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2017 DIGILAW 584 (KER)

Lalitha Vijayan v. Salini

2017-03-24

K.HARILAL, RAJA VIJAYARAGHAVAN V.

body2017
ORDER : K.HARILAL, J. This Revision is directed against the judgment passed by the Rent Control Appellate Authority, Palakkad in R.C.A.No.41/2012 whereby the order rejecting the claim of eviction under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short “the Act”) passed in R.C.P. No.24/2012 stands confirmed. The petitioner herein is the landlord, who filed the aforesaid Rent Control Petition seeking an order of eviction under S.11(2)(b) and 11(3) of the Act. The Rent Control Court passed an order granting eviction under S.11(2)(b) of the Act and disallowing the claim of eviction under S.11(3) of the Act. The legality and propriety of the concurrent findings whereby the courts below rejected the claim of eviction under S.11(3) of the Act are challenged in this Revision. Pleadings The petition 2. The petitioner is presently staying at Kalleppully, Palakkad and she bona fide requires the petition schedule building, which was rented out to the respondent for her own occupation. The petition schedule building is an old Tharavad house. She wants to shift her residence to the said Tharavad house and give her present house, wherein she is residing with her family, to her married daughter as she had decided to shift her residence from Wayanad to Palakkad. Counter Statement 3. According to the respondent, there is no bona fides in the need put forward by the petitioner and it is a ruse for eviction only. She contended that earlier, the petitioner had made a promise to sell the petition schedule building to the respondent and subsequently she wriggled out from the promise and entered into an agreement for sale with one Manikandan and it was agreed that she would sell the petition schedule building to the brother of Manikandan by name Kannan for a total consideration of Rs.13,27,500/-. According- to the respondent, R.W.2, one Krishnadas, was a person who is aware of the above fact and also as regards the subsequent agreement made by the petitioner with the said Manikandan. Evidence 4. On the aforesaid rival pleadings, the husband of the petitioner was examined as P.W.1 and Exts.A1 and A2 were marked from the- part of the petitioner and R.W.1 to R.W.3 were examined and Exts.B1 to B4 were marked from the part of the respondent. The impugned concurrent findings 5. Evidence 4. On the aforesaid rival pleadings, the husband of the petitioner was examined as P.W.1 and Exts.A1 and A2 were marked from the- part of the petitioner and R.W.1 to R.W.3 were examined and Exts.B1 to B4 were marked from the part of the respondent. The impugned concurrent findings 5. After analysing the aforesaid evidence, the courts below concurrently found that the need put forward is not a bona fide one and it is a ruse for eviction only for selling the property to others. The non-examination of the petitioner herself was held to be fatal, though her husband was examined as P.W.1 and he has given evidence projecting the bona fides of the need of the entire family. The daughter, to whom the petitioner has decided to give her present house, was not examined; nor was such a desire stated-in the notice issued to the respondent demanding vacant possession of the petition schedule building. The evidence given by R.Ws.1 and 2 were found to be more probable and their evidence were held probabilise the promise whereby the petitioner agreed to sell the property to R.W.1 and subsequent agreement for sale with Kannan. Arguments at the Bar 6. The learned counsel for the petitioner exhaustively advanced arguments highlighting the scope of interference under S.20 of the Act and contended that even though the scope and extent of jurisdiction is very limited, re-appreciation is impermissible, and the findings are concurrent, it would be just and proper to interfere with such concurrent findings where those findings are perverse or absurd. It is also contended that the revisional court is inclined to interfere with factual findings, if those findings are based on irrelevant materials or grossly erroneous. Further, it was contended that the factual findings are based on misreading of the evidence of R.Ws.1 and 2 and vitiated by perversity. On the other hand, the learned counsel for the respondent advanced arguments reminding the contour limiting interference under S.20 of the Act. Scope and extent of revisional jurisdiction on factual findings 7. At first, we must remind ourselves the limited scope and extent of interference under revisional jurisdiction contemplated under Section 20 of the Act. The Revisional court is not ordinarily expected to re-appreciate the pleadings or evidence for the purpose of substituting the factual findings entered by the fact finding authorities, particularly when the findings are concurrent and founded on evidence. At first, we must remind ourselves the limited scope and extent of interference under revisional jurisdiction contemplated under Section 20 of the Act. The Revisional court is not ordinarily expected to re-appreciate the pleadings or evidence for the purpose of substituting the factual findings entered by the fact finding authorities, particularly when the findings are concurrent and founded on evidence. But, in Madanlal v. Sai Das ( AIR 1973 SC 585 ), the Supreme Court hold that the finding as to bona fide requirement of the landlord is the finding on a mixed question of fact and law and the revisional court has ample power of jurisdiction to interfere with that finding in appropriate cases. 8. In Ram Shankar Dixit v. Vijay Bahadur Singh (2002 (1) RCR 176), the Supreme Court ruled that “The Revisional Court can interfere with the finding of fact only when Tribunal entertains any inadmissible evidence or ignores any vital piece of evidence or finding is based on no evidence at all.” 9. In Bonny v. Koshy P. John 2005 KHC 312), this Court held that misreading and non-reading are errors of law. Further, in Shashi Jain (Smt.) v. Tarsemlal (Dead) & Anr. (2009) 6 SCC 40 ) the Supreme Court again reiterated that even in cases where the findings are concurrent, the High Court ought to have recorded its independent finding on merits based on assessment of evidence. In Kunhikkalatakathu Abdul Salam v. J. Sebastian 2013 KHC 3681) this Court relying on the parameters laid down by the Supreme Court, held that when the approach made by the Authorities below are perverse, it or scan through the evidence to find out whether the conclusions have been arrived at properly on pleadings and evidence. In Hindustan Petroleum Corporation Limited v. Dilbahar Singh 2014 (6) MLJ 597 ) the Supreme Court held that “A finding of fact recorded by court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such findings is based on no evidence or misreading of the evidence or is grossly erroneous that if allowed to stand it would result in gross miscarriage of justice, the same is open to correction because it is not treated as a finding according to law.” 10. In the light of the aforesaid judicial precedents, we have meticulously considered the concurrent findings in view of the evidence on record. Analysis 11. In the light of the aforesaid judicial precedents, we have meticulously considered the concurrent findings in view of the evidence on record. Analysis 11. It is pertinent to note that the need put forward is for residential purpose of the entire family and indisputably the building which is sought to be vacated by an order of eviction is her Tharavad house. The bona fide need is a state of mind and the need must be perceived as it had occurred in the mind of the person who claims that the need is a bona fide one. But, where the bona fide need is one for residential purpose of the family, the bona fide need is a state of mind perceived in the mind of the entire family members consists of husband, wife and children, notwithstanding the fact that the house which is sought to be vacated and obtained, stands in the name of a member of the family only. In other words, the need for residential purpose is a common need of all the members of the family. In the above view, each and every member of the family is competent to give evidence to prove bona fides of their common need. In the above view, we find that the evidence given by the husband, to prove the bona fides of the common need for residential purpose of the family, in lieu of his wife, who filed the Rent Control Petition, is sufficient and well acceptable. Thus, the non-examination of the petitioner herself was not fatal. It is needless to say, the common need for residential purpose of the family cannot be equated with the need for business purpose of a member of the family. 12. In the above view, we find that the courts below concurrently went wrong by rejecting the evidence given by the husband of the petitioner as P.W.1 on a finding that the non-examination of the petitioner is fatal, particularly when there is no finding that his evidence was unreliable or untrustworthy, the rent deed stands executed to the name of P.W.1 and he manages the petition schedule building and receives rent for and on behalf of the petitioner. 13. 13. According to the petitioner, her married daughter who is now residing in Wayanad has decided to shift her residence along with her family to Palakkad and in that context it has been decided to shift their residence to the petition schedule building, which is her old- Tharavad’ after giving the house, wherein they are living at present, to the said daughter. We do not find any circumstance or reason to doubt the bona fides or reasonableness of their desire to shift their residence to the ‘Tharavad house’ in the above need on two grounds. 14. Firstly, the court below found that the married daughter to whom the petitioner wants to give the present house was not examined as a witness to prove her plan to l shift her residence to Palakkad from Wayanad to prove the bona fides of the need deposed by P.W.1 at the time of evidence and the said decision of the daughter was not mentioned in Ext.A1 lawyer’s notice demanding vacant possession of the petition schedule building. 15. We are of the opinion that the aforesaid finding of the courts below are perverse as the said fact is irrelevant and the proof of the same is unnecessary particularly when the respondent failed to shatter or throw doubt on the oral evidence given by P.W.1. We find that even if the married daughter was not in need of the present house wherein the petitioner and her family members are residing, the petitioner’s desire to shift the residence of her family to the ‘Tharavad house’ and spend the remainder of her life there appears to be natural, real and reasonable and it can never be a vitiating circumstance to doubt the bona fides of the need. In the above view, the daughter’s plan to shift her residence is not a fact in issue or relevant fact in the determination of the bona fides of the need. Similarly, the issuance of prior notice demanding vacant possession of the building or stating the details of the need is not required under law, for seeking eviction under S.11(3) of the Act. Similarly, the issuance of prior notice demanding vacant possession of the building or stating the details of the need is not required under law, for seeking eviction under S.11(3) of the Act. So, in the absence of a statutory requirement, non-mentioning of the daughter’s need for shifting her residence to Palakkad in the notice is of no consequence at all and the findings of the courts below in this respect are vitiated by perversity as those findings are based on irrelevant consideration. 16. Next, the courts below concurrently relied on the evidence of R.Ws.1 and 2 to arrive at a finding that there was an agreement for sale of the petition schedule building for Rs.13,27,500/- to one Kannan and before that the petitioner has promised to sell the petition schedule building to the respondent and in that view the need cannot be a bona fide one. It is significant to note that no document has been produced to prove such an agreement with the said Kannan or the promise allegedly given to the respondent and the said finding rests on the oral evidence of R.Ws. and 2 only. R.W. is the respondent herself and R.W.2 is a stranger who claims that he knows everything about the promise made to R.W. and the agreement entered with Kannan. But, it has come out in evidence in cross-examination of R.W.2 that he has no direct knowledge -about such an agreement with Kannan or promise with R.W.I. According to R.Ws.1 and 2, when they went to the house of the petitioner to talk about making an agreement with the petitioner, pursuant to the promise allegedly made by the petitioner, she told them that they had decided to sell the petition schedule building to one Kannan. Except the aforesaid bare statement given by R.W.2, absolutely there is no evidence to prove the alleged promise or agreement for sale with the respondent and Kannan. Moreover, R.W.2 himself deposed that later the petitioner herself told him that she has rescinded from the agreement with Kannan. 17. As regards the promise allegedly made by the petitioner to sell the petition schedule building to the respondent, the only available evidence is the self-serving oral testimony of the respondent as R.W.1. But, the courts below blindly accepted the oral evidence given by R.Ws.1 and 2 without examining its reliability and worthiness in its correct perspective. 18. 17. As regards the promise allegedly made by the petitioner to sell the petition schedule building to the respondent, the only available evidence is the self-serving oral testimony of the respondent as R.W.1. But, the courts below blindly accepted the oral evidence given by R.Ws.1 and 2 without examining its reliability and worthiness in its correct perspective. 18. More over, we are of the opinion that even if that promise or agreement is true, the same is of no consequence at all in considering the bona fides of the need. Being a landlord, the petitioner is at liberty to take a decision to shift her residence to Tharavad house after giving the house wherein they are living at present to her daughter. Several factors may go into the mind of the landlord while planning to sell or transfer the landed property and shifting residence to another house, particularly when the other house is a ‘Tharavad house’. The above view is fortified by the decisions of the Supreme Court in Shiv Sarup Gupta v. Mahesh Chand Gupta ( (1999) 6 SCC 222 ) and Jose N.L. v. Faisal Raj & Anr. 2017 (2) KHC 464 ). In Gupta’s case, the Supreme Court held that in the matter of choosing out of more than one accommodation available to the landlord, his subjective satisfaction shall be respected by the court. In 2017 (2) KHC 464 ), this Court held that landlord is the sole arbiter of his own requirement and suitability of the building among more than one accommodation is his prerogative. Similarly, tenant cannot sit in judgment over the wisdom of the landlord. In short, we find that the courts below absolutely went wrong by relying on the self-serving evidence of R.W.1 and heresay evidence of R.W.2 while considering the bona fides of the need and discarding the evidence of P.W.1. We are of the opinion that a desire to shift residence to Tharavad house and spend the remainder of her life there can never be said to be unreasonable or irrational or vulnerable to any kind of suspicion and such a need must be respected and accepted as held by the Supreme Court in Gupta’s case (supra). 19. Going by the impugned judgment, we find that since the need was not found genuine, no findings have been made on the entitlement of protection under the proviso. 19. Going by the impugned judgment, we find that since the need was not found genuine, no findings have been made on the entitlement of protection under the proviso. Therefore, I we have considered the evidence on record in this respect to avoid a further remand of the matter to the Rent Control Court. 20. As regards the first proviso, there is no pleadings or evidence to the effect that the petitioner has any other suitable vacant building in her possession. Coming to the second proviso, since the building is a residential building wherein the respondent is residing at present, the first limb of the second proviso is insignificant and irrelevant. As regards the second proviso, though the burden of proof is on the respondent, no evidence has-been adduced to prove the non-availability of alternative buildings to shift their residence. 21. In the above analysis, we are inclined to reverse the concurrent findings based on irrelevant consideration and non-consideration of the relevant evidence. We find that the petitioner has succeeded in proving the bona fides of the need projected in the petition. Therefore, the petitioner is entitled to get an order of eviction under S.11(3) of the Act. We set aside the impugned judgment and order to the extent of rejecting the claim of eviction under S.11(3) of the Act and the same would stand allowed. 22. At last, the learned counsel for the revision petitioner sought for some time to surrender the petition schedule building. The learned counsel for the respondent opposed the said request. But, this Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule building, on terms. The revision petitioner shall surrender the petition schedule building within six months provided that she could comply the conditions given below within the specified time. (i) The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the vacant possession of the petition schedule building within a period of six months from today and the said affidavit must be filed within two weeks from the date of receipt of a copy of this order. (i) The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the vacant possession of the petition schedule building within a period of six months from today and the said affidavit must be filed within two weeks from the date of receipt of a copy of this order. (ii) The revision petitioner shall pay entire arrears of rent to the respondent or deposit the same before the Execution Court within three weeks from the date of receipt of the copy of this order and she shall continue to pay rent without default. (iii) In the event of failure, the time granted to vacate the petition schedule building would stand automatically vacated and the respondent will be at liberty to proceed with the execution. This Rent Control Revision is allowed.