Francis Cleetus v. Padmavathy Amma & Meena Ramesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 11TH DAY OF SEPTEMBER 2018 / 20TH BHADRA, 1940** **RCRev.No. 73 of 2018** **AGAINST THE JUDGMENT DATED 30.11.2017 IN RCA 15/2017 of RENT CONTROL APPELLATE AUTHORITY-II, (ADDL.DISTRICT JUDGE, THIRUVANANTHAPURAM)** **AGAINST THE ORDER DATED 19.01.2017 IN RCP.NO. 43/2015 of RENT CONTROL COURT, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/ APPELLANT/ 2ND COUNTER PETITIONER :** **FRANCIS CLEETUS, AGED 55 YEARS, S/O.FRANCIS, CLIFFY HOUSE, EMS NAGAR, PATTOOR, THIRUVANANTHAPURAM - 695 035, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SIBI VARGHESE, AGED 41 YEARS, S/O.M.D.VARGHESE, RESIDING AT MANJALIL HOUSE, THOKKUPARA.PO,IDUKKI.** **BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB** **RESPONDENTS/ RESPONDENTS/ PETITIONER & 1ST COUNTER PETITIONER :** **1 S.PADMAVATHY AMMA, AGED 86 YEARS, W/O.LATE MR.MADHAVAN PILLAI, RESIDING AT T.C.13/238, PADMASREE, PETTAH, THIRUVANANTHAPURAM - 695 024.** **RCRev.No. 73 of 2018** 2 **2 MEENA RAMESH, AGED 52 YEARS, W/O.B.N.RAMESH KUMAR, HOUSE NIO.298, BAPUJI NAGAR, PONGAMMOODU, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM - 695 011.** **R1 BY ADVS.SRI.PREMCHAND R.NAIR SRI.GEORGE BRISTON SRI.V.P.PRASANTH** **R2 BY ADV.S.S.SRINATH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No. 73 of 2018** 3 ## **JUDGMENT** ## _**K. Harilal, J.**_ The revision petitioner is the 2[nd] respondent/ tenant in R.CP.No.43/2015 of the Rent Control Court, Trivandrum as well as the appellant in R.C.A.No.15/2017 on the files of the Additional Rent Control Appellate Authority, Trivandrum. This revision petition has been filed challenging the concurrent findings of the courts below, granting an order of eviction under Section 11(4)(i) and divergent findings of the courts below under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act,1965 (Hereinafter referred to as, 'the Act'). The Rent Control Petition was filed under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act and the Rent Control Court granted an order of eviction under Section, 11(2)(b) and 11(4)(i) of the Act only and rejected the claim for eviction under Section 11(3) of the Act. In the appeal filed by the respondent/ tenant, the petitioner/ landlord, filed a cross objection against the rejection of the claim for eviction under Section 11(3) of the Act. The Appellate Authority, after considering the appeal and cross objection passed the impugned order, confirming the order of **RCRev.No. 73 of 2018** 4 eviction passed by the Rent Control Court under Sections 11(2) (b) and 11(4)(i) of the Act and allowing the cross objection by reversing the rejection of the claim for eviction under Section 11(3) of the Act. Thus, the legality and correctness of the concurrent findings of the courts below under Sections 11(2)(b) and 11(4)(i) and divergent findings under Section 11(3) of the Act have come up in this revision. The parties are referred to as in the Rent Control Petition. 2. According to the petitioner, the tenanted premises was rented out to the first respondent from 2005 onwards for running a play school/ kindergarten. But, subsequently, the first counter petitioner sub let the petition schedule building to the 2[nd] respondent and they subsequently entered into a partnership agreement without the knowledge of the petitioner and conducted the institution under the said partnership deed till 2013. The rent was in arrear from April, 2014. Though Ext.A4 notice was issued calling upon the first respondent to pay the arrears of rent, no amount was paid towards the said demand. Therefore, the petitioner is entitled to get an order of eviction under Section 11(2)(b) of the Act. Since the tenanted premises was sub leased to the 2[nd] respondent without the **RCRev.No. 73 of 2018** 5 consent of the petitioner, she is entitled to get an order of eviction under Section 11(4)(i) of the Act. 3. Further, it is contended that the petitioner is in _bona fide_ need of the petition schedule building for conducting a health clinic for his children and grand children. Her daughter and son in law are doctors. Moreover, her grand children are also doctors. So, it is her desire and requirement to get the petition schedule building for running a health clinic and also for her stay. She has no other buildings of her own to start the proposed health clinic and several other vacant buildings are available in the locality to shift the play school from the tenanted premises. With the aforesaid averments, the petitioner prayed for an order of eviction under Section 11(2)(b), 11(3) and 11(4)(i) of the Act. 4. The first respondent filed an objection stating that though there is a specific clause in the lease agreement, prohibiting the transfer of tenancy or sub letting of whole or any part of it to any person, without the written consent of the petitioner. But, he, in an unavoidable circumstance sub let the petition schedule to the 2[nd] respondent. The understanding between the first and 2[nd] respondent was that the 2[nd] **RCRev.No. 73 of 2018** 6 respondent shall surrender the vacant possession of the petition schedule building before the lease period expires. After the expiry of the lease period, the petition schedule building was kept vacant without running the school. The first respondent has, on many occasion requested the 2[nd] counter petitioner to surrender the vacant possession of the petition schedule building as the petitioner was demanding the first respondent to vacate the building. Now, the 2[nd] respondent has been in occupation of the petition schedule building and he is liable to pay the rent. 5. The 2[nd] respondent filed an objection contending that the first counter petitioner, who was running a kindergarten in the tenanted premises entered into a partnership with the 2[nd] respondent and that partnership deed was executed on 01.10.2011. Under the said partnership deed, he has invested ¾ of the entire investment for the infrastructure and investment in the running of the school. Subsequently, the partnership deed has been dissolved and they executed the dissolution of partnership deed on 22.05.2013. Thereafter, the petitioner and her son Dr.Radhakrishnan had granted an oral lease of the petition schedule building in favour of the 2[nd] respondent. **RCRev.No. 73 of 2018** 7 Though the 2[nd] respondent had offered to pay the rent of the petition schedule building to the petitioner on several occasions, the petitioner was not ready and willing to accept the same. According to the 2[nd] respondent, he is always ready and willing to pay the rental arrears to the petitioner provided that he confirms the act of granting the lease in favour of the 2[nd] respondent. 6. On the aforesaid pleadings, all the parties went on to trial and adduced evidence, which consists of the oral testimony of PW1 and PW2 and Exts.A1 to A6 from the part of the petitioner and the oral testimony of CPW1 and documentary evidence Exts.B1 to B13 from the respondent. The commission report was marked as Exts.C1. However, the Rent Control Court granted an order of eviction under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act and the Appellate Authority in appeal granted an order of eviction under Section 11(4)(3) of the Act also. 7. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 8. The learned counsel for the revision petitioner submits that the petitioner has not discharged the initial burden of proof as regards the sub lease. Secondly, it is contended that **RCRev.No. 73 of 2018** 8 the conversion of a tenancy to a partnership even if it is without the knowledge of the landlord would not amount to sub lease, warranting an order of eviction under Section 11(4)(i) of the Act. Therefore, even if the partnership deed was dissolved, the 2[nd] respondent has the right to continue in occupation of the tenanted premises as if he was a partner. It is also contended that there is no pleadings disclosing the dependency claiming an order of eviction under Section 11(3) of the Act. 9. Per contra, the learned counsel for the respondent advanced counter arguments to justify the concurrent findings of the courts below under Section 11(4)(i) and the order of eviction granted by the Appellate Court under Section 11(4)(iii) of the Act. The first question that arises for consideration in this revision petition is whether there is any illegality or impropriety in the concurrent findings of the courts below granting an order of eviction under Section 11(4)(i) of the Act on a finding that the first respondent has sub leased the tenanted premises to the 2[nd] respondent without the consent of the petitioner and thereby, he is entitled to get an order of eviction under Section 11(4)(i) of the Act. 10. Admittedly, the first respondent, the tenant to **RCRev.No. 73 of 2018** 9 whom the building was let out filed a counter statement admitting that he had sub let the tenanted premises to the 2[nd] respondent in violation of the specific provisions of the lease agreement barring the sub lease without the consent of the petitioner/ landlord. According to him, he has sub leased the tenanted premises in an unavoidable circumstance and the understanding was that the 2[nd] respondent would surrender the vacant possession of the tenanted premises before the lease period expires. Thus, the first respondent has admitted the sub lease, as alleged by the petitioner. 11. Then the point to be considered is what is the status of the 2[nd] respondent. It is not disputed that the first respondent has entered into a partnership agreement with the 2[nd] respondent and they have executed a partnership deed and they have conducted the school under the said partnership from 2011 to 2013 and subsequently, they dissolved the partnership deed by Ext.A2 dissolution deed on 01.07.2013. As rightly submitted by the learned counsel for the revision petitioner/ respondent, conversion of the personal tenancy to partnership would not amount to sub letting attracting Section 4(i) of the Act in view of the decision of the Supreme Court in **RCRev.No. 73 of 2018** 10 _**Krishnawati v. Hans Raj [**_ ( _**1974) 1 SCC 289]**_ . But, we are of the opinion that the said proposition cannot be applied to the instant case as the partnership was dissolved on 01.07.2013 by Ext.A2 and Rent Control Petition was filed in the year 2015. Therefore, on the date of filing the Rent Control Petition, the 2[nd] respondent's occupancy can never be treated as occupancy under the partnership deed, and his status is nothing other than that of a trespasser, unless he proved that after the dissolution of the partnership deed, the petitioner leased out the tenanted premises to him or accepted his occupation of the tenanted premises by the petitioner by receiving rent. 12. In the counter statement filed by the 2[nd] respondent, it is specifically stated that the petitioner and his son in law by name Dr. Radhakrishnan have granted an oral lease of the scheduled building in favour of the 2[nd] respondent on the same terms and conditions as it was executed in favour of the first respondent after the dissolution of the partnership firm. Absolutely, there is no evidence to prove the sub lease except the oral assertion of the CPW1, the power of attorney holder of the 2[nd] respondent. 13. It is pertinent to note that the 2[nd] respondent, **RCRev.No. 73 of 2018** 11 who claims that the tenanted premises was leased out to him, by an oral agreement, has not chosen to enter into the witness box, so as to testify himself as to the _bona fide_ of the oral lease and we are of the opinion that the non-examination of the 2[nd] respondent is fatal and an adverse inference also can be drawn to the effect that he was not daring enough to face cross examination. 14. In the above view, we find that absolutely, there is no evidence to show that after the dissolution of the partnership deed, the tenanted premises was leased out to the 2[nd] respondent by an oral lease or the petitioner has accepted him as the tenant; as has been held above, on the date of filing the petition, he was a trespasser only to the petition schedule shop room. 15. The next question to be considered is whether the averments in the Rent Control Petition and evidence would disclose the dependency on the scheduled building by the son-in-law of the petitioner. It is specifically averred in the Rent control Petition that the petitioner has only one daughter and her son in law is a doctor by profession and he has retired from the Kerala Medical Education Service. Her three grandsons are **RCRev.No. 73 of 2018** 12 also doctors by profession. The petitioner, his family members, son in law and grandchildren have jointly decided to start a health clinic of their own in the petition schedule building. The petition schedule building is a spacious one located in a good locality in the city, which is a suitable place to start a medical clinic and as such the petitioner _bona fide_ needs the building for the occupation of her family members, grandsons and son in law. 16. It is true that the word 'dependency' is not used in the aforesaid averments. We are of the opinion that verbatim reproduction of the legal terms employed in the Section is not required in the pleadings. What is required is the facts constituting the ingredients of the Section only. But, we find that the cumulative effect that can be drawn from the aforesaid averments is that the petitioner's son in law and grandsons require the petition schedule building for starting the clinic as the building is suitable for starting a health clinic and it is located in a good locality. Thus the dependency on the building is well discernible from the pleadings and we find that the pleadings are sufficient to disclose the _bona fide_ of the need. We reject the contention that the pleadings are not **RCRev.No. 73 of 2018** 13 sufficient to disclose the _bona fides_ of the need. No argument was put forward challenging the order of eviction under Section 11(2)(b) of the Act and no other point has been raised under Section 11(4)(i) and 11(3) of the Act. We do not find any kind of illegality or impropriety in any of the findings whereby the courts below granted an order of eviction under Section 11(2)(b) and 11(3) of the Act. The appellate Authority is justified in reversing the findings of the Rent Control Court and granting an order of eviction under Section 11(3) of the Act also. Since we are sitting in revision, we are not inclined to re-appreciate the entire evidence on record or to consider any argument which was not raised before us. Hence the Revision Petition is devoid of any merit and the same is dismissed accordingly. Sd/- **K. HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** True copy PA to Judge RKM