C.R. Francis vs Paulson

Pius C. Kuriakose, J.—Under challenge in this revision filed by the tenant u/s 20 of Act 2 of 1965 is the order of eviction concurrently passed against him by the Rent Control Court and the Appellate Authority on the grounds of bona fide need for own occupation u/s 11(3), re-construction u/s 11(4)(iv) and maluser of the building in such a manner as to reduce the value and utility of the building materially and permanently u/s 11 (4)(ii) of Act 2 of 1965.

The allegations of the landlord in the context of the ground under Sections 11(3) and 11(4)(iv) were that the landlord is presently residing in a rental building and is conducting business in repairs and sale of televisions and other electronic goods from the petition schedule building. The landlord needs to occupy the petition schedule building for residential as well as for business purposes after re-constructing the same so that he will have a residential building of his own for occupation and will have more space and facilities for conducting his business. The allegation of the landlord in the context of grounds u/s 11(4)(ii) was that on account of the negligent manner in which the building was used by the tenant the value and utility of the building has become reduced materially and permanently.

The tenant by filing statement of objections disputed the bona fides of the need for own occupation after reconstruction. Alternatively the tenant contended that he is entitled for protection of the second proviso to Sub-Section 3 of Section 11. As regards the grounds u/s 11(4) (ii), the tenant conceded that the building has been damaged heavily. But the tenant alleged that these damages have been deliberately caused by the landlord for foisting a cause of action for an action u/s 11(4) (ii).

The Rent Control Court conducted enquiry and in the enquiry the evidence consisted of Exts.A1 to A23, Ext.B1 to B18 series, Exts.C1 and C2 Commission Report apart from the oral evidence of the landlord as PW1 and that of the tenant as RW1. In fact apart from the grounds mentioned above, the landlord had invoked the ground of arrears of rent also. The tenant disputed the allegation regarding arrears. The Rent Control Court on evaluation of the evidence would decline eviction which was sought on the ground of arrears of rent on the reason that the statutory intimation cum demand notice as envisaged by proviso to Section 11(2) was not sent by the landlord. As regards the grounds u/s 11(3) and 11(4)(iv), it was held by the court that the landlord''s need to re-construct the building and to occupy the same for residential purpose as well as for business purpose is a bona fide one. Further it was held that the tenant was unsuccessful in showing that he satisfies the two ingredients of the second proviso to Sub-Section 3 of Section 11. Coming to the ground u/s 11(4)(ii), the Rent Control Court noticed that the fact that the condition of the building was highly damaged and the value of the building had become reduced materially and permanently was not in dispute and the allegation of the tenant was that the landlord was responsible for the above condition. On appreciating the evidence, the court held that the tenant was unsuccessful in establishing that it was the landlord who was responsible for the present totally unsatisfactory condition of the building. In that view of the matter, the Rent Control Court would find that the eviction ground u/s 11(4)(ii) stood established. Accordingly, order of eviction was passed by the Rent Control Court u/s 11(3) and 11(4)(iii).

The learned Rent Control Appellate Authority considered an appeal preferred by the tenant and made a thorough re-appraisal of the entire evidence and would concur with all the conclusions of the Rent Control Court. Accordingly, the appeal was dismissed.

In this revision filed by the tenant various grounds are raised assailing the order of the Rent Control Court and the findings entered by that court. We have heard submissions of Sri. Dilip J. Akkara, the learned Counsel for the Petitioner and those of Sri.K.K. Chandran Pillai, the learned senior counsel for the Respondent who had lodged a caveat in anticipation of the RCR. Sri. Dileep J. Akkaraa would draw our attention to Ext.C2 commission report and submit that it is in evidence that the landlord had constructed two new buildings more or less at the time of the commencement of the Rent Control Petition. If the need of the landlord to occupy the proposed new building for residential purposes was bona fide the landlord would have occupied one of the two buildings put up by him and presently used for business purposes. The conduct of the landlord to have the new buildings for business purposes alone demonstrate that there is no bona fides in the need projected. Referring to the Advocate Commissioner''s Report Sri. Akkara further submitted that going by that report the proposed new building cannot be constructed as per the plan approved by the Corporation. According to the learned Counsel, the Commissioner has clearly reported that the emergence of the new buildings adjacent to the existing old building will make construction of the new building as per the approved plan impossible. Sri. Akkara would submit that concurrent though they may be, the findings by the statutory authorities regarding the existence of eviction ground u/s 11(4)(ii) are erroneous. In this context he read over to us the findings of the learned Appellate Authority. Sri. Akkara would challenge the finding of the two authorities that the tenant is not eligible for the protection of the second proviso to Sub-Section 3 of Section 11.

Sri.K.K. Chandran Pillai, the learned senior counsel would defend the judgment of the Appellate Authority on the basis of the various reasons stated in that judgment as well as in the order of the Rent Control Court. When we drew the attention of Sri. Chandran Pillai to the situation that the Rent Control Appellate Authority''s findings regarding the ground u/s 11(4)(ii) are not specific, the response of the learned senior counsel was that the learned Rent Control Appellate Authority has only confirmed the corresponding findings in the order of the Rent Control Court and those findings are quite satisfactory. Answering the argument of Sri. Akkara in the context of grounds u/s 11(4)(iv) and 11(3), Sri. Chandran Pillai, drew our attention to certain portions of the evidence including the Commission Report Ext.C1 and C2 and submitted that the so called new buildings constructed by the landlord were temporary structures put up by the landlord in view of extreme exigencies and pointed out that these structures were not in existence at the time of the first inspection by the Commissioner resulting in Ext.C1. He highlighted that the roofing of the so called new buildings are made of asbestos and tin sheets and the walls are made of hollow bricks. As regards the argument that it will not be possible to construct the proposed new building in accordance with the plan in view of the existence of the so called new buildings Sri. Chandran Pillai submitted that in evidence it has been brought out that the so called new buildings will be demolished and removed for paving the way for a new building and construction as per the building plan. Sri. Pillai submitted that there is no illegality, irregularity or impropriety about the findings entered by the statutory authorities on all points including the question whether the tenant is eligible for the protection of the second proviso to Sub-Section 3 of Section 11. Sri. Pillai reminded us of the contours of this Court''s revisional jurisdiction u/s 20. He submitted that it was not on merits that the eviction order was declined u/s 11(2)(b). Eviction order was declined for the reason that the statutory notice was not proper. According to him that since 1988 the rent at the contract rate of Rs. 55/- which is a very paltry rate has not been paid. In reply Sri. Akkara would take strong exception to the submission of Sri. Chandran Pillai that rent is in arrears at the rate of Rs. 55/- from 1988 onwards. According to Sri. Akkara rent in arrears was paid by money order.

We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority. We have applied our mind to various items of evidence to which our attention was drawn by the counsel in their respective submissions, particularly Exts.C1 and C2 Commission Reports. The question which arises before us is whether there is any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965 about the judgment of the Appellate Authority which under the statutory scheme is the final court on facts. According to us the above question can be answered only in favour of the Respondent/landlord. On going through the judgment of the Appellate Authority, we find that the findings entered therein that the building which is admittedly 52 years old needs reconstruction and the landlord bona fides needs to re-construct the same for own occupation is a finding entered on the basis of the evidence available on record. Admittedly the landlord is residing in a rented building. When that is the situation the need of the landlord to have a building of his own for own occupation has to be presumed to be a bona fide one in the absence of any oblique motive. We do not find any oblique motive attributed to the landlord. The submission of Sri. Dilip Akkara based on the so called two new buildings constructed by the landlord do not appeal to us. It has been clearly found by the statutory authorities on the basis of material evidence including Ext.C2 that the so called new buildings constructed by the landlord at about or immediately after the commencement of the RCP are temporary structures in respect of which the evidence given by the landlord is that they will be removed for the purpose of paving the way for implementing the proposal for reconstruction of the petition schedule building. According to us, there is no illegality, irregularity or impropriety about the finding that the landlord needs to have own occupation of the building for residential and commercial purposes after reconstructing the same is bona fide.

The same is the position regarding the further finding that the tenant does not satisfy either of the ingredients of the second proviso to Sub-Section 3 of Section 11. It became evident that the tenant is the Director Board member and Deputy Chairman of a profitably run Kuri Company in Trichur. When it is shown that the tenant has more than one source of income, it is the tenants burden to adduce convincing material and proof before the Rent Control Court that the activity carried on by him in the petition schedule premises accounts for his main source of income. In the absence of such evidence, the authorities below were perfectly justified in concluding that the tenant did not establish that the income from the petition schedule premises accounts for his main source of income. The same is the position regarding the second limb of the second proviso. In the absence of any available evidence the finding cannot have been different from the finding that is entered by the two authorities.

It is true that the finding of the learned Appellate Authority in the context of the ground u/s 11(4)(ii) could have been more specific. But then, the learned Appellate Authority was only confirming the corresponding finding entered by the Rent Control Court. While examining the correctness of the above finding the nature of the defence put up is to be kept in mind. The defence was not that the building has not been damaged to a stage beyond repairs. The defence was that the landlord was responsible for the same. We must say that the tenant miserably failed in substantiating that defence. The result of the above discussion is that the revision will have to be failed and will stand dismissed.

As a last plea, the learned Counsel for the revision Petitioner sought for seven months'' time to vacate the premises. The above request was very stiffly opposed by Sri. Chandran Pillai. Despite the opposition, we feel that the tenant can be granted the time sought for by him, however, only on conditions.

The result accordingly is as follows:

The RCR is dismissed confirming the order of eviction passed u/s 11(3); 11(4)(iv) and 11(4)(ii). The execution court is directed to keep in abeyance proceedings for delivery till 31st December, 2011 subject to the following conditions:

The revision Petitioner shall file an affidavit before the execution court or the Rent Control Court, as the case may be, within three weeks from today undertaking as follows:

1) that he will give peaceful surrender of the building to the Respondent on or before 31/12/11.

2) that he will discharge the arrears of rent at the rate of Rs. 55/- per mensem from 09/03/98 till date (less any amount paid during the pendency of the proceedings either directly or by money order evidenced by records) to the Respondent either directly or through the Respondent''s counsel in the Rent Control Court within one month from today and produce receipt.

3) that he shall pay occupational charges to the Respondent with effect from 1st June, 2011 till date of surrender at the rate of Rs. 1,000/- per mensem.

We make it clear that the revision Petitioner will get the benefit of time granted as above only if the affidavit is filed on time and all the undertakings therein are honoured. If any of the conditions are violated, it will be open to the landlord to move the execution court for immediate order of delivery.