C.K. Nainan v. George Daniel

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 ``` ``` RCREV. NO. 106OF 2020 ``` ``` AGAINST THE ORDER DATED 29.11.2019 IN RCA NO.7 OF 2018 BEFORE THE HON'BLE RENT CONTROL APPELLATE AUTHORITY (III ADDITIONAL DISTRICT JUDGE), KOLLAM ARISING OUT OF THE ORDER DATED 24.01.2018 IN RC(OP) NO.1 OF 2011 OF RENT CONTROL COURT, PUNALUR REVISION PETITIONER/APPELLANT/PETITIONER: ``` ``` C.K.NAINAN ``` ``` AGED 55 YEARS S/O.C.O.KURIAN, CHERUVELIL HOUSE, PUNALUR MURI, PUNALUR VILLAGE, REPRESENTED THROUGH HIS POWER OF ATTORNEY HOLDER, C.K.SOLAMAN, AGED 53 YEARS, S/O.C.O.KURIAN, RESIDING AT CHERUVELIL HOUSE, CHEMMANTHOOR, PUNALUR POST, KOLLAM DISTRICT-691305. ``` ``` BY ADV MILLU DANDAPANI ``` ## **`RESPONDENT/RESPONDENT/RESPONDENT :`** ``` GEORGE DANIEL, AGED 49 YEARS, CHARUVILA PUTHEN VEEDU, PUNALUR MURI, PUNALUR VILLAGE, PROPRIETOR, ALLEN CAR STYLE, CHEMMANTHOOR, PUNALUR, KOLLAM DISTRICT-691305. ``` ``` BY ADVS. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON ``` ``` 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.C.R. No.106 of 2020 2 ## **AMIT RAWAL & EASWARAN S. , JJ.** ## **-------------------------** ## **R.C.R. No.106 of 2020** **-----------------------------------** ## **Dated this the 9th day of April 2024** ## **ORDER** ## AMIT RAWAL, J. The present Rent Control Revision is directed against the judgment and decree of the, the Rent Controller, and the Lower Appellate Court, whereby, R.C.(O.P.) No.1/2011 preferred by the petitioner against the respondent/tenant for eviction from scheduled property consisting of two rooms on ground of bonafide necessity as provided under Sub-section 3 of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’ for short) has been dismissed. 2. Succinctly the facts in brief for adjudication of the aforementioned matter are herein: R.C.R. No.106 of 2020 3 2.1. The petition schedule property was acquired by the petitioner by virtue of sale deed No.2096/1999 and the respondent was inducted as a tenant for conducting shop under the name and style “Allen Car Style” on the basis of the rent agreement dated 2.11.2008 at the rate specified therein with a clause of enhancement of 10% every year. 2.2. Appellant/petitioner had been working in Mumbai for last twenty (20) years and decided to return to his native land to start a textile business in the entire building which has numerous rooms and in this regard, requested the respondent to surrender the vacant possession of petition scheduled shop but did not yield any result. A legal notice dated 11.1.2011 was sent for vacating but of no avail. It is in that background the ejection petition was filed seeking the eviction of the respondent/tenant. 2.3. Respondent/tenant, on appearance, raised numerous contentions, that the petitioner/landlord had not come to court with clean hands rather concealed various facts regarding the premises lying in his occupation and no steps have been taken to R.C.R. No.106 of 2020 4 start the alleged textile business. The execution of the agreement dated 2.11.2008 was specifically not denied. The plea of hardship as provided under the 2[nd] proviso to Sub-section 3 of Section 11 was also raised. 3. Since the parties were at variance, the learned Rent Controller framed the following issues: - 1) Has petitioner established bonafide need to get an order u/S 11(3) of the Act? - 2) Whether counter petitioner is entitled to get benefit under the proviso to section 11(3) of the Act? - 3) Whether petitioner is entitled to get an order under section 11(3) of the Act? - 4) Reliefs and costs? 4. In support of the case, the parties brought on record the following witnesses and documents. ## Witness for the Petitioner:- PW1 18.02.2014 Thomas Joseph PW2 18.02.2014 Satheesh R.C.R. No.106 of 2020 5 PW3 19.02.2014 Suchithakumari Amma PW4 18.02.2014 C.K. Nainan PW5 19.02.2014 G. Subash PW6 19.02.2014 S. Bala Raj S. Bala Raj ## Witness for the Respondent:- DW1 21.2.2014 George Daniel DW2 21.2.2014 Adv. Omanakuttan DW3 24.2.2014 Santhosh John ## Exhibits For the Petitioner:- P1 27.05.1999 Sale deed No.2096/99 of the S.R.O, Punalur P2 02.11.2008 Rent agreement P3 04.03.2011 Lawyer’s reply notice P4 02.11.2007 Rent agreement P5 25.11.2003 Rent agreement P6 02.11.2004 Rent agreement P7 10.10.2005 Rent agreement P8 16.05.2001 Agreement entered between petitioner and K.M. John for constructing a building. R.C.R. No.106 of 2020 6 ## P9 03.11.2006 Agreement ## Court Exhibits :- - C1 16.11.2012 Commission Report prepared by the Commissioner Advocate Omanakuttan - C2 29.09.2012 Mahazar prepared by the Commissioner Advocate Omanakuttan ## Third Party Exhibits:- - X1 18.02.2014 Account details in respect of the counter petitioner X1(a) 13.02.2014 Account details in respect of the counter petitioner X1(b) 13.02.2014 Account details in respect of the counter petitioner X1(c ) 13.02.2014 Account details in respect of the counter petitioner X2 14.02.2014 Attested copy of agreement produced by the counter petitioner while he obtained registration. - X2(a) 14.02.2014 Attested copy of agreement produced by the counter petitioner while he obtained registration. - X2(b) 14.02.2014 Attested copy of agreement produced by the counter petitioner while he obtained registration. - X3 20.02.2009 Rent agreement produced by the counter petitioner R.C.R. No.106 of 2020 7 |||while he avail license from the Municipality| |---|---|---| |X3(a)|20.02.2009|Copy of license| |X4||Attested copy of application submitted by the license| |||from the Municipality| |X5|18.02.2011|Application submitted by the counter petitioner| |X6|19.02.2010|True copies of application submitted by the counter| |||petitioner.| |X7|06.02.2013|True copies of application submitted by the counter| |||petitioner.| |X8|29.03.2004|Account Statement| |X8(a)|29.11.2003|Account Statement| |X8(b)|19.03.2003|Account Statement| |X8(c)|14.06.2002|Account Statement| 5. The Rent Controller, vide judgment dated 28.02.2014, allowed the petition and ordered eviction of the respondent on the ground of arrears of rent and as well as bonafide need. 6. The said order was assailed before the appellate authority and vide order dated 16.3.2015, order of eviction was R.C.R. No.106 of 2020 8 affirmed. Matter was taken up before this Court in R.C.R No.138 of 2015. The Division Bench of this Court, vide judgment dated 1.8.2017, set aside the judgment and decree of Rent Controller and Lower Appellate Court and remanded the matter to the Rent Controller with liberty to parties to produce additional evidence if they need so. On remand, none of the parties lead any oral as well as documentary evidence. 7. Vide impugned judgment and decree dated 24.01.2018 learned Rent Controller dismissed the rent petition on the ground that the petitioner/landlord had failed to plead and adduce evidence with regard to the bonafide need and also compliance of the Proviso 1 to Sub-section 3 of Section 11 of the Act. The aforementioned findings when assailed before the Lower Appellate Court, but the findings of the Rent Controller was upheld and in that background, we have been called upon to adjudicate this Rent Control Revision. 8. Sri. Millu Dandapani, the learned counsel assisted by Sri.Vishnu submitted that the judgments of the courts below R.C.R. No.106 of 2020 9 suffer from grave illegality and perversity as there had been not only misreading but misappreciation of the oral and documentary evidence and in support of the grounds, raised following submissions: 1. One of the ground for rejecting the petition is that the courts below drew an adverse inference in not placing on record the copy of the rent petition purported to have been filed against the other tenant. It is submitted that no such petition was filed. The other tenant, on request, vacated voluntarily. 2. It has categorically come in the cross-examination of the petitioner/landlord regarding the other rooms in his possession, which would not suffice his requirement for running the textile business as he required the entire building. 3. The courts below have failed to notice the specific evidence qua running of the textile business from residential premises. R.C.R. No.106 of 2020 10 4. The first proviso to sub-section 3 has not been read in the correct perspective, particularly the expression building read with the definition of the building consisting of part building. There was no willful non-disclosure of the other portions which were lying vacant, for, the categoric case of the petitioner/landlord throughout had been that he required the entire building for running the textile business. Rather the bonafide need of the petitioner/landlord has been proved from the tone and tenor of the cross-examination. 9. In support of the contentions the learned counsel relies upon the following case laws: a. **Sait Nagjee Purushotham & Co. Ltd. V. Vimalabai Prabhulal and Others** [2005 (8) SCC 258] wherein, paragraph No.4 reads thus: 4. First of all we shall take up the question of bona fide need of the landlords. So far as the partition of the property and the present premises coming to the share of the landlords are concerned, there is R.C.R. No.106 of 2020 11 no dispute that the portion of the building has come to the share of the landlords and they are the owners as a result of the partition of the family properties. But the question is whether the landlords who are the owners of the portion of the building have substantiated the allegation with regard to the bona fide need or not. We have gone through the findings of the trial court as well as that of the Appellate Authority and the High Court and after closely scrutinising the same, we do not think that the finding recorded by the appellate court and the High Court can be interfered with by this Court on the ground of being perverse or without any basis. The landlords have led evidence to show that one of their sons who had requisite qualification for starting a computer institute wants to establish the same at Calicut and others for extension of their business. The trial court as well as the first appellate court and the High Court examined the statements of PWs 2 and 3 and after considering their evidence, the appellate court reversed the finding of the trial court and held that the need of the respondent landlords to start a business at Calicut, is bona fide and genuine. It was held that it cannot be said that a person who is already having a business at one place cannot expand his business at any other place in the country. It is true that the landlords have their business spreading over Chennai and Hyderabad and if they wanted to expand their business at Calicut it cannot be said to be unnatural thereby denying the eviction of the tenant from the premises in question. It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. However, the trial court held in R.C.R. No.106 of 2020 12 favour of the appellant tenant. But the appellate court as well as the High Court after scrutinising the evidence on record, reversed the finding of the trial court and held that the need of establishing the business at Calicut by the landlords cannot be said to be lacking in bona fides. ## b. **Kunju T.P. v. Fathima and Others** [2014 (3) KHC 127] ## wherein, paragraph No.4 reads thus: 10. It cannot be understood from the first proviso to S.11(3) of the Act that the landlords need to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. The proviso only recites that the Rent Control Court shall not order eviction, if the landlord has another building of his own in his possession, without satisfying the special reasons for not occupying the vacant premises. The function of the proviso is to except something out of the enactment or qualify something enacted, which, but for the proviso, would come within the purview of the enactment. The scope of the first proviso to S.11(3) of the Act, in the circumstances, is to be understood in the context of the provision in S.11(3) of the Act. S.11(3) of the Act, confers authority on the Rent Control Court to pass an order, directing the tenant to put the landlord in possession of the building, if he bona fide needs the building for his occupation and the proviso carves out an exception to the authority of the Rent Control Court to order eviction, when the landlord has another building of his own in his possession and there are no special reasons for not occupying the same for the proposed need. A combined reading of the provision and the proviso would indicate beyond doubt that it is only when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he need satisfy the Rent Control R.C.R. No.106 of 2020 13 Court the special reasons for not occupying the said premises. In other words, to non-suit the landlord, the vacant building should be of such a character, which would meet the requirements of the landlord. Any other interpretation of the proviso would lead to absurdity and cannot be accepted. 11. As far as the present case is concerned, it is categorically pleaded by the petitioners in the Rent Control Petition that the petition schedule shop room is the most suitable premises under their ownership, where the third petitioner can start the proposed business. The tenant has no case that the vacant room in the building of the Tourist Home is suitable or more suitable than the petition schedule building, for the need of the third petitioner. His case is only that the tenant can start the proposed business in the vacant premises also. It is settled that the tenant cannot dictate the landlord, where he should or should not do the proposed business. In Janatha Drugs v. Maithri Construction, 2007 (4) KHC 260 : 2007 (4) KLT 625: ILR 2007 (4) Ker. 130, the Rent Control Court, on the facts, found that the landlords in that case had in their possession, a more suitable premises, than the tenanted premises, while instituting the proceedings for eviction. Abdul Salam v. Sebastian, 2013 KHC 3681 : 2013 (4) KLT 592 : 2014 (1) KLJ 203 is also a case where, the landlord sought eviction of a room on the ground floor of a building, when three other rooms in the ground floor of the same building were lying vacant. The said judgments, in our view, cannot have any application to the facts of the present case. Therefore, there is no merit in the contention raised by the learned counsel for the revision petitioner and the Revision Petition is liable to be dismissed. R.C.R. No.106 of 2020 14 ## c. **Premalatha v. Jameela** [2022 (6) KHC 693 (DB)], ## wherein, paragraph No.3 reads thus: 3. We shall now advert to Section 11(3) of the Act, which reads thus: “(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. R.C.R. No.106 of 2020 15 Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.” Section 11(8) of the Act, reads thus: (8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use. The bonafide need for a landlord to occupy a building may arise in different contexts. If such need arises, not in connection with any other building in occupation of the landlord, it necessarily mean that claim for eviction is under Section 11(3). If he is in occupation of a portion of the building and his need is to occupy the other portion of the existing building, he can opt; his need can be either under Sections 11(3) or 11(8). The distinction between Sections 11(3) and 11(8) is essentially relating to the occupation of the remaining portion of the building of the tenanted premises by the landlord. If any portion of the building is in occupation of the landlords, he can R.C.R. No.106 of 2020 16 choose to evict the tenant either under Sections 11(3) or 11(8). The option is left to the landlord. In the sense, it is for the landlord to decide to project his need either under Sections 11(3) or 11(8). 10. On the other hand Sri. Govind Padmanabhan, the learned counsel assisted by Sri.Athul, appearing on behalf of respondent submitted that landlord miserably failed to suffice the requirements of section 11(3) and the proviso added thereto to seek eviction. There is not a whisper in the pleadings much less the evidence. Some part of cross examination of the landlord revealed malafide intention which cannot be read against the tenant. As per the definition of the building, part of building would also be construed to be a building. The proviso to subsection 3 of section 11 of non disclosure of the vacant possession in a building would construe not a new building but a portion in the existing building. In support of contentions, the learned counsel relied on the judgment of this Court in [2018 (2) KHC 837] **Vinod V v. K.K Mujeeb and others** , to contend that if the tenant convincingly establishes on record that the vacant portion was already available and in occupation of the landlord R.C.R. No.106 of 2020 17 and in the absence of any explanation of not occupying, it would be a valid ground for dismissal of eviction. The landlord after the remand did not lead any additional evidence either oral or documentary. The piece of evidence was appreciated by the Division Bench indicating the ground. Therefore the findings of the courts below are perfect, legal , justified and do not call for any different opinion. 11. We have heard the learned counsels for parties and appraised paper-book -. 12. It would be expedient for us to extract the translated version of para 3 of the rent petition. “ The petitioner, who has been working in Mumbai for the past 20 years, has decided to settle permanently in his native place and decided to conduct textile business in the petitions schedule shop rooms.” 13. The prime ground for remand by this Court had been that the Division Bench of this Court had gone on the premise that the petitioner/landlord had sought eviction of certain other R.C.R. No.106 of 2020 18 portions of the building from different tenants through the assistance of the court. The said fact has been explained in the cross examination by answering to a specific question that no such application was filed as the tenants, on their own, vacated. It was on that background, the landlord did not think it appropriate to lead further evidence, both oral and documentary. 14. The specific pleading, ‘the entire building’ would mean that the landlord had some portion of the building in his possession which suffices the requirement of 1[st] proviso of subsection 3 of section 11 of the Act. Thus the argument of the tenant that the non-disclosure of the part of the building as per the definition of the building would not be fatal for seeking eviction on the grounds of bonafide necessity. 15. In a catena of judgments referred to above, it is settled that the tenant cannot dictate his own terms to the landlord as to why any attempt to start the business in the available portion had not been made. It is the need of the landlord, not the wish and desire or the dictum of the tenant. We derive the aforementioned R.C.R. No.106 of 2020 19 reasoning from paragraph 4 of the judgment in **Sait Nagjee Purushotham & Co. Ltd. V. Vimalabai Prabhulal and Others** [2005 (8) SCC 258]. 16. To a specific question in the cross examination the landlord clarified that the portion already in his possession is the one he obtained when the other tenant vacated. Another reason for remanding the matter was that why the landlord did not commence the business in the available area. The said findings are extracted herein below : 3. The need advanced by the landlord is for the purpose of starting a garment business for himself. The petition schedule shop rooms are the two shop rooms situated at the western corner of a shopping mall. It is having two shutters, out of 6 shutters shop rooms in a row in the ground level of the shopping mall. It is submitted by the landlord that the remaining four shutter shop rooms in the ground floor situated in a row are in his possession right from the year 2010. He had also admitted that the remaining portion of the entire building is also in his possession. The area covered by the first floor is admitted to be having 1300 sq.ft. and a cellar portion is also admitted by the landlord having 900 sq.ft. He had also admitted that he is possessing an extent of 2100 R.C.R. No.106 of 2020 20 sq.ft. area in the said building and the same is lying vacant besides the 900 sq.ft. area of the cellar portion. The present Rent Control Petition was initiated in the year 2011. If that be so, as on the date of initiation of proceedings in the year 2011 he was having a total vacant area of 2100 sq.ft. besides another vacant area of cellar room having an extent of 900 sq.ft. It was submitted by the learned counsel for the revision petitioner that the Rent Control Court has not made any meaningful discussion with respect to the application of first proviso to Section 11(3) of the Act. It was also submitted that the Rent Control Appellate Authority had also went wrong in appreciating the possession of a large extent of 2100 sq.ft with the landlord and rejection of the said area by observing that the said area was obtained by the landlord for the purpose of running garment business, by evicting the respective tenants in occupation. It was stated in page No.12 of the impugned judgment that during the course of examination of the respondent, he had admitted that the above said vacant possession was obtained by him by evicting all the tenants for the purpose of running garment business. This would show that at that time, i.e in the year 2010, no application was filed for evicting the present tenant. Further, it goes to show that the landlord had obtained the said area having 2100 sq.ft. by projecting the need for conducting garment business and the tenants were evicted under that guise. If that be so, we are really in darkness, why the landlord has not commenced the proposed business of garment in the R.C.R. No.106 of 2020 21 area having an extent of 2100 sq.ft. besides a cellar portion of 900 sq.ft. This would prima facie cause much doubt on the need advanced by the landlord. The learned counsel appearing for the landlord submitted that some delay has occurred in initiating proceedings against the present tenant because of the reason that the agreed rental period had elapsed only in the year 2009. So, the eviction proceeding was initiated after the expiry of the tenanted period, in the year 2011. We cannot accept the said version because of the reason that, even according to them, the agreed period of the rental arrangement expired in the year 2009. But, the present application was filed after the lapse of more than one year, in the year 2011 only. This would also go against the bona fides of the landlord in the present case. We are also in darkness with respect to the actual need projected by the landlord in the earlier proceedings and whether any pleadings were raised for the proposed business inclusive of the area covered by the present tenancy. The issue pertaining to the application of first proviso can be resolved only after ascertaining the pleadings raised in the earlier proceedings against the tenants with respect to the portion of building now in the hands of the landlord. So it is material to consider whether the need projected in the earlier petitions (Rent control proceedings) confined only to the buildings or portion of the building covered by those tenancies. For that purpose, we are of the view that, an opportunity can be given to both the parties and we do so by setting aside the order of R.C.R. No.106 of 2020 22 eviction passed under Section 11(3) of the Act and remanding the matter back to the Rent Control Court, so as to ascertain the application of first proviso to Section 11(3) of the Act, in the light of the discussions made above. For that purpose, both the parties are at liberty to adduce additional evidence, if so requires. It is made clear that the remand of the matter is only for the purpose of ascertaining the application of first proviso to Section 11(3) of the Act and also to test the bona fide to the extent of first proviso to Section 11 (3) of the Act. 17. To form an opinion that the need projected in the earlier petitions confined only to the building or portion of the building, for the sake of repetition, the landlord had categorically explained that no rent petition was ever filed before the rent controller for seeking the eviction of other tenants. Therefore, it cannot be said that the tenant or the court at any point of time were kept under dark. 18. The observation of the Division bench in remanding the matter is no longer a good law in view of the judgment cited supra in observing as to why the landlord had not started a new business in the available area **.** All these factors if read in cumulative would lead to the irresistible conclusion that the R.C.R. No.106 of 2020 23 landlord prima facie has been able to establish bonafide need seeking eviction of the two rooms referred to in the schedule property. 19. Therefore the findings rendered by the rent controller and lower appellate court suffer from gross illegality and perversity. The R.C.R is allowed. The _order in R.C.A. No.7 of 2018 is set aside_ . The tenant is granted one months’ time from today to vacate the premises. Sd/- **AMIT RAWAL, JUDGE** Sd/- **EASWARAN S., JUDGE** NS