G. Lokanathan v. Bappuji Memorial Trust

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** **RCREV. NO. 125 OF 2021** **AGAINST THE JUDGMENT DTD.28.10.2015 IN RCP NO.38 OF 2013 OF RENT CONTROL COURT (MUNSIFF COURT), PAYYANNUR AND JUDGMENT DTD.31.8.2019 IN RCA NO.193 OF 2015 OF RENT CONTROL APPELLATE AUTHORITY [ADDITIONAL DISTRICT COURT- III], THALASSERY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** G.LOKANATHAN AGED 60 YEARS S/O. G. GANESH KAMMATH, RESIDING AT MAVICHERRY, PAYYANNUR AMSOM DESOM, KANNUR DISTRICT, PIN -670307. BY ADV T.K.VIPINDAS ## **RESPONDENT/RESPONDENT/PETITIONER:** BAPPUJI MEMORIAL TRUST REPRESENTED BY ITS PRESIDENT, PAYYANNUR AMSOM, KOKANISSERI DESOM, KANNUR DISTRICT, PIN - 670307. BY ADV MAHESH V RAMAKRISHNAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.10.2022, ALONG WITH RCRev..127/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.Rev.Nos. 125 & 127 of 2021 :-2-: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 20[TH] DAY OF OCTOBER, 2022 / 28TH ASWINA, 1944** **RCREV. NO. 127 OF 2021** **[AGAINST THE JUDGMENT IN RCA NO.192 OF 2015 OF RENT CONTROL APPELLATE AUTHORITY [ADDITIONAL DISTRICT JUDGE - III, THALASSERY] AND AGAINST THE ORDER DTD.28.10.2015 IN RCP NO.37 OF 2013 OF RENT CONTROL COURT [MUNSIFF], PAYYANNUR]** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** G. LOKANATHAN AGED 60 YEARS XS/O. G. GANESH KAMMATH, RESIDING AT MAVICHERRY, PAYYANNUR AMSOM DESOM, KANNUR DISTRICT, PIN 670 307 BY ADV T.K.VIPINDAS ## **RESPONDENT/RESPONDENT/RESPONDENT:** BAPPUJI MEMORIAL TRUST REPRESENTED BY ITS PRESIDENT, PAYYANNUR AMSOM, KOKANISSERI DESOM, KANNUR DISTRICT, PIN 670 307 BY ADV MAHESH V RAMAKRISHNAN **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20.10.2022, ALONG WITH RCRev..125/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev.Nos. 125 & 127 of 2021 :-3-: ## **O R D E R** ## Shoba Annamma Eapen, J. The respondent-tenant in R.C.P. Nos.37 of 2013 and 38 of 2013 on the file of the Rent Control Court, Payyannur, is the petitioner in the above revision petitions. The landlord filed rent control petition seeking eviction of tenant from shop room bearing Nos. XXI-308 & 309 under Section 11(2)(b) & 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”). The Rent Control Court disallowed the prayer for eviction under Section 11(2)(b) of the Act since the tenant cleared the arrears of rent and the prayer for eviction under 11(3) of the Act was allowed. The appeals filed by the petitioner herein as R.C.A.Nos.192/2015 and 193/2015 under Section 18(1)(b) of the Act were dismissed by the Rent Control Appellate Authority (Additional District Judge-III), Thalassery by common judgment dated 31.08.2019. Feeling aggrieved thereof, the petitioner has filed these revision petitions under Section 20 of the Act. For convenience, the parties are referred to as stated in the Rent Control Petition. ## R.C.Rev.Nos. 125 & 127 of 2021 :-4-: 2. The landlord is a Trust named as, “Bappuji Memorial Trust”, represented by its President. The rent control petition was filed by the landlord claiming eviction on the ground of arrears of rent and _bona fide_ need. The landlord Trust was formed for conducting a nursery school, educational activities, a reading room, library and for conducting socio-cultural activities. The need urged by the landlord is to start a seminar hall by using the petition schedule rooms occupied by the tenant. The landlord filed other rent control petitions to evict the tenants in the adjacent rooms. The tenant herein is conducting the business of ayurvedic medicines by stocking, exhibiting and selling medicines, in the two rooms occupied by him. The tenant contended that he is preparing ayurvedic medicines, for which sufficient space is required for storing raw materials such as roots, seeds etc. It was also contended that it is impossible to convert the four rooms into a hall since the construction of the building cannot structurally permit such conversion. According to the tenant, there are no rooms available in the locality for the tenant to R.C.Rev.Nos. 125 & 127 of 2021 :-5-: conduct his business. 3. Evidence in this case consisted of oral testimonies of PW1 & RW1 and documentary evidence of Exts.A1 to A28, B1 & B2. The Rent Control Court, after considering the said evidence and on hearing both sides, found that the need urged by the landlord was _bona fide_ and allowed the rent control petition by ordering eviction of the tenant from the petition schedule rooms. The challenge made by the tenant to the order of eviction by filing appeals before the appellate authority was not successful. Hence, he has filed these revision petitions. 4. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 5. The learned counsel for the revision petitioner/tenant submitted that the revision is not maintainable since the respondent is a Society registered under the Societies Registration Act and the Society cannot sue in its name. The learned counsel also submitted that the intention of the landlord is to induct new tenants for higher ## R.C.Rev.Nos. 125 & 127 of 2021 :-6-: rent and the lie and nature of the petition schedule building does not make it possible to convert it into a seminar hall. The learned counsel further submitted that, the landlord did not examine any technical expert to refute the specific case put forth by the tenant that the conversion of the building to a seminar hall is not structurally permissible and thus, it is clear that the need put forth is not _bona fide_ and it is only a ruse to evict the tenant by raising untenable need. 6. _Per contra,_ the learned counsel for the landlord submitted that the Trust was formed with specific objects and in order to carry out the objects of the Trust, the landlord wants to start a seminar hall for imparting educational activities. It is further submitted that the Trust has filed other rent control petitions for evicting the tenants in the adjacent rooms and those petitions are allowed. The Trust is properly represented by its President, who is legally authorised to do so, and it was further submitted that the tenant did not raise the maintainability issue regarding the authority of the President to file the rent control petition earlier before the ## R.C.Rev.Nos. 125 & 127 of 2021 :-7-: court below. 7. The question as to whether the need is _bona fide_ or not has to be considered by analysing the need, from the point of view of the landlord. The landlord wants to convert the rooms including the rooms occupied by the tenant into a single room for the purpose of a seminar hall. It is for the landlord to find out appropriate method to achieve the object of the landlord. 8. Two rooms out of four rooms, which are proposed to be converted to a seminar hall, are occupied by the tenant. It is submitted by the learned counsel for the landlord that the other two rooms out of the four rooms were vacated by the tenants therein and possession was handed over to the landlord. Considering the objectives of the Trust, it is evident that the landlord requires separate rooms to be used as reading room and seminar hall. Hence, the _bona fide_ need put forth by the landlord has to be accepted as genuine. 9. In order to substantiate the contention of the tenant that conversion of the building to a seminar hall is not ## R.C.Rev.Nos. 125 & 127 of 2021 :-8-: structurally permissible, an Advocate Commissioner was appointed at the instance of the tenant, during the pendency of the appeal and Exts.C1 & C2 were marked during the appellate stage. In Exts.C1 & C2, the Commissioner has reported that if any alteration is made in the buildings, it will lead to the collapse of the building, which was the opinion expressed by the expert, who assisted the Advocate Commissioner. The expert described as “Supervisor Senior, Kalpaka Construction & Consultants, Main Road, Payyannur” is not even a qualified graduate Engineer and no steps were taken by the tenant to examine the Advocate Commissioner and the expert. Hence, no reliance can be placed on the commission report insofar as the opinion expressed by the expert is concerned. 10. The learned counsel for the tenant has raised yet another contention in the revision petitions that the rent control petitions ought to have been filed either by the President, Bappuji Memorial Trust or the Secretary, Bappuji Memorial Trust and not as “Bappuji Memorial Trust, ## R.C.Rev.Nos. 125 & 127 of 2021 :-9-: represented by its President”. We do not find any merit in the contention raised. The Bappuji Memorial Trust, being an inanimate body, is properly represented by its President. It is to be noted that in a Rent Control Petition, it is not open for a tenant to contend that the landlord is improperly represented in a petition for eviction except where fraud is committed in proceedings for eviction. The tenant has not raised any contention regarding the competency of the President to represent the Trust either in the rent control petition or in the rent control appeal. The landlord-tenant relationship was admitted by the tenant before the court below. The above said contention of the tenant is rejected. 11. In **Rukmini Amma Saradamma** v. **Kallyani Sulochana and others** [(1993) 1 SCC 499], this Court has elaborately considered the the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and it was held that, even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. ## R.C.Rev.Nos. 125 & 127 of 2021 :-10-: Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. Of course, the revisional court can come to a different conclusion, but not on a re-appreciation of the evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 12. On the basis of the materials on record, the landlord has succeeded in proving that the need to occupy the premises is sincere and honest and not a ruse to evict the tenant from the said premises. The courts below, after proper appreciation of the evidence adduced, has come to a concurrent finding that the _bona fide_ need projected by the landlord is genuine. We, in exercise of the powers under Section 20 of the Act, do not find any reason to hold that such finding is illegal or perverse. We are of the definite view that the requirement projected by the landlord is _bona fide_ and the landlord has established the same. There is no reason to ## R.C.Rev.Nos. 125 & 127 of 2021 :-11-: interfere with the common order of the Rent Control Court or the common judgment of the Appellate Authority, which are not suffering from any illegality, irregularity or impropriety. Hence, these Rent Revision Petitions fail. 13. We accordingly dismiss these Rent Control Revisions. However, considering the request made by the learned counsel to afford reasonable time for vacating the premises, we grant time upto 31.03.2023 to the tenant to vacate the tenanted premises on the following terms:- - (i) The respondent-tenant in the Rent Control Petitions shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, undertaking to vacate the tenanted premises within the time granted by this Court. - (ii) Arrears of rent, if any, will be paid to the landlord within two months from today. - (iii) The tenant will continue to pay monthly rent till the vacant possession is handed over to the landlord. - (iv) Needless to say, in the event of the tenant in the R.C.Rev.Nos. 125 & 127 of 2021 :-12-: Rent Control Petitions failing to comply with any of the conditions stated above, the tenant will not be entitled to get the benefit of this order. No order as to costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** sd/- **SHOBA ANNAMMA EAPEN,** **JUDGE** MBS/