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2012 DIGILAW 625 (KER)

Oyatti Pavithran v. P. K. Rajendra Kumar

2012-07-05

A.V.RAMAKRISHNA PILLAI, PIUS C.KURIAKOSE

body2012
JUDGMENT Pius C. Kuriakose ,J. 1. The tenant is the revision petitioner. He challenges in this revision under Section 20 the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him by the Rent Control Court under Section 11(3) of Act 2 of 1965. 2. The need projected by Sri.P.K.Rajendra Kumar, the landlord, was that he is a deaf and dumb person and hence he intends to conduct business in stationery articles as well as STD Booth in the petition schedule building after evicting the tenant. The bona fides of the need was disputed by the tenant. The tenant further contended that he is entitled for the protection of the second proviso to sub section (3) of Section 11 of the Rent Control Act. 3. The Rent Control Court conducted enquiry in which oral evidence was given on behalf of the landlord/petitioner by his sister Smt.P.K.Maheshwari as PW1 to which the tenant adduced evidence as RW1. The documentary evidence consisted of Exts. A1 to A6 on the side of the landlord and Exts.B1 to B15 on the side of the tenant. The Rent Control Court on evaluating the evidence came to the conclusion that the need is bona fide and that the tenant is not successful in showing that he is entitled for the protection of the second proviso to sub section (3) of Section 11. 4. The tenant preferred an appeal to the Rent Control Appellate Authority against the eviction order as RCA No.63/2007. The ground Nos. 1 to 6 in the memorandum of appeal pertain to the competence of the sister Smt.Maheshwari to represent the respondent/landlord as his next friend. The ground No. 7 was that adverse inference should have been drawn against the landlord as the landlord himself has not adduced oral evidence. Ground No. 8 was that the landlord had other buildings of his own in his possession and hence the need should have been found to be not bona fide. Ground No. 9 pertains to the tenant's eligibility for the protection of the second proviso to sub section (3) of Section 11. Ground No. 10 is a general ground which assails the appreciation of documents Exts. B1 to B15 by the Rent Control Court. Ground No. 11 again is a ground urging that the landlord was cent percent physically handicapped. Ground No. 9 pertains to the tenant's eligibility for the protection of the second proviso to sub section (3) of Section 11. Ground No. 10 is a general ground which assails the appreciation of documents Exts. B1 to B15 by the Rent Control Court. Ground No. 11 again is a ground urging that the landlord was cent percent physically handicapped. Ground No. 12 is a ground which reiterates the tenant's eligibility for the second proviso to section 11 (3). A reading of the judgment of the Appellate Authority will show that the arguments before the learned Appellate Authority were mostly based on the grounds raised in the Memorandum of Appeal. The learned Appellate Authority made a reappraisal of the evidence and would concur with all the findings of the Rent Control Court. Accordingly, the appeal was dismissed. 5. In this revision under Section 20, various grounds have been raised assailing the judgment of the Appellate Authority. Ground Nos. A to E in the Memorandum of Revision are grounds homologous to the grounds raised in the appeal memorandum itself . Ground No. (F) is as follows; "F. Subsequent to the disposal of the appeal adjacent building was let out to a tenant." 6. Sri.A.Mohamed Mustaque learned counsel for the revision petitioner in his submissions before us would draw our attention to Annexures A1 and AII produced along with the revision. Annexure A1 is the true copy of the rent chit executed in respect of the room, which is said to be adjacent to the petition schedule room, between Maheshwari, the sister of the landlord and Smt.Sumithra, the mother of the landlord on the one part and one Sri.Prasannan; their tenant. Annexure AII is the true copy of the trade licence issued to Prasannan for conducting business in the room covered by Annexure A1. Mr. Mustaque would draw our attention to paragraph 2 of the rent control petition as well as to the oral evidence adduced by PW1. The learned counsel submitted that the need projected is the need not only of the landlord but also of Smt.Maheshwari, the landlord's sister, to conduct business in partnership. Mr. Mustaque would draw our attention to paragraph 2 of the rent control petition as well as to the oral evidence adduced by PW1. The learned counsel submitted that the need projected is the need not only of the landlord but also of Smt.Maheshwari, the landlord's sister, to conduct business in partnership. That being the need, the circumstance that a building which fell vacant during the pendency of the appeal was let out within two weeks of the appellate judgment to another tenant without utilising that building for the need projected in the rent control petition is a circumstance which should demolish the bona fides of the need. Mr. Mustaque requested us to notice this subsequent event of vacant building becoming available to Smt.Maheshwari and the same being let out to a tenant without utilising the same for the proposed need and to set aside the eviction order passed against the revision petitioner. The learned counsel also challenges the correctness of the finding regarding the tenant's eligibility for the protection of the second proviso to sub section (3) of Section 11. 7. We have given our anxious consideration to the submissions of Mr.Mohamed Mustaque. It is true that it has been pleaded in the rent control petition that the landlord, who is a deaf and dumb person, intends to conduct business in partnership. It is also true that in the oral evidence given by PW1, the sister of the landlord, she has stated that as her brother is incapable of conducting business himself on account of his deafness and dumbness, the proposed business will be conducted by him with her as a partner. According to us, the need prominently raised is that of the landlord. The tenant in his pleading also understood the need to be that of the landlord. The objections filed by the tenant to the RCP and that grounds raised by him in the RCA indicates that the introduction of Smt.Maheshwari as a partner is only because of the landlords' ineligibility to conduct business himself on account of his physical infirmity. The landlord -tenant relationship in respect of the present building is between Sri.Rajendra Kumar, the landlord and the revision petitioner/tenant only. It is not even alleged that the landlord is having any interest in the building which is the subject matter of Annexure A1. The landlord -tenant relationship in respect of the present building is between Sri.Rajendra Kumar, the landlord and the revision petitioner/tenant only. It is not even alleged that the landlord is having any interest in the building which is the subject matter of Annexure A1. According to us, the circumstance that the building in which the landlord did not have any interest fell vacant and that building was let out by the landlady of that building though she is the direct sister of the landlord and the business proposed by the landlord is to be conducted in partnership with her in the petition schedule building cannot have any impact and much less fundamental impact as to completely obliterate the need which was recognized by the two fact finding authorities under the statute. Even otherwise it is trite by the decision of the Supreme Court in Gaya Prasad v. Pradeep Srivastava (2001 (1) KLT 753(SC) that existence of a bona fide need is to be decided essentially on the basis of the state of affairs which existed as on the date of commencement of the lis and that subsequent events unless they have a fundamental impact on the right of the landlord to obtain eviction and the liability of the tenant to suffer eviction can be ignored. The present Rent Control Petition was instituted way back in 2003. The statutory time limit for disposing of the rent control petition under Section 24 of the Act is four months. In this case for various reasons, the landlord, a deaf and dumb person, could not secure the fruits of the eviction order passed in his favour by the two fact finding authorities under the statute even after about 9 years of commencement of the lis. 8. Having gone through the judgment of the Rent Control Appellate Authority, we are convinced that the findings therein regarding the bona fides of the need as well as regarding the tenant's eligibility for the protection of the second proviso are findings entered on a proper appreciation of the evidence available on record. We will not be justified in upsetting those findings within the contours of the present jurisdiction under Section 20. 9. The revision fails and the same will stand dismissed. 10. When we made our decision known to Mr.Mustaque, the learned counsel requested for one and half years time to surrender the premises. We will not be justified in upsetting those findings within the contours of the present jurisdiction under Section 20. 9. The revision fails and the same will stand dismissed. 10. When we made our decision known to Mr.Mustaque, the learned counsel requested for one and half years time to surrender the premises. We do not think that we will be justified in granting so much of time without issuing notice to the respondent/landlord. 11. Hence, issue urgent notice to the respondent by speed post to determine the duration of time to be given to the revision petitioner for surrendering the petition schedule building. Interim stay for two months.