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Judgment
Pius C. Kuriakose, J.—The tenants, who are the functionaries of a Trust, have filed this revision challenging the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against them by the Rent Control Court under sub section (3) of Section 11. The landlords had invoked the grounds of arrears of rent and the grounds of user of the building in such a manner as to reduce the validity and user of the building materially and permanently (Section 11(4)(ii) of Act 2 of 1965) also. The eviction order has been passed by the Rent Control Appellate Authority under the impugned judgment only on the ground under sub section (3) of Section 11. Thus the only surviving eviction ground is the one u/s 11(3) and in this revision we need have to be concerned with the correctness of that eviction order. The tenants are presently conducting a hospital in the subject building under the name and style ''M/s. Madhava Rao Scindia Memorial Hospital'' and for the sake of convenience, we are referring to the building as the Sanjivini Hospital building as a hospital under the name ''Sanjivini'', was being conducted by the father in law of the second petitioner in the R.C.P., the second respondent herein Smt. Deepa Ranjith.
The case of the landlords is that PW1 Smt. Deepa Ranjith was running Sanjivini Hospital in the building from 2001 till 2003 and that, she had to stop running of the hospital due to personal reasons. It is thereafter, that the building was let out to the tenants. The landlords case is that the personal difficulties of PW1 in conducting the hospital are now over and she needs to resume running the hospital in the building by utilising the hospital equipments, which are described as Schedule B in the petition, which were also leased out to the tenants along with the building.
It is also averred in the R.C.P that the husband of the second respondent is Shri P. K. Ranjitha, a doctor by profession. Hence, the second respondent in the R.C.P is having a genuine and bonafide need to resume Sanjivini Hospital in the petition schedule building. The bonafides of the need was disputed by the tenants through the statement of objections filed by them. Several contentions challenging the maintainability of the R.C.P and disputing even the claim of the second petitioner in the R.C.P that she was Managing Partner of Sanjivini Hospital, a partnership firm were raised. It was contended that the hospital previously conducted by the second respondent in the R.C.P is closed due to heavy loss. It was contended that the husband of the second petitioner in the R.C.P is conducting a hospital at Kochi and that he is fully engaged in Kochi and is not in a position to come over to Kannur to conduct the hospital at Kannur,
It was also contended that the R.C.P was instituted without any bonafides only because, the tenants refused to accede to the demand of the landlords to enhance the rent of the building to Rs. 15 lakhs per mensem.
The learned Rent Control Court conducted enquiry and on appreciating the evidence, which consisted of Ext.A1 to A10, B1 to B3 and oral evidence of PW1 (Smt. Deepa Ranjith, the second petitioner in the R.C.P) and RW1 would come to the conclusion that the eviction ground under sub section (3) of Section 11 stood established. According order of eviction under sub section (3) of Section 11 was passed.
The tenants preferred an appeal to the Rent Control Appellate Authority. The Rent Control Appellate Authority formulated requisite points as to the maintainability of the R.C.P, as to the locus standi of the second petitioner in the R.C.P, to verify and sign the R.C.P and as to the bonafides of the need and also as to whether the R.C.P is liable to be rejected by the first proviso to sub section 3 of Section 11. A point as to whether the tenants are entitled th the protection of the second proviso was also formulated.
After making a reappraisal of the entire evidence, the learned Rent Control Appellate Authority held that the R.C.P is perfectly maintainable in law and that the evidence sufficiently establishes that the need projected by the landlords under sub section (3) of Section 11 was a bonafide one and it was also held that there was no bar to order eviction u/s 11(3). Accordingly the learned Rent Control Appellate Authority confirmed the order of eviction u/s 11(3). It is challenging the judgment of the learned Rent Control Appellate Authority that the resent revision is filed.
In the memorandum of revision, various grounds have been raised challenging almost every finding entered by the Appellate Authority, particularly the finding that the need projected under sub section (3) of Section 11 is a bonafide one.
We have heard the submissions of Shri P. B. Krishnan, Learned Counsel for the revision petitioners and those of Mr. M. C. Sen, learned senior counsel for the respondents.
The hearing started on 09/03/2012 and on that date our attention was drawn by Shri P. B. Krishnan to the R.C.P and also to the evidence adduced by PW1, Smt. Deepa Ranjith. It was submitted by Mr. Krishnan that it has come out in evidence that Smt. Deepa Ranjith is presently residing at Kochi and also that her husband Shri. P. K. Ranjith, who is a doctor is working in Scotland. Mr. Krishnan also submitted that it has become evident that Smt. Deepa Ranjith has school going children, who are pursuing their studies at Kochi. According to Mr. Krishnan, the case pleaded by the landlords that Smt. Deepa Ranjith will conduct Sanjivini Hospital at Kannur and that too with the assistance of her husband who is a highly qualified surgeon, is highly improbable and benefit of any bonafides.
At that juncture, Shri M. C. Sen, learned senior counsel for the respondents would submit that Dr. P. K. Ranjith is no longer in Scotland and that he has come back to India and as the subject building is not yet surrendered by the tenants, Dr. P. K. Ranjith is presently working temporarily at Ernakulam Medical Centre, which belongs to Smt. Deepa Ranjith''s father.
Mr. Krishnan would immediately retort that the return of Dr. Ranjith to India is a subsequent event, which was not brought to the notice of even the Rent Control Appellate Authority. He also submitted that it has to be seen whether Dr. Ranjith will give up his coveted possession in Ernakulam Medical Centre, a well established hospital in Kochi City to resume Sanjivini Hospital which had to be closed once on account of heavy loss. In the light of the above submissions, we, on 19/03/2012, passed the following order:
Heard Sri. P. B. Krishnan, the Learned Counsel for the revision petitioner for some time. Having regard to the argument addressed by Sri. Krishnan so far, we direct Smt. Deepa Ranjith PW1 to file an affidavit before this Court stating as to where she was residing during the period she conducted the hospital (till 31.01.03). In the same affidavit she will also state as to whether her husband Dr. Ranjith has come back from Scotland and also as to whether Dr. Ranjith intends to go back to Scotland or any other foreign country. File affidavit immediately. Post of 26.03.12.
Interim stay will continue.
Pursuant to the above order, Smt. Deepa Ranjith filed an affidavit before this Court on 21/03/2012, wherein she has clearly stated that at the time when she was managing Sanjivini Hospital at Kannur, she was residing in K. V. House, Talap, Kannur, which is the ancestral house of her husband. It was also stated that the above house is situated very near to the subject building and that the above house is even now available for residence to her. She has also stated that at the time when the Sanjivini Hospital was being managed by her, her husband was in England and that at that time her mother was staying with her at Kannur.
In the affidavit she goes on to say that her husband Dr. Ranjith came back to India in January, 2011 with the hope that by that time, the subject building will be available and that he can help her to run the Hospital. It is very clearly stated in the affidavit that her husband has no intention to go back to England as he resigned the job abroad. It is stated that at present on a temporary basis Dr. Ranjith is working at Ernakulam Medical Centre and they intend to settle at Kannur to get the possession of the petition schedule building and to run the hospital.
To the above affidavit, as permitted by us, the revision petitioners filed a counter affidavit through the second revision petitioner. Through this counter affidavit the correctness of the averments in the affidavit submitted by Smt. Deepa Ranjith are disputed including her statement that her husband Dr. Ranjith has come back with the hope that Smt. Deepa. Ranjith will be getting the assistance of her husband in conducting the Hospital at Kannur. It is contended through this affidavit that Dr. Ranjith is a Chief Consultant Surgeon of the Orthopedic Wing of Ernakulam Medical Centre and that Dr. Ranjith''s specialization is Hip- resurfacing Arthroplasty. Service of Dr. Ranjith is absolutely necessary in Ernakulam Medical Centre, but, not in the proposed Hospital at Kannur. It is pointed out that, at the time when Sanjivini Hospital was being conducted, the same did not have an Orthopedic wing at all. Details are given in the counter affidavit, as to justify the contention that Dr. Ranjith will never give up his present assignment in Ernakulam Medical Centre and come over to Kannur for running the proposed Hospital in the petition schedule building. It is stated that the subsequent events which are now projected before this Court cannot be looked into without amendment of the pleadings. The averments in the affidavit according to the counter affidavit are at variance with the case pleaded in the R.C.P and pursued by the landlords in the evidence. According to the counter affidavit, prejudice will be caused to the tenants, unless they get opportunity to cross examine Smt. Deepa Ranjith with reference to the averments in the affidavit.
After the affidavit and counter affidavit were made available, we have heard Mr. Krishnan and senior counsel Mr. Sen again. Mr. Krishnan submitted that, if this Court is impressed by the affidavit submitted by Smt. Deepa Ranjith, then before this Court acts upon this affidavit, the revision petitioners should be given opportunity to cross examine the deponent Smt. Deepa Ranjith, otherwise prejudice will be caused to the revision petitioners.
Learned Senior Counsel Mr. Sen, per contra, would draw our attention to the rival pleadings raised by the parties, the evidence of PW1 and RW1 and also the affidavit and the counter affidavit filed before this Court. According to Mr. Sen, it has become evident, if not admitted that Sanjivini Hospital was being conducted in the petition schedule building, previously by a partnership firm in which Smt. Deepa Ranjith was the Managing Partner. It is also become evident, if not admitted that, while Sanjivini Hospital was being managed by Smt. Deepa Ranjith, she was residing in Dr. Ranjith''s ancestral house situated very near to the petition schedule building. It is also not disputed that the above ancestral house named K. V. House, is even now available for residence by Smt. Deepa Ranjith and Dr. Ranjith. It is not necessary to afford any opportunity to the revision petitioners for cross examining Smt. Deepa Ranjith on the basis of the averments in the affidavit filed before this Court, as sub section (12) of Section 11 of Act 2 of 1965, will always come to the rescue of the revision petitioneRs. Any condition found fit by this Court for ensuring that the building after eviction will be utilised by Smt. Deep Ranjith and Dr. Ranjith only for conducting Sanjivini Hospital can be incorporated.
If the case is remanded giving opportunity to the revision petitioners to cross examine Smt Deepa Ranjith the, it is certain that the proceedings for eviction which commenced way back in 2006, will be protracted further. It is the need of Smt. Deepa Ranjith and her husband Dr. Ranjith that Sanjivini Hospital once conducted by Dr. Ranjith''s father, is started at the earliest.
Mr. Sen also submitted that no prejudice is going to be occasioned to the revision petitioner by ordering eviction of the petition schedule building as the revision petitioners have already started a new Hospital in the name KIMST Madhava Rao Scindia Memorial Hospital, recently. It was submitted that the second revision petitioner, who is the Managing Director of the above Hospital which is actually a family concern of the Trustees of the first revision petitioner Trust.
We have given our anxious considerations to the rival submissions addressed at the Bar. We have gone through the impugned judgment of the learned Rent Control Appellate Authority in detail. We have examined the pleadings raised by the parties. We have also surveyed the evidence so far on record, especially the oral evidence adduced by PW1 and RW1. We have taken into account the affidavit and the counter affidavit filed by the parties in response to the directions passed by us. We have also reminded ourselves of the contours of our revisional jurisdiction u/s 20 of Act 2 of 1965.
This is a case where the bonafides of the need projected by the landlords were found in their favour by the two fact finding authorities under the statute namely, learned Rent Control Court and Rent Control Appellate Authority. The correctness of the above finding was challenged before us mainly on the basis of the circumstance that Dr. Ranjith, who was claimed to render assistance to Smt Deepa Ranjith, is not available in India to offer such assistance and also on the reason that Smt. Deepa Ranjith and her children are permanently residing at Kochi. The argument of Shri P.B. Krishnan that the claim projected in the R.C.P is highly improbable in the teeth of the above circumstances had considerably appeal to us. This was why, we directed Smt. Deepa Ranjith, who had given evidence as PW1 to file affidavit before this Court. The affidavit has clarified matters and we have no doubt in our mind that, if the facts stated in the affidavit are true, the bonafides of the claim raised in the R.C.P would stand established to the very hilt. But then, Mr. Krishnan''s submission that, if this Court acts on the affidavit without affording opportunity to the tenants for testing the truth of the statement contained in the affidavit, prejudice will be occasioned to the revision petitioners also appeals to us.
We feel that opportunity should be given to the landlords to adduce evidence for proving the truth of the statements contained in the affidavit filed by Smt. Deepa Ranjith before this Court. It is open to them to examine Dr. Ranjith also, so that the bonafides of the need projected in the R.C.P become unimpeachable. We, therefore, inclined to remit the matter back to Rent Control Appellate Authority. We notice in this context that when it comes to adduction of evidence, the powers of the Rent Control Appellate Authority and Rent Control Court are co-equal (in terms of Section 23(1)(d), Section 18(3) and (4) of the Act and also Rule 16(2) of the Statutory Rules).
We decide to remit the matter back to the learned Rent Control Appellate Authority so as to avoid more delay in the matter of the final decision to be taken in that case.
At the same time, we notice another aspect of the matter. The building together with the equipments therein, described under schedule B of the R.C.P was let out to the revision petitioners eight years ago on a consolidated monthly rent of Rs. 75,000/- . We are of the view that the rent for the building and the equipments require to be revised. We enhance the rent for the building by Rs. 10,000/- per mensem and for the equipments by Rs. 15,000/- . Thus, the total amount payable by the revision petitioners will stand enhanced to Rs. 1 lakh per mensem, with effect from 01/04/2012. We make it clear that this revision is subject to any order which may be passed by the learned Rent Control Court u/s 5 on application by other side. Till fair rent is fixed regularly, revision petitioners shall pay the rent at Rs. 1 lakh per mensem. We also find that, once bonafides of the need projected under sub section (3) of Section 11 is found in favour of the landlords, order of eviction u/s 11(3) shall follow as there is no other legal or factual impediment against the passage of such eviction order. We also clarify that the provisos (1st proviso and 2nd proviso) to Section 11(3) have no application in this case at all, though strangely rather the learned Rent Control Appellate Authority have considered the application of such provisos. The result of the above discussion is that the impugned judgment of the learned Rent Control Appellate Authority is set aside. The R.C.A No. 72/2008 is remanded to the Rent Control Appellate Authority. The learned Appellate authority will permit the respondents to adduce further evidence in support of the bonafides of the need projected u/s 11(3). If the respondents adduce evidence, the revision petitioners should also be permitted to adduce counter evidence. The learned Appellate Authority will pass a revised judgment, taking into account the evidence already on record and the evidence which comes on record, pursuant to this order of remand passed by us. We direct the Rent Control Appellate Authority to expedite matters and to pass a revised award immediately and, at any rate, within two months of the Court reopening after mid summer recess. Transmit the L.C.R forth with to the Rent Control Appellate Authority, Thalassery. If the landlords are desirous of seeking amendment pleading, the learned Appellate Authority shall favourably consider such application, if any, to be filed. If pleadings are amended by the landlords, revision petitioners should be permitted to raise additional counter pleadings.