A.V. Jayachandran v. Varol Devi

## **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** **WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 193** **RCRev..No. 427 of 2012 ()** **-------------------------AGAINST THE ORDER IN RCA 25/2011 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 17-08-2012** **AGAINST THE ORDER IN RCP 48/2010 of MUNSIFF COURT, VADAKARA DATED 07-12-2010** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **-----------------------------------------** **A.V.JAYACHANDRAN, AGED 58 YEARS S/O.KUMARAN, TRADER, RESIDING AT JYOTHIS VATAKARA AMSOM DESOM, POST MEPPAYIL (PO), PIN 673109 VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SMT.HENA BAHULEYAN** ## **RESPONDENT/APPELLANT/PETITIONER:** **-------------------------------** **VAROL DEVI, AGED 85 YEARS D/O.RAMAN, HOUSE WIFE RESIDING AT NELLIYULLA PARAMBATH VATAKARA AMSOM DESOM, POST NUT STREET-673104 VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **R1 BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/07/2013, THE COURT ON 24-07-2013 PASSED THE FOLLOWING:** **BP** ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **RC.R.No. 427 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 24th DAY OF JULY, 2013** ## **O R D E R** ## Ramachandran Nair, J. The tenant who has been ordered to be evicted from the petition schedule building, is the revision petitioner. He is conducting a stationery shop in the petition schedule room. It was originally let out to the father of the petitioner in the year 1966 and after his death the petitioner's mother continued the business. She passed away in 2002 and thereafter the petitioner is continuing the business. 2. The respondent landlady sought eviction for the bonafide need of her dependent son to start a stationery business in the said shop room. The son was in Gulf countries and has returned to his native place. He was examined as P.W.1 also. 3. The Rent Control Court found against the landlady on the plea under Section 11(3) of the Kerala Buldings (Lease & Rent Control) Act (for short 'the Act'). With regard to the two limbs of the second proviso to Section 11(3) of the Act, the finding is against the tenant. The Appellate RCR No.427/2012 -2- Authority reversed the finding under Section 11(3) of the Act and confirmed the findings under the two provisos to Section 11(3). Hence the revision petition by the tenant. 4. Shri N. Nandakumara Menon, learned Senior Counsel appearing for the petitioner submitted that the Appellate Authority has misdirected itself in ordering eviction. This is a case where in the shopping complex there are six rooms, three in the ground floor and three in the upper floor. In the upper floor two rooms are vacant and the landlady has given on rent a room which was vacant in the ground floor. Therefore, there are no bonafides in the matter. It is submitted that the Appellate Authority found against the petitioner by stating that those pleas have not been incorporated in the pleadings by amendment. Learned Senior Counsel stressed the point that even in the case of subsequent events, it is well settled that all cumulative circumstances can be taken into account by the court for assessing the bonafide need and to mould the relief. Therefore, in this particular case also such a situation has arisen. Learned Senior Counsel also submitted that the Appellate Authority had gone wrong in entering findings on the two provisos to Section 11(3) of the Act. With regard to the second RCR No.427/2012 -3- limb of the second proviso, the tenant has asserted before the court that there are no vacant rooms available in the locality sufficient enough for the tenant to conduct business. The same ought to have been accepted. Learned Senior Counsel further submitted that a subsequent agreement was executed between the landlady and the petitioner fixing a period of six years and therefore in the light of Section 11(9) of the Act, the eviction petition was not maintainable. 5. Learned counsel for the respondent Shri B. Krishnan submitted that herein the purpose of eviction is to conduct a business in stationery items. The rooms in the upper floor are not sufficient for the purpose of the landlord as the business can be conducted conveniently only in the ground floor. The tenant, when examined as R.W.1, was asked a question whether he can conduct business in the upper floor and he himself stated that the same cannot be done. Therefore, in similar way he cannot insist that P.W.1 should conduct business in the upper floor. 6. With regard to the room in the ground floor which became vacant, it is submitted that it was never been a subsequent event. Even in the Rent Control Petition various facts have been stated by the landlady with respect RCR No.427/2012 -4- to each rooms and there is no non-disclosure of the fact. The room which was vacant in the ground floor was given on rent even prior to the filing of the eviction petition. There was no contention by the tenant in the objection to the eviction petition on that score and no evidence was let in also. Only in the cross examination of P.W.1, a question was put in respect of the said room. 7. We will refer to the bare facts necessary for the disposal of the revision petition In para 2 of the eviction petition it is stated that the son of the landlady, Shri Sasidharan was in Bahrain over the years and has come back to India on 20.12.2009. He is now living with the landlady. He has his wife and son and he is a dependent of the petitioner. The landlady bonafide needs the building to provide her son to run a stationery trade. He has no prospects of going back further abroad. In paragraphs 3 and 4 the details of the rooms which have been let out, have been stated. It is stated that there are two rooms in the ground floor of the same building, one let out to one Shri Nishana corresponding to No.4/315 and another let out to Abdul Kareem and Shri Saleel, corresponding to No.4/314. Out of the three rooms in the first storey of the building, one is held by Satheesan, brother RCR No.427/2012 -5- of the tenant who ceased to occupy the same for over one year and who has another building 36/214 where he is running business in the name and style as 'Premier Stationery'. One of the other rooms is in direct possession of the landlady and the third one held by Shri M. Krishnan is about to be surrendered to the landlady. It is also explained that the rooms in the first storey are not sufficient to provide for the son of the landlady for a stationery trade. 8. Therefore, learned counsel for the respondent is right in submitting that all the details of the rooms in the building have been incorporated in the eviction petition. 9. In the objections, the tenant has denied that rent has been kept in arrears. With regard to the bonafide need for the requirement of the son, it is stated that the son has come back and is affluent and that he has got other properties also. Therefore, there is no real bonafide need. He is not depending on the landlady also. He has denied the averment by the landlady that rooms in the upper floor cannot be utilised for the business of the son. (para 5). In para 6, the averment is to the effect that he is depending upon the income from the business carried on in the petition RCR No.427/2012 -6- schedule room, for his livelihood. In para 7 of the objection, it is stated that no other suitable buildings are available in the locality. In para 8, he has stated that another rent agreement has been executed on 9.7.2009, whereby for six years the tenant is entitled to continue in the tenanted premises. 10. Therefore, there is no specific plea with regard to any of the rooms in the ground floor, to the effect that as the landlady has given on rent any room recently, it casts a shadow on the bonafide need. 11. P.W.1 is the son of the landlady. He was examined to prove the bonafide need. He has stated that he is dependent on the landlady for the building and has explained that in the ground floor other two rooms are in the occupation of one Shri Nishana and one Shri Abdul Kareem. In the upper floor the tenant's brother has kept one room closed without doing any business and he is doing stationery business in another room. The tenant in the third room has vacated. He has stated that the rooms in the upper floor are not suitable for conducting a stationery business. 12. Learned Senior Counsel for the petitioner raised vehement arguments in the light of the answer given in the cross examination by P.W.1 RCR No.427/2012 -7- that one room having the same measurement of the petition schedule room, has been given on rent on 10.2. 2010 and which is numbered as 4/314. 13. We will first consider the question whether Section 11(9) is attracted here. In proof of the said contention, the tenant has produced in evidence Ext.B6, a notary attested copy of the alleged rental agreement. The same is denied by the landlady. While considering the plea that for six years he cannot be evicted in the light of the said agreement, the Rent Control Court found that in the cross examination R.W.1 deposed that the original of Ext.B6 is with one Chandran Master (P.W.2) whereas in the counter he has stated that the original of Ext.B6 is with the possession of the landlady. Therefore, it is found that the tenant has no consistent case regarding the possession of the original of Ext.B6. No steps were taken to get the original, if any, produced before the court from the custody of the landlady or P.W.2. The Notary has not been examined and the scribe also, even though cited as witness, was not examined. Therefore, the Rent Control Court found that the petitioner/tenant has not satisfactorily explained the non production or non availability of the original of Ext.B6. Therefore, on all aspects regarding the genuineness of Ext.B6 also, as well as of the fact RCR No.427/2012 -8- that conditions under Section 65 of the Evidence Act are not satisfied to admit it as secondary evidence, it was held that Ext.B6 cannot be said as admissible. Apart from the same, the date of Ext.A1 is 8.6.2009, whereas Ext.B6 is dated 9.7.2009. The circumstances under which such an agreement is executed within one month of Ext.A1, was not explained. On all these grounds, the Rent Control Court found that no reliance can be placed on Ext.B6. Apart from the same, he had no case that the original of Ext.B6 is a registered one also and the same therefore cannot be pressed into service in the light of Section 49 of the Registration Act. We find no reason to differ from the said view taken by the Rent Control Court which was affirmed by the Appellate Court. A discussion of the matter above will show that the tenant has failed to prove the execution of the document and it was found not admissible by the Rent Control Court for various reasons. Therefore, the plea under Section 11(9) of the Act is not sustainable. 14. Vehement arguments were raised with regard to the availability of other rooms in the same building itself. With regard to the upstair rooms, it is submitted by the learned Senior Counsel for the petitioner that there is nothing to show that the upstair room cannot be used for stationery RCR No.427/2012 -9- business and P.W.1 has also not given any detailed reasons for not using the same. We find from the evidence that he has stated that the said room is not suitable for stationery business. The argument raised by the learned counsel for the respondent is that being stationery business, only a room in the ground floor will be attractive for customers and presence of the landlord is the material thing. Reliance is placed on the decision of the Apex Court in **Dhannalal v. Kalawatibai and others {** (2002) 6 SCC 16} in this context. Therein, in a similar situation, with regard to the availability of room in the upper floor, it was held in para 27 that “a shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.......................”The said position is applicable herein also. It will depend upon the preference of the landlord also, especially in a matter like this where the business proposed is in stationery items. Therefore, the landlord cannot be compelled to occupy the upstair room and we find nothing wrong with the view taken by the Appellate Authority also in that regard. 15. With regard to room No.4/314 which another tenant is occupying, the landlord in the eviction petition itself, has stated that the said RCR No.427/2012 -10- room has been given on rent. Therefore, nothing has been suppressed in the pleadings. P.W.1, in the evidence also stated that it was given on rent. The eviction petition was filed in April, 2010, according to the landlord, after the need arose. 16. As we have already noticed, in the pleadings of the tenant no specific plea has been raised with regard to the above aspect and the bonfide need has not been characterised as 'absent' in view of the above. It is the submission of the learned Senior Counsel for the petitioners that even if no plea is raised as such, in the light of the statement made by P.W.1 in evidence that such a room was given on rent in February 2009, the bonafide need should be found to be not genuine. Various judgments have been relied upon in this context to contend that all the circumstances including subsequent events, are matters for consideration by the Court. He has referred to the dictum laid down in the following judgments: **Amarjit Singh v. Smt. Khatoon Quamarain** {(1986) 4 SCC 736}, **Prasanna v. Haris** (2005 (2) KLT 365), **Abdul Kader v. George Joseph** (2009 (1) KLT 205), **Abdul Gaffer v. H.S. Srinivasa Setty (Dead) By Lrs.** {(2000) 9 SCC 367}, **Prabha Arora v Brij Mohini Anand** (2007 (4) KLT 1007 - SC), RCR No.427/2012 -11- **P. Sriramamurthy v. Vasantha Raman** (Mrs)(1997) 9 SCC 654}, **Jai Prakash Gupta (Dead) Through Lrs. v. Riyaz Ahamad and another** {(2009) 10 SCC 197}, **Amarjit Singh v. Smt. Khatoon Quamara** in (AIR 1987 SC 741), **Chandran v. Sunil Kumar** (2004 (3) KLT 420) and **Seshambal v. Chelur Corporation** (2010 (1) KLT 834 - SC). The impact of the subsequent events and how the same has to be analysed while considering the dispute between the parties, has been discussed in these judgments. 17. There cannot be a quarrel with regard to the proposition laid down by this Court and the Apex Court on the importance of a subsequent event. There is a detailed discussion of the legal consequences of a subsequent event, in **Seshambal's case** (2010 (1) KLT 834 - SC) by the Apex Court, after referring to various other judgments. The law is well settled that a subsequent event which is fundamental in character, can be brought to the notice of the court by the party concerned. The same is an exception to the normal rule that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. RCR No.427/2012 -12- 18. As rightly pointed out by the learned counsel for the respondent, no subsequent even has taken place herein and the fact that one room became vacant prior to the filing of the eviction petition and was given on rent, was placed before the court in the eviction petition itself. The room in question did not become vacant after the eviction petition was filed. 19. With regard to the importance of the pleadings in a matter like this, this Court had spoken in detail in **Chandran's case** (2004 (3) KLT 420), relied upon by the learned Senior Counsel for the petitioner. He relied upon the same in the context of the submission that the answers given in cross examination can be used by the tenant herein, and it was not required that pleadings should be amended. In that case, going by the facts stated in para 4, it can be seen that certain answers given by P.W.1 in cross examination were relied upon by the Rent Control Court and the Appellate Authority. While considering the matter, this Court at page 423 have examined various aspects including the burden of proof, pleadings and subsequent events. It was held as follows: “Rent Control Court and Appellate Authority have placed reliance on few answers, brought out in the cross-examination of RCR No.427/2012 -13- the landlord's son to hold that there is no _bona fides_ in the plea. If the tenant wanted to rely upon those facts the tenant ought to have brought out those facts by amending the pleadings. Evidence ought to have been adduced to prove those facts. The tenant tried to explain it contending that those facts are subsequent events. If these subsequent events have got any bearing so as to nonsuit the landlord, those facts should have been brought before the Court by amendment f pleadings and not through oral evidence either by way of chief examination or by cross-examination Therefore, this Court was of the view that if the tenant wanted to rely upon any such facts, it should have been brought in the pleadings itself. With regard to subsequent events also, it was held in para 5 that subsequent events have to be brought out not through oral evidence, either in chief or in cross-examination. Subsequent events have to be pleaded applying the principle under Order VI Rule 17 C.P.C. Reliance is placed on the judgment of the Apex Court in **Om Prakash Gupta v. Ranbir B. Goyal** {(2002) 2 SCC 252}. 20. The question is whether the court should act upon the mere fact that a room was vacated in February 2010, but was given on rent to RCR No.427/2012 -14- another. In the absence of any specific objection raised by the tenant in the pleadings to the said conduct, it is clear that the landlady has not obtained any opportunity to explain the background before the court. She was never called upon to explain the background under which the said room was given on rent two months prior to the filing of the eviction petition by way of an amendment also. We therefore respectfully agree with the dictum laid down in **Chandran's case** (2004 (3) KLT 420) that when a particular material fact is not pleaded, the tenant cannot be permitted to travel beyond his pleadings. Since, now in the revisional stage it is projected as a matter which affects the bonafide need itself, it should have been found a place in the pleading. That was never attempted by the tenant. If that be so, the tenant cannot at the stage of hearing, raise a plea successfully that the bonafide need is not genuine because of the said aspect. Of course, learned Senior Counsel Shri Nandakumara Menon submitted that the landlady is bound to prove that the claim itself is bonafide, but having not taken any recourse to incorporate necessary pleadings, the tenant cannot be heard to say that the answer given by P.W.1 will in long way affect the bonafide need pleaded. It is also worthwhile to notice that, no further question was put to RCR No.427/2012 -15- P.W.1 in cross-examination by way of challenging the bonafides of the claims, based on the said fact. As noticed already the necessary facts relating to each one of the rooms in the building have been stated in the eviction petition itself. It was not in the cross-examination of P.W.1 the fact was elicited. Hence, nothing turns on the same. 21. In this context, one of the judgments relied upon by the learned Senior Counsel for the petitioner is **Rakesh Saxena v. State through C.B.I.** (AIR 1987 SC 740). Therein, after filing of the eviction petition, it was found in para 5 that on three occasions the landlady had given the vacant premises to tenants on higher rent. In that context, it was held that the landlady would be disentitled to evict her tenant on the ground of her need. But such a situation does not arise here, since after the filing of the eviction petition no room has become vacant in the ground floor. What is available with the landlady is two rooms in the upper floor. It was explained that they are not suitable for the stationery business. In fact, R.W.1 himself has explained that a stationery business cannot be profitably run in the upper floor, as customers will approach only if articles are visible. The same also supports the explanation of P.W.1, which was accepted by RCR No.427/2012 -16- the Appellate Authority. Sitting in revision, we find no reason to hold that the said view is a perverse one requiring interference in these proceedings. 22. One of the aspects pointed by Shri Nandakumara Menon, learned Senior Counsel is that a false plea was raised in the eviction petition that the tenant is in arrears of rent which was not a true fact. It is submitted that every attempt is made to evict the tenant. 23. As far as the bonafide need pleaded is concerned, the tenant could not prove that the son of the landlady is engaged in any other business or that he is engaged in any other profitable activity. There is no plea that he has got any other building also. Therefore, the son of the landlady is dependent upon her. It is in that context it was held that the bonafide need pleaded has been established. We find that the relevant principles have been properly applied in this case and there are no reasons to disturb the said findings also. 24. With regard to the two limbs of the second proviso to Section 11 (3) of the Act, the finding by the Rent Control Court is that the tenant is entitled for the benefit of the first limb of the second proviso since he is depending upon his livelihood the income derived from the business RCR No.427/2012 -17- conducted in the petition schedule building. But with regard to the other limb, it is clearly found that the burden of proof is not clearly discharged. The finding is that even though in the box he stated that no other suitable buildings are available, there is no evidence regarding the details of enquiry, if any, made by him and the nature of enquiry. The said particulars were not disclosed by him. Therefore, the Rent Control Court found that a mere assertion by the tenant that there are no other vacant rooms available in the locality cannot be said as sufficient to find that the tenant has discharged his burden to prove the second limb of the second proviso. 25. The Appellate Authority also concurred with the above view. It is well settled that the burden is on the tenant to prove both the limbs of the second proviso. Only after the said burden is discharged, the burden shifts to the landlord. 26. In the above circumstances, we find no reason to interfere with the above findings. Accordingly, we confirm the order passed by the Appellate Authority and dismiss the revision petition. We grant the petitioner time till 31.1.2014 to vacate the petition schedule premises on the following conditions: RCR No.427/2012 -18- i) The entire arrears of rent, if any, as on today will be paid/deposited within one month. If such deposit is made, the same will be disbursed to the respondent; ii) An affidavit will be filed by the petitioner before the Rent Control Court within one month from today, undertaking to vacate the premises within the time stipulated by this Court. iii) The petitioners will continue to pay at the same monthly rate for the use and occupation of the building till vacant peaceful possession is handed over to the respondent; If the above conditions are not satisfied, the petitioner will not get the benefit of this order. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** **kav/**