C P Paul v. Lalu Paulson

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.UBAID THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935 RCRev..No. 407 of 2013 () -------------------------AGAINST THE JUDGMENT IN RCA 11/2012 of VI ADDL.DISTRICT COURT, ERNAKULAM DATED 20-08-2003 AGAINST THE ORDER IN RCP 98/2009 of III ADDL.M.C.EKM (RENT CONTROL) DATED 11-11-2011 REVISION PETITIONER/APPELLANT/RESPONDENT: -------------------------------------------------------- C P PAUL S/O.(LATE) K.P PAULOSE, RESIDING AT 30/092J LAKE VIEW ENCLAVE, VYTTILA, KOCHI 19 BY ADVS.SRI.R.SUDHEER SRI.MOHAN PULIKKAL SRI.R.ANAS MUHAMMED SHAMNAD RESPONDENT/RESPONDENT/PETITIONER: --------------------------------------------- LALU PAULSON S/O.PAULSON, RESIDING AT 39/2212, ALANGADAN BUILDINGS M.G ROAD, ERNAKULAM, COCHIN 682 016 BY ADV. SRI.S.R.DAYANANDA PRABHU ,CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28-01-2014, THE COURT ON 20-02-2014 DAY PASSED THE FOLLOWING: **“C.R”** ## **K.T.SANKARAN & P.UBAID,JJ. ~~~~~~~~~~~~~~~~~ R.C.R. No. 407 of 2013 ~~~~~~~~~~~~~~~~~ Dated this the 20[th] February, 2014** ## **O R D E R** ## Ubaid,J. A tenant having a multi-storied building with a total space of 30,000 sq.ft, in his possession, would not stop his fight against the landlord in his cause for recovery of his own building having a space of 1200 sq.ft for his own purpose. The Kerala Buildings (Lease and Rent Control) Act, (hereinafter referred to as 'the Act' for short) was introduced in Kerala with the social object of protecting tenants from unscrupulous and arbitrary eviction, while protecting the interests of landlords. The tenants who have ceased to occupy the tenanted premises or who have handed over the tenanted premises under any sort of arrangement which is not authorised by the contract of lease, will not get the protection under the Act. The defences available to tenants under the Act in the **R.C.R. No. 407 of 2013** **2** proceedings brought for eviction by landlords, can be availed only by those tenants who continue in the tenanted premises, actually occupying the premises. Unscrupulous tenants who would try to continue in the premises by all means possible, even when they have ceased to occupy the premises, or have otherwise handed over the premises to somebody, would not get the benefit of the protection under the Act. When such tenants come before the Court, it must be the concern of the Court that the provisions of the Act are not allowed to be misused. 2. The tenant in the eviction proceedings brought as R.C.P 98 of 2009 before the Rent Control Court, Ernakulam is the revision petitioner before us. The landlord is an I.T. Professional having high qualifications like M.B.A, and M.S in Computer Science. He has some business activity abroad. On the satisfaction that the petition schedule building in this case, which belongs to him, is situated in an ideal location, having good prospects for I.T. business, he thought of starting some business here,in his own premises, and with the said object, he proceeded to evict the tenant on the **R.C.R. No. 407 of 2013** **3** ground of bona fide need under Section 11 (3) of the Act. Though eviction was initially sought under Section 11 (4) (iv) of the Act also, it was later abandoned, and the ground under Section 11 (4) (iii) of the Act was introduced by amendment. The case of the landlord is that the tenant has acquired a multi storied building of his own which is well sufficient for all his purposes, including the purpose for which the petitioner's building was initially taken on rent by him. 3. The tenant entered appearance and resisted the prayer for eviction on the contention that the need projected by the petitioner in the petition for eviction is only a ruse for eviction, that the petitioner has no necessity at all for starting a business here when he is well settled abroad, that his daughter and the son-in-law have been conducting a Dental Clinic in the tenanted premises by name 'Paulson Dental Speciality Centre' which is in fact, his source of income, though run by the daughter and his son-in-law, that the said Dental Clinic cannot function in the building in his possession which he acquired subsequently, and that **R.C.R. No. 407 of 2013** **4** the said building is not sufficient for his business purposes. 4. The facts in this case touching the grounds for eviction are more or less admitted, and rather found against the tenant by the trial court and the appellate authority. (District Court, Ernakulam in RCA No.11 of 2012) Such concurrent findings on facts cannot be interfered in revision by this Court except when there is any illegality, irregularity or impropriety in the orders of the authorities below. 5. During trial, the petitioner-landlord and his father-in-law were examined and Exts.A1 to A22 were marked on the side of the petitioner-landlord. The tenant examined himself as RW1 to substantiate his contentions resisting the claim for eviction, and Exts.B1 to B3 were marked on his side. The report submitted by the Advocate Commissioner appointed by the trial court during the proceedings were marked as Exts.C1 and C2. 6. On an appreciation of the oral and documentary evidence, the authorities below found in favour of the landlord that he bona fide needs the petition schedule building for his own purpose, that the tenant is not entitled **R.C.R. No. 407 of 2013** **5** for the protection under the first proviso or second proviso to Section 11 (3) of the Act, and that subsequent to the tenancy, the tenant has acquired a multi storied building with a total space of 30,000 sq.ft, which is sufficient for him for any purpose, including the Dental Clinic now being run in the tenanted premises by his daughter and the son-inlaw. 7. On an appreciation of the evidence, this Court does not find any scope for interference in the concurrent findings made by the authorities below on facts. The landlord, examined as PW1, has given definite and consistent evidence substantiating his case that he needs the petition schedule building for starting an I.T business of his own. It is well settled that the need projected by the landlord cannot be doubted, just because he has some business activity somewhere else. The landlord can have any number of business activities and he cannot be restricted in his efforts to make income from different sources. 8. In **Kurian v. Prathapan** ( **1992 (2) KLT 248** ), **R.C.R. No. 407 of 2013** **6** this Court has held that a mere desire cannot amount to bona fide need within the meaning of Section 11 (3) of the Act. In this case, there is definite evidence to find that the need projected by the landlord in this case is not a mere desire or a mere wish. He has all the capabilities required for the proposed business as a well qualified Computer Engineer having an added qualification in business administration. As a person having some business activities abroad, he has also the required resources for investment in the proposed business. There is absolutely no reason to doubt the genuineness of the need projected by him that he has decided to start an I.T business here in his own building. When evidence satisfies the court that the said decision is a determination, and not a mere wish or desire, his need will have to be accepted by the court as genuine and bona fide. This Court finds that finding was rightly made in his favour by the authorities below on the question of bona fide need. 9. The tenant in this case does not have a definite case in defence that the landlord has some other building or **R.C.R. No. 407 of 2013** **7** space in his possession, which can be utilised for the proposed business. Of course, it is true that the petition schedule building is only a space of 1200 sq.ft in the larger building. But, admittedly, the other portions of the building belong to others. The landlord in this case has only the tenanted space of 1200 sq.ft. Nobody would dispute the fact that this space is reasonably sufficient for some I.T business involving I.T. Consultations, sale of computers and computer accessories, computer service etc. The tenant has not produced any material to show that the petitionerlandlord has any vacant building or space in his possession which can be utilised for the proposed business. Thus, the first proviso to Section 11 (3) of the Act will not stand in the way of eviction in this case. 10. The tenant in this case has pleaded the benefit of the second proviso to Section 11 (3) of the Act. It is in fact an admitted fact that the tenant has not been conducting any business in the tenanted premises. Admittedly, he has handed over the premises to his daughter and his son-in-law for starting a Dental Clinic. **R.C.R. No. 407 of 2013** **8** They have been running a clinic there, by name “Paulson Dental Specialty Centre'. In fact, this concern belongs to his daughter and the son-in-law, and he has no connection with this Dental Clinic except that he is the father or fatherin-law of the persons running the said clinic. Even while admitting that he has handed over the premises to them, the tenant has pleaded the benefit of the second proviso to Section 11 (3) of the Act. 11. When Section 11 of the Act with sub-sections contains some grounds for eviction, the second proviso contains a ground by way of twin conditions, not to grant eviction. Then it is quite clear that the burden would definitely be on the tenant to prove the benefit of the second proviso. The benefit of the said proviso can be claimed only by tenants actually occupying the tenanted premise. Tenants who have handed over the tenanted premises, or who have ceased to occupy the premises cannot in fact claim the benefit of the second proviso. Possession in relation to property is a legal concept creating some control or dominion over property, whereas occupancy **R.C.R. No. 407 of 2013** **9** involves something more. Occupancy as regards property is a situation where the person in possession either resides in the premises or continues in the premises with some activity there, including some business activity for his livelihood. Even without actually occupying the tenanted premises, a tenant can continue his possession over the premises. Such tenants who continue mere possession, without actually occupying the premises for any purpose will not get the benefit of the second proviso to Section 11 (3) of the Act. 12. In **Eanu Haji V. Mustafa [2004 (2) KLT 668],** this Court has held, following the earlier decisions that the burden is on the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act. The requirements constituting defence under the second proviso are that the tenant is solely depending on the income he gets from the business being conducted in the tenanted premises and that other vacant building is not available in the same locality for shifting his business. The income meant under the first limb of the second proviso is not the income which the tenant gets from his sub lessee or from the person who was **R.C.R. No. 407 of 2013** **10** inducted by him under some arrangement. The income meant under the limb is the income which the tenant gets from the business being conducted by him in the premises. The protection under the second proviso would be available only to the tenant, who conducts business in the tenanted premises. 13. As already stated, the second proviso to Section 11 (3) of the Act contains a ground not to grant order of eviction, and it stands well settled that when the benefit of the second proviso is pleaded by the tenant, the burden is on him to prove that he is entitled for the said benefit. In this case, it has well come out in evidence that the tenantrespondent is presently a contractor and he has also been running a hotel-cum-tourist home business in the multi storied building acquired by him after the commencement of this tenancy. Such a tenant cannot be heard to contend that he is solely dependent on the income derived from the business being conducted in the tenanted premises. A person having his own building, which is in fact a multi storied building, cannot also be heard to contend that other **R.C.R. No. 407 of 2013** **11** buildings or rooms are not available in the same locality for accommodating his present business. In fact, in this case, there is no scope or necessity for entering a finding on the twin conditions in the second proviso because the tenant in this case has in fact ceased to occupy the premises, and admittedly he has not been conducting any business of his own in the premises. When his daughter and the son-in-law conduct a Dental Clinic of their own there, the tenant cannot claim the benefit of the second proviso. In the given factual situation, we are inclined to confirm the findings of the two authorities as regards the benefit of the second proviso to Section 11 (3) of the Act also. 14. Now let us come to another very material point as regards the ground under Section 11 (4) (iii) of the Act, in the particular factual situation where the tenant has well admitted that he has acquired a multi storied building of his own after the tenancy under the landlord herein. Even while admitting possession over such multi storied building, the tenant would resist the prayer under Section 11 (4) (iii) of the Act on the contention that the said building is not **R.C.R. No. 407 of 2013** **12** reasonably sufficient for shifting the Super Specialty Dental Clinic now being conducted in the tenanted premises by his daughter and the son-in-law. In fact, a tenant can claim the protection under Section 11 (4) (iii) of the Act that the building in his possession, which he acquired after the tenancy, is not reasonably sufficient for his purpose, only in circumstances where he himself has been occupying the tenanted premises for some requirement or business of his own. The tenant in this case does not have any requirement of his own in the tenanted premises. 15. It stands proved by evidence, and rather admitted, that the tenant has a five storied building of his own in the same locality. His explanation is that he has already occupied a major portion of it for a hotel-cum-tourist home business, and he cannot accommodate his daughter's Dental Clinic in the remaining space available. In fact, such a plea cannot be entertained by this Court as a defence **-** under Section 11 (4) (iii) of the Act. In **Kanhangad Co op. M.S.Society Ltd. v. Ganapathy Kamath [1995 (1) KLT 681],** this Court has held that the burden is on the tenant to **R.C.R. No. 407 of 2013** **13** prove that the building in his possession, which he acquired after the tenancy, is not reasonably sufficient for his requirements. In **Kunhiraman v. Kumaran [2004 (2) KLT 674],** this Court has held that in a case brought under Section 11 (4) (iii) of the Act, the initial burden is on the tenant to prove the circumstances which stand in his way of not occupying the premises, once acquisition of another building is admitted or not disputed. In **Ahamed v. Krishnalal [2005 (3) KLT 1004],** this Court has held that if it is shown that the tenant has got another building in his possession, the burden would shift to him to prove that the said building in his possession is not reasonably sufficient for his purpose. This Court has even held in the said case that merely because the building in his possession, which he acquired after the tenancy, is having a lesser area than the petition schedule building with respect to which eviction is sought, it cannot be said that the said building is not reasonably sufficient, and the said fact that it is lesser in space is a not a reason to reject the petition under Section **-** 11 (4) (iii) of the Act. In **Iritty Co op. Hospital Society** **14** ## **R.C.R. No. 407 of 2013** **Ltd** v. **Damodaran [ 2010 (3) KLT 823],** this Court has held that the statutory requirement under Section 11 (4) (iii) of the Act is only that the newly acquired or put up building is reasonably sufficient, and not that is should be perfectly and completely sufficient. Thus, reasonable sufficiency of the building acquired by the tenant will disentitle him to contest an application for eviction under Section 11 (4) (iii) of the Act. This Court finds on admissions and on evidence that the building acquired or put up by the tenant herein after the commencement of the tenancy, is reasonably sufficient for his requirements. 16. In this case, there is a peculiar situation that the tenant has a five storied building in his possession, wherein, he conducts a hotel-cum- tourist home business of his own, leaving some space vacant, and he has, in fact, ceased to occupy the tenanted premises for a long period, by handing it over to his daughter and the son-in-law. In fact, it does not matter whether the tenant has started some other business or activity in the subsequently acquired building. The fact that he has acquired or put up a building of his **R.C.R. No. 407 of 2013** **15** own, and that it is reasonably sufficient for his requirements will give a cause of action to his landlord to seek eviction under Section 11 (4) (iii) of the Act. 17. When a claim for eviction is brought under Section 11 (4) (iii) of the Act, the requirement of reasonable sufficiency of the building in the possession of the tenant, which he acquired subsequently, can be pleaded only by the tenant, who actually occupies the tenanted premises for some purpose. A tenant,who does not have any such requirement, cannot in fact, plead the benefit of reasonable sufficiency as a requirement under Section 11 (4) (iii) of the Act. Here is a tenant who has handed over the tenanted premises to his daughter and the son-in-law long back, and he has started a business of his own in the building subsequently acquired by him. It is pertinent to note that the tenant does not disown the high level business being conducted in the subsequently acquired building, and he does not in fact dispute the important fact that the said multi storied building in his possession has a total space of 30,000 sq.ft. Ext.C2 report of the Advocate Commissioner **R.C.R. No. 407 of 2013** **16** will show that the said building subsequently acquired by the tenant in this case is a five storied one, near the South Railway Station, Ernakulam, every floor of the building has a conference hall and each floor has 13 or 14 rooms including deluxe rooms. There is reason to believe that a hotel-cum-tourist business is being profitably conducted there by the tenant. There is no doubt at all that it would be idle and meaningless to contend that such a building is not reasonably sufficient for the requirement of the tenant, if at all he has any requirement of his own. 18. As already stated, we find that the revision petitioner herein cannot plead the benefit of reasonable sufficiency of space as a requirement under Section 11 (4) (iii) of the Act because he has in fact, ceased to occupy the premises for any purpose of his own, or that he has long back handed over the petition schedule building to his daughter and his son-in-law for their own purposes. The requirement meant under Section 11 (4) (iii) of the Act must be the requirement of the tenant; be it residence purpose or business purpose or some other activity. Persons put in **R.C.R. No. 407 of 2013** **17** possession or inducted in the premises by the tenant, under sublease or otherwise, will not get the benefit, and cannot plead reasonable sufficiency of space as a requirement under Section 11 (4 ) (iii) of the Act. 19. Here is a tenant who has a multi storied building in his possession, which is reasonably sufficient for all his requirements, who has in fact, ceased to occupy the tenanted premises, and who has started a high level business in his subsequently acquired building. He pleads the benefit of reasonable sufficiency under Section 11 (4) (iii) of the Act, resisting the prayer for eviction brought by the landlord with the object of recovering his small space of 1200 sq.ft for some purpose of his own. Even now, the tenant is not determined to stop his fight, despite the fact that he is affluent enough with a multi storied building in his possession which will satisfy all his requirements, if at all he has any requirement of his own. Such a tenant does not deserve any consideration under the law, and he is liable to be evicted, at the earliest. We find that the orders of the authorities below do not require any interference in revision **18** ## **R.C.R. No. 407 of 2013** on the ground of any irregularity or illegality or impropriety, and that order of eviction was rightly granted by the trial court and the appellate authority. We find that this revision petition is meritless; and is liable to be dismissed. However, in the particular facts and circumstances, the parties can bear their respective costs. In the result, this revision petition is dismissed. The parties will bear the respective costs of this proceedings. Sd/- **(K.T.SANKARAN, JUDGE)** **Sd/(P.UBAID, JUDGE)** ma /True copy/ P.S to Judge