A.P SREEDHARI SHIVARAJ, NIRMAL RAJ, BRINDA SHIVARAJ and BINDU SHIVARAJ v. ARJUN RADHAKRISHNAN and CHITHRA MOHAN RAJ

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934 RCRev..No. 49 of 2013 () ------------------------- AGAINST THE ORDER/JUDGMENT IN RCA.64/2011 of ADDL. D.C. KOZHIKODE- II DATED 30-11-2012 AGAINST THE ORDER/JUDGMENT IN RCP.27/2009 of PRL.M.C.KOZHIKODE-I DATED 03-03-2011 REVISION PETITIONER(S)/TENANTS-RESPONDENTS AND APPELLANTS: ----------------------------------------------------------------------------------------------------------------- 1. A.P SREEDHARI SHIVARAJ AGED 66 YEARS W/O.SHIVARAJ, 3/101 (NEW NO.3/156), M.D.MENON'S COLONY WEST NADAKKAVU, KACHERI DESOM, KOZHIKODE DISTRICT. 2. NIRMAL RAJ AGED 29 YEARS S/O.SHIVARAJ, 3/101 (NEW NO.3/156), M.D.MENON'S COLONY WEST NADAKKAVU, KACHERI DESOM, KOZHIKODE DISTRICT. 3. BRINDA SHIVARAJ AGED 33 YEARS (WRONGLY SHOWN AS VRINDA RAJ BEFORE THE COURT BELOW) D/O.SHIVARAJ 3/101 (NEW NO.3/156), M.D.MENON'S COLONY WEST NADAKKAVU, KACHERI DESOM, KOZHIKODE DISTRICT. 4. BINDU SHIVARAJ AGED 31 YEARS (WRONGLY SHOWN AS BINDU RAJ BEFORE THE COURTS BELOW) D/O.SHIVARAJ 3/101 (NEW NO.3/156), M.D.MENON'S COLONY WEST NADAKKAVU, KACHERI DESOM, KOZHIKODE DISTRICT. BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.A.RANJITH NARAYANAN SMT.A.SIMI SRI.S.K.SAJU SMT.VIDYA V.DEVAN RESPONDENT(S)/LANDLORD-PETITIONER : ---------------------------------------------------------------------- 1. ARJUN RADHAKRISHNAN, AGED 75 YEARS S/O.RADHAKRISHNAN, RESIDING AT WATHAM ASSACHUSETTS USA REPRESENTED BY POWER OF ATTORNEY HOLDER M.RADHAKRISHNAN, S/O.BAPPU, RESIDING AT 3/44 D VELLAYIL, KURUMBRAKATTASSERY DESOM, KACHERI AMSOM KOZHIKODE TALUK, KOZHIKODE DISTRICT-673001. 2. CHITHRA MOHAN RAJ, AGED 28 YEARS W/O.MOHANRAJ, 3/101, M.D.MENON'S COLONY WEST NADAKKAVU, KACHERI DESOM, KOZHIKODE DISTRICT PRESENTLY RESIDING AT "CHITHRA NIVAS" CHIRAKKARA P.O., TELLICHERRY, KANNUR DISTRICT-670 104. R1 BY ADV. SRI.C.VATHSALAN R1 BY ADV. SRI.K.RAKESH ROSHAN R1 BY ADV. SMT.THUSHARA.V THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-03-2013, THE COURT ON 19/3/2013 PASSED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R. No. 49 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 19th DAY OF MARCH, 2013** ## **O R D E R** ## Ramachandran Nair, J. Faced with the concurrent orders allowing eviction of an application filed by the first respondent landlord, the tenants have approached this Court by filing this revision petition. 2. The first respondent landlord sought eviction on the ground of bonafide need to occupy the building for residential purpose under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'). The petitioner resisted the same on various grounds. 3. In a nutshell, the plea of the landlord is the following: The petition schedule building along with the adjoining land originally belonged to the mother of the first respondent herein who is an active politician and now the opposition leader in the Kozhikode Corporation. Her right was transferred as per settlement deed No.327/2004 in favour of the landlord, her son. In fact, the mother had filed RCP No.5/1986 on various grounds and the petition was allowed under Section 11(2)(b) of the Act and the execution petition was pending also. RCR No.49/2013 -2- 4. The bonafide need projected is that the landlord who is working at United States of America, is faced with termination of his job there and the job contract is only upto October, 2009. Therefore, he will have to discontinue the same and will have to return to India. He decided to settle in Calicut either by pursuing some suitable employment or by setting up his own business. Apart from the petition schedule premises, he has no other house of his own. The parental house where the mother is residing, is not suitable as a lot of people will be thronging daily since his mother is an active politician. 5. It was contended by the petitioners/tenants that the attempt is only to evict the tenants by any means. The mother had failed to obtain an order of eviction on various grounds and the only ground on which it was granted is under Section 11(2)(b) (arrears of rent) and the said order has also been vacated as per order in I.A. No.4067/2000 and the execution petition, viz. E.P.No.37/1997 was also dismissed. It was further contended that the document transferring the right to the landlord, is a sham one. The idea of the landlord to come back from USA is also disputed by the petitioners. It is pointed out that the building in the petition schedule premises is a hut RCR No.49/2013 -3- like structure, more than 80 years old and it is not possible to carry out any repair or renovation of the same. Therefore, it is contended that the landlord who is having a much higher status in life, will not settle with the family in the said building. 6. On all these pleas, the parties led evidence. The Rent Control Court found that the bonafide need pleaded is genuine which finding has been confirmed in appeal. 7. One of the aspects raised before the Rent Control Court as well as in the appeal is that the landlord has later purchased, as per Ext.B2 document, 27.85 cents of property with a very good house and therefore he is not entitled for an order of eviction. It was found by the Rent Control Court that the said building is situated in Kuruvattoor Grama Panchayat and therefore the same is not in the same locality so as to attract the first proviso to Section 11(3) of the Act. The Appellate Authority was also of the same view. 8. We have heard learned Senior Counsel Shri T. Krishnan Unni, appearing for the petitioners and Shri C. Valsalan, learned counsel appearing for the first respondent. RCR No.49/2013 -4- 9. Learned Senior Counsel Shri T. Krishnan Unni appearing for the petitioners submitted the following: It is submitted that the bonafide need pleaded cannot be said to be genuine in the particular background of the petitioner. It has come out in evidence that the landlord, his wife and the child are settled in America. The wife is also employed there. Even though he was apprehending termination in 2009, that did not happen and even, while he was examined in 2011, he has not stated that he was faced with any termination. Therefore, there is no likelihood of the landlord, his wife and child coming back to Kozhikode and settle there. It is submitted that the crucial aspect in this case is that after he has purchased another property of his own extending 27.85 cents with a very good building there, the bonafide need pleaded no longer survives and has eclipsed. But both the authorities considered the said question only with regard to the applicability of the first proviso to Section 11(3), whereas the actual consideration should have been on the impact of the said subsequent event on the bonafide need. It is submitted based on the decisions of the Apex Court in **Pasupuleti Venkateswarlu v. The Motor and General Traders** (AIR 1975 SC 1409) and **Hasmat Rai and another v. Raghumath** RCR No.49/2013 -5- **Prasad** (AIR 1981 SC 1711) that a subsequent event which goes to the root of the matter can be taken note of by the authorities under the Rent Control Act. Judged in the light of the principles stated therein, it is submitted that the landlord cannot be expected to settle in the hut like structure in the petition schedule building rather than settling in the new substantial building he has purchased. It is also submitted by the learned Senior Counsel that the factual finding rendered by the authorities below that the said building is far away from the petition schedule building, is not correct. It is in the adjoining Panchayat having not much distance and it is within the limits of Kozhikode Corporation . It is submitted that the distance, if any, therefore will not be material. 10. Our attention was invited to the oral evidence in the matter. It is submitted that P.W.1 did not reveal the subsequent purchase of the property along with the building in his evidence and only when in cross examination he was asked about the same, he admitted it and the answers with regard to the various details were only evasive. It is therefore submitted that the bonafide need for the petition schedule building stands eclipsed by the subsequent event. RCR No.49/2013 -6- 11. Shri C. Valsalan, learned counsel appearing for the first respondent/landlord submitted that the property subsequently purchased is away from the Kozhikode Corporation limits, in a Panchayat, viz. Kuruvattoor. It was answered by RW.1 in her evidence that in between Kuruvattoor Panchayat and the Kozhikode Corporation limits, there is another Panchayat, viz. Kakkodi and therefore it can be presumed that it is situated in a far away place. Learned counsel therefore submitted that the requirement of the landlord to have his residential building within the Kozhikode Corporation is no longer affected or eclipsed by the subsequent purchase of the land and building. It is submitted that no such pleas have been raised and the findings rendered by the authorities are therefore correct. It is submitted that for the applicability of the first proviso to Section 11(3) of the Act, what is required is possession of another building in the very same city, town or village. It is absent here. Learned counsel also relied upon the judgments of the Division Bench of this Court in **John v. Abraham Varghese** (2012 (4) KLJ 387) and **Balan N.K. v. Anees C. and another** (ILR 2012 (4) Ker. 553) to contend for the position that the proximate need of the landlord continues to exist in spite of subsequent RCR No.49/2013 -7- event and the eviction cannot be denied on the plea that the building is an old one. Learned counsel therefore submitted that the building can be modified, re-modelled or repaired by the landlord and the old nature of the building is therefore not material. 12. While being examined in court, P.W.1 has answered that in 2010 27.85 cents of land with a concrete building was purchased by him and Ext.B2 is the copy of the sale deed. He has got no other property than the same in Kozhikode. He also stated that the property is away from Kozhikode city, but he cannot tell the exact distance and the building has been given on rent for Rs.5,000-. This alone is the content in his deposition before the Court. In the cross examination of R.W.1 a question was asked whether Kakkodi Panchayat lies in between Kozhikode Corporation and Kuruvattoor Grama Panchayat and the answer given is that Kuruvattoor is near Kakkodi. To a specific question whether Kuruvattoor is after Kakkodi while travelling from Kozhikode, it was said that she does not really know it. She has also stated that Kurvuattoor is within the Kozhikode Corporation limits. 13. Learned Senior Counsel for the petitioners submitted that the RCR No.49/2013 -8- petitioners have filed two interlocutory applications, viz. I.A. Nos.2540/2012 and 2544/2012 before the Appellate Authority which have been rejected summarily. In I.A. No.2540/2012 the prayer was to direct the landlord to produce documents relating to the letting out of the house in the property covered by Ext.B2 and the prayer in I.A.No.2544/2012 was to appoint an Advocate Commissioner to conduct a local inspection and to report about the details of the building existing in Ext.B2. It is submitted that these details ought to have been allowed to be made available for a just decision of the case. 14. Both the above applications have been disposed of on 30.11.2012 stating that the petitions have been filed belatedly and the appeal is heard and posted for orders. It is also mentioned in the orders that admittedly the building situated is far away from the Kozhikode Corporation, in a Panchayat. 15. As far as the power of the Court to take into consideration a subsequent event is concerned, in the light of the decisions of the Apex Court in **Pasupuleti Venkateswarlu's case** (AIR 1975 SC 1409) and **Hasmat Rai's case** (AIR 1981 SC 1711), there cannot be any quarrel on RCR No.49/2013 -9- that proposition. In the former decision, it has been held as follows: “We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.” Therefore, the subsequent developments can be considered provided the rules of fairness to both sides are scrupulously obeyed. 16. Herein, the impact of the subsequent event was considered by both the authorities for the purpose of considering the effect of the first proviso to Section 11(3) of the Act. Of course, the finding is that the new building acquired is not within the locality. But we find from the pleadings of the landlord that he has given emphasis to have a separate residence from that of his mother in view of the heavy rush of visitors in the residential house of the mother, she being a leading politician. We have already referred to the pleadings in para 6. The details regarding the acquisition of the building, have been brought in evidence in the form of Ext.B2 sale deed and the aspects deposed by P.W.1 and R.W.1. Even RCR No.49/2013 -10- though both the authorities have found that the building is far away from the petition schedule building, the actual distance, location, etc. are not clear. P.W.1 did not specifically mention about the distance in his evidence, which we have already adverted to. 17. We will just refer to the order passed by the Rent Control Court on this aspect. In para 12, after referring to the first proviso to Section 11 (3) of the Act, it is stated as follows: “Admittedly the property covered by Ext.B2 is not within the limits of Kozhikode Corporation. It is in Kuruvattoor Panchayat. Even according to the respondent it is 6 km away. So therefore it is clear that it is not within the same city, town or village. If that be so the 1[st] proviso cannot have any application. It is also come out in evidence that the said house has been let out. If that be so the petitioner cannot be held to be in possession of the said building. In that view of the matter also the 1[st] proviso to section 11(3) cannot have any application.” In the judgment of the appellate authority also, the same view is taken that the property is not situated in the same city, town or village, so as to attract the first proviso to Section 11(3) of the Act. 18. Therefore, the question whether the subsequent event has any RCR No.49/2013 -11- impact on the bonafide need pleaded, has not been considered. Actually, the landlord had to make it clear before the court whether the requirement is to have a building within Kozhikode Corporation itself. As rightly pointed out by the learned Senior Counsel for the petitioners, the location of the said plot, the building therein, the distance and other features are not clear from the evidence. Learned counsel for the first respondent submitted that at least it will be away by 20 kms. We are therefore of the view that to consider the subsequent events such of those relevant materials are also required for enabling the court to come to a conclusion. In the light of the decision of the Apex Court in **Pasupuleti Venkateswarlu's case** (AIR 1975 SC 1409), it can be seen that the said subsequent event can be considered after fully complying with the rules of fairness. It will therefore imply that the parties should be allowed to have their pleadings on this issue and necessary evidence also can be adduced. 19. Therefore, we allow the parties to agitate the matter afresh. Since interlocutory applications have been filed before the Appellate Authority, we find that the matter can be gone into by the said authority itself, so as to avoid further delay in the matter. Therefore, we set aside the judgment of RCR No.49/2013 **==> picture [21 x 9] intentionally omitted <==** the Appellate Authority for a fresh consideration of all issues. The orders passed on the two applications, viz. I.A. Nos.2540/2012 & 2544/2012 are vacated. The interlocutory applications will be taken afresh for consideration after affording an opportunity to the respondents to objections, if any. The parties will be allowed to amend the pleadings and both parties will be allowed to let in evidence also. There will be a further direction to complete the hearing and disposal of the appeal in terms of the above direction expeditiously, at any rate, within a period of four months. The parties will appear on 3.4.2013. The Revision Petition is allowed as above. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** kav/