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2003 DIGILAW 539 (KER)

Chakkunny v. A. M. Abdul Kalam Azad

2003-08-22

K.S.RADHAKRISHNAN, PIUS C.KURIAKOSE

body2003
Judgment :- Pius C. Kuriakose, J. These revision petitions relate to the common judgment passed by the First Additional District Judge and Rent Control Appellate Authority, Ernakulam in R.C.A. Nos. 19 of 1999 and 20 of 1999 filed by the tenants in Rent Control Petition Nos. 62 of 1991 and 67 of 1991 as well as on the Memorandum of Cross Objections filed by the landlords. R.C.P. Nos. 62 of 1991 and 67 of 1991 were instituted by the original landlord, viz., one Mr. Abdul Kalam Azad and the present landlords were impleaded in the proceedings upon his demise being his legal representatives. One Chakkunny, the original tenant was the respondent in R.C.P. No. 62 of 1991 and upon his demise, the present tenants—his legal heirs were impleaded. C.R.P. Nos. 2158/02 and 907/03 are revisions filed by the present tenants and the present landlords respectively in respect of the building in R.C.P.No. 62 of 1991. Similarly C.R.P. Nos. 2692 of 2002 and 908 of 2003 pertain to the building which is the subject matter of R.C.P. 67 of 1991. 2. The common ground invoked in both the rent control petitions are bona fide need of own occupation under Sec. 11(3) and requirement of reconstruction under Sec. 11(4) (iv). In R.C.P. No. 67 of 1991 additional ground of subletting under Sec. 11(4)(i) and cessation of occupation under Sec. 11(4)(v) were also invoked. The claim of the original landlord who filed rent control petitions under Sec. 11(3) was that he bone fide needs to conduct business in plywood in the premises which were the subject matter of the two R.C.Ps. since he was hard pressed for money to support himself and his family consisting also of wife and three children. The claim was denied by the respondents in both the cases who contended that the original landlord was well off. Sri. Azad, the original landlord died during the pendency of the proceedings. The Rent Control Court took the view that the need projected in the rent control petitions was purely personal to Sri. Azad and the demise of Sri. Azad was an event which eclipsed the need altogether and did not survive to his heirs at all. Sri. Azad, the original landlord died during the pendency of the proceedings. The Rent Control Court took the view that the need projected in the rent control petitions was purely personal to Sri. Azad and the demise of Sri. Azad was an event which eclipsed the need altogether and did not survive to his heirs at all. In that view of the matter the Rent Control Court did not find it necessary to enquire into the question as to whether the tenants who had contended that they are eligible to the protection of the second proviso are so entitled. The Rent Control Appellate Authority relying on the decision of this Court in Kutty Krishnan v. Cheriyeri Raran (2001(3) KLT P.29, SN. Case No. 41) held that on the facts of the present case, the demise of Sri. Azad did not completely eclipse the bona fide need urged him from the point of view of the present landlords. On that reasoning and on the basis of the evidence adduced by P.W.1 in that context, the Appellate Authority held that merely by the reason of Mr. Azad’s demise the need did not cease to exist. However, on merits, the Appellate Authority found that the version of P.W.1 – the original landlord’s wife was at variance with the specific pleadings of her husband and that the totality of the evidence adduced by the present landlords would go to show that the need and the claim under Sec. 11(3) was not bona fide. 3. As for the ground of reconstruction, both the Rent Control Court and the Appellate Authority concurrently found that the building was in such a condition that it needed reconstruction and that the present landlords require bona fide to reconstruct the same and ordered eviction on that ground. The ground of cessation of occupation invoked in R.C.P. No. 67 of 1991 was repelled by the Rent Control Court and in appeal to the appellate authority against that order, the appellate authority found that the ground of subletting invoked in R.C.P.67 of 1991 stood established in evidence and ordered eviction in that case under sec. 11(4)(i) also. The Appellate Authority also, on a re-appreciation of the entire evidence pertaining to that ground concurred with the findings of the Rent Control Court. All parties are aggrieved to the extent they failed before the appellate authority. 4. Heard Sri. 11(4)(i) also. The Appellate Authority also, on a re-appreciation of the entire evidence pertaining to that ground concurred with the findings of the Rent Control Court. All parties are aggrieved to the extent they failed before the appellate authority. 4. Heard Sri. M.P. Abraham, Advocate for the revision petitioners in C.R.P. 2158/02 who are respondents in C.R.P. 907/03 also. Heard Sri. P.K. Aboobacker, Advocate for the revision petitioners in C.R.P.2692/02 who are respondents in C.R.P. 908/03. Heard Sri. S. Sreekumar, Advocate for the revision petitioners in C.R.P. 907/03 and 908/03 who are respondents in the other two cases. Perused the records. For sake of clarity and convenience, we will be referring to the parties as tenants, alleged subtenants, original landlord, present landlords etc. 5. Sri. M.P. Abraham, learned counsel submitted that the order of eviction passed in R.C.P. 62/91 under Sec. 11(4) (iv) was unsustainable. The best evidence regarding the physical and social condition of any building was the report of an Advocate Commissioner and in the instant case, the available report was report in another case which had been set aside in that case. Relying on the averments in the context of Sec. 11(3), the learned counsel submitted that the landlords did not have funds enough even for a decent living. As regards the revision petition filed by the landlords, the learned counsel submitted on the authority of Jayarajan v. Yesoda (2003(2) KLT 325) and Raghunath G. Panhale (dead) by Lrs. V. M/s. Chaganlal Sundarji & Co. (JT 1999 (8) SC 219) that the need which was projected by late Azad was purely personal to him and that the said need would never become the need of his wife and children especially when they had not sought for an amendment of the rent control petition in such a line. The learned counsel also reminded us about the limitations of our power to reappraise the evidence in a revision under Sec. 20. (2002(1) KLJ 530). 6. Sri. P.K. Aboobacker, learned counsel for the tenant and alleged subtenant in R.C.P.No. 67 of 1991 supported all the arguments of Mr. M.P. Abraham in the context of ground under Sec. 11(4) (iv). Learned counsel assailed the order of eviction passed in his case under Sec. 11(4)(i) submitting that the original tenant was one Kunju Marakkar, father of the alleged sub-tenant and paternal uncle of the tenant. M.P. Abraham in the context of ground under Sec. 11(4) (iv). Learned counsel assailed the order of eviction passed in his case under Sec. 11(4)(i) submitting that the original tenant was one Kunju Marakkar, father of the alleged sub-tenant and paternal uncle of the tenant. According to the learned counsel, being legal heir of deceased Kunju Marakkar, the alleged sub-tenant had acquired the status of a tenant and rejection of Exts. B1 and B2 receipts by the authorities below on the reasons that the buildings mentioned therein are not identifiable as the schedule building was justifiable. The learned counsel submitted that two additional documents placed before the appellate authority which were not even looked into by that authority will come to show that Exts. B1 and B2 did pertain to the schedule building. 7. Sri. S. Sreekumar, learned counsel for the landlords would submit that on the facts of the present case where the age, location and fashion of the building had been admitted, no further evidence was necessary to warrant a conclusion that the building needed reconstruction. Learned counsel submitted that on the tenant’s own admission, the building was 75 years old, old fashioned and situated in the commercial heartland of Kochi city in close proximity to the Ernakulam market. According to the learned counsel, the appellate authority having found that the need of the original landlord for own occupation will survive to the present landlords was not justified in not allowing eviction under Sec. 11(3) since the evidence given by P.W.1 (the wife of original landlord) regarding her need to conduct business in plywood in the petition schedule building was convincing. Sri. Sreekumar submitted that need of landlord/petitioner who had applied under Sec. 11(3) will not come to an end with the demise of the petitioner. The learned counsel relied on the decision of the Supreme Court in Kamleshwar Prasad v. Pradumanju Agarwal (1997) 4 SCC 413) as well as on the decision of this Court in Kutty Krishnan v. Cheriyeri Raran (2001 (3) KLT SN – Case No. 41). Learned Counsel also cited before us the decision of this court in Mathew V.Thomas V. Sali Sunny (2003(1) KLT S.N Case No.40) a Division Bench decision to which one of us (K.S.Radhakrishnan,J.) was also a party. Learned Counsel also cited before us the decision of this court in Mathew V.Thomas V. Sali Sunny (2003(1) KLT S.N Case No.40) a Division Bench decision to which one of us (K.S.Radhakrishnan,J.) was also a party. The learned counsel submitted that whether or nor the need under Sec. 11(3) will survive the landlord/petitioner is essentially a question of fact to be decided on facts of each case. Azad was a family man and needed to do business in the schedule room for maintaining not only himself but also the family. All the members of the said family except Azad even now continues as a family and therefore according to the learned counsel it has to be taken that Azad’s need to occupy the building has survived Azad and has become transformed as a need of Azad’s family. Stiffly resisting the request made by Sri. M.P. Abraham during the course of his argument that appropriate directions should be given to the executing court to find out whether the present landlords are having valid building permit, the learned counsel relied on the decision of this Court in Thavoo v. Jacob (1986 KLT 66) and that of the Supreme Court in Karthikeyan v. Sreenivasan (1998(1) KLT 676 (SC)) and submitted that any such direction will be legal. In the context of ground of subletting the learned counsel relied on the decision of this court in M/s. Chakolas Silk House & Others v. Abdul Sathar Ismail Sait & Others (1999(1) KLJ 116) that once it is seen that somebody other than the tenant is in possession of the lease-hold premises or a portion thereof, it is for the tenant and that person to plead and establish as to what the status of such person is over the building. 8. We have considered the various decisions which were cited before us by the learned counsel on both sides. In our view the question as to whether the need of the landlord or a dependent family member of the landlord for own occupation will abate with the demise of the petitioner or the dependent is a question of fact to be answered on the basis of the facts which obtain in a given case. We are sure that atleast in certain cases the need of the deceased person will survive to his dependent legal heirs. We are sure that atleast in certain cases the need of the deceased person will survive to his dependent legal heirs. Jayarajan v. Yesoda (2003 (2) KLT 325) was decided on the facts of that cae. It is pertinent to note that in Jayarajan v. Yesoda (supra) the Division Bench has pointed out that there was no plea that the need of the landlord/petitioner was need of not only himself but also of the family. What the Supreme Court did in Raghunath G.Panhale (dead) by Lrs. (JT 1999(8) SC 219 (supra) referred to by the Division Bench in Jayarajan (supra) (2003(2) KLT 325) was to endorse the trial court’s view granting permission to the legal heirs of the deceased landlord/petitioner to pursue the need of the petitioner as their own need on the basis of an application for amendment. In the instance case, the present landlords did not seek any such amendment of the pleadings. Nevertheless, we have no hesitation to approve the Rent Control Appellate Authority’s action in interfering with the Rent Control Court’s view that the need projected by Sri. Azad was a purely personal one which was completely eclipsed on account of Sri. Azad’s demise. Still we are not inclined to allow the present landlords’ revision and grant eviction on the ground under Sec. 11(3) of the Act. As this Courts and the Supreme Court has held in a number of cases including Mathew & Others v. Shamsudhin & Others (2002(1) KLJ 530) that the powers of this Court under Sec. 20 of Act 2 of 1965 though certainly withdrawn the revisional powers under Sec. 115 C.P.C. is narrower than an appellate power. The power to examine the legality, regularity and propriety of findings entered by the Rent Control Appellate Authority which is the final fact finding authority under the Rent Control Statute does not mean an unbridled power to have a de novo re-appreciation of the entire evidence for substituting revisional court’s own findings for those of the appellate authority. There will be justification for interfering with the findings entered by the Appellate Authority only when the revisional court is able to say that such findings are wholly unreasonable or when there is no legal evidence to support such findings and of course when the findings are tainted with inherent defects of a serious nature or patent illegality which may or may not be jurisdictional ones. On scrutinizing the findings entered by the Rent Control Appellate Authority regarding the bona fides of the need and the claim projected in the present case under Sec. 11(3), we do not find anything which warrants interference under Sec. 20. It is true that the need which comes within the purview of Sec. 11(3) does not mean an absolute necessity without which the landlord will not be able to manage. In a given case, there will be justification for allowing eviction under Sec. 11(3) in favour of a landlord/petitioner who is well placed in life having one or more business already for the commencement of a new venture if the need is found reasonable when considered through the perspective and points of view of the landlord having regard to his backgrounds. But when a landlord comes forward with a case that he has no source of income other than the meager rental income from the petition schedule premises projecting the case of absolute necessity for commencement of business for survival and the evidence reveals that the landlord had not approached the court with an honest case and has suppressed relevant and material facts and the final fact finding court holds on the basis of the evidence available on record that the landlord’s case is not bona fide, the revisional court will find it difficult to upset such findings. Under the scheme of Statute, the Rent Control Court and the appellate authority are the fact finding authorities which are expected to be governed by the principles of justice, equity and good conscience while appreciating the evidence as clearly stated in Rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules. It was on the basis of such appreciation that the appellate authority in the present case found that the need highlighted by late Azad and sought to be pursued by Azad’s legal heirs was not genuine. We find ourselves unable to hold that the said finding is wholly unreasonable or based on no evidence or patently or inherently illegal. We therefore confirm the decision of the Rent Control Appellate authority as regards the ground under Sec. 11(3). 9. Now, we will consider the argument of the learned counsel for the tenant that since the need projected under Sec. 11(3) is being found to be not bona fide, it should follow that the requirement of reconstruction under sec. We therefore confirm the decision of the Rent Control Appellate authority as regards the ground under Sec. 11(3). 9. Now, we will consider the argument of the learned counsel for the tenant that since the need projected under Sec. 11(3) is being found to be not bona fide, it should follow that the requirement of reconstruction under sec. 11(4)(iv) is also not bona fide. The expression bona fide need means an honest and genuine need, essentially a state of mind to be discerned from the circumstances which attend on a given case. However, the concept of bona fides in the context of Sec. 11(3) and 11(4) (iv) have certain differences when it comes to the nature of the evidence and the circumstances on the basis of which the same is to be discerned or deciphered. Supreme Court decisions such as Neta Ram v. Jiwan Lal (AIR 1963 SC 499) and decisions of this Court including Balagangadhara Menon v. T.V. Peter (1984 KLT 845) have noticed these differences and held that bona fides with reference to the requirement of reconstruction of a building is a matter capable of direct evidence regarding the physical and social condition of the building; the landlord’s ability to carry out the reconstruction;the profitability of the proposal; the availability of an approved building plan and licence with the landlord. Evidence regarding the above aspects should ordinarily lead to the conclusion that the requirement under Sec. 11(4) (iv) is bona fide. 10. The Supreme Court has indicated in Metal Ware & Co. V. Bansilal (AIR 1979 SC 1559) that there will be justification for taking relatively liberal approach towards eviction while dealing with petitions filed under those statues where a right of induction is given to the evicted tenant in the reconstructed building. This was why in Madhavan v. Leelamma (1991 (2) KLT 32) and in George Varghese v. Ammini Cherian (1995(2) KLT 763) this Court ruled that the Supreme Court decision in P.ORR & Sons Pvt. Ltd. v. Associated Publishers (Madras) Private Ltd. (1991) 1 SCC 301 which takes the view that the physical condition of the building is the paramount consideration in cases of reconstruction will not apply to cases covered by the Kerala Statute. We notice that the concurrent finding entered by the authorities below regarding the physical and social condition of the building as one warranting reconstruction is based on evidence. We notice that the concurrent finding entered by the authorities below regarding the physical and social condition of the building as one warranting reconstruction is based on evidence. The building is evidently old-fashioned and situated in a commercially very important locality of the Kochi city. Even though the bank deposit receipts produced cover only a portion of the total estimate for the reconstruction, ability of the landlords, who belong to the landed gentry of Kochi to carry out the reconstruction stands established. It is not necessary that the landlord seeking reconstruction should jingle the coins before the Rent Control Court. Ability in the context of Sec. 11(4)(iv) means nothing other than the capacity to raise funds as observed by Sadasivan (J) in Saramma Varghese v. George (1971 KLT 282). The authorities below were satisfied on the basis of Exts. A2 and A3 that the landlords are having a valid plan and licence required for carrying out reconstruction. The argument of Sri. M.P. Abraham that the validity of the plan and licence have already expired and his further argument that because of certain building rules recently introduced in the Kochi city, it will not be possible for the landlords to carry out the reconstruction in accordance with Exts.A2 and A3 have been correctly turned down by the authorities below who have observed that the situation is more of the tenants’ own making. Giving direction to the executing court that before effecting delivery that court should be satisfied of the existence of a concurrently valid plan will be violative of the law laid down by the Supreme Court in Karthikeyan v. Sreenivasan (1998 (1) KLT 676) which was a decision rendered in the context of Sec. 11(4)(iv) of the Kerala Statute itself. Sri. S. Sreekumar has asserted before us that the present landlords will not have any difficulty in obtaining extension or exemption, if necessary, from the local authority and that they will be able to complete the reconstruction within the time allowed in that regard by the Rent Control Court. We record this submission. We also feel that the apprehension expressed by the tenant that after getting vacant possession of the building, the landlords will demolish the building and allow the plot to remain vacant is not reasonable having regard to the value and commercial potentiality of the area where the building now stands. We record this submission. We also feel that the apprehension expressed by the tenant that after getting vacant possession of the building, the landlords will demolish the building and allow the plot to remain vacant is not reasonable having regard to the value and commercial potentiality of the area where the building now stands. Even if such a situation arises, the third proviso to Sec. 11(4)((iv) confers ample powers to court to deal with such situations and render justice to the evicted tenants. Accordingly we confirm the order of eviction granted under Sec. 11(4)(iv). 11. The only point which remains to be considered is the subletting involved in R.C.P. 67/91. Both the authorities below have found that the status of the second respondent in that R.C.P. is that of a sub-tenant/transferee. The finding is that one portion of the building in that case is possessed by the 1st respondent-tenant and the other portion is in the possession of the alleged sub-tenant and the tenant is conducting furniture hiring business while the subtenant is conducting tea-shop-cum-cool bar. The alleged sub-tenant is the paternal uncle of the tenant. According to the landlords, the original tenant was one Beerankunju and the 1st respondent, his son is the present tenant. The 2nd respondent Ali @ Alikunju is the brother of Beerankunju. The contention of the respondents is that the original tenant was one Kunjumarakkar, father of Beerankunju and Alikunju and upon his demise the two respondents have acquired joint tenancy. The respondents relied on Exts.B1 and B2 rent receipts to show that the tenant was Kunjumarakkar. The authorities below did not place any reliance on Exts. B1 and B2, since the buildings mentioned in those receipts were not identifiable as the schedule building. Those receipts do not mention the door numbers, but only refer to the building generally as Nelliparambil Peedika. Along with I.A.No. 2192 of 2001, the appellants in R.C.A.No. 20 of 1999 filed certified copies of two registered documents executed in favour of late A.S.Bava, the predecessor-in-title of the present landlords, viz., document Nos. 1126/1104 and 2182/1118 of the Sub Registry, Ernakulam, The above I.A. Came up for consideration before the Appellate Authority on 16.7.2001 on which date it was posted to 21.7.2001. 1126/1104 and 2182/1118 of the Sub Registry, Ernakulam, The above I.A. Came up for consideration before the Appellate Authority on 16.7.2001 on which date it was posted to 21.7.2001. Obviously the appellants did not request for disposal of the above I.A. before the Appellate Authority took up the appeal for hearing nor was the attention of that Authority invited to the pendency of the I.A. The Appellate Authority therefore noticed this I.A. only after it had disposed of the appeal itself and accordingly closed the I.A. in view of the disposal of the appeal. 12. Having regard to the submissions of the learned counsel for the tenants in R.C.P.67 of 1991, we have gone through those documents. The document of 1104 pertains to 1 acre of land by name being part of Nellikkappalli. This plot does not have any building upon it. The other doucment pertains to 65 cents of land by name originally part of Nellikkappalli. This plot as many as four buildings situated on the same. We do not think that these documents even if they were admitted in evidence would have been of much assistance to the authorities below for resolving the controversy as to the identity of the buildings mentioned in Exts.B1 and B2. Even if it is assumed that Exts.B1 and B2 pertain to the building which the subject-matter of R.C.P.67 of 1991, nothing much will turn on them. Ext.B1 is of the year 1940 and Ext.B2 is of the year 1950. Exts. A11 to A15 are extracts of the property tax assessment registries relating to the petition schedule building and they together cover a long period of 30 years. These documents have considerable relevancy and probative value in proceedings under the Rent Control Act in view of Sec.26 of the statute. Exts.B1 and B2 will never suffice to rebut the presumptive which Exts.A11 to A15 enjoy. Exts.A11 to A15 will show that at all material times Beerankunju was the tenant and that the landlord’s case that Beerankunju was the tenant and his brother, the alleged sub-tenant came into possession only by 1991 (the period when Ext.A16 assessment was made) is more probable. The respondents in R.C.P.67 of 1991 do not have a case that the alleged sub-tenant has acquires the status of tenant, either by acquiescence or by attornment. The respondents in R.C.P.67 of 1991 do not have a case that the alleged sub-tenant has acquires the status of tenant, either by acquiescence or by attornment. The situation that even during the lifetime of Beerankunjku the alleged sub-tenant had obtained an early trade licence once or twice from the local authority is not of much relevance in view of the fact that admittedly Beerankunju and Alikunju are brothers maintaining very cordial relationship all along. As we have observed, while dealing with the ground under Sec.11(3), the Appellate Authority is the final fact-finding authority. We are not able to hold that the finding of the Appellate Authority in the context of the ground under Sec.11(4)(i) is wholly unreasonable or based on no evidence or otherwise patently or inherently illegal. We are therefore not inclined to exercise our powers under Sec.20 to reverse those findings. The result is that all the revisions fail and we dismiss them. The petitioners in C.R.P.2158 of 2002 alone will be entitled for the statutory reinduction rights under the third proviso to Sec.11(4)(iv). The landlords will carry out the reconstruction within a period of one year of getting possession and will reinduct them and will allot them approximately 600 sq. feet in the ground floor subject to their liability to pay fair rent.