness box to testify regarding the bona fides of their need for
additional accommodation. Rent Control Court relied on the judgment
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of this Court in 2005(2) KLJ 46, the judgment of the Supreme Court in
2005(2) SCC 217 and also the judgment of this Court in 1994(2) KLT
571 and held that the failure on the part of anyone of the petitioners
to speak about their own bona fides was fatal and accordingly declined
order of eviction sought for under Sections 11(3) and 11(8). The
Rent Control Appellate Authority on a reappraisal of the evidence
would concur with all the conclusions of the Rent Control Court and
dismissed the appeals preferred by the landlords and the tenants. In
the context of a contention seriously raised by the tenants that the
previous owners of the building had agreed to sell the building to them
and that they are possessing the building on the strength of that
agreement for sale and that there is no landlord tenant relationship
between them and the petitioners in the RCP, the Rent Control Court
and the Appellate Authority concurrently held against the tenants that
the jural status of the respondents in RCP who were admittedly
tenants under the predecessors in interest of the present landlords was
that of tenants in view of the conceded position that the ownership
had not been conveyed to them and that the suit filed by them for
specific performance was only pending.
3. As already indicated RCR No. 204 of 2007 has been filed by
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the tenants impugning the order of eviction passed against them under
Section 11(2)(b) and in RCR No. 35 of 2008 the landlords challenge
the finding of the Rent Control Court regarding the contract rent
payable by the tenants as well as rejection of their petition for eviction
on the grounds of bona fide own occupation and for requirement of
additional accommodation.
4. We have heard the submissions of Mr.V.Chitambaresh, senior
counsel for the tenant petitioners in RCR. No. 204 of 2007 and also
those of Mr.S.V.Balakrishna Iyer, senior counsel for the landlords
petitioners in RCR. No. 35 of 2008. Defending the order of the Rent
Control Court and the Appellate Authority declining the eviction on the
grounds under Sections 11(3) and 11(8) Mr.Chitambaresh would cite a
catena of decisions before us including the judgment of a Division
Bench of this Court in Indian Saree House v. Radhalakshmy, 2006(3)
KLT 129, the judgment of another Division Bench of this Court in
K.T.Thomas v. P.Sreedhara Varma, 2008(1) K.L.J. 125, judgment of a
Division Bench of this court in Ratheesh Kumar v. Jithendra Kumar,
2005(2) KLT 669, the judgment of a Division Bench of this Court in
Subramaniyan Pillai and others v. M.Shamsar Jihan and others, 2009
(1) KHC 384, the judgment of this Court in Sivadasa Panicker v.
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Travancore Mats and Mattings Co., 2009(1) KHC 472, the judgment of
a Division Bench of this Court in Aboobacker v. Sahithya P.S.Sangham
Ltd., 2004(2) KLT 947, Janki Vashdeo . Indusind Bank, 2005(2) KLT
265 (SC), the judgment of the Supreme Court in Joseph Mathew v.
Jose Thomas, 2005 (4) KLT 764 (SC), the judgment of the Supreme
Court in Davis v. Sebastian, (1999) 6 SCC 604, the judgment of the
Supreme Court in S.R. Babu v. T.K.Vasudevan and others, (2001) 8
SC 110 and the judgment of the Supreme Court in Ubaiba v.
Damodaran, (1999) 5 SCC 645 were some of them. Mr.Chitambaresh
would argue that at any rate, in the light of the principles of law laid
down by the decisions cited by him there was no warrant for
interfering with the orders concurrently passed by the Rent Control
Court and the Appellate Authority and that the maximum relief which
could be aspired for by the landlords was leave to institute a fresh rent
control petition on the same cause of action.
5. Resisting the submissions of Mr.Chitambaresh Sri.Balakrishna
Iyer would argue that the finding of the Rent Control Court that the
contract rent payable by the tenants was Rs.4400/- only per month
and not the sum of Rs.4840/- per month as averred by the landlords
was faulty being contrary to the pleadings and the evidence. Learned
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senior counsel submitted in this context that there was no specific
denial of the landlords’ pleadings regarding rate of rent and at any
rate, CPW-1 had admitted in his evidence that the tenants used to pay
rent to the previous landlord at the rate of Rs.4840/-. Trying to
distinguish the decisions cited by Mr.Chitambaresh taking the view that
the non-examination of any one of the landlords is fatal when the need
is for bona fide own occupation Mr.Balakrishna Iyer would submit that
all these decisions have been rendered following the judgment of the
Supreme Court in Janki Vashdeo v. Indusind Bank, 2005(2) KLT 265
(SC) wherein the Supreme Court was concerned with the powers
conferred on the holder of a power of attorney in terms of Order III
Rules 1 and 2 of the Code of Civil Procedure to act on behalf of the
principal. The ratio of that decision, according to the learned senior
counsel was only to the effect that an agent is not capable of deposing
for the principal in respect of matters on which only principal can have
personal knowledge. In the instant case the person examined on
behalf of the landlords was the manager and actual conductor of the
business. The landlords are youngsters and it is this PW1 who is
actually conducting the business and hence he is aware of the ground
realities including the extent of space required for conducting the
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business in a more profitable way. Mr.Balakrishna Iyer argued that at
any rate, all the decisions cited by Mr.Chitambaresh were decisions
rendered in the context of a claim under Section 11(3) and not under
Section 11(8). Mr.Balakrishna Iyer conceded that though in the
instant RCP both 11(3) and 11(8) were quoted in view of the ratio of
the judgment of this Court in Indian Saree House v. Radhalakshmy,
2006(3) KLT 129 and the judgment of the Supreme Court in S.R.Babu
v. T.K.Vasudevan and others, (2001) 8 SCC 110 the rent control
petition can be maintained only under section 11(8). Counsel
submitted that the standards of bonafides required for establishing a
ground under Section 11(8) were not so rigorous as in a case under
Section 11(3) and hence the bonafides of the petitioners for additional
accommodation has been established by the oral evidence of PW1,
their manager who is in the know of things. When the attention of the
senior counsel was drawn to the situation that in the instant case
neither the Rent Control Court nor the Appellate Authority appears to
have considered the question of comparative advantages and
hardships as is necessary in the case of petitions under Section 11(8)
in view of the second proviso to section 11(10) the senior counsel
would draw our attention to Sections 18(3) and 23(1) of the Rent
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Control Act and also to Rule 16(2) of the Kerala Buildings (Lease &
Rent Control) Rules and argue that if it becomes necessary the issue
be remanded to the Rent Control Court.
6. In reply Sri.V.Chitambaresh, senior counsel would oppose
Mr.Balakrishna Iyer’s request for a remand of the matter and that too
to the Rent Control Appellate Authority. According to him by
remanding the matter to the Rent Control Appellate Authority the
tenants are being deprived of the statutory right of appeal guaranteed
under Section 18 against the order of the Rent Control Court. Counsel
submitted that on facts the case of Joseph Mathew v. Jose Thomas,
2005(4) KLT 764 (SC) was much stronger for the landlord and that in
that case the Supreme Court had set aside orders of eviction
concurrently passed in favour of the landlords on the sole ground of
non-examination of the landlords. Yet the Supreme Court became
inclined not to remand the matter, but only to permit the landlord to
file a fresh petition.
7. We have considered the rival submissions addressed by the
learned senior counsel. In the light of the relevant statutory
provisions and the ratio emerging from the various decisions cited at
the Bar.
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The above discussions will lead these revision petitions to the
following result.
The order of eviction passed by the Rent Control Court under
section 11(2)(b) is confirmed. However, the finding of that court
regarding the contract rent payable by the tenant is modified and it is
found that the contract rent payable by the tenant is Rs.4840/- per
mensem. The arrears of rent to be deposited by the tenant for getting
the order of eviction passed under Section 11(2)(b) set aside under
Section 11(2)(c) will be quantified on that basis. It is found that R.C.P.
No. 31 of 2004 is not maintainable under Section 11(3) and that it is
maintainable under Section 11(8). The orders passed by the Rent
Control Court and the Appellate Authority dismissing the R.C.P. are
set aside and the R.C.P. is remanded to the Rent Control Court,
Thiruvananthapuram for further enquiry and fresh decision. The Rent
Control Court will permit the landlords to adduce further evidence by
examining any one of the landlords and by producing any item of
documentary evidence. In case further evidence as permitted above is
adduced by the landlords the Rent Control Court will allow the tenants
to adduce counter evidence. That court will pass fresh orders in the
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RCP on the basis of the entire evidence on record. The necessary
finding in the context of the first proviso to Section 11(10) will also be
entered by the Rent Control Court. R.C.R. No.204 of 2007 is
dismissed and R.C.R. No. 34 of 2008 is allowed to the above extent.
In the circumstances the parties will suffer their respective costs in the
revisions.
(PIUS C.KURIAKOSE, JUDGE)
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