Divakaran and Devayani Santhamma v. Raghavan Radhakrishnan and others (RCRev. No. 433 of 2010)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 21ST DAY OF JUNE 2018/31ST JYAISHTA, 1940** **RCRev..No. 433 of 2010** **AGAINST THE JUDGMENT DATED 24-07-2010 IN R.C.A 37/2007 of II ADDL.RENT CONTROL APPELLATE AUTHORITY, KOLLAM AND THE JUDGMENT IN R.C.(OP) NO.11/2005 ON THE FILE OF THE RENT CONTROL COURT, KARUNAGAPPALLY** ## **REVISION PETITIONERS/RESPONDENTS/PETITIONERS:** - **1 DIVAKARAN, S/O.PADMANABHAN, SANTHA BHAVAN, MEMANA MURI,OACHIRA.** **2 DEVAYANI SANTHAMMA, W/O.DIVAKARAN, SANTHA BHAVAN, MEMANA MURI, OACHIRA.** **BY ADVS.SRI.BASANT BALAJI SRI.R.GOPAN** ## **RESPONDENTS/APPELLANTS/RESONDENTS:** **1. RAGHAVAN RADHAKRISHNAN, GOVERNMENT EMPLOYEE, ELAMPADATHU VEEDU, MADATHILKARAZHMA MURI, OACHIRA VILLAGE, KARUNAGAPPALLY TALUK - 690 526 2. PREMCHAND, S/O.JANARDHANAN ACHARI, LAKSHMI BHAVANAM, PAYIKUZHI MURI, [DIED] OAHIRA VILLAGE, KARUNAGAPPALLY TALUK, PIN - 690 526.** **Addl.3.GEETHA PREMCHAND, W/O PREMCHAND, GEETHANJALI, CHANGAMKULANGARA, OACHIRA PO, KOLLAM-690526.** **Addl.4. ADARSH J.PREM, S/O PREMCHAND, GEETHANJALI, CHANGAMKULANGARA, OACHIRA PO, KOLLAM-690526. Addl.5. ASWATHY J.PREM, D/O PREMCHAND, GEETHANJALI, CHANGAMKULANGARA, OACHIRA PO, KOLLAM-690526.** **Addl.6. KAMALAKSHI AMMAL, M/O PREMCHAND, LEKSHMI BHAVAN, PAYIKUZHI, OACHIRA PO, KOLLAM-690526.** **R1 BY ADV. SRI.VAKKOM N.VIJAYAN ADDL. R3 TO R6 BY ADV. SMT.V.RENJU** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **atd** K. Surendra Mohan & Mary Joseph, JJ. ========================= RCR No.433 of 2010 ========================= Dated this the 21[st] day of June, 2018 ## O R D E R ## Mary Joseph, J. This RCR is filed by the landlord against the judgment of the Rent Control Appellate Authority, Kollam, in RCA No.37/2007 by which the order of eviction passed by the Rent Control Court, Karunagappally in RC (OP) No.11/2005 under Section 11(3) was reversed. 2. The petition, RC(OP) No.11/2005, was filed by the landlord seeking eviction of the tenant from the tenanted premises more particularly described therein as the petition schedule shop room, on the grounds of arrears of rent and bona fide need. 3. Petitioners 1 and 2 are husband and wife. The property wherein the building of which the petition schedule shop room forms part is situated, is owned by the second petitioner. The building situated in the said property was constructed by the first petitioner. 4. The tenant had taken the petition schedule item No.1 belonging to the landlord on lease for a monthly rent of `250/- in the year 1984 on the strength of a rent deed executed among them on R.C.R.No. 433 of 2010 -:2:- 27.03.1984. Later on the rent was enhanced to `300/-. The period of tenancy was one year and even after the expiry of that period, the tenant was holding over possession of the petition schedule shop room. The petition schedule item No.2 was rented out to another tenant by virtue of a lease deed dated 29.08.1983 for a monthly rent of `300/- which later on was enhanced to `420/-. He was also holding over the petition schedule item No.2 even after the period of tenancy got expired. 5. The tenants had willfully kept the rent in arrears in respect of the premises let out to them respectively from October, 2002 and January, 2004 onwards. Therefore, registered notices were caused to be served on them by the landlord. One of the tenants evaded the notice and the other accepted the same. The latter paid the entire arrears of rent till the date of notice with interest and costs by demand draft. The former tenant also paid rent upto February, 2005 together with interest and costs. The rent was defaulted thereafter by both the tenants. The first petitioner is a traditional Ayurveda practitioner. He had been running an Ayurvedic Clinic at Ochira in a shop building owned by one Mr.Santhakumar. The latter instituted RCP No.4/2001 seeking R.C.R.No. 433 of 2010 -:3:- eviction against the first petitioner and it was allowed in his favour on 03.06.2004. Therefore, the first petitioner is in bona fide need to get the petition schedule shop rooms in vacant possession for the purpose of shifting his Ayurvedic Clinic thereto. One among the tenants has another shop room in his possession and he is conducting business in furniture and sports goods in that room. He is also conducting battery business in another shop room. He is also a government employee. The second respondent is also conducting a battery business. The tenants thus have other means of livelihood and they are not depending on the income from the business run by them in the petition schedule rooms. Therefore, the tenants are not entitled to avail the benefit of the second proviso to Section 11(3) of the Act. 6. The tenants in the objection filed denied all the averments of the landlord. It is contended that the petition seeking eviction is bad for non-joinder of one Mr.Radha Ramanan, the brother of one among the tenants, who is a necessary party. The tenant is running a book stall in the premises let out to him from 27.03.1984. He got government job and thereafter Mr.Radha Ramanan was continuing the business conducted jointly by them. R.C.R.No. 433 of 2010 -:4:- Therefore, the RCP is bad for non-joinder of him as a necessary party. The landlord has several rooms available in his possession wherefrom he could conduct his business. Vacant rooms are not available for the tenants to shift their business from the petition schedule rooms. The tenants are depending on the income from the petition schedule rooms for their livelihood. The petition seeking eviction was filed to wreak vengeance since Mr.Radha Ramanan fell in love with the daughter of the landlord and married her without his consent. The landlords have filed the petition seeking eviction without bona fides and it is only liable to be dismissed with costs to them. 7. Based on rival pleas of the parties to the eviction petition as above, the Rent Control Court, Karunagappally, framed issues for adjudication. On the side of the petitioners, the first petitioner was examined as PW1 and his witness as PW2. Exts.A1 to A7 were also marked in evidence. The respondents' evidence was confined to the oral evidence of RW1 and Exts.B1 to B10. 8. The Rent Control Court, Karunagappally, adjudicated the issues in the backdrop of the evidence available. Order of eviction sought under Section 11(2)(b) was declined for the reason that the R.C.R.No. 433 of 2010 -:5:- respondents deposited the arrears of rent with interest and costs. Bona fide need was found in favour of the petitioners and therefore, an order of eviction under Section 11(3) of the Act was passed. The respondents were directed to put the petitioners in vacant possession of the petition schedule rooms within one month from the date of the order. 9. The aggrieved tenant took the order of eviction passed against him under challenge before the Rent Control Appellate Authority, Kollam, in RCA No.11/2005. The Rent Control Appellate Authority reversed the order of eviction passed by the Rent Control Court under Section 11(3) of the Act. The aggrieved landlords are now before this Court in the captioned revision proceedings. 10. Sri. Basant Balaji, the learned counsel for the appellant, contended that Ext.A7 (Ext.B6) advertisement was published by the landlords offering vacant room on rental basis in Kerala Kaumudi Daily on 03.06.2001, whereas the petition seeking eviction was filed by the petitioners in the year 2005, 4 years thereafter. Therefore, the Rent Control Appellate Authority ought not to have found on its basis that the petitioner's claim for vacant possession of the petition schedule shop rooms was devoid of bona fides. R.C.R.No. 433 of 2010 -:6:- According to him, if the Rent Control Appellate Authority had applied its mind to Ext.P7 (Ext.B6) in proper manner, it ought not to have placed reliance on the same to arrive at such a finding. According to him, this Court needs to rectify the error by interference. 11. It is contended secondly that, the court below failed to note that the initial burden to prove the possession of the vacant suitable rooms by the landlord is on the tenant. In the absence of any evidence adduced by the tenant to discharge the burden, the Rent Control Appellate Authority ought not to have given the benefit of the first proviso to the tenant. 12. The court below ought to have found availability of road frontage for the petition schedule rooms and non-availability of vacant rooms in his possession, projected by the appellants as reasons for preferring those rooms for his bona fide need. According to him, the appellant's evidence that the 12 rooms in the ground floor pointed out by the respondent as vacant are already leased out and those do not have road frontage. According to the learned counsel, the respondent has no authority to dictate terms to the appellant to opt such and such rooms and to conduct R.C.R.No. 433 of 2010 -:7:- business therein in such and such manner. According to him, the Rent Control Appellate Authority failed to appreciate the evidence adduced by the respondent in its venture to establish the first proviso and thereby arrived at a finding that the landlord failed to discharge his burden to establish the bona fide requirement as contemplated under Section 11(3) of the Act. According to the learned counsel the Rent Control Appellate Authority has seriously erred in arriving at such a finding and reversing the order of eviction under Section 11(3) of the Act. Raising the arguments as above, the learned counsel canvassed for reversal of the judgment of the Rent Control Appellate Authority under challenge. 13. For the sake of convenience, the parties to this revision petition will be referred to hereinafter as the first and second landlords and the tenants. 14. The learned counsel for the tenants, contended that the Rent Control Appellate Authority has rightly reversed the order of eviction erroneously passed by the Rent Control Court and therefore, interference is totally unwarranted. He attacked the bona fide need of the first landlord on five grounds as noted herein below: R.C.R.No. 433 of 2010 ## -:8:- - (i) The first landlord was aged 81 years at the time when the RCP was filed seeking eviction. - (ii) The landlords have several vacant rooms in his possession. - (iii) The landlords failed to state special reasons for not opting to occupy the vacant rooms available in his possession. - (iv) The landlords had on previous occasions preferred several applications seeking eviction of the tenants from the tenanted premises and those have been either withdrawn based on the agreement to pay higher rent or settled out of court. - (v) Landlords had suppressed the availability of vacant rooms in his possession in the RCP by failing to plead on that and that being a material factum is crucial while the bona fide need is adjudicated. 15. The evidence on record is required to be analysed and appreciated in the backdrop of the rival contentions raised as above. 16. The first aspect to be looked into is whether the old age of the first landlord stands in the way of his venture to establish the bona fide need. 17. According to the learned counsel for the tenant, it would. According to him, the landlord was aged 81 years at the time of filing the petition seeking eviction and at present having reached 93 years, the need projected by him cannot be considered as a R.C.R.No. 433 of 2010 ## -:9:- bona fide one. According to him at this age, on account of physical unfitness due to ailments associated with the old age, normally people would prefer to take rest and be aloof from any sort of engagements. According to him, the first landlord's old age has to be treated as a factor liable to defeat his venture to establish his bona fide need and the impugned judgment deserves to be confirmed on the very reason. 18. The requirement for the vacant possession of the petition schedule shop rooms has been projected by the landlord for the conduct of Ayurvedic clinic and a shop for sale of Ayurvedic preparations. According to the landlord as PW1, he was conducting an Ayurvedic Clinic and a shop in the premises taken on lease from one Mr.Santhakumar since 1984 RCP No.4/2001 was preferred by his landlord seeking eviction and it was allowed in landlord's favour. He was ordered to surrender vacant possession of the rooms occupied by him and therefore, he moved the RCP in question seeking eviction of the tenants from the petition schedule shop rooms. The fact that the landlord was a practitioner in Ayurvedic Medicine, that he had been conducting the Ayurvedic Clinic and shop from the premises taken on lease from Mr.Santhakumar even R.C.R.No. 433 of 2010 -:10:- at his age of 81 years, that the said Santhakumar had obtained an order of eviction against him and that by order of the court he was directed to hand over vacant possession of the rooms are not disputed by the tenants . It is true that the landlords have let out several rooms to various tenants and was getting rent therefrom. But being an Ayurvedic practitioner, the 1[st] landlord cannot be found fault with for maintaining a passion for his profession. There is no legal bar from pursuing with private practice on becoming old. What is relevant is the mind set. In the case on hand, the landlord, whose bona fide is dealt with, was aged 81 years at the time when the need was raised originally and at present 93 years. It is revealed from the evidence on record that the tenanted premises wherefrom he was running the Ayurvedic Clinic and shop were situated at Oachira but away from his residence. Therefore, the landlord aged 81 years, had to travel to and fro to attend the Clinic. A man of the age would not prefer to take the risk, if he had no flourishing practice. Only when the Clinic is running profitably, one would opt to continue the same in a new location despite the difficulty that is associated with shifting to a new place. It is disclosed from the evidence on record that the landlord was aged R.C.R.No. 433 of 2010 -:11:- 81 years and he was actively practicing his profession from a tenanted premises at Oachira. He was directed to surrender the tenanted premises by an order of eviction passed in favour of his landlord. The medical profession being his passion, he intended to continue the same and for the purpose, being in requirement of vacant rooms, he thought it fit to file the petition seeking eviction of the tenants from the tenanted premises projecting his bona fide need as a ground. 19. It is worthy to note that the building was one constructed by him in the property owned by his wife. Therefore, the landlord cannot be found fault with in preferring the same to satisfy his need. Evidently the landlord was conducting the Clinic even at the age of 81 years and it was destined to continue it even after the age of 81 years. Therefore, it can only be taken to be running profitably. It is also indicative of the factum that patients are availing his services even at his age of 81 years. It is worthy to note that the Clinic conducted in the tenanted premises was not put to an end by him voluntarily due to constraints associated with his old age and for want of patients to avail his services there, but as is well evidenced from the materials on record, by an order of R.C.R.No. 433 of 2010 -:12:- the Rent Control Court in eviction proceedings initiated against him by his landlord as R.C.P.No.4/2001. It being his profession, can also be considered as the main source of income for the sustenance of himself and his family. If not so, the landlord would not have intended to continue it. Rather than profitable, it was his passion for the profession which is service oriented also. Therefore, the bonafides in the need for a vacant room for the proposed venture cannot be thrown out for the reason that the landlord is of old age. For the simple reason that the landlord is an octogenarian, the proposed need cannot be viewed as a ruse for evicting the tenant from the petition schedule rooms with a hidden motive. 20. The learned counsel for the tenant attacked the bonafide need also for the reason that the landlord had failed to plead about the availability of vacant rooms in his possession and it being a material factum, the failure can be equated to suppression of a material factum and is liable to shake the very foundation of the bona fide need projected by the landlord. 21. In this connection, the learned counsel has also relied on Ammu K and others v. Nafeesa and others [2015(5) KHC 718] which has been rendered by another Division Bench to which, Hon'ble Mr. R.C.R.No. 433 of 2010 -:13:- Justice Surendra Mohan, one among us was a party. In the case cited supra, a vacant room was available with the landlord at the relevant time when the RCP was preferred and suppressing the said factum a claim for vacant surrender of another room was sought and therefore, the court found it as liable to cut at the root of the bona fides of the landlord. The factual situation being totally distinct, the dictum in the case cited supra cannot be applied to the case on hand. 22. In the case on hand the tenant's claim was that he has successfully adduced evidence to establish the availability of vacant rooms in the possession of the landlord. According to him, he has succeeded in establishing the factum through materials marked in evidence as Exts.B6, B9(a) and B9(b). 23. Ext.B6 was an advertisement made by the landlord in Kerala Kaumudi Daily on 03.06.2001. It is true, the advertisement discloses the availability of a two storied building for rent in the heart of Oachira village suitable for the conduct of a bank, hospital, lodge or office and 30 cents of property for sale as a whole in part. Ext.B6 was relied on by the Rent Control Appellate Authority mainly to conclude that a building suitable enough to accommodate the R.C.R.No. 433 of 2010 -:14:- proposed business was available with the landlord. But, it is pertinent to note from Ext.B6 that, the advertisement was made in a Daily dated 03.06.2001 and the room advertised was available as vacant in that year. 24. The petition seeking eviction was filed by the landlord much later to that in the year 2005. There is absolute want of evidence to establish whether the rooms in the building advertised as vacant at that point of time was already let out or sold. It is the burden of the tenant while venturing to avail the benefit of the first proviso to establish that rooms are available in the possession of the landlord as vacant. It is only when this initial burden is discharged, the onus will shift to the landlord to establish special reasons for not opting to occupy the same. Once special reasons are assigned, then it is for the court to see whether it would be justified for the reason, to grant or decline an order of eviction under Section 11(3) of the Act. In the case on hand, the advertisement in Ext.B6 did not also disclose that the building advertised belongs to the landlord. It is pertinent to note in this connection that even the building that incorporates the petition schedule shop rooms was constructed by the 1[st] landlord in the R.C.R.No. 433 of 2010 -:15:- property of his wife- the 2[nd] landlord. Moreover, there is total want of evidence to show that the building advertised is still lying in vacant possession of the landlord. Therefore, Ext.B6 ought not to have been relied on by the Rent Control Appellate Authority to arrive at a conclusion that the tenant has succeeded on its strength to discharge his initial burden in his venture to establish the first proviso to Section 11(3) of the Act. 25. Exts.B9(a) and B9(b) are also relied on by the tenant in its attempt to discharge the initial burden that other vacant rooms were also available with the 1[st] landlord at the relevant time when the petition seeking eviction was moved. Exts.B9(a) and B9(b) are nothing but building tax assessment registers and it is disclosed respectively therefrom that 10 shop rooms bearing Nos.27A to 27B5 and 7 other rooms are available in the possession of the landlords. It is also evidenced from cross examination of PW1 that he was signatory in the lease deed (Ext.B1) executed by his wife in favour of one Mr.Devaprasad on 27.08.2005. PW1 has also admitted during cross examination that 14 rooms are available in the building which incorporates the petition schedule rooms. According to him, fourth and eighth rooms on the ground floor were R.C.R.No. 433 of 2010 -:16:- let out to one Shaju and by order of the court in RCP No.3/2008, the said Shaju surrendered vacant possession of the 4[th] room to the landlord. Another room, that was in the possession of one Mr.Kuttan was also surrendered in landlords' favour. But, PW1 has stated in court that he could not recollect how many rooms have been let out after receipt of notice in RCP No.4/2001 filed against him by the landlord, Sri.Santhakumar. 26. It is true that the tenant had relied on the evidence as described hereinabove to establish his eligibility to avail the benefits of the first proviso. As already dealt with, the initial burden as imposed by the Act through first proviso was not to establish the availability of rooms with the landlord, but availability of rooms in vacant possession of the landlord. It is seen from the impugned judgment that the Rent Control Appellate Authority had also found from the evidence available from the tenant's side that he had succeeded in establishing availability of several shop rooms in the vacant possession of the landlord in the same premises. The finding of the Rent Control Appellate Authority as contained in Page 17 of the impugned judgment being relevant is extracted hereunder: ## R.C.R.No. 433 of 2010 ## -:17:- “From this oral evidence and documentary evidence there are ample proof to show that there are several shop rooms in their possession of the respondents in the same premises”. 27. It is pertinent to note at this juncture that the blank entries in the Building Tax Assessment Register cannot be relied on as conclusive proof to establish availability of rooms as vacant in the possession of the landlord. There must be cogent evidence beyond that to establish that. Exts.B9, B9(a) and B9(b) are extracts of Building Tax Assessment Registers and having produced and marked those in evidence the tenant cannot be stated to have discharged his primary burden to establish availability of vacant rooms in the possession of the landlord at the relevant time. 28. It has come out from the evidence of the tenant as RW1 that 12 rooms available in the ground floor of the building of which petition schedule rooms form part are already occupied by tenants. According to him, those are the only rooms having road frontage. It has also come out in evidence that the petition schedule shop rooms sought to be evicted are situated at the ground floor very near to the residence of the landlord. It is having road frontage also. When looked in the backdrop of the age of the landlord, these are factors liable to provide him convenience and comforts. The tenant undoubtedly has not established by cogent and reliable R.C.R.No. 433 of 2010 -:18:- evidence that vacant rooms are available in the possession of the landlord at the relevant time when petition seeking eviction was filed by the landlord. Even if a room is lying vacant anywhere else, the landlord's evidence is convincing that those are not suitable to be occupied by him for the proposed purpose, for want of road frontage for it or being situated in the top floors of the building. It is improper for a tenant to dictate to the landlord aged 81 years to opt the rooms without road frontage or those situated in the upstairs of the building. 29. In the case on hand, we have been called upon to consider whether the requirement of a landlord for vacant surrender of tenanted premises in occupation of the tenants is a bona fide one or not. In the case on hand, the need of the landlord who has been ordered to vacate the already occupied rooms wherein a clinic was run by him to earn his livelihood is sufficient and satisfactory in all respects to establish the need projected as a bona fide need. The reasons projected by the tenant in his attempt to defeat the bona fides of the need did not serve any purpose and being unsustainable ones are only to be discarded. The factum admitted by the tenant that the landlord was directed R.C.R.No. 433 of 2010 -:19:- to be evicted from the premises taken on rent to conduct the clinic for his livelihood itself is supportive of his need for vacant surrender of the tenanted premises in occupation by the tenants. The landlord being a practitioner in Ayurvedic Medicines for years cannot also be doubted or disputed to have the necessary finance and experience to start the proposed business. The petition schedule shop rooms having been situated near to his residence, the vacant surrender of those would, not only be convenient for him but also be an added advantage of his age above 81 years. 30. Despite the evidence of the nature made available by the landlord, the Rent Control Appellate Authority found that he had failed in establishing the bona fides of his need totally based on some unsustainable reasons projected by the tenant. Accordingly, the well considered order passed by the Rent Control Court, Karunagappally was reversed. The evidence on record has been properly and correctly appreciated by the Rent Control Court while finding the bona fide need affirmatively and passing an order of eviction under Section 11(3) of the Act. We have no hesitation to hold that the Rent Control Appellate Authority reversed the same in a perverse appreciation of the evidence. Interference is rightly R.C.R.No. 433 of 2010 -:20:- called for by the landlord. The judgment under challenge deserves to be reversed for the reasons stated hereinabove. In the result, the Rent Control Revision succeeds and is allowed. The tenants are granted time to surrender vacant possession of the petion scheduled shop rooms occupied by them upto 30.11.2018, provided they file affidavits before the Rent Control Court, Karunagappally in R.C. (OP) No.11/2005 incorporating an unconditional undertaking within two weeks from the date of this judgment that each of them would surrender vacant possession of the tenanted premises as directed by this Court. The tenants shall also pay the arrears of rent if any, at the admitted rate within two weeks from the date of this judgment and shall continue to pay the monthly rent without failure, till vacant possession of the petition schedule shop rooms are surrendered as directed. Parties shall bear their respective costs. Sd/- K. SURENDRA MOHAN, JUDGE Sd/- MARY JOSEPH, JUDGE amb/ttb