Kerala High Court · 2009

PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.------------------------C.R.P..No. 2824 OF 2002------------------------Dated this the 4th day of November, 2009O R D E RSurendra Mohan, J.The landlord has filed this revision petition challenging thejudgment of the Rent Control Appellate Authority,North Parur,reversing an order of eviction granted by the Rent Control Court,North Parur. 2. The Rent Control Petition was filed by the landlordseeking eviction of the tenant on the ground of bona fide needunder Section 11(3) of the Kerala Buildings (Lease and RentControl) Act, 1965, (hereinafter referred to as the 'Act' for short).According to the revision petitioner/landlord, he requires thetenanted premises for the purpose of starting an air conditioningand refrigeration workshop. The need was resisted by thetenant alleging that the same was put forth without any bonafides whatsoever. The main contention of the tenant was thatthe landlord was in possession of another vacant room whichcould be utilised to satisfy his need. In short the contention wasthat possession of another vacant room disentitled him from CRP.No.2824/20022seeking an order of eviction in view of the first proviso to subsection (3) of Section 11. The Rent Control Petition was tried bythe Rent Control Court after formulating the necessary pointsfor consideration. 3. The evidence in the case consists of Exts.A1 to A4 andExts.B1 to B3 documents, besides the oral evidence of PW1 andRW1.4. After an elaborate consideration of the evidence onrecord as well as the rival contentions of the parties, the RentControl Court found that the landlord had succeeded inestablishing that he bona fide required the tenanted premises forhis own use and occupation. It was also found that the tenantwas not entitled to the protection of the provisos to Section 11(3) of the Act. Therefore, the Rent Control Court directed thetenant to put the landlord in possession of the tenanted premiseswithin a period of two months from the date of the order. Theorder of the Rent Control Court was challenged by the tenantbefore the Rent Control Appellate Authority, North Parur in RCANo.3/1998. The Rent Control Appellate Authority on areappraisal of the evidence on record found that the landlord had CRP.No.2824/20023made crucial admissions during his cross examination as PW1 tothe effect that he was in possession of other shop rooms.Therefore, the Appellate Authority held that it was up to thelandlord to have proved that the said buildings were not suitablefor the need that was put forth by him. Having failed to do so,the Appellate Authority found that the order of eviction grantedby the Rent Control Court under Sub Section (3) of Section 11was not sustainable. Therefore, the said order of the RentControl Court was set aside. 5. The landlord has filed the present Revision Petitionchallenging the said judgment of the Rent Control AppellateAuthority. 6. We have heard Sri.M.A.Abdul Hakhim, learned counselwho appears for the revision petitioner andSri.G.Balamuraleedharan, the learned counsel who represents thetenant. We have also perused the records of the case madeavailable by the counsel. 7. The main contention of the counsel for the revisionpetitioner is that the Rent Control Appellate Authority hadmisread and misinterpreted the evidence of PW1 to hold that he CRP.No.2824/20024had admitted his possession and ownership of other vacantrooms. The above assertion of the learned counsel for therevision petitioner is seriously disputed bySri.Balamuraleedharan who appears for the tenant. According tothe learned counsel for the tenant, the landlord was in possessionof other vacant buildings, which could be ascertained by a localinspection at any time. He also expressed his willingness tosubstantiate his assertion by taking out a commission from thiscourt. Accordingly, as per order dated 29/10/2009, weappointed Smt.Lakshmi Rajan, an advocate of this court asAdvocate Commissioner with directions to conduct a localinspection and report to this court whether the buildings havingdoor Nos. 416/2 & 417/2 of Alangad Panchayat were in thepossession of the landlord, as alleged by the learned counsel forthe tenant. However, the tenant did not cooperate andtherefore, the Advocate Commissioner was not able to conductthe local inspection or to execute the order passed by us. In theabove circumstances, the matter was heard by us today.However, the counsel for the tenant was not present today alsoto offer any explanation for the conduct of his client. In the CRP.No.2824/20025above circumstances, we have heard the submissions of thelearned counsel for the landlord and have proceeded to pass finalorders on this Rent Control Revision. 8. The Rent Control Appellate Authority in the judgmentunder revision, has extracted the portion of the deposition ofthe landlord as PW1 on which reliance has been placed. Thelandlord while he was cross examined, was asked whether thebuilding having Door No.414 of Alangad Panchayat was given onrent to anyone. The answer given by him was that he does notknow. Thereafter, he was asked about Room No.415 aboutwhich also his answer was that he does not know. He was thenasked who was the tenant of Room No.416. He has again repliedthat he does not know. He was further asked whether the saidrooms were given on rent to anyone else at present. He repliedthat he was not able to say, because the names of the personswere not disclosed. He was then asked whether Room No.415was given on rent to One Thankappan. His answer is “No”. Againhe has been asked whether room No.417 was in his possession,to which he has answered that he does not remember the correctnumber of the room. A reading of the above passage does not CRP.No.2824/20026disclose any admission to the effect that any of the roomsreferred to by the counsel for the tenant in his cross examinationwere actually owned by the landlord. In fact, no question wasput to him as to whether the rooms pointed out by the tenants'counsel were actually owned by him. A reading of the questionsand the answers given by PW1, does not offer any indication asto whether the witness had actually understood the questions asreferring to whether he was the owner of the rooms withrespect to which he was questioned. At any rate, the answers ofPW1 referred to above cannot be taken as constituting anadmission of ownership and possession over the rooms that werereferred to. However, the Appellate Authority has proceeded onthe assumption that the landlord had admitted to the ownershipof the rooms that were referred to. Therefore, the AppellateAuthority has observed as follows;“So here is a landlord who is unable toremember the names of tenants who arekeeping in possession of his own building.”The answers of PW1 referred to above do not warrant any suchconclusion. Nor do they contain an admission that any of therooms owned by the landlord was lying vacant. Therefore, the CRP.No.2824/20027Appellate Authority was not justified in finding fault with PW1 forhaving been unable to remember the number of the buildingsabout which he was questioned. In fact, there is absolutely noevidence to show that any building that is owned by thelandlord was actually in his possession as required by theprovision of law. 9. It is also worth noticing that the landlord has specificallystated in his Rent Control Petition that no other building wasavailable in his possession and ownership and that the saidaverment has not been traversed in the objections filed by thetenant. In fact, the tenant has not specifically stated in hisobjections that any building owned by the landlord was availablefor him to satisfy the need that was put forth by the landlord.The conduct of the tenant before this court in not cooperatingwith the Advocate Commissioner is yet another circumstance thatleads us to take an adverse inference against the tenant that thelandlord is not possessed of any room that is owned by him.For the above reasons, it is found that the Appellate Authoritywent wrong in upsetting the order of eviction granted by the RentControl Court under Section 11(3) of the Act. The Judgment of CRP.No.2824/20028the Rent Control Appellate Authority is, therefore, set aside andthe order of the Rent Control Court in RCP No.3/2001 is restored.The Rent Control Revision is accordingly allowed. 10. However, in the facts and circumstances of the case, wefeel that some time could be granted to the tenant to surrendervacant possession of the premises to the landlord, subject toappropriate conditions. It is, therefore, ordered as follows;i). The tenant is granted time upto 31/3/2010 to surrender vacantpossession of the tenanted premises tothe landlord, provided he files anaffidavit before the Rent Control Courtunconditionally undertaking tosurrender vacant possession of thetenanted premises to the landlord onor before the said date. Suchaffidavit shall be filed within a period ofthree weeks from today. ii). The tenant shall also pay allarrears of rent due in respect of the CRP.No.2824/20029tenanted premises and shall continueto pay the rent at the contracted rateregularly and without default till hesurrenders vacant possession of thepremises to the landlord. Iii). The landlord shall be free toexecute the order of eviction in theevent of default on the part of thetenant of any of the above conditions. In the above circumstances, there will be no order as tocosts. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGEdpk CRP.No.2824/200210PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.------------------------C.R.P.No. 2824 OF 2002------------------------O R D E R 4th November, 2009 CRP.No.2824/200211 PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.------------------------C.R.P.No. 2824 OF 2002------------------------Dated this the 29th day of October, 2009O R D E R Pius C.Kuriakose, J.Heard Sri.M.A.Abdul Hakhim, learned counsel for thepetitioners in full and Sri. G.Balamuraleedharan, learned counselfor the respondent in part. During the course of hissubmissions, Sri.Balamuraleedharan asserted that the buildingshaving Door No.416/2 and 417/2 in Alangad Panchayat belong tothe petitioners and those buildings continue to be under theirvacant possession. He submitted that he has no objection in thiscourt deputing a commissioner immediately to have localinspection and a report filed before this court in that regard.2. Under the above circumstances, we appoint AdvocateSmt.Lakshmi Rajan as commissioner to conduct immediate localinspection of the buildings having Door Nos. 416/2 & 417/2 of CRP.No.2824/200212Alangad Panchayat and report to this court whether those roomsare occupied and also as to who is in occupation. 3. The Commissioner will submit report regarding otherrelevant matters as requested by the counsel on either side withregard to those two rooms. Inspection will be conducted andreport will be submitted at the earliest and at any rate by thenext posting date of the case. Post on 3/11/2009. Remuneration for the Commissioner is fixed at Rs.10,000/-which shall be paid by the respondent to the commissionerdirectly against a memo to be issued by the Commissioner. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGEdpk CRP.No.2824/200213PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.------------------------C.R.P.No. 2824 OF 2002------------------------O R D E R 29th October, 2009