Alice @ Alice George vs M.I. Shajahan

1 RCR 238 of 2019 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **RCRev..No.238 OF 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 38/2014 OF III ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM** **AGAINST THE ORDER/JUDGMENT IN RCP 73/2011 OF THE ADDITIONAL MUNSIFF COURT (RCC),TRIVANDRUM** ## **REVISION PETITIONER/S:** **ALICE @ ALICE GEORGE AGED 60 YEARS W/O.GEORGE JOSEPH, T.C.11/957(2), NALANDA JUNCTION, KAWADIAR VILLAGE, THIRUVANANTHAPURAM-3.** **BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.RAHUL RAJ** ## **RESPONDENT/S:** **M.I.SHAJAHAN AGED 39 YEARS S/O.MOHAMMED ISMAIL, KUNNIL VEEDU, KARUNGANUR, KOWDIAR VILLAGE, PATTOM(P.O.), THIRUVANANTHAPURAM, PIN-695 004.** **R1 BY ADV. SRI.M.SREEKUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 1003-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 RCR 238 of 2019 ## **ORDER** ## **K. Harilal, J.** This is the second revision petition in the chequered history of R.C.P.No.73/2011 on the files of the Rent Control Court, Thiruvananthapuram. The revision petitioner is the tenant, who is confronting with an order of eviction passed by the Rent Control Appellate Authority, Thiruvananthapuram in R.C.A.No.38/2014. The aforesaid RCP was filed by the respondent herein/landlord, against the revision petitioner/tenant under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control)Act, 1965 (herein after referred to as 'the Act'). 2. The revision petitioner resisted the said claim for eviction and after considering the evidence on record, the Rent Control Court, dismissed the petition on all the aforesaid grounds. As regards the claim for eviction under Section 11(3) of the Act, the Rent Control Court found that the bona fide need is hit by the first proviso, but the revision 3 RCR 238 of 2019 petitioner herein is not entitled to get a protection under the second proviso to Section 11(3) of the Act. 3. Aggrieved by the said order of the Rent Control Court, the respondent/landlord herein had preferred an appeal; R.C.A.No.38/2014, before the Rent Control Appellate Authority and after re-appreciating the evidence on record, the Rent Control Appellate Authority confirmed the order dismissing the rent control petition passed by the Rent Control Court. 4. Feeling aggrieved, the respondent/landlord herein preferred R.C.R.No.284/2016, before this Court. After considering the legality, propriety and regularity of the concurrent findings, whereby the Appellate Authority and the Rent Control Court rejected the claim for eviction, this Court confirmed the bona fides of the need, but, set aside the findings under first and second proviso to Section 11(3) of the Act and remitted the rent control appeal to the Appellate Authority, for fresh consideration and disposal on the first and second proviso to Section 11(3) of the Act only. 5. Further, it was clarified that the Appellate Authority 4 RCR 238 of 2019 shall consider the evidence on record under the first proviso to Section 11(3) of the Act, after getting further report as to the actual plinth area of the petition schedule shop room and the other vacant room, which is situated on the northern side of the petition schedule shop room. 6. Pursuant to the aforesaid order passed by this Court in R.C.R.No.284/2016, the Appellate Authority again considered the evidence on record under first and second proviso to Section 11(3) of the Act. After getting further report, the Appellate Authority allowed the rent control petition on a finding that the bona fides of the need is not hit by the first proviso to Section 11(3) of the Act and the revision petitioner is not entitled to get protection under the second proviso to Section 11(3) of the Act. Thus, the legality, propriety and regularity of the aforesaid finding are challenged in this revision petition. 7. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 8. The sum and substance of the argument advanced by the learned counsel for the revision petitioner/tenant is that 5 RCR 238 of 2019 the findings of the Appellate Authority under the first and second proviso to Section 11(3) of the Act are perverse, warranting interference of this Court in revisional jurisdiction. Further it is submitted that the respondent has vacant room of his own in his possession in the first floor of the building, wherein a textile by name 'Man Manthra' was housed earlier. The said room is still vacant. After the remand of R.C.A.No.38/2014 by this Court, he has filed I.A.No.903/2018 in R.C.A.No.38/2014 to measure out the aforesaid vacant room in the first floor by Advocate Commission. But, the Appellate Authority did not consider the said request. 9. The revision petitioner has produced a copy of the said interlocutory application as Annexure-A with photographs of the aforesaid vacant rooms as Annexure-B. According to the revision petitioner, it was essential and expedient in the interest of justice to accept Annexure-A and B documents, which would prove the vacant possession of rooms. That apart, the respondent has got vacant possession of two bed rooms, a hall and kitchen on the ground floor of 6 RCR 238 of 2019 the building, which was occupied by the mother of the respondent. But in that room, the respondent and his mother started a hotel business. Thus, during the pendency of the appeal, the respondent has got vacant possession of one room in the first floor and two bed rooms, a hall and kitchen on the ground floor. According to the learned counsel, the subsequent events, by which the respondent had obtained the vacant possession of alternative buildings, would negate the bona fides of the need under the first proviso to Section 11(3) of the Act. 10. Per contra, the learned counsel for the respondent advanced arguments to justify the findings of the Appellate Authority, whereby the claim for eviction stands allowed. According to the learned counsel for the respondent, the Commission report obtained after the remand would prove that the alternative vacant “stair case room” is not suitable for conducting the proposed business of the respondent. The stair case room is not similar as that of the petition schedule building. According to the learned counsel no enquiry should have been conducted to ascertain suitability of the 7 RCR 238 of 2019 alleged vacant rooms in the first floor and the ground floor as it was not permitted in the order of remand passed by this Court in the earlier RCR. 11. The first question to be considered is, whether there is any illegality or impropriety in the findings, whereby the Rent Control Appellate Authority arrived at a finding that claim for eviction is not hit by the first proviso and the revision petitioner/tenant is not entitled to get protection under second proviso to Section 11(3) of the Act. 12. Pursuant to the remand order passed by this Court, the Advocate Commissioner inspected the “staircase room” which was projected as alternative vacant room in the possession of the respondent and filed Ext C3 report. Going by paragraphs 9 and 10 of the impugned order under challenge, we find that the Commissioner has filed Ext C3 report after comparing the suitability of the “staircase room” with the petition schedule room and reported that the alternative staircase room is not suitable for conducting the proposed mobile phone business of the respondent herein. 8 RCR 238 of 2019 In Ext C3 report, the Commissioner reported that the vacant staircase room is on the northern side of the tenanted shop room and a staircase is found in the said room. The landing of staircase projected to the inner wall of the said room. The flooring of vacant room is not in the same level. The floor level on the southern side is higher than the floor on the northern side. The total height of the “staircase room” is 2.90 meters. The length of “staircase room” is 3.24 meters. The staircase is situated on the north eastern side of vacant shop room. The length and breadth of the tiled steps in front of the “staircase room” is having 61 cm and 64 cm respectively. The tenanted building is having the shape of trapezium, length of its northern side is having 3.7 meters and its middle portion is having 3.15 meters in length and the southern side is having 3.18 meters in length. The eastern side is having 2.6 meters width and 4.1 meters width on the western side. The height of the room is 3.07 meters. The Commissioner also found that the tenanted building is having a varanda with terracotta tiles and its roof is made out of tin sheet and that the front side of the closed 9 RCR 238 of 2019 room is having ceramic tiles and its varanda with terracotta sloping. The aforesaid description in the report would show that vacant shop room, which was found very near to the staircase is not suitable to conduct the proposed business, when comparing with the petition schedule shop room. It follows that the proposed business of the respondent cannot be conducted in the said vacant shop room with the paucity of space and lack of convenience and suitability, to display articles to attract customers. We do not find any reason to interfere with the aforesaid findings in view of the report submitted by the Commissioner after remand. Therefore, the findings of the Appellate Authority that the bona fides of the need projected in the rent control petition is not hit by fist proviso to Sec.11 (3) of the Act is correct and we do not find any perversity in the aforesaid findings. 13. The learned counsel for the revision petitioner mainly focused his arguments on the point that besides the staircase room, during the pendency of the appeal, after remand, the respondent got vacant possession of one room in the up stair, and two bedrooms, a hall and kitchen on the 10 RCR 238 of 2019 ground floor of the building, which were occupied by the mother of the respondent. Though he had preferred IA 903/2018, in RCA 38/2014 to measure out the aforesaid vacant room in the first floor by the Commissioner, the Appellate Authority did not consider the said application. Whether the Appellate authority is justified in not considering IA 903/2018. 14. It is to be borne in mind that the scope and extent of the enquiry and consideration after the remand is confined only to suitability of the staircase room, after ascertaining the dimensions of the staircase room and the tenanted premises. No permission was granted by this Court in the remand order to conduct any fresh enquiry as to availability of any room, other than the staircase room. Therefore, the Appellate Authority is justified in not considering IA 903/2018 filed in the appeal, to ascertain the new matters, which would go outside the scope and extent of the remand order passed by this Court. 15. It is the specific case of the revision petitioner in IA 903/2018 that during the pendency of this appeal, after the 11 RCR 238 of 2019 remand, the respondent has got vacant possession of one room on the first floor of the building where a textile, by name, Mann Manthra was housed earlier, when they vacated the said premises. It is needless to say, this rent control petition was filed in the year 2011. Either in the rent control petition or in the rent control revision, the revision petitioner has not raised a contention pointing out the availability of any vacant room other than the staircase room, for which the remand order was passed. It is to be remembered that this contention has been raised seven years after the institution of the rent control petition. It is trite law settled by the Supreme Court that subsequent events having fundamental impact on the order of eviction passed in the rent control petition can be looked into while considering appeal and revision. The respondent has denied his allegation that he has got vacant possession of the shop room on the first floor wherein a textile, by name, Mann Manthra was housed earlier. 16. But the first point to be considered in this respect is whether the availability of vacant room on the first floor of 12 RCR 238 of 2019 the building, even if it is true, has any fundamental impact on the revision petitioner's pleadings under the first proviso to Sec.11 (3) of the Act. It is pertinent to note that the alleged availability of a vacant room in the first floor and kitchen room in the ground floor are fresh pleadings set up by the revision petitioner after the remand and long lapse of 7 years. Thus, the availability of the vacant room in the first floor and a hall and kitchen room in the ground floor have no fundamental impact on the existing pleadings in the Rent Control Petition and the same is fatal. The parties in a Rent Control Petition cannot be allowed to conduct a fishing enquiry, till the final disposal of their case by the Supreme Court. Significance of pleadings can never be ignored and consistency is the hallmark of a judicial adjudication. 17. It is not disputed that the tenanted premises is situated in the ground floor and the aforesaid new vacant room is on the first floor of the building. We are of the view that even if the respondent has got another vacant room in his possession on the first floor, the same is of no consequences at all and that will not cause any fundamental 13 RCR 238 of 2019 impact on the need projected by the respondent or the findings under the first proviso, as the tenanted premises, which is sought to be evicted is situated on the ground floor of the building. It has come out in evidence that the need projected in the rent control petition is to start a mobile shop having display facility. The legal position stands settled by the Supreme Court in **AIR 2002 SC 2572 [Dhannalal vs Kalawatibai and others]** as thus: “The availability of a shop room in the first floor of a building cannot be equated with the need for a shop room in the ground floor of a building. Further it is stated that a shop room in the ground floor of a building would attract more customers than the shop room in the first floor of a building and thereby the shop room situated in the ground floor will get more business than the shop room situated in the first floor of a building.” When applying the aforesaid proposition to the instant case, it is not disputed that the proposed business is a retail shop of mobile phones and the respondent wants a shop room having display facility, in the ground floor, in order to attract more customers to his shop. In the above 14 RCR 238 of 2019 view, as observed by the Supreme Court, we find that the availability of one room on the first floor of the building, even if it is true and correct, has no fundamental impact on the need projected by the respondent or the findings of the Appellate Authority on the first proviso to Sec.11 (3) of the Act. 18. The above view is supported by the decision of this Court in **2004(3) KLT 1046 (K.K Valsan and another vs C.M.Furtal)** . In this decision this Court held thus: “6. Landlord might have rented out several premises to different tenants but he has always the option to seek eviction of a premises which is convenient for him for the purpose of which eviction has been sought for. Option has to be exercised by the landlord exclusively for which tenants have no role. Several factors would go into the mind of the landlord while exercising the option against whom the Rent Control Petition has to be filed when there is more than one tenant. Factors like rent received from the particular tenant, convenience, relationship and so on may influence the landlord while exercising his option. After having decided to file Rent Control Petition against tenant A, tenant B vacates, 15 RCR 238 of 2019 it will be for the landlord to decide whether he should occupy the vacant premises. The landlord after having made a preference cannot be forced to occupy the premises B which became available subsequently unless the tenant's need is wholly satisfied which is essentially a question of fact. In a given case the landlord can rent out even the premises which came into his possession during the pendency of the rent control proceedings for a better rent. No duty is cast on the landlord to keep the premises idle and discontinue the rent control proceedings. Landlord can always proceed with the rent control proceedings having taken a decision to proceed against A rather than B. Special reasons may exist not only when he exercised his option but also when he got the vacant possession of a premise. Reference may be made to the decision of the Apex Court in Savithri Sahay v. Sachidanand Prasad [(2002) 8 SCC 765]. In a recent decision in Pratap Rai Tanwani vs Uttam Chand [2004 (7) SCALE 631, the Apex Court has reiterated that the crucial date for considering the bona fide need is the date of filing of the Rent Control Petition. Only in cases where the Court is satisfied that subsequent events have wholly satisfied the requirement of the landlord it could reject the plea of the landlord under Sec.11(3) of the Act.” 16 RCR 238 of 2019 19. In order to substantiate the contention that subsequent events occurred during the pendency of the appeal requires consideration, the learned counsel for the revision petitioner has cited the decisions in **2014 (2) KLT 809 [Sundeep Kumar Bafna vs State of Maharashtra], (1975) 1 SCC 770 [Pasupuleti Venkateswarlu vs The Motor and General Traders] and (1981) 3 SCC 103** . **[Hasmat Rai and anr vs Raghunath Prasad]** 20. In view of the findings stated above, we find that all the aforesaid decisions have no application in the instant case. It is also contended that the revision petitioner got vacant possession of a two bed rooms, a hall and kitchen on the ground floor of the building occupied by the mother of the respondent. It is needless to say, one cannot start a mobile phone sales shop in a bed room, hall or kitchen, even if the same is on the ground floor of the building. Thus, the availability of bed rooms, hall and kitchen also has no fundamental impact on the bona fide need or the findings under the first proviso to Sec.11 (3) of the Act. Hence, we reject IA 1/2020 filed by the revision petitioner in this rent 17 RCR 238 of 2019 control revision. 21. In the above analysis, we find that there is no illegality or perversity in the findings whereby the courts below concurrently found that the bona fide need is not hit by the first proviso to Sec.11 (3) of the Act and the revision petitioner is not entitled to get protection under the second proviso to Sec.11 (3) of the Act. Hence, the revision fails and it is accordingly dismissed. 22. The learned counsel for the revision petitioner sought for time to vacate the tenanted premises. The learned counsel for the respondent submits that the rent control petition has been filed in the year 2011 and the respondent could not obtain the fruits of the order of eviction despite the long lapse of more than nine years. So, a reasonable time alone can be given to vacate the tenanted premises. 23. Having regard to the submissions at the bar, the revision petitioner/tenant is given six months' time from today to vacate the tenanted premises on the following conditions: 18 RCR 238 of 2019 (1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today. (2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL JUDGE** Sd/- SB/Sks/10.3.2020 **C.S.DIAS JUDGE** 19 RCR 238 of 2019