Dalby Benny v. Kusumam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 R.C.Rev.No.113 of 2007 -----------------------------------RCA.162/2003 of II ADDL.DISTRICT COURT, ERNAKULAM RCP.137/2000 of I ADDL.M.C.,ERNAKULAM REVISION PETITIONER/RESPONDENT/TENANT: ---------------------------------------------------------------------------- DALBY BENNY, AGED 45, SON OF K.BENNY, PROPRIETOR, M/S BENSON INTERNATIONAL, DOOR NO.C.C.34/1891, MAMANGALAM, KOCHI-25. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.BASIL MATHEW RESPONDENT(S): PETITIONER/LANDLORD: -------------------------------------------------------------------- KUSUMAM, AGED 57, WIFE OF SADANANDAN, PULAPAYIL HOUSE, MAMAGALAM, KOCHI-25. ADV. SRI.VARGHESE C.KURIAKOSE FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **R.C.R. No.113 OF 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of September, 2010 ## **ORDER** ## Basheer, J. Tenant of a commercial building, who has suffered a concurrent order of eviction under Section 11(3) of the Kerala Buildings ( Lease and Rent Control) Act 1965 has preferred this revision petition. 2. Eviction was sought by the respondent-landlady under Section 11 (3) and 11(4)(iii) of the Act contending that the building was needed for the bonafide use and occupation of her daughter-in-law to start business of her own. It was further contended that the tenant was not depending on the income from the business in the petition schedule building and that he had got other buildings in his possession for shifting his business. 3. Eviction was resisted by the tenant contending inter alia that bonafide need alleged by the landlady was not genuine at all. It was also contended that the daughter- in-law was not dependant on the landlady. The tenant further contended that he was entirely depending on the income that he derived from his business for his livelihood and that there was no other suitable building in the locality to shift his business, leave alone any building of his own as alleged by the landlady. 4. The Rent Control Court after considering the oral and documentary evidence adduced by the parties found that the landlady had satisfactorily established her case that the petition schedule building was needed for the bonafide own occupation of her daughter-in-law to start a business. It was R.C.R. No.113 OF 2007 :: 2 :: further held that the tenant was not entitled to get the benefit of the second proviso to Section 11(3) of the Act. However, eviction sought under Section 11 (4)(iii) of the Act was turned down by the Rent Control Court. In other words, the Rent Control Court ordered eviction of the tenant only under Section 11(3) of the Act. 5. The above order was challenged by the tenant before the Rent Control Appellate Authority. During the pendency of the appeal, tenant contended that certain subsequent events that have taken place would disentitle the landlady to seek eviction under Section 11(3). For this purpose, an Advocate Commissioner was deputed at the instance of the tenant. The report of the Advocate Commissioner was also considered by the Appellate Authority. However, the appeal preferred by the tenant was dismissed by the Appellate Authority concurring with the finding entered by the Rent Control Court. Hence this revision petition under Section 20 of the Act. 6. Sri Chidambaresh, learned senior counsel who appears for the tenant, assails the order of the Appellate Authority primarily on two grounds: (a) The landlady had never pleaded in the petition for eviction that her daughter-in-law was a dependent on her for the building for the specific purpose of starting a business of her own, and (b) Two rooms on the northern side of the petition schedule building owned by the landlady had fallen vacant and both of them were, in fact, in the possession and occupation of the landlord during the pendency of the appeal. R.C.R. No.113 OF 2007 :: 3 :: 7. As regards ground (a), there is no dispute that the landlady had not specifically pleaded in the eviction petition that her daughter-in-law (PW.2) was a dependent on her for the building. But Sri Varghese Kuriakose, learned counsel who appears for the landlady, submits that in the statutory notice which preceded the eviction proceedings, it was specifically stated that PW.2 was a dependent on the landlady for the purpose of the building to start a business of her own. A copy of the said lawyer notice was produced at the inception of the proceedings itself and it was marked in the case as Ext.A1. More importantly, the tenant had sent a reply to the said notice, in which he had no case that PW.2 was not a dependent though, of course, he had contended that the need projected by the landlady was not bona fide or genuine. The reply notice was also produced by the landlady along with the eviction petition. 8. It is further pointed out by the learned counsel for the landlady that in the eviction petition itself it was specifically stated that all the averments in the statutory lawyer notice are being reiterated as part of the pleading in the eviction petition. Therefore, according to the learned counsel, it is idle for the tenant to contend for the position that in the absence of a specific pleading as regards dependency, the eviction petition is to fail. 9. We have carefully perused the statutory lawyer notice issued by the landlady prior to the initiation of the eviction proceedings and also the reply sent thereto by the tenant. We have also carefully gone through the pleadings in the eviction petition. R.C.R. No.113 OF 2007 :: 4 :: 10. As has been mentioned earlier, there is no specific pleading in the eviction petition to the effect that PW.2 is a dependent on the landlady for the building. But a reading of the eviction petition will leave no room for any doubt that the pleadings did convey the unambiguous assertion or statement that eviction was being sought for the benefit of PW.2 to start a business of her own. In this context we may extract the following passage from the eviction petition: “The petitioner bona fide needs the petition schedule building for the occupation of her daughter-in-law Smt. Neena Biju so that Smt. Neena can conduct business in ladies' fancy items and consmetics. Smt. Neena Biju is presently professionally employed with a private concern at Ernakulam. She has decided to discontinue that employment which is neither secured nor remunerative. She intends to start her own business in the petition schedule building. Smt. Neena Biju who is an educated lady will not only be able to engage herself, but will also be able to augment the family's income. Neither the petitioner nor Smt. Neena or anybody else in the petitioner's family are having any other building in their possession to provide Smt. Neena for commencement of the proposed business which can be conveniently conducted only in a ground floor shop room.” 11. In Ext.A1 statutory notice the landlady was more forthright in asserting that the petition schedule building was required for the bona fide own occupation of her daughter-in-law to start a business. To be specific, it was stated thus: R.C.R. No.113 OF 2007 :: 5 :: “You are aware that Smt.Neena who is the wife of my client's eldest son is a member of my client's family and is dependent on my client for purpose of building.” 12. But it may be noticed that in the written statement filed by the tenant it was specifically contended thus: “Smt. Meera is not a member of the family or a dependant of the petitioner within the meaning of Section 11(3) of the Buildings (Lease and Rent Control) Act.” 13. Therefore, it cannot be said that the tenant was not aware that PW.2 was being projected as a dependant of the family. Thus, having perused the entire pleadings in the case, we have no hesitation to hold that the contention raised by the tenant that the petition was defective in the absence of a specific pleading that Smt.Neena Biju was dependant on the landlady, cannot be sustained at all. 14. Sri Chidambaresh, learned senior counsel has invited our attention to the decision in Koyilerian Janaki and others v. Rent Controller (Munsiff, Cannanore) and others {2000 (9) SCC 406}. In this case it has been held by their Lordships of the Supreme Court that in the absence of a specific pleading to the effect that the beneficiary, on whose behalf eviction is sought, is a dependent on the landlord, the petition for eviction is bound to fail. 15. It is true that in the above case, there was absolutely no pleading that the married daughter and son-in-law of the landlady were dependent on her. Their lordships observed that, even assuming for the sake of argument, that the married daughter and son-in-law were members of the landlady's R.C.R. No.113 OF 2007 :: 6 :: family, she had to further plead and substantiate that they were dependent on her. 16. But in the case on hand, it has already been noticed that the landlady had issued Ext.A1, lawyer notice demanding vacant possession asserting that her daughter-in-law who was a dependent on her, needed the building to start a business of her own. We have already referred to the pleadings in the eviction petition and also the response thereto by the tenant. Further, the landlady had reiterated in the eviction petition what all she had stated in the lawyer notice. Thus, taking note of the entire pleadings of the parties in the case on hand, we have no hesitation to hold that the decision in Janaki (supra) will have no application. Before we refer to the other decision cited by the learned senior counsel, we may deal with the other contentions raised by the tenant. 17. It is the case of the tenant that two other shop rooms lying adjacent to the petition scheduled building on its northern side had fallen vacant and they were already in the possession of the landlady. It is beyond controversy that one of the two rooms was being occupied by Sri.Sarath Pillai, who had been conducting a medical shop. It is on record that eviction proceedings were initiated by the landlady in respect of that building under Section 11(3) and 11 (4)(V) of the Act in RCP No.132/2002. The landlady pleaded that the said building was required for the own occupation of her son to conduct his business which was being carried on by him in the upstair portion of the very same building. The landlady further alleged that the tenant had ceased to occupying R.C.R. No.113 OF 2007 :: 7 :: the building without any reasonable cause for the last six months. The Rent Control Court ordered eviction under both grounds by its order dated September 20, 2003. It is on record that the landlady had initiated execution proceedings pursuant to the said order. Ultimately, the land lady got vacant possession of the building on November 30, 2007. It is admitted by learned counsel for respondent/landlady that the said building is now in the occupation of the son of the landlady since November 30, 2007 in which he is now carrying on his business. 18. The other building referred to by the petitioner is the one in which a business in Motor spare parts ('Nagpal Auto Distributors') is being conducted. The case of the tenant is that the tenant of that building had shifted his business to another premises about 150 meters away from the petition scheduled building and that he is not in occupation of the said building. According to the petitioner, the building had remained closed for quite sometime after the tenant shifted his business to the new premises. In order to substantiate the above contention, the tenant had taken out a commission during the pendency of the appeal before the Rent Control Appellate Authority. In the report, the Advocate Commissioner, stated that at the time of his inspection the building which was being occupied by M/S Nagpal remained closed. He stated that the lock appeared to be rusty. In his opinion, the building might have remained unused for about four months prior to the date of his inspection. R.C.R. No.113 OF 2007 :: 8 :: 19. In this context, it is pertinent to note that the landlord of a building gets cause of action to evict a tenant on the ground of cessation of occupation under Section 11(4)(V) if the tenant ceases to occupy the same “continuously for six months without reasonable cause”. The report of the Commissioner on which heavy reliance was placed by the learned Senior counsel will not show that the tenant (M/S Nagpal) had ceased to occupy that building continuously for six months without reasonable cause. As has been indicated earlier, the Advocate Commissioner only stated that it 'appeared' that the building was not opened for the last six or seven months. Nothing more nothing less. 20. In this context, we may also refer to the contention raised by the learned counsel for the respondent/landlady that the tenant of the said building is even now occupying the said building. He is keeping his merchandise in the said building though he has taken out another building on lease to display his wares. He further points out that M/S Nagpal has been paying rent to the landlady even now. He asserts that M/S Nagpal had not vacated the premises as contended by the petitioner/tenant. Learned counsel has pressed into service a statement obtained from the Bank which indicates that M/S Nagpal has been paying rent through account payee cheques drawn on M/S Punjab and Sindh Bank. 21. In view of the above facts and circumstances, we have no hesitation to hold that the contention raised by the tenant that the two rooms lying adjacent to the petition scheduled building on its northern side have been vacated by the respective tenants and that they are now in the possession of R.C.R. No.113 OF 2007 :: 9 :: the landlady, cannot be accepted at all. 22. Learned Senior counsel has invited our attention to a decision of the apex court in Albert Mendez v. Rema Chandran [2007 (3) KLT 23] in support of his contention that strict pleading is necessary with regard to dependency. However, we do not think that this decision will come to the aid of the petitioner/tenant in any manner. 23. Learned senior counsel has also invited our attention to another decision of the apex court in Sessambal v. Chelur Corporation reported in 2010 (1) KLT 834 (SC). No doubt in the above decision, their lordships have held that subsequent events will have a bearing on the fate of the order of eviction under Section 11(3) of the Act. In the above decision, the landlord and his wife had sought eviction of the residential premises let out to the tenant under Section 11(3) of the Act for the bonafide personal occupation. The Rent Control Court and the appellate authority negatived the claim for eviction. The High Court also concurred with the above finding; but enhanced the monthly rent. 24. The apex court noticed that during the pendency of the revision petition Sri.K.Sachidananda Iyer, the landlord passed away. His wife Smt.Sheshambal preferred the appeal before the apex court. During the pendency of the appeal, Smt.Sheshambal also passed away. The legal heirs, the daughters of the deceased couple, sought to continue the proceedings before the apex court. The court noticed that only two of the daughters are living in India while the third daughter was settled in America. R.C.R. No.113 OF 2007 :: 10 :: 25. After carefully perusing the entire pleadings in the case, particularly, with reference to bonafide need set up in the petition, their Lordships held that the legal heirs could not be allowed to contend for the position that they were entitled to get an order of eviction on the ground of own occupation. The court observed that “the position may indeed have been differentiated if in the original petition the petitioner-owners had pleaded their own requirement and the requirement of any member of their family dependent upon them.” 26. We are afraid the above decision has no bearing on the facts of this case. Learned counsel for the respondent submits that the case of the landlord had been satisfactorily proved and established. PW2, the daughter-in-law of the landlady had stated before the court that she intended to start a business of her own in the petition scheduled building. The landlady, who was examined as PW1, and PW3 her son had in no uncertain terms supported and corroborated the case of PW2. The Rent Control Court and the appellate authority found that the bonafide need pleaded by the landlady was clearly established. It came out in evidence that PW2 had no building of her own and that she was dependent on the landlady for the building. It may be true that she had been working as a part time Lecturer in a private college in the city. But PW2 asserted that she wanted to start a business of her own in ladies' Fancy items and cosmetics. The residential building of the landlady was situated just behind the petition scheduled building. Therefore, as stated by PWs1 to 3, it would be very convenient to PW2 to manage her business in that building. R.C.R. No.113 OF 2007 :: 11 :: 27. The Rent Control Court and the appellate authority had also noticed that the tenant had failed to prove that he was entitled to get the protection of the second proviso to Section 11(3) of the Act. He could not establish that he was mainly dependent on the income that he derived from the business that was being carried on by him in the said premises. Similarly, he could not establish that no other suitable building was available in the locality to shift his business. In short, the two authorities below concurrently found, on the basis of the oral and documentary evidence available on record, that the landlady had satisfactorily established her case. 28. It is trite that the scope and ambit of the revisional jurisdiction under Section 20 of the Act is very narrow and limited. Of course, the revisional court can even interfere with a concurrent order passed by the authorities below, if it is found that the said order suffers from any patent illegality or irregularity. 29. We have carefully perused the entire materials available on record. We have also considered the so called subsequent events projected by the tenant before us. We have already referred to the report of the Advocate Commissioner who inspected the petition scheduled premises and the adjoining buildings during the pendency of the appeal. 30. Having considered the entire materials placed before us and having perused the orders passed by the two authorities below, we do not find any reason to interfere with the concurrent order of eviction impugned in this petition. There is no merit in any of the contentions raised by the petitioner. R.C.R. No.113 OF 2007 :: 12 :: 31. At this stage, learned counsel for the petitioner/tenant prays for some reasonable time to vacate the premises. It is pointed out by the learned counsel that the tenant may require some time to find a suitable building in the locality to shift his business. Having regard to the peculiar facts and circumstances of the case, we are satisfied that the tenant can be given four months' time to give vacant possession of the building to the landlady on condition that he files an affidavit before the Rent Control Act undertaking that he will unconditionally vacate the premises on or before January 10, 2011. The affidavit shall be filed by the petitioner before the Rent Control Court on or before October 20, 2010. Petitioner shall deposit the entire arrears of rent and shall continue to pay the monthly rent to the landlady till he vacates the premises. If the petitioner fails to file the undertaking or remit the rent as directed above, it will be open to the respondent/landlady to execute the order of eviction forthwith. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv/mt/jes