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Reetha George vs Babu Philip on 26 November, 2009

Kerala High Court
Reetha George vs Babu Philip on 26 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 113 of 2009()


1. REETHA GEORGE,AGED 66,W/O.P.X.GEORGE
                      ...  Petitioner
2. ROY GEORGE, AGED 45 YEARS,S/O.LATE
3. NEETHA GEORGE, AGED 43 YEARS,

                        Vs



1. BABU PHILIP,AGED 59 YEARS,
                       ...       Respondent

2. NINI GEORGE @ MINI IVAN JOSEPH, AGED 39,

                For Petitioner  :SRI.O.RAMACHANDRAN NAMBIAR

                For Respondent  :SRI.TONY GEORGE KANNANTHANAM

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :26/11/2009

 O R D E R
      PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ.

              ```````````````````````````````````````````````````````
                       R.C.R. No. 113 of 2009
              ```````````````````````````````````````````````````````
             Dated this the 26th day of November, 2009

                                  O R D E R

Pius C. Kuriakose, J.

The tenants are the revision petitioners. They

challenge in this revision under Section 20, the judgment of the

Rent Control Appellate Authority confirming the order of eviction

passed against them by the Rent Control Court on the grounds of

additional accommodation under sub-section (8) of Section 11 of

Act 2 of 1965. The parties will be referred to as the tenant and the

landlord.

2. The landlord filed the RCP seeking eviction of the

tenant on the ground of additional accommodation under Section

11(8) and the ground that the tenant has acquired possession of

another building reasonably sufficient for the tenant’s requirements

in the same city, town or village under Section 11(4)(iii).

Eventhough the Rent Control Court ordered eviction under Section

11(4)(iii), the appellate authority interfered with that eviction order

considering an appeal filed by the tenant.

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: 2 :

3. In this revision filed by the tenant we are concerned

only with the order of eviction granted under Section 11(8). We,

therefore, propose to refer to the pleadings of the parties only to

the extent they pertain to the ground under sub-section (8) of

Section 11.

4. The case of the landlord was that the petition schedule

premises occupied by the tenant form part of the first floor of a

three storied building by name Minerva Building. The landlord has

become the absolute owner of the petition schedule premises by

virtue of a partition deed executed amongst the heirs of his father,

who was the original owner. One P.X.George was the original

tenant and he is no more. After the demise of Sri.P.X.George, the

first respondent in the RCP, his wife, attorned to the landlord and

the other respondents in the RCP are children of Sri.P.X.George.

The tenant is conducting a photo studio by name Vimala Studio in

the petition schedule premises. The landlord is an active partner

of Minerva Corporation, which is conducting business in sale of

automobile spare parts and accessories in the ground floor of

Minerva Building. The landlord’s family members are the other

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: 3 :

partners of the Minerva Corporation. Due to the advent of new

generation vehicles, the landlord’s business in the ground floor of

the building is not lucrative enough. Hence, the landlord and the

other partners of the Minerva Corporation have decided to expand

their business and for that purpose, additional area is required for

stocking the articles. The landlord bonafide needs the petition

schedule building for additional accommodation. The landlord has

no other vacant space available for accomplishing his need for

additional accommodation. The 4th respondent in the RCP

remained ex parte. The other respondents filed a joint statement

of objections. It was admitted that the petition schedule building

was owned by the landlord’s father. It was also admitted that the

building was taken on lease in the year 1963 by Sri.P.X.George

and that upon demise of Sri.P.X.George, his leasehold rights over

the building devolved upon the respondents in the RCP. The

photo studio business is being conducted by respondents 1 and 2

in the RCP. Answering the need projected by the landlord, it is

contended that what is proposed to be stocked is spare parts of

new generation vehicles, which are available only with the

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: 4 :

manufacturers at the authorised service centres. Accordingly, it is

contended that there is no necessity for expansion of the business

of the landlord. The landlord’s need for additional accommodation

was disputed. It was contended that the landlord is having his

own vacant rooms in the same building with all facilities and hence

there is no necessity to evict the tenant for expansion of the

business. It was also contended in the context of the proviso to

sub-section (10) of Section 11 that the hardship, which will be

occasioned to the tenant due to the order of eviction, will be heavy

in comparison to the advantages that the landlord may get.

5. The Rent Control Court formulated the requisite points

for consideration and at trial, the evidence in the case consisted of

Exts.A1 to A10, B1 to B10 series, C1 Commission report, PW1,

the landlord and RW1, the second respondent in the RCP and

RW2, the Advocate Commissioner who submitted Ext.C1. The

Rent Control Court, on evaluating the evidence, came to the

conclusion that the petition schedule building is required bonafide

by the landlord for additional accommodation. It was also found

that the advantages, which will be gained by the landlord due to

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: 5 :

eviction, will outweigh the hardship which may be sustained by the

tenant due to the order of eviction. That court also found as

already stated that an order of eviction is liable to be passed

against the tenant on the ground under Clause (iii) of sub-section

(4) of Section 11 also. Accordingly, the Rent Control Court

allowed the petition on both grounds. The 4th respondent in the

RCP, Smt.Mini George, daughter of the first respondent in the

RCP and sister of the other respondents in the RCP, filed RCA

No.82/2008 and respondents 1 to 3 in the RCP filed RCA

No.8/2007 against the order of the Rent Control Court. The Rent

Control Appellate Authority would, by the impugned common

judgment, dismiss RCA No.82/2008 and allow RCA No.8/2007 in

part to the extent of setting aside the order of eviction passed

under Clause (iii) of sub-section (4) of Section 11. The appellate

authority thus confirmed the order of eviction, which was passed

by the Rent Control Court on the ground of additional

accommodation.

6. This revision under Section 20 is filed by the tenants

(respondents 1 to 3 in the RCP) urging various grounds,

RCR 113/2009
: 6 :

challenging the order of eviction passed under sub-section (8) of

Section 11.

7. We have heard the submissions of

Sri.O.Ramachandran Nambiar, learned counsel for the revision

petitioners, and also those of Sri.Kurian George Kannamthanam,

learned senior counsel for the respondents. After hearing

Sri.Ramachandran Nambiar in full and Sri.Kurian George

Kannamthanam in part, we noticed that a point which was

seriously urged before us by Mr.Nambiar was that the northern

portion of the second floor of the Minerva building was under the

occupation of the landlord and that the non-occupation of such

vacant premises was a circumstance indicative of absence of

bonafides. We, therefore, on 23-11-2009, appointed Smt.Nisha

John as Advocate Commissioner for conduct of local inspection by

passing the following order:-

” Heard Shri.O.Ramachandran Nambiar,

learned counsel for the revision petitioners in full

and Shri.Kurian George Kannanthanam, learned

counsel for the respondents in part.

2. One of the issues which seriously

came up, is whether the northern portion of the

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: 7 :

second floor of the larger building of which the

petition schedule building is a part (the portion

shown to the northern side of the portion occupied

by Peninsular Capital Market, Mony & S. Madhu

and Associates) is under the vacant possession of

the landlord? The Commissioner in Ext.C1 report

in the last sentence of paragraph No:2 on page

No:2 seems to indicate that the above portion is

permanently closed. According to Shri.O.

Ramachandran Nambiar, the said portion is under

the vacant possession of the landlord while

according to Shri.Kurian George Kannanthanam

the said portion is already let out by the landlord

and at any rate is not under the vacant possession

of anybody.

3. We feel that it is necessary that an

immediate local inspection of the second floor

portion of the building is conducted by an

Advocate Commissioner. Adv. Smt.Nisha John of

this Court be appointed as Commissioner. She will

conduct an immediate local inspection today itself

and report on the following matters:-

i) Whether any portion in the second floor

of the three storied building of which the petition

schedule building is a part (under the ownership of

the petitioners in the RCP) is a part, remaining

vacant?

4. The Commissioner is directed to identify

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: 8 :

the building with reference to the rough sketch

submitted by the earlier Commissioner along with

Ext. C1 report. The remuneration payable to the

Commissioner is fixed at Rs.10,000/- (Rupees ten

thousand only), which will be paid by the

respondents in the R.C.R to the Commissioner

immediately by cash, against receipt. The

Commissioner will conduct inspection and submit

report at the earliest and at any rate by

25.11.2009.”

8. The Advocate Commissioner conducted inspection and

filed detailed report and sketch. We marked the same as Ext.C2

and C2 will form part of the records in the RCP. It will be noticed

immediately that Ext.C2 is very clearly in favour of the landlord and

C2 can be relied on safely to come to the conclusion that the

petitioner/landlord does not have possession of any other building

by which he can accomplish his projected need of additional

accommodation.

9. It was very extensive submission which was addressed

before us by the learned counsel for the parties, namely

Sri.O.Ramachandran Nambiar, Advocate and Sri.Kurian George

Kannamthanam, senior Advocate. Mr.Nambiar submitted that the

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: 9 :

finding of the authorities below that the landlord has got bonafide

need for starting the business of new generation car spare parts

has been entered without considering crucial evidence on record.

The appreciation of the evidence on record by the courts below,

according to the learned counsel, was grossly erroneous.

Production of price list of new generation cars’ spare parts by the

landlord ought not have been given much importance, since it is a

matter of common knowledge that anybody could get price list of

any commodities from the dealers or manufacturers of a product.

According to the learned counsel, it was noticed by the

Commissioner that the landlord was stocking old unserviceable

spare parts in the vacant rooms belonging to the landlord. It is the

case of the tenant that old unserviceable spare parts of

Ambassador and Fiat cars, which cannot be sold at all, are all

dumped in the rooms, just before the visit by the Commissioner for

the purpose of creating artificial evidence for showing that all the

rooms were full of goods and there is no vacant space to stock the

spare parts of new generation cars. This vital aspect of the matter

was not noticed by the courts below. According to the learned

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: 10 :

counsel, whether there is shortage for space for the landlord to

stock his goods is a matter which can be proved by producing

documents including stock registers. The non-production of stock

registers was a material circumstance which will justify drawal of

adverse inference against the landlord. Mr.Nambiar also

submitted that the authorities below went wrong in finding that the

question of comparative advantage and hardship is to be

answered in favour of the landlord. According to the learned

counsel, these findings are the result of misreading of evidence.

According to the learned counsel, the appellate authority, having

found that the eviction ground under Section 11(4)(iii) (tenant

having other building in possession reasonably sufficient for the

tenant’s requirements) is liable to be vacated ought not have relied

on the availability of that building with the tenant for defeating the

tenant’s case for protection of the proviso to sub-section (10) of

Section 11. Mr.Nambiar drew our attention to the pleadings in the

case and also to the evidence. Mr.Nambiar placed reliance on a

large number of decisions for the various propositions canvassed

by him. Inter alia, he relied on the judgments of this Court in

RCR 113/2009
: 11 :

Bonny Vs. Koshy P.John [2005 (1) KLT 114], Lakshmi Vs.

Labbah Kunju Ameer Hamsa [2005 (3) KLT 627], Simon Vs.

Rappai [2008 (3) KLT 121], Muhammed Vs. Pathummakutty

Umma [1992 (2) KLT 736] and Purushothaman Vs.

Radhakrishnan [2004 (3) KLT 121] in support of his argument

that the decisions of the authorities below are vitiated to the extent

of warranting invocation of revisional jurisdiction under Section 20

and also that the revisional jurisdiction is wide enough to justify

interference when there is misreading of evidence by the courts

below.

10. Mr.Nambiar relied on the judgments of this Court in

Lekshmana Naikan Vs. Gopalakrishna Pillai [1981 KLT 167],

Joseph Vs. Rent Controller [2001 (2) KLT 538], Pakran Vs.

Kunhiraman Nambiar [2004 (1) KLT 824] authored by one among

us (PCK(J)) and the judgment in Ratnakaran Vs. Rosy [2004 (3)

KLT 154] to argue that the eviction ground under sub-section (8)

of Section 11 is not made out in this case and that, at any rate,

order cannot be passed in view of the proviso to sub-section (10)

of Section 11. The learned counsel relied on the judgments of the

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: 12 :

Supreme Court in Gopal Krishnaji Ketkar Vs. Mohamed Haji

Latif and others [AIR 1968 SC 1413], Shakir Hussain Vs.

Administrator, Nagar Palika, Mandsaur [AIR 1999 SC 2872] and

in Patel Naranbhai Marghabhai and others Vs. Deceased

Dhulabhai Galbabhai and others [AIR 1992 SC 2009] to support

the argument that adverse inferences are to be drawn when the

best evidence for proving a particular aspect is not produced.

11. All the submissions of Mr.Nambiar were stiffly resisted

by Sri.Kurian George Kannamthanam, learned senior counsel for

the landlord. He submitted that the jurisdiction of this Court under

Section 20 is revisional in nature and this Court is not expected to

re-appraise the evidence, when the findings entered by the

statutory authorities are founded on evidence on record. He also

submitted that the standards necessary for establishing bonafides

in the context of need for additional accommodation are not so

rigorous as is expected in a case for need for own occupation

under sub-section (3) of Section 11. He would support the

judgment of the Rent Control Appellate Authority and the order of

the Rent Control Court on the various reasons stated in the above

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judgment and order.

12. We have very anxiously considered the rival

submissions addressed at the bar. We have made a quick glance

at those items on evidence to which our attention was drawn by

the learned counsel for the revision petitioners. We have gone

through the pleadings raised by the parties.

13. We have kept in mind the ratio emerging from the

various decisions cited before us by the counsel on either sides,

particularly Sri.Ramachandran Nambiar, learned counsel for the

revision petitioners.

14. It cannot be in dispute that the jurisdiction of this Court

under Section 20 of Act 2 of 1965 is revisional in nature. This

Court does not sit in appeal over the judgment of the Rent Control

Appellate Authority, which under the statutory scheme is the final

court on facts. This Court’s concern under Section 20 is only to

find out whether the judgment of the appellate authority is vitiated

by any illegality, irregularity or impropriety, warranting invocation of

the revisional jurisdiction under Section 20. The word propriety

appearing in Section 20 will certainly show that the scope of the

RCR 113/2009
: 14 :

jurisdiction under Section 20 is wider than the civil revisional

jurisdiction of the High Court under Section 115 of the Code of

Civil Procedure, nevertheless the jurisdiction is revisional in

nature. This Court in revision is not expected to re-appreciate the

evidence and substitute factual conclusions for the conclusions

arrived at by the statutory authorities, especially when those

conclusions are founded on evidence. Despite the revisional

nature of the jurisdiction, being impressed by the submission of

Mr.Nambiar that the landlord is having vacant possession of

premises belonging to him at his disposal, we deputed a

Commissioner for verification. The Commissioner has reported

that the landlord does not have vacant possession of any area in

the larger building by name Minerva building, the only commercial

building belonging to the landlord as per the evidence. In fact, the

first proviso to sub-section (3) of Section 11, which says that even

though the need of the landlord under sub-section (3) of Section

11 is found to be bonafide, the RCP shall be rejected, if the

landlord is in possession of vacant building belonging to him in the

absence of special reasons, does not apply to need for additional

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accommodation under sub-section (8) of Section 11. However, we

thought that the non-user of the vacant buildings, if actually

available with the landlord, can be a circumstance telling upon the

bonafides of the need for additional accommodation. Now that the

Commission report Ext.C2 is on record, we have no difficulty in

endorsing the concurrent findings entered by the Rent Control

Court and the appellate authority on appreciating the evidence that

came on record that the landlord’s need for additional

accommodation for the purpose of expanding his business by

selling spare parts of new generation automobile spare parts is a

bonafide one.

15. We will notice in this context that it is trite by the

decision of this Court that the standards for establishing bonafides

in a case for eviction on the ground of additional accommodation

are more liberal than the standards for establishing bonafides in

case for own occupation under sub-section (3) of Section 11. This

Court has held that additional accommodation can be allowed

even when the same amounts to a luxury provided it is found that

in seeking additional accommodation the landlord is not actuated

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by any oblique motives. We do not find any oblique motives

established by the revision petitioners, for the landlord in seeking

to evict them.

16. Now the only question which remains to be considered

is whether the advantages, which will enure the landlord by getting

eviction, will outweigh the hardships, which will be sustained by

the tenant by virtue of the order of eviction passed against him.

Even according to the tenants, the landlords have been

successfully carrying on business in automobile spare parts mostly

of old type vehicles like Ambassador and Fiat etc. for decades.

These are the times of new generation vehicles and the evidence

adduced by the landlord that in order that the business flourishes

in the modern days, spare parts of such new generation vehicles

also are to be stored inspired the Rent Control Court and the

appellate authority. It has come out in evidence that the landlord

will be able to gain much more profits by expanding their business

in the manner proposed. Thus, it cannot be in dispute that the

advantages to be gained by the landlord due to the order of

eviction will be considerable. Now, coming to the question of

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: 17 :

hardship to be sustained by the tenant; though the eviction order

under Section 11(4)(iii) was declined by the appellate authority,

the fact remains that the revision petitioners are having another

place of business where from also they should be gaining income.

No convincing evidence has been adduced by the tenant to show

that other buildings are not available in the locality for them to shift

their business carried on in the petition schedule premises. It is a

photo studio which is being conducted by them in the petition

schedule premises. Having regard to the reputation, which the

revision petitioners have gained in photography, a portion of their

income will be from outdoor business that they conduct. The

finding of the authorities below that the hardship to be sustained

by the tenant will not outweigh the advantages that the landlord

may get is again founded on evidence. That being so, we do not

find any warrant for interference under Section 20.

17. The result of the above discussion is that the RCR fails

and will stand dismissed. However, having regard to the fact that

the revision petitioners have been carrying on photo studio in the

petition schedule premises for quite a long period of time, there

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will be a direction to the execution court not to order and effect

delivery of the petition schedule building in favour of the

respondents till 31-03-2010 subject to the following conditions:-

(i) The revision petitioners shall discharge arrears of rent,

if any, within one month from today and shall pay occupational

charges at the current rent rate as and when the same falls due till

the day they surrender the building to the landlord.

(ii) The revision petitioners shall file an affidavit within two

months before the execution court undertaking to give peaceful

surrender of the building to the respondents on or before 31-10-

2010. It is made clear that the revision petitioners will be entitled

to the benefit of time granted only if an affidavit is filed on time.

(PIUS C. KURIAKOSE, JUDGE)

(K.SURENDRA MOHAN, JUDGE)

aks

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