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.
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R.C.R. No. 113 of 2009
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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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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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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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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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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,
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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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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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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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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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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
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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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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
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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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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
