INDIAN COFFEE W COOP SOCIETY Vs. SHARAFUDEEN

JUDGEMENT

(1.) CIVIL Revision Petition filed at the instance of the tenants is directed against the concurrent findings of the Courts below that the landlord requires the petition schedule building bona fide to start a restaurant and a bakery under S. 11 (3) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act') and for additional accommodation under S. 11 (8) thereof. The revision petitioners/tenants figured as respondents in R. C. P. No. 10/96 on the file of the Rent Control Court, Palakkad The aforesaid eviction petition was filed by the respondent landlord under S. 11 (2), 11 (3) and 11 (8) of the Act. Indian Coffee Workers Cooperative Society Ltd. , Cannanore is conducting a restaurant, viz. , Indian Coffee House in the petition schedule building. First revision petitioner is the president of the said society and petitioner No. 2 is its Secretary. The third revision petitioner is the manager of the Coffee House. The revision petitioners will be hereinafter referred to as the tenants and the respondent as the landlord.

(2.) THE schedule premises forms part of a two storeyed building originally belonging to one M/s. K. K. Sudevan which was the subject matter of a mortgage in favour of Union Bank of India. THE bank had obtained a decree against the mortgagor and brought the property to sale in execution of the decree in O. S. No. 143/85 of the Sub Court, Palakkad. In E. P. No. 174/89 for execution, the Court ordered the said building on which the schedule premises forms part of to be put in Court auction. Auction was conducted on 11. 10. 1994. THE landlord was the highest bidder and the auction was confirmed in his name. THE Court ordered the auction to be confirmed on 17. 12. 1994 and the sale certificate was issued to the landlord on 10. 3. 1995. THE petition for eviction was filed on the aforesaid ground on 29. 1. 1996 which is well beyond the period of one year from 11. 10. 1994. THE tenant filed a written statement denying the bona fides of the landlord as also the need for additional accommodation under S. 11 (3) of the Act. THE evidence before the Rent Control Court consisted of the oral testimony of PW1 and RW1 and Exts. A1 to A7 (a) and B1. THE landlord as PW1 gave evidence in terms of the averments contained in the Rent Control Petition. According to him he has rich experience in conducting bakery and restaurant business for the last 17 years and the petition schedule premises is required by him to conduct a restaurant therein in order to cater to the needs of the persons residing in the first floor of the building owned by him as lodgers. He has also stated that he has no other building in his possession to conduct the same business and has no intention to rent out the same at a higher rate to any other person. Though he has issued Ext. A1 notice on 28. 6. 1995 the tenants did not respond to the same. Though the tenants disputed the bona fides of the landlord, "they did not elicit anything from the landlord in favour of them. " On an appreciation of evidence the Rent Control Court believed the version set up by the landlord and entered a finding of bona fide need in his favour under S. 11 (3) of the Act. After finding the bona fide need under S. 11 (3) of the Act in favour of the landlord, the Rent Control Court considered the question whether the landlord needs the petition schedule premises as additional accommodation under S. 11 (8) of the Act. It is not in dispute that the landlord is in occupation of a part of the building in which the lodging is conducted. THE need set up by the landlord is that the petition schedule premises is required for conducting a restaurant in order to cater to the needs of the persons residing in the lodging house in the first floor of the building. On evidence the Rent Control Court found that the business proposed to be started by the landlord is "for the expansion of the existing trade as seen in modern cities and town areas". It is also found that the landlord "does not want to transplant himself from the existing portion to a new portion, but on the other hand, expand his existing trade in order get more customers" in the same building in which case his case will come squarely under S. 11 (8) of the Act in spite of the fact that he has established his bona fide need under S. 11 (3) of the Act as well. In the aforesaid view, the Rent Control Court held that the landlord needs the building for the purpose of additional accommodation. Though the landlord has filed the petition under S. 11 (2) (arrears of rent) also, that ground does not survive for consideration since it is submitted that the arrears in question have been already cleared. THE Rent Control Appellate Authority on a careful re-appreciation of the entire evidence on record confirmed the order of the Rent Control Court and dismissed the appeal filed by the tenants. While considering the question of bona fide need the Appellate Authority observed that the evidence of PW1 would make it crystal clear that the bona fide need of own occupation of the petition schedule building for starting a restaurant can only be considered as genuine and honest demand and that the intention of the landlord cannot be labelled as a mere desire or as a ruse or pretext to get vacant possession of the petition schedule building. On the question of additional accommodation under S. 11 (8) of the Act the Appellate Authority found that the petition schedule building is a portion of a double storied building and that the landlord is already in possession of a portion of that building, viz. the upstair portion of the building and that the landlord is running a lodging house in the upstair portion. THErefore, it was found that the demand of the landlord for eviction of the tenant from the petition schedule building for additional accommodation can be treated as a sustainable claim under S. 11 (8) of the Act. THE Appellate Authority also adverted to the evidence of PW1 which will go to show that the starting of a restaurant in the petition schedule building is very essential for his lodging house which is housed in the upstair portion of the building. Hence the need for the petition schedule building as an additional accommodation can be treated as honest and genuine one. We on our part, on a careful consideration of the orders of the Courts below and upon hearing learned counsel on both sides, are not inclined to disturb the various findings of fact already entered based on cogent material and evidence. We have to remind ourselves that the jurisdiction exercised under S. 20 of the Act is a limited on which makes a complete embargo on this Court to act as a first or a second court of appeal. Even by the presence of the word 'propriety' it cannot mean that there would be reappreciation of evidence - vide Rukmini Amma Saradamma v. Kallyani Sulochana & Ors. (AIR 1993 SC 1616 ). Thus, on the whole we are satisfied that the eviction ordered by the Courts below under S. 11 (3) and 11 (8) of the Act is perfectly valid.

(3.) LASTLY, it was contended by the tenants that since a similar application with identical prayers filed against another tenant in occupation of the same building was dismissed by the Rent Control Court holding that the landlord has failed to establish his bona fides, the landlord has lost the substratum of his case of bona fides. We are afraid we cannot accede to the aforesaid contention since, in our view, the finding on the question of bona fide need entered by the Rent Control Court in that case can at best be considered as negativing the bona fide need of the landlord qua that portion of the building only which was the subject matter in that R. C. P. , and the said finding cannot have any bearing on the bona fide need of the landlord vis-a-vis the present building. That apart, the landlord has taken up the matter in appeal before the Appellate Authority and the appeal is pending. Besides, the evidence adduced in the two cases are also separate. For all the above reasons, we are not persuaded to interfere with the orders of the Courts below. At any rate, there is no illegality, irregularity or impropriety in the orders under challenge. Accordingly, we dismiss this C. R. P. However, we make it clear that the tenants will be entitled to carry on their business in the petition schedule building for a further period of four months from today on condition that they will file an affidavit before the Rent Control Court unconditionally undertaking to vacate the petition schedule premises within the aforesaid period, within two weeks from today. .