A.P. Sreedhari Sivaraj and others v. Arjun Radhakrishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** **RCRev..No.397 of 2013** **AGAINST THE JUDGMENT DECREE DATED 26-08-2013 IN RCA 64/2011 of ADDITIONAL DISTRICT COURT, KOZHIKODE- II** **AGAINST THE ORDER DATED 03-03-2011 IN RCP 27/2009 of PINCIPAL MUNSIFF COURT, KOZHIKODE-I** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** **1 A.P.SREEDHARI SIVARAJ AGED 67 YEARS W/O.LATE SIVARAJ, 3/101 (NEW NO.3/156), M.D.MENON'S COLONY, WEST, NADAKKAVU, KACHERI DESOM, KOZHIKODE.** **2 NIRMAL RAJ AGED 30 YEARS S/O.LATE SIVARAJ, 3/101 (NEW NO.3/156), M.D.MENON'S COLONY, WEST, NADAKKAVU, KACHERI DESOM, KOZHIKODE.** **3 VRINDA RAJ AGED 34 YEARS D/O.LATE SIVARAJ, 3/101 (NEW NO.3/156), M.D.MENON'S COLONY, WEST, NADAKKAVU, KACHERI DESOM, KOZHIKODE.** **4 BINDU RAJ AGED 32 YEARS D/O.LATE SIVARAJ, 3/101 (NEW NO.3/156), M.D.MENON'S COLONY, WEST, NADAKKAVU, KACHERI DESOM, KOZHIKODE.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.A.RANJITH NARAYANAN SRI.SAJU.S.A SRI.T.SIVADASAN** **RCRev..No.397 of 2013** **2** ## **RESPONDENTS/RESPONDENTS/PETITIONER & 5TH RESPONDENT:** ||**1**|**ARJUN RADHAKRISHNAN**| |---|---|---| |||**AGED 37 YEARS, S/O.RADHAKRISHNAN,**| |||**RESIDING AT WALTHAM, MASSACHUSETTUS, U.S.A.**| |||**REPRESENTED BY POWER OF ATTORNEY HOLDER**| |||**M.RADHAKRISHNAN, AGED 76 YEARS, S/O.BAPU,**| |||**RES. AT 4/344 D, VELLAYIL,**| |||**KURUMBRAKATTASSERY DESOM,**| |||**KACHERI AMSOM, KOZHIKODE TALUK,**| |||**PIN-673 502.**| |*|**2**|**CHITHRA MOHAN RAJ (DELETED)**| |||**AGED 29 YEARS**| |||**W/O.MOHAN RAJ, 3/101 (NEW NO.3/156),**| |||**M.D.MENON'S COLONY, WEST NADAKKAVU,**| |||**KACHERI DESOM OF KOZHIKODE, CHIRAKKARA P.O.,**| |||**TELLICHERY, KANNUR DISTRICT-670104.**| |||**(2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT**| |||**THE RISK OF THE PETITIONER AS PER ORDER DATED**| |||**20.02.2015 IN IA.486/2015)**| ## **BY ADV. SRI.MILLU DANDAPANI** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.397 of 2013** **3** ## **[CR]** ## **O R D E R** ~ ~ ~ ~ ~ ~ ## _**Nagaresh, J.**_ Revision petitioners, who are the respondents-tenants in RCP No.27/2009 on the files of the Rent Control Court, Kozhikode, and the appellants in RCA No.64/2011 of the Rent Control Appellate Authority-II, Kozhikode, challenge the order dated 03.03.2011 and judgment dated 26.08.2013 respectively therein. 2. The 1[st] respondent-landlord is the petitioner in RCP No.27/2009. The landlord contended that the petition schedule building along with adjoining property originally belonged to his mother. The mother filed RCP No.5/1986 for eviction of revision petitioners 1 to 4 and the 2[nd] **RCRev..No.397 of 2013** **4** respondent herein, who are the tenants. That RCP was allowed only under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, other grounds were disallowed. While the execution petition in respect of the said RCP was pending, the mother executed settlement deed No.327/2004 and the petition schedule property was transferred to the 1[st] respondent-landlord herein. 3. Thereafter, the landlord filed the present RCP No.27/2009 stating that he is working in USA, that he will be discontinuing his job in USA, that he has decided to settle down in Kozhikode, that he has no other house in Kozhikode than the petition schedule building and that he _bona fide_ requires the said building for residence. The tenants opposed the petition stating that transfer of the petition schedule building in favour of the landlord is sham, intended to oust the tenants, that landlord is still employed in USA, that the building is a dilapidated hut like structure which the petitioner and family cannot use for their **RCRev..No.397 of 2013** **5** residence. 4. The landlord examined himself as PW1 and marked Exts.A1 to A6 documents. The tenants examined RW1 and marked Exts.B1 to B6. The tenants produced Ext.B2 deed which showed that the landlord has acquired 27.85 cents of land with a house thereon. The Rent Control Court, on examination of evidence, came to the conclusion that landlord _bona fide_ needs the petition schedule building. As regards the first proviso to Section 11(3) of the Act, the Rent Control Court found that the petition schedule property is within Kozhikode Corporation whereas the property owned by the landlord is in Karuvattoor Panchayat and hence the first proviso cannot have any application. The Rent Control Court further found that the said Ext.B2 property/building has been let out by landlord and hence he cannot be said to be in possession of that building. The Rent Control Court accordingly held that the landlord is entitled to get order of **RCRev..No.397 of 2013** **6** eviction under Section 11(3) and ordered accordingly, as per order dated 03.03.2011. 5. The tenants filed appeal as RCA No.64/2011. After the appeal was heard, the tenants filed IA No.2540/2012 seeking the landlord to produce documents relating to letting out of Ext.B2 building, and IA No.2544/2012 seeking to appoint an Advocate Commissioner to conduct local inspection in respect of the said building. The Rent Control Appellate Authority dismissed the RCA as well as the said IAs, as per order dated 30.11.2012. The tenants thereupon filed RCR No.49/2013 before this Court. 6. This Court considered the matter and came to a conclusion that the question whether the acquisition of another building by the landlord has any impact on the _bona fide_ need of the landlord, has not been considered by the Appellate Authority as well as Rent Control Court. This Court opined that location of the subsequently acquired **RCRev..No.397 of 2013** **7** building, the distance and other features are not clear from the evidence, which are necessary to decide applicability of first proviso to Section 11(3) of the Act. This Court therefore remanded the matter to the Appellate Authority to consider the said point. This Court also directed the Appellate Authority to consider IA Nos.2540/2012 and 2544/2012 filed by the tenants, as per judgment dated 19.03.2013. 7. After remand, the Appellate Authority appointed a Commission to make local inspection. The Commission filed Exts.C1 and C2 reports. PW1 was recalled and he gave further evidence. The tenants did not adduce additional evidence. 8. On analysis of evidence, the Rent Control Appellate Authority opined that the petition schedule building and subsequently acquired building are not within same town. But, the Appellate Authority was of the opinion that both the buildings are situated in the same “city” **RCRev..No.397 of 2013** **8** though Ext.B2 building technically falls outside the Corporation limits of Kozhikode city. 9. As regards the question whether the landlord has proved special reasons for not occupying the building covered by Ext.B2, the Rent Control Appellate Authority relied on the evidence adduced by PW1. The building covered by Ext.B2 is 9 KM away from the petition schedule building. Amenities such as educational institutions, banks, commercial establishments, hospitals, railway station, mofussil bus stand, market, etc. are situated very close to petition schedule building and the area where building covered by Ext.B2 exists, has comparatively less amenities. The Appellate Authority also took into account the evidence given by the landlord that in USA, the landlord and his family had similar amenities near their residence. The Rent Control Appellate Authority therefore came to the conclusion that the explanation given by the landlord for not occupying the building covered by Ext.B2 **RCRev..No.397 of 2013** **9** is valid and genuine and amounts to special reason as contemplated in the proviso to Section 11(3). As regards the question of continued sustainability of _bona fide_ need after acquiring a new building, the Rent Control Appellate Authority held that acquisition of the new building does not completely eclipse the need projected by the landlord. On these premises, the Rent Control Appellate Authority dismissed RCA No.64/2011, as per judgment dated 26.08.2013. The tenants have come up in revision, aggrieved by the findings of the Rent Control Appellate Authority in its judgment dated 26.08.2013. 10. Learned Senior Advocate Sri.T.Krishnanunni appearing for the revision petitioners-tenants brought to our attention the earlier orders in the case, especially the judgment of this Court in RCR No.49/2013 dated 19.03.2013. The Senior Counsel argued that the Rent Control Appellate Authority ignored the purpose for which the case was remanded to it by this Court. The _bona fide_ **RCRev..No.397 of 2013** **10** need put forward by the landlord is totally eclipsed by Ext.B2 purchase made by the landlord during the pendency of the proceedings. The learned counsel brought our attention to the judgment of the Apex Court in _**Hasmat Rai and another v. Reghunath Prasad** [AIR 1981 SC 1711]_ wherein it was held by the Apex Court that where possession is sought for personal requirement, the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. In the present case, the fact that landlord has subsequently purchased a new residential building would establish that his need of the petition schedule premises is not proximate and subsisting. 11. The learned counsel argued that the transfer of the petition schedule building to the landlord was intended only to evict the tenants. The Rent Control Appellate Authority failed to consider the position and status of the **RCRev..No.397 of 2013** **11** landlord who is a software engineer working in USA. It is quite improbable that on his return to India with his family members, he would prefer to reside in the petition schedule building, which is a hut like structure more than 80 year old and situated in a 6 cents plot. The newly acquired building of the landlord is situated in an extent of 28 cents of land and is having a two storied residential building. The said residential building is hardly 9 KM away from the petition schedule building and has all modern facilities near to it. 12. According to the learned Senior Counsel, since the Rent Control Appellate Authority has found that the landlord holds a more suitable and bigger residential building in the suburbs of the same city, the very basis of his _bona fide_ need did not subsist and there was no necessity to consider whether there existed special reasons as envisaged in the first proviso to Section 11(3) of the Act, 1965. The Senior Counsel brought to our notice **RCRev..No.397 of 2013** ## **12** the judgment of the Apex Court in _**Pasupuleti Venkateswarlu v. The Motor and General Traders** [(1975) 1 SCC 770]_ wherein it was held that if a fact, arising after the _lis_ has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. The landlord failed in pleading and proving the basic ingredients of Section 11(3) of the Act. The Rent Control Appellate Authority therefore, miserably failed to analyse the issue in the contextual circumstances, as directed by this Court. Therefore, the matter should be remitted again to the Appellate Authority, contended the counsel for the tenants. 13. Learned Senior Counsel Smt.Sumathi Dandapani appearing for the landlord argued that a landlord cannot be dictated by the tenant to live in a particular building, ignoring the wishes of the landlord. The **RCRev..No.397 of 2013** **13** counsel relied on the judgments of this Court in _**Madhava v. Pathumabi** [2005 (3) KLT 369]_ and in _**Jerry Joseph v. Selvaraj** [2002 (2) KLT 129]_ to contend that the tenants cannot have a dictatorial role to dictate to the landlord regarding his need or choice of the building. According to the Senior Counsel, the tenants also have a better house in which they can reside. 14. It was argued on behalf of the landlord that the subsequent event of acquiring another building by the landlord, has not completely eclipsed the need projected by the landlord, nor does have a fundamental impact on the right of the landlord to get evicted. The learned Senior Counsel relied on the judgments of the Apex Court in _**Gaya Prasad v. Pradeep Srivastava** [(2001) 2 SCC 604]_ _**, Pratap Rai Tanwani and another v. Uttam Chand and another** [(2004) 8 SCC 490]_ and _**Sait Nagjee Purushotham and Co. Ltd. v. Vimala Bai Prabhulal and others** [(2005) 8 SCC 252]_ to urge that if every **RCRev..No.397 of 2013** **14** subsequent development during the post-petition period is to be taken into account for judging the _bona fides_ of the requirement pleaded by the landlord, there would perhaps be no end so long as the unfortunate situation in our litigative slow-process system subsists. The courts have to take a very pragmatic approach of the matter _._ It is true that neither can the person who has started the litigation sit idle nor can the development of the events be stopped by him. Therefore, the crucial event should be taken as on the date when the suit for eviction was filed unless the subsequent event materially changed the ground of relief, contended the Senior Counsel representing the landlord. 15. We have perused the pleadings and considered the arguments raised on either side. The first proviso to Section 11(3) of the Act, 1965 states that a rent control court shall not give a direction to the tenant to put the landlord in possession if the landlord has another building of his own in his possession in the same city, town or **RCRev..No.397 of 2013** **15** village except where the rent control court is satisfied that for special reasons it will be just and proper to do so. The need put forward by the landlord has to be examined on the presumption that the same is a genuine one, in the absence of any materials to the contra [ _**Ammu K. and others v. Nafeesa and others** (2015 (4) KLJ 762)_ ]. 16. In the present case, the landlord has averred and proved that he is working in USA and desires to come back to India with his family on termination of his service in USA. On coming back, the petitioner desires and intends to reside in the petition schedule building. The desire of an Indian citizen working abroad to come and settle in India in a land and building owned by him, cannot be doubted. 17. Orders under Section 11(3) need not be passed against a tenant if the landlord has another building of his own in his possession in the same city, town or village. In this case, during the pendency of the proceedings, the **RCRev..No.397 of 2013** **16** landlord has purchased another building 9 KM away from the petition schedule building. But, according to the landlord, he desires to reside in the petition schedule building. According to the landlord, he is not in possession of the subsequently acquired building since the same has been rented out. The Rent Control Appellate Authority considered the impact of the landlord purchasing another building. The Rent control Appellate Authority came to the conclusion that the newly acquired building is situated in the same city, though it is outside the territorial limits of Kozhikode Corporation. To arrive at such a conclusion, the Rent control Appellate Authority gave a very wide meaning to the word “city”. We do not propose to consider whether the newly acquired building of the landlord is within the same city or whether the meaning given to the word “city” by the Rent control Appellate Authority is proper or not. This is because even if the said newly acquired building is in the same city, there are sufficient special **RCRev..No.397 of 2013** **17** reasons for the landlord to get an order of eviction against the tenants. 18. After the remand of the case by this Court as per judgment dated 19.02.2013, the landlord gave further evidence as PW1. According to the landlord, various amenities such as educational institutions, banks, commercial establishments, hospitals, railway stations, mofussil bus stand, market, etc. are situated very close to the petition schedule building. The subsequently acquired building covered by Ext.B2, is 9 KM away from the petition schedule building. That area does not have as many amenities as compared to the locality where the petition schedule building is situated. This special reason is reinforced by the deposition of the landlord that he and his family have been enjoying similar amenities at USA and they would like to have such amenities near their house. In the light of the evidence adduced by the landlord, we are of the view that the landlord has been successful in **RCRev..No.397 of 2013** **18** proving his special reasons which substantiate his _bona fide_ need. 19. The argument of the learned Senior Counsel for the tenants is that petition schedule land has lesser extent and building is a hut like structure. These facts would make it clear that the landlord cannot reside in such a structure and therefore, the need of the landlord cannot be said to be _bona fide._ The argument is not appealing. Persons who acquire or construct houses would like to have the house in particular area of their choice. Some may prefer to live in the heart of busy city limits, whereas some others may prefer to live away from the maddening crowd. Some may prefer to live within the city limits even if the area is less and building is old. Some others may prefer to live in bigger extent of land and in better building irrespective of its location. It is the choice of the individuals, and in this case, of the landlord. If landlord states that he intends to live in a particular place and **RCRev..No.397 of 2013** **19** building, such desire cannot be tested on the criteria of ordinary prudence. It is the desire of the individual that counts. If the desire is found genuine, it has to be respected. 20. Taking into account the evidence adduced in the case, we are of the considered view that the landlord has convincingly proved his _bona fide_ need and also established his special reasons. The Rent control Appellate Authority properly appreciated the special reasons put forward by the landlord. There is no illegality or irregularity in the findings of the Rent control Appellate Authority. 21. In the circumstances, the Rent Control Revision filed by the revision petitioners-tenants are devoid of any merits and it is therefore, dismissed. However, taking into account the request made by the learned Senior Counsel appearing for the revision petitioners, the revision petitioners are given six months' **RCRev..No.397 of 2013** **20** time to give vacant possession of the petition schedule building to the 1[st] respondent, on the following conditions:- _(i) The revision petitioners/tenants 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 they will vacate the petition schedule building within six months from today._ _(ii) The revision petitioners/tenants 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._ _(iii) 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_ **RCRev..No.397 of 2013** **21** _1[st] respondent/landlord will be at liberty to proceed with the execution of the eviction order._ Sd/- **(K. HARILAL, JUDGE)** Sd/- **(N. NAGARESH, JUDGE)** aks/26.02.2019