Ernakulam Wholesale District Co-operative Store Ltd v. R. Subramanyam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** **RCRev.No. 337 of 2015 (C) --------------------------** **AGAINST THE JUDGMENT IN RCA.42/2015 of III ADDL. DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM DATED 18-11-2015** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **----------------------------------------** **ERNAKULAM WHOLE SALE DISTRICT CO-OPERATIVE STORE LTD. E-122, KAKKANAD, KOCHI-21 REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADV. SRI.P.B.AJOY** ## **RESPONDENT/RESPONDENT/PETITIONER:** **--------------------------------** **R.SUBRAMANYAM, S/O.A.R.C.RAMALINGAM CHETTIAR, AGED 73, RESIDING AT BUILDING NO.CC.39/2532,** **SREE RAM NIVAS, DR.CHANDRAN'S LANE, NEAR DIWANS ROAD, ERNAKULAM, REPRESENTED BY HIS S/O.RAMALINGAM CHETTIAR, AGED 70, SREEKARPAKA NIVAS, BUILDING NO.CC.39/3541, NEAR DIWANS ROAD, ERNAKULAM-682016.** **BY ADVS. SRI.ASHISH VIDYADHARAN SRI.T.T.HARIKUMAR SRI.T.B.THANKAPPAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. --------------------------R.C.R. No.337 of 2015 --------------------------Dated this the 4[th] day of April, 2017 ## O R D E R ## Harilal, J. This Rent Control Revision is filed challenging the legality, regularity and propriety of the findings in the judgment, passed by the Appellate Authority in R.C.A. No.42/2015, confirming the order of eviction in RCP. No.146/2011 and the order dismissing I.A.No.2627/2013 passed by the Rent Control Court. The petitioner and respondent are tenant and landlord respectively in the above Rent Control Petition. The parties are referred to as in the Rent Control Petition. 2. The petitioner filed the Rent Control Petition seeking an order of eviction against the respondent under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short “the Act”). According to the petitioner, the petition schedule building is the portion of building now remains in the occupation of the respondent, RCR.337/15-C **:2:** after getting vacant possession of the other portion of building from the respondent in execution of Ext.B1 order passed by this Court, in the earlier Rent Control Petition. 3. The petition schedule building now belongs to the petitioner as per the family arrangement entered into between the original landlords and the respondent was attorned to the petitioner and he has been paying rent to him. Now the petitioner is aged and having old age related ailments. The petitioner and his brothers are traditional businessmen of non ferrous metal. Because of old age, the petitioner himself withdrew from the said business. But, his brother by name Sreenivasan is conducting the said business. The building in which his brother was conducting business fell down by natural calamities and now neither the petitioner nor his brother Sreenivasan has any other vacant building in their possession to conduct the business, which was conducted in the building fell down. Now his brother is depending on him for the petition schedule building. Thus, the petitioner bona fide needs the RCR.337/15-C **:3:** ## petition schedule building. 4. The respondent mainly contended that the present Rent Control Petition is barred under Section 15 of the Act by Ext.B1 order passed by this Court. There was no change of circumstance after Ext.B1 order. So also, the need projected in the petition is a ruse for eviction only. There is no landlord-tenant relationship between the petitioner and respondent. The averment that the petition schedule building now belongs to the petitioner as per family arrangement is not correct. The respondent has denied the averment in the petition that the shop room in which Sreenivasan was conducting his business fell down by natural calamities and according to the respondent it is a false story cooked up with a mala fide intention to evict him. 5. After considering the evidence on record, the courts below concurrently found that the present Rent Control Petition is not barred by Section 15 of the Act as there was a change of circumstance, having fundamental RCR.337/15-C **:4:** impact on the need, after Ext.B1. The legality of the said finding is the point which debated at the Bar, in this Revision. 6. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the respondent. 7. At the outset, it is to be borne in mind that the principle embedded in Section 15 of the Act bars the entertainment of more than one application under the same provision from same cause of action only. More than one Rent Control Petitions, under the same provision, with different cause of actions arose from different circumstances are maintainable. In short, the change of circumstances makes fundamental impact, on the rigour of Section 15 of the Act, as it gives rise to a fresh cause of action. 8. We have analysed the legality of the findings in the order dismissing I.A.No.2627/2013 in the above view. Prima facie, we find that the earlier Rent Control Petition RCR.337/15-C **:5:** was filed in the year 1994 and the present Rent Control Petition is filed in the year 2011, after a long lapse of 17 years. According to the petitioner, now the petition schedule building belongs to the petitioner as per the family arrangement entered into between the original landlords and the building in which his brother Sreenivasan was conducting the business fell down due to natural calamities and there was a change of circumstance, which prompted him to file the present petition. Going by Ext.B1 order passed in CRP No.2427/2002 it is discernible that RCP No.126/1994 was filed by three petitioners as coowners of the petition schedule building. But in the instant case, the petition was filed by the petitioner alone. Ext.A2 is the ownership certificate issued by the Corporation of Cochin to the petitioner and the same shows that the petition schedule shop room belongs to the petitioner alone. Further, Ext.A2 is supported by Ext.A3 property tax receipt which shows payment of tax by the petitioner alone. 9. According to the definition of “landlord”, the RCR.337/15-C **:6:** person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant, also would fall under the definition. It stands admitted that the respondent has been paying rent to the petitioner for the petition schedule building. Therefore, Exts.A1 to A3, coupled with aforesaid admission as regards payment of rent to the petitioner would prove the landlord-tenant relationship between the petitioner and the respondent. The courts below are justified in finding that there exists a landlord-tenant relationship between the petitioner and the respondent. 10. According to the petitioner, the building in which he had been conducting business had fallen down due to natural calamities. So the petition schedule building is required for shifting his business. No suitable buildings RCR.337/15-C **:7:** are available in the locality to start the proposed business and the petition schedule building is the most suitable and convenient building for starting the proposed business. The respondent contended that the said building is still in existence. So the question to be considered is that whether the building was in existence at the time of filing the petition. 11. Ext.A1 is the report filed by the Tahsildar. Ext.X2 and X2(a) are property tax assessments and Ext.X3 is the report filed by the Secretary, Cochin Corporation. The concurrent finding of the courts below is that the fact that the building fell down is proved by the oral evidence of R.W.2 coupled with Ext.X3 Report by the Secretary, Cochin Corporation, before the court. In Ext.X3 it is reported that building No.40/3068 had fallen down. The main thrust of the arguments advanced by the learned counsel for the respondent is that the person who prepared Ext.X3 report was not examined in evidence. So it cannot be relied upon. 12. Ext.X3 is a Report, which was submitted by the RCR.337/15-C **:8:** Secretary, Cochin Corporation, on his official capacity. The courts below have relied on the said document in view of Section 114(e) of the Indian Evidence Act. It is a court exhibit called for in evidence by the respondent, who now ventured to challenge the same. Ext.X3 Report would show that the respondent has made an application seeking issuance of summons to the Corporation requiring it to furnish certain details of the disputed building and the said application was allowed by the Rent Control Court. As required by the court, an authorised officer of the Corporation inspected the place where the building was situated and reported that the building was not in existence at the time of inspection. It is also stated in Ext.X3 that since the petitioner has not applied for cancelling the assessment with respect to the building which was not in existence, the assessment with respect to the said building was not removed from Exts.X2 and X2(a) Property Tax Assessment Register also. 13. We find that Ext.X3 is a Report called for by the RCR.337/15-C **:9:** court invoking jurisdiction and power conferred under Section 23(g) of the Act on the application of the respondent. If the petitioner had any objection to the report submitted by the Authorised Officer of the Corporation, after conducting a local inspection, certainly, the respondent would have taken steps to challenge the contents of the said documents by examining the officer, who conducted the local inspection. It is pertinent to note that when report was marked as Ext.X3, no objection was raised by the respondent against marking of the said document. So also no step was taken to examine the Authorised Officer, who conducted the local inspection. Besides, the respondent has not ventured to bring up any positive evidence to prove the existence of the disputed building. 14. In the above view, we do not find any reason to disbelieve the contents of the report, particularly in the absence of a valid challenge from the part of the respondent himself. Where the building was not in RCR.337/15-C **:10:** existence at the time of filing the present petition, nonexistence of the building was a fact constituting the change of circumstance enabling the petitioner to file a second Rent Control Petition, notwithstanding Ext.B1 order passed in the earlier Rent Control Petition and it gives rise to a fresh cause of action to sue for eviction. 15. The learned counsel for the petitioner cited **Bhagath Ram and Others v. Suresh and others** [2003 (12) SCC 35] and **R.Venkitaraman v. Central Road Traffic Board and others** [AIR 1953 TRA-CO.392] to discredit the evidentiary value of Ext.X3. We have gone through the said decisions and we find that the proposition laid down in the aforesaid decisions cannot be made applicable to the instant case, where the disputed document was called for by the respondent himself and got marked without any objection from him, and failed to challenge in trial. 16. In the above analysis, the courts below are justified in finding that the present Rent Control Petition is RCR.337/15-C **:11:** not barred by Section 15 of the Act. Therefore, we are inclined to confirm the concurrent findings of the courts below and we do so. Consequently, this Rent Control Revision is dismissed. K.HARILAL, Judge. RAJA VIJAYARAGHAVAN V., Judge. okb.