C. J. Antony s/o Joseph v. K. J. Francis, James Alby, Cicily Cleetus

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935 RCRev..No. 166 of 2012 () -------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 58/2008 of RENT CONTROL APPELLATE AUTHORITY,ERNAKULAM DATED 30-11-2011 AGAINST THE ORDER/JUDGMENT IN RCP 51/2004 of RENT CONTROLLER AND ADDL.MUNSIFF COURT,KOCHI DATED 11-04-2008 REVISION PETITIONER(S)/1ST RESPONDENT IN RCA.58/2008 AND RCP.51/2004: --------------------------------------------------------------------------------------------------------------------------------------- C.J.ANTONY S/O.JOSEPH, AGED 70 YEARS, CHATHANATTU HOUSE 16/951, THOPPUMPADY, KOCHI-5. BY ADVS.SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA RESPONDENT(S)/APPELLANT IN RCA.58/2008 AND PETEITIONERS IN RCP.51/2004: ---------------------------------------------------------------------------------------------------------------------------------------------- 1. K.J.FRANCIS S/O.LATE JOSEPH, AGED 66, KANJIRAPARAMBIL HOUSE RAMESWARAM PADINJARE MURI, THOPPUMPADY VILLAGE KOCHI TALUK. 2. JAMES ALBY S/O.LATE JOSEPH, AGED 54 YEARS, KANJIRAPARAMBIL HOUSE RAMESWARAM PADINJARE MURI THOPPUMPADY VILLAGE KOCHI TALUK REP. BY HIS WIFE AND POWER ATTORNEY HOLDER PRABHA ALBY AGED 53 YEARS W/O.JAMES ALBY, KANJIRAPARAMBIL HOUSE RAMESWARAM PADINJARE MURI, THOPPUMPADY VILLAGE KOCHI TALUK. 3. CICILY CLEETUS, W/O LATE CLEETUS, AGED 52, KANJIRAPARAMBIL HOUSE RAMESWARAM PADINJARE MURI THOPPUMPADY VILLAGE KOCHI TALUK. R BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM R BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 2-12-2013, ALONG WITH RCR. 167/2012, RCR. 174/2012, RCR. 207/2012, THE COURT ON 17/12/2013 PASSED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R.Nos. 166, 167, 174 and 207 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 17TH DAY OF DECEMBER, 2013** ## **O R D E R** ## Ramachandran Nair, J. These four revision petitions are filed by the respective tenants. R.C.R.Nos.166/2012 and 167/2012 are filed by the tenant in R.C.P.No.51/2004 and R.C.R.Nos.174/2012 and 207/2012 are filed by the tenant in R.C.P.No.52/2004. 2. Eviction was sought by the respondents under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act') and the Rent Control Court allowed eviction only under Section 11(2)(b) of the Act, viz. for arrears of rent. Both sides filed appeals and by a common judgment the Appellate Authority disposed of the appeals. The plea of the landlord for eviction under Section 11(3) of the Act has also been allowed. 3. We heard learned counsel for the revision petitioners Shri T.K. Venugopalan and Shri Lal K. Joseph and Shri V. Rajendran, learned counsel for the landlords. The parties are referred to as arrayed in these revision RCR Nos.166, 167, 174 & 207 of 2012 -2- petitions. 4. Short facts necessary for the disposal of the revision petitions are the following: Respondents 1 and 2 are brothers and the third respondent is the widow of one of the brothers. An extent of property, viz. 28.970 cents having a residential building and a line building having three rooms belonged to the late father of respondents 1 and 2 and father-in-law of the third respondent. The line building faces towards south to P.T. Jacob Road. By a registered will executed on 16.1.1991, the late father decided to bequeath the properties to the respondents 1 and 2 and the late husband of the third respondent. He died in the year 1994 and the mother died on 17.8.2004. It was pleaded in the eviction petition that the first respondent herein was employed at U.S.A. and he came back to Kerala in 1998 and is without any employment. The second respondent is employed at Dhoha for more than 20 years and he is intending to come back after winding up his employment. His wife is permanently settled here and she is a graduate. Their children are grown up and she is also not having any job or avocation. The third respondent is a teacher at Ootty and she proposes to join as a partner in the business. The respondents want to start a Department Store in RCR Nos.166, 167, 174 & 207 of 2012 -3- the line building. It has also been averred that they have got the capacity and ability to start the business and the building is in such a location that is most suited for the said business. The building may require slight alteration and modification to start the business which the respondents will do as and when they get possession of the same. As far as the tenant in R.C.P.No.52/2004 is concerned, he is doing tailoring business and the tenant in R.C.P. No.51/2004 is doing business in photo framing and lamination. 5. At the outset, Shri T.K. Venugopalan, learned counsel appearing for the revision petitioner in R.C.R. Nos.174/2012 and 207/2012 submitted that Ext.B6 is a document which has been proved through P.W.2, the first respondent herein and it will show that he had negotiated for sale of the property with the building at a price of ₹12 lakhs per cent. Ext.B6 was given to a real estate broker with the object of selling the property. The same was about 4 years prior to the date of examination, somewhere in 2004. It is submitted that the said attempt will cut at the root of the bonafide need pleaded. The real idea is to sell the property and therefore the finding by the Appellate Authority that the bonafide need is proved, is RCR Nos.166, 167, 174 & 207 of 2012 -4- not correct. It was further argued that the Appellate Authority relied upon a decision of this Court in **Balan v. Bijina** (2004 (3) KLT 180) to find that even if the landlord has negotiated for sale of the property, it will not affect the bonafide need. But the facts of the said case show that there the negotiation was with the tenant of the very same building, against which eviction was sought and herein the circumstances are totally different. Therefore, the said principle will not apply here. It is also submitted that the building is an old one, may be aged 60 - 80 years. Therefore, the idea to start a Department Store cannot be accepted in its face value. The first respondent had a tumor for which he had undergone treatment and the second respondent is already employed in Dhoha and his wife alone is here. The third respondent is in Ootty. Therefore, it cannot be said that there is a clear idea to start a business. It is therefore submitted that the findings are wrong and incorrect and are liable to be interfered with by this Court. 6. Shri Lal. K. Joseph, learned counsel appearing for the petitioner in R.C.R. Nos.166/2012 and 167/2012 supported the above arguments and it is submitted that this is a clear case where there are no bonafides in the matter. He has raised two other contentions: (a) That all the necessary parties have RCR Nos.166, 167, 174 & 207 of 2012 -5- not been impleaded, as it is in evidence that the deceased Joseph had ten legal heirs; and (b) Apart from the same, it is also submitted that the tenant in R.C.P.No.51/2004 is entitled for permanent tenancy and in such circumstances he cannot be evicted. There were litigations between the late father and the deceased brother of respondents 1 and 2 and the building was demolished in violation of an injunction order in favour of the tenant and later the Munsiff's Court allowed the tenant to construct the building and that he has made certain constructions accordingly. Therefore, this is a case where a work of a permanent character has been executed by the tenant in the site and therefore he is not liable to be evicted as it is a perpetual tenancy. It is also contended that the tenant in R.C.P.No.51/2004 was laid up and therefore he could not adduce evidence. In view of the different contentions raised by him, he has obtained an order from this Court in W.P.(C) NO.22357/2007 wherein a separate trial has been ordered, but R.C.P.No.51/2004 was tried along with R.C.P.Nos.52/2004 and 34/2005. 7. In respect of three different rooms three eviction petitions have been filed by the respondents, viz. R.C.P.Nos.51/2004, 52/2004 and -6- RCR Nos.166, 167, 174 & 207 of 2012 34/2005. From the order in R.C.P.No.34/2005 no revision petition is before us. 8. The first question is whether Ext.B6 will defeat the claim of the landlords. Shri V. Rajendran, learned counsel for the respondents submitted that the said document was not produced earlier but was produced at the time of cross examination. P.W.2 has given a cogent explanation in the re-examination that since the land is remaining vacant, a broker had been contacting continuously and to avoid him, Ext.B6 was given to the broker showing such a big price. The said reason has been accepted by the Appellate Authority. It is submitted by the learned counsel that the same can be really accepted. Apart from the same, it is submitted that at any rate, Ext.B6 is only given by P.W.2, the first respondent herein and it will not bind the other two respondents. Learned counsel also submitted that the decision of this Court in **Balan's case** (2004 (3) KLT 180)and an earlier decision in **Manu v. Bhanumathy** (2004 (1) KLT 212) have held that even if there were some negotiations for sale of the property, that will not defeat the bonafide need pleaded. 9. The principle adopted in the two decisions referred to above can RCR Nos.166, 167, 174 & 207 of 2012 -7- therefore be gone into. In **Manu's case** (2004 (1) KLT 212) during the pendency of the eviction petition the landlady obtained vacant possession of another room and it was given to the tenant concerned. It was argued before this Court that the said room could have been utilised for the purpose of the landlady. While explaining the legal position, this Court has expressed the view in para 3 that the same will not defeat the claim of the landlady. We extract the relevant portion hereunder: “We are of the view, the mere fact that landlady sold one of the rooms fell vacant to the tenant does not mean that there is no _bonafides_ in the plea for evicting another tenant. Selling away of another tenanted room may be due to various reasons. Landlady may not be getting sufficient rent from the tenanted premises. Landlady may also be in need of money for various purposes including marriage of her daughter, for discharging the liabilities and may also be enamoured of the delay in getting the tenant evicted. Landlord may also choose a tenant who is paying lesser rent for eviction, for _bonafide_ own occupation. Mere fact that one of the tenanted buildings was sold to the tenant while the _bonafide_ need existed does not mean that there is no _bonafide_ in the need urged for evicting another tenanted premises. Even if the above facts were proved the claim under S.11(3) cannot be ” defeated if the plea is _bonafide_ . RCR Nos.166, 167, 174 & 207 of 2012 -8- 10. In **Balan's case** (2004 (3) KLT 180), it was alleged that during the pendency of the rent control proceedings, an attempt has been made by the father of the landlady to sell away the property to the tenant and it was contended tat the same will affect the bonafide need. In para 6 of the order, the Division Bench has held as follows: “We are of the view even if such a proposal was originated from the side of the landlady that by itself would not show there is no _bona fides_ in the plea. During the pendency of the rent control proceedings if tenant makes an attractive offer so as to subdue the _bona fide_ need the Rent Control Petition cannot be rejected on the ground that the landlady was also desirous of selling away the tenanted premises. The delay in disposal of the rent control proceedings, uncertainty in conduct of business and many other factors might have influenced the mind of the landlady while an attractive offer was made. Landlady may also in a given case sell away the tenanted premises and start business elsewhere with the amounts received. Rent Control Court took the view that since attempts were made by the landlady to sell away the property during the pendency of the proceedings to the tenant it would be sufficient to hold that there is no _bona fides_ in the plea. We are in agreement with the reasoning of the Appellate Authority.” RCR Nos.166, 167, 174 & 207 of 2012 -9- This Court accepted the view of the Appellate Authority that the mere fact that there were some negotiations between the father of the landlady and the tenant, that itself is not sufficient to hold that the bonafide need pleaded is not genuine. Shri T.K. Venogopalan submitted that in the above case the negotiation was with the tenant and not with a third party which is the distinction here. 11. As far as the exact date on which Ext.B6 was given, there is no evidence and the broker also has not been examined. P.W.2 has stated that he does not remember when it was given, but it was 3 - 4 years back to the date of his examination. He was specifically asked whether the same was furnished during the pendency of the cases to which he answered that he does not remember. 12. Evidently, the Appellate Authority has accepted the explanation given by P.W.2 in the re-examination. In fact, going by the principles stated by this Court in the two decisions referred to above, even if there were some negotiations for sale of the property at some time past, that will not affect the bonafides of the landlord. Herein, it has been found by the Appellate Authority that the first respondent has come back from U.S.A. and the wife RCR Nos.166, 167, 174 & 207 of 2012 -10- of the second respondent is already here, who has been examined as P.W.1. She stated that her husband is about to return back. The third respondent is joining as a parter to the business. We are of the view that even if there was some communication by P.W.2 with a broker, that will not defeat the claim of the landlords. There is no evidence that others have consented also. The factual situation that is noted above will show that the three landlords have joined together to start a business in Department Store. As rightly pointed out by the Appellate Authority, there is nothing wrong in the respondents seeking to start a Department Store and the evidence given by P.Ws.1 and 2 stands accepted on this aspect. 13. The next argument was that the first respondent had undergone an operation for tumor and he may be incapable of doing any business. The evidence of P.Ws.1 and 2 that they have jointly planned to start a business was accepted by the Appellate Authority. It was held in para 18 that there is no evidence to show that P.W.2 came to court with any help and deposed and there is no evidence to show that his movements are crippled or restricted. Accordingly it was held that it may be quite unreasonable to say that such a man along with two others is not able to manage the business of RCR Nos.166, 167, 174 & 207 of 2012 -11- a department store and the finding of the Rent Control Court was reversed. 14. P.W.1 is the wife of the second respondent who has stated in clear terms that her husband wants to come back from Dhoha to start a business in the petition schedule building. The second respondent has filed an affidavit before this Court stating that after 28 years of service abroad he has returned permanently from Quator in the year 2010 and he is having no other engagement or avocation. It is in evidence that P.W.1, the wife of the second respondent, is a graduate and the third respondent also wants to join the business as a partner. As rightly pointed out by the learned counsel for the respondents, it cannot be said that the idea to start a business is not honest and sincere. 15. On an assessment of the entire evidence in the matter with regard to the plea of bonafide need, we are of the view that the conclusions arrived at by the Appellate Authority cannot be said to be perverse. Therefore, we are of the view that Ext.B6 will not defeat the claim under Section 11(3) of the Act. 16. The next aspect is whether the age of the building will render the claim unworkable. The report of the Commissioner will show that the area -12- RCR Nos.166, 167, 174 & 207 of 2012 available is 650 sq. ft. Great attack is made by the learned counsel for the petitioners with regard to the absence of sufficient facility for having a department store. In fact, in the eviction petition itself it has been averred that after eviction, the premises will be used after slight alteration and modification to start the business. It is well settled that the landlords can occupy the building after due modification or repair to suit their convenience and that is not a matter where the tenant can dictate the terms. They have decided to utilise all the three rooms for the purpose of the department store. Apart from that, the building is situated in an extent of property having more than 29 cents and the landlords have also stated that some of the space available can also be utilised for the purpose of having a department store. Therefore, the nature of the building, at present will not be a relevant criteria to show that the claim is not bonafide. 17. As far as the petitioner in R.C.R.Nos.174/2012 and 207/2012 is concerned, the Rent Control Court as well as the Appellate Authority have found that the petitioner is not entitled to the benefit of the second proviso to Section 11(3) of the Act. The Rent Control Court has noted that the tenant in the above cases is an expert in blouse stitching and to a question RCR Nos.166, 167, 174 & 207 of 2012 -13- whether he will get customers if he is continuing the business in his house, the answer is in the affirmative. The contention of the landlords is that the tenant is having tailoring business in his house also. The Rent Control Court noticed that R.W.1 (tenant) has not produced any document to prove the details of income from the tenanted premises and therefore it cannot be held that the income from the tenanted premises is the main source of his livelihood. It is also found that the landlords have clearly pleaded the existence of vacant rooms in the locality. The Commission Report, Ext.C2 also has named certain buildings remaining as vacant. The said evidence was accepted by the Rent Control Court and ultimately it was found that the tenant is not entitled to the protection of first and second provisos to Section 11(3) of the Act. The Appellate Authority has also accepted the same and we find no reason to differ from the said view. 18. Coming to R.C.R. Nos.166/2012 and 167/2012, two additional points have been raised, as already noticed: The first one is relating to the contention that all the necessary parties have not been impleaded and the second one is that the petitioner is a permanent tenant. Shri Lal K. Joseph, learned counsel appearing for the revision petitioner submitted that the RCR Nos.166, 167, 174 & 207 of 2012 -14- notices issued earlier will show that all the children have jointly sent the notice. They are Exts.B5(a) and B5(b). Now the eviction petition was filed only by respondents 1 to 3. These contentions have been negatived by the authorities below by relying upon the will, Ext.A2 produced by the landlords. One of the attestors of the will has been examined as P.W.3. The evidence of P.W.3 was accepted by the Rent Control Court as well as by the Appellate Authority. Since the respondents have proved the elements necessary to prove the ownership as per the will, merely because in an earlier occasion notices have been issued mentioning all the children as owners that will not defeat the right of the respondents. It is explained by the learned counsel for the respondents that after the death of the father, the mother was alive and she died only in 2004 and it is thereafter the landlords have thought of conducting a business. Therefore, we reject the said contention. 19. The claim of permanent tenancy raised by the learned counsel for the petitioner is on the basis of an order passed by the Munsiff's Court, produced as Ext.B4 by which the revision petitioner herein was allowed to restore the building. The said order was passed in the light of the alleged RCR Nos.166, 167, 174 & 207 of 2012 -15- violation of an injunction order. The main contesting respondent therein is the brother of respondents 1 and 2 herein. Learned counsel submits that by the operation of the order passed by this Court, construction was made and therefore he is entitled to rely upon Section 60(b) of the Easements Act. In fact, the said contention has been rejected by the authorities below as the revision petitioner is only a tenant and even though the building had collapsed, the tenancy was never terminated and it stood revived. The question is whether the said finding is in any way wrong. The principle under Section 60(b) of the Easements Act cannot have any application here. The revision petitioner in R.C.R.Nos.166/2012 and 167/2012 is a building tenant which fact is accepted by him and he is not a licensee also. At any rate, the order passed by the Civil Court allowing restoration of the structure, cannot confer any right under Section 60(b) of the Easements Act. The decision relied upon by the learned counsel for the petitioner is **Govindan v. Rashid** (2009 (1) KLT 997). In fact, this Court has held, after referring to Section 11(1) of the Act, that permanent tenancy means a tenancy in perpetuity from eviction or a tenancy which is to last for ever till its subject matter, the building exists and the revision petitioner by putting RCR Nos.166, 167, 174 & 207 of 2012 -16- up a structure on the basis of an order passed by this Court, cannot confer any right of permanent tenancy. It is also submitted by the learned counsel for the respondents that even though the tenant filed a suit for recovery of certain money allegedly spent for reconstruction, the said suit was dismissed for want of evidence. Whatever that be, the claim for permanent tenancy cannot survive at all. 20. In fact, learned counsel for the revision petitioner further submitted that the background of various litigations will show that there is absence of bonafides. The present Rent Control Petitions were filed only in 2004, much after the earlier dispute originated between the father of respondents 1 and 2 and their brother. The question will have to be examined as to the bonafide need the respondents have pleaded and they have clearly been successful in establishing the same and merely because of the previous litigation, the claim will not stand defeated. 21. One of the other points raised by the learned counsel for the revision petitioner is that the tenant in R.C.P. No.51/2004 could not appear before the court at the time of giving evidence and therefore the matter may be remanded back. The cases were jointly tried and learned counsel for the RCR Nos.166, 167, 174 & 207 of 2012 -17- respondents submitted that the learned counsel appearing for the revision petitioners before the Rent Control Court had cross examined P.Ws.1 and 2. Various documentary evidence have also been marked in the case, viz. R.C.P. No.51/2004. According to the learned counsel, the plea that the tenant was laid up in hospital is also not correct and it is not as if he was unable to come to the court and give evidence. There was no application from his part also. Therefore, as the revision petitioner has adduced documentary evidence, it is said that the mere plea that he was absent and could not depose before the court cannot be a ground to remand the matter. Going by the statement of facts in the revision petition, it is seen that he has given chief affidavit. It is not a case where sufficient opportunity was not given to him to adduce evidence. There is nothing to show that the judgment in W.P.(C) No.22357/2007 was brought to the notice of the Rent Control Court also. Therefore, since at the time of joint trial no objection was raised by the revision petitioner against the same, the belated plea cannot be accepted. The Rent Control Court has considered the evidence adduced on both sides and there is no failure of justice also. RCR Nos.166, 167, 174 & 207 of 2012 -18- 22. As far as the tenant is concerned, he has not adduced anything to show that he is depending upon mainly the income derived from the business conducted in the petition schedule building for his livelihood and therefore he is not entitled to get the benefit of the second proviso to Section 11(3) of the Act, which is the finding by the Rent Control Court as confirmed by the Appellate Authority. There is nothing to show that the said finding is perverse. 23. Shri T.K. Venugopalan submitted that going by Section 11(10) of the Act, there should be a separate finding that the claim is also bonafide. We find from the judgment of this Court in **Abdulkhader v. Naseema** (2013 (1) KLT 827) rendered by a Division Bench consisting of one of us (B. Kemal Pasha, J.) and a later decision by another Division Bench in **Sampath S. Pawar v. Ibrahim** (2013 (3) KLT 722) that what is required under Section 11(3) of the Act is evidence to show that the need urged by the landlord is bonafide. It was held in the first of the decisions as follows: “The ingredients of Ss.11(3) and 11(4)(iv) merely constitute grounds for raising a claim. When the Rent Control Court is satisfied that the said claim of the landlord is bona fide, it shall make an order directing the tenant to put the landlord RCR Nos.166, 167, 174 & 207 of 2012 -19- in possession of the building, and if it is not so satisfied, the Rent Control Court shall make an order rejecting the application containing the claim. Any further significance need not be attributed to the term “bona fide” occurring in Ss.11(3), 11(4)(iv) and S.11(10) of the Act.” 24. We do not find anything wrong in the approach made by the authorities below. For all these reasons the revision petitions are dismissed. We grant the revision petitioners six months time from today, to vacate the petition schedule premises on the following conditions: i) The entire arrears of rent as on today will be paid/deposited within one month. If such deposit is made, the same will be disbursed to the respondents; ii) An affidavit will be filed by the petitioners 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 RCR Nos.166, 167, 174 & 207 of 2012 -20- handed over to the respondents; iv) If the above conditions are not satisfied, the petitioners will not get the benefit of this order. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(B. KEMAL PASHA, JUDGE)** **kav/**