General Manager, ABT Parcel Service v P K Jameela and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935 RCRev..No. 329 of 2013 () -------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 7/2010 of VI ADDL.DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM AGAINST THE ORDER/JUDGMENT IN RCP 22/2008 of III ADDL.M.C.EKM (RENT CONTROLLER), ERNAKULAM REVISION PETITIONER(S)/RESPONDENT: ------------------------------------------------------------------ GENERAL MANAGER, ABT PARCEL SERVICE, 10/13 14 & 15 OF KALINGARAYAN STREET, RAMANAGAR COIMBATORE-641 009 REPRESENTED BY AGENT AND POWER OF ATTORNEY HOLDER S.NATARAJAN, S/O.SRIRANGA GOUNDER, NO.IV/38 KUNNUMPURAM, DESOM, ALUVA-683103. BY ADVS.SRI.MATHEW SKARIA SRI.JOY JOSEPH (MUNDACKAL) RESPONDENT(S)/APPELLANTS/PETITIONERS: --------------------------------------------------------------------- ----- 1. P K JAMEELA,, AGED 69 YEARS D/O.LATE P.K.KUNHALU, HIDAYATH, THRIKKAKARA POST KOCHI-682021. 2. DR.P.A.SAIDU MOHAMMED,, AGED 75 YEARS HUSBAND OF LATE P.K.NASEEM BHANU, BRAHMOKKULAR SHALIMAR, POOVATHUR, ELAVALLI VILLAGE P.O.POOVATHUR, CHAVAKKAD TALUK, TRICHUR DISTRICT PIMN-680508. 3. DR.NAZEER AHAMMED,, AGED 47 YEARS S/O.P.K.NASEEM BHANU, POOVATHUR POST, TRICHUR REPRESENTED BY POWER OF ATTORNEY HOLDER DR.P.A.SAIDU MOHAMMED, SHALIMAR, POOVATHUR.P.O POOVATHUR, CHAVAKKAD TALUK, TRICHUR DISTRICT PIN-680508. 4. DR.NAZREEN,, AGED 44 YEARS D/O.LATE P.K.NASEEM BHANU, POOVATHUR POST, TRICHUR REPRESENTED BY POWER OF ATTORNEY HOLDER DR.P.A.SAIDU MOHAMMED, SHALIMAR, POOVATHUR.P.O POOVATHUR, CHAVAKKAD TALUK, TRICHUR DISTRICT PIN-680508. R1 BY ADV. SRI.C.KHALID(CAVEATOR) R BY SRI.C.KHALID THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** **R.C.R.No. 329 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 12TH DAY OF NOVEMBER, 2013** ## **O R D E R** ## Ramachandran Nair, J. An eviction petition was filed by four co-owners of a multi-storied building, projecting their need to start a hospital/clinic in the petition schedule building along with two upper floors which have been vacated already by the tenants. The need projected is that of respondents 3 and 4 who are qualified doctors and who are now working in Dubai. They want to shift to their own native place with their families and look after their father, the second respondent herein and to settle in Kerala. The eviction petition was filed by the second respondent as power of attorney holder of respondents 3 and 4 also. 2. The Rent Control Court took the view that the non examination of respondents 3 and 4 in support of the bonafide need pleaded is fatal and accordingly the eviction petition was dismissed. The said view was taken on the premise that the second respondent herein is a power of attorney holder of respondents 3 and 4 and the actual state of mind should have RCR No.329/2013 -2- been established by examining respondents 3 and 4. This finding is reversed by the Appellate Authority which allowed the eviction as sought for by the respondents, against which the present revision petition is filed. 3. We heard learned counsel for the petitioner, Shri Mathew Skaria and learned counsel for the respondents, Shri C. Khalid. 4. According to Shri Mathew Skaria, the view taken by the Appellate Authority cannot be termed as correct. This is a case where the need pleaded is that of respondents 3 and 4, viz. to conduct a hospital in the petition schedule building. Therefore, they should have disclosed their state of mind by subjecting themselves to examination before the court and the father is not competent to state about their state of mind. It is further pointed out that the shifting of residence is also sought for as far as respondents 3 and 4 are concerned, which aspect also could have been established by examining any of them. 5. The above contention is answered by the learned counsel for the respondents by stating that unlike a case where an eviction petition is filed through a power of attorney holder and the said power of attorney holder alone is examined in the case, herein the second respondent is also a coowner. This Court and the Apex Court have taken the view that in such RCR No.329/2013 -3- circumstances non-examination of other co-owners is not fatal. Herein, the eviction petition is filed by all the co-owners of the entire building and one of the co-owners, viz. the second respondent has been examined for and on behalf of all the respondents and therefore there is no lacuna in the matter. 6. In this context, Shri Mathew Skaria, learned counsel for the petitioner has relied upon the following decisions: **Ratheesh Kumar v. Jithendra Kumar (2005 (2) KLT 669), Manu v. Bhanumathay** (2004 (1) KLT 212), **J.C.R. Trading (P) Ltd. v. Varghese** (2009 (1) KLT 963) and **Raghunath G. Panhale (dead) by L.Rs. v. M/s. Chaganlal Sundarji and Co.** (AIR 1999 SC 3864). 7. The first of the decisions relied upon by Shri Mathew Skaria is **Ratheesh Kumar's case** (2005 (2) KLT 669). The facts of the case will show that therein the power of attorney holder by whom the eviction petition was filed, alone was examined to speak on behalf of the landlord, on the bonafide need. An argument was raised that the non examination of the landlord is fatal to his case. While dealing with the said argument, the Division Bench, after relying upon the decision of the Apex Court in **Janki Vashdeo Bhojwani v. Indusind Bank** Ltd. (2005 (2) KLT 265 - SC) and other decisions, held as follows in para 16: RCR No.329/2013 -4- “We have come to the conclusion that the evidence of PW1 who is the brother of the landlord is not a substitute for the evidence of the landlord himself in the light of the decision of the Supreme Court in _Janki Vashdeo Bhojwani v. Indusind Bank Ltd.,_ 2005 (2) KLT 265 (SC) = (2005) 2 SCC 217. If PW.1 was not competent to give evidence in the place of the landlord merely on the basis of the power-of-attorney, it will be a case where there is no evidence to substantiate the _bona fide_ need set up in the Rent Control Petitions.” The above observations were made in the light of the judgment of this Court in **Thomas John v. Kochammini Amma** (1994 (2) KLT 571) and other decisions. But the said decision cannot squarely apply to the facts of this case. Herein, for filing the eviction petition, the second respondent has been described as the power of attorney holder of respondents 3 and 4. But, all of them are co-owners of the building and as a co-owner he has given evidence. Therefore, the dictum laid down in **Ratheesh Kumar's case** (2005 (2) KLT 669) is distinguishable on the facts of this case. With regard to the decision in **J.C.R. Trading (P) Ltd.'s case** (2009 (1) KLT 963) also, the crucial paragraph relied upon by Shri Mathew Skaria, learned counsel for the petitioner is para 11. That was a case where, for an application for eviction under Section 11(8) of the Act, the power of attorney holder of the RCR No.329/2013 -5- landlord was examined and this Court was of the view that since Section 11 (8) of the Act gives importance to personal use, the genuineness or otherwise of a requirement for personal use can be best manifested and established only by the persons for whose personal use, additional accommodation is sought for. But the Bench explained the legal position further, which may apply as far as this case is concerned and we extract the said portion in para 10 hereunder: “At the same time, we do not intend to state that in all cases where an eviction petition is filed under S.11(3) it is obligatory that the landlord petitioner himself mounts the box and testifies regarding the genuineness of the need projected by him in the R.C.P. According to us, in cases where the need projected is not need for own occupation by the landlord himself but is need for occupation by a dependent family member of the landlord, then perhaps it may suffice that the dependent family member for whose occupation the landlord petitioner has filed the R.C.P. gives evidence as witness. In such a case also it is the _bona fides_ of the landlord's petitioner's need which is to be scrutinized by the Court. But the dependent family member, the really needy person, the prospective occupant of the building after eviction, may be equally competent to testify not only regarding his need to occupy the building but also regarding the need of the landlord to accommodate him in the building.” RCR No.329/2013 -6- Therefore, it cannot be the rule that in all cases, to establish the ground under Section 11(3) of the Act, the person for whose bonafide need the eviction is sought, need be examined. Herein, the second respondent is also a Doctor; he is a co-owner of the building and in that capacity he has given the evidence, as found by the Appellate Authority. 8. In fact, a Division Bench of this Court in **Mustafa Haji v. Umbichi** (2004 (2) KLT 1110) in a case where it was contended that the non examination of dependent son is fatal, disagreed with a like contention and held that “non examination of dependent son of the landlord is not fatal to a petition for own use and occupation of the son.” 9. We will have to examine the facts of the case in the light of the above principles. It has been pleaded in the eviction petition that the landlords propose to establish a hospital for which purpose the petition schedule ground floor is also required and the two upper floors have been kept vacant. In the chief affidavit also the second respondent has clearly stated that both the floors are kept vacant and the ground floor, viz. the petition schedule portion is also required for running the hospital. This will indicate that they had decided to forgo the rent for the upper floors during RCR No.329/2013 -7- the period the Rent Control Petition was pending and thereafter and this really supports the case of the landlords and establishes their genuine bonafide need. As far as the plea raised by the learned counsel for the petitioner that respondents 3 and 4 may not come back to the home State, is concerned, on going through the evidence of the second respondent as P.W.1, it can be seen that one of the children of the third respondent has already been shifted to Kerala and is studying in a College at Thrissur and the other younger children are now stated to be studying in a school in Gulf. But P.W.1 has stated that the other children also require facilities for higher education in Kerala and once they are settled in Kerala, the respondents really intend to give them quality education. These facts genuinely establish the bonafide need pleaded by the respondents. Therefore, the view taken by the Appellate Authority on that score cannot be said to be so perverse, on the proved facts of this case. It is also in evidence that the third respondent is a qualified Doctor in Urology and the fourth respondent is a qualified Paediatrician and both of them are now working in Dubai. There is nothing wrong in respondents 3 and 4 genuinely deciding to come back and start a hospital in their home State, that too in their native place. 10. Another aspect pointed out by the learned counsel for the RCR No.329/2013 -8- respondents is that respondents 3 and 4 genuinely desire to stay along with their aged (second respondent) father and the father also wants the company of his sons. The mother of respondents 3 and 4 is no more which is evident from the pleadings itself. All these aspects have been properly considered by the Appellate Authority and therefore we find no reason to interfere with the same and the eviction petition is dismissed. 11. Learned counsel for the petitioner sought for a larger time to vacate the premises, since a parcel service is being conducted in the petition schedule building. The said plea is opposed by the learned counsel for the respondents. We grant time upto 31.5.2014 for the petitioner to vacate the petition schedule premises on the following conditions: i) The entire arrears of rent as on today will be paid/deposited within one month. If such deposit is made, the same will be disbursed to the respondents; ii) An affidavit will be filed by the petitioner before the Rent Control Court within one month from today, undertaking to vacate the premises within the time stipulated by this Court. iii) The petitioner will continue to pay at the same monthly rate for the use and occupation of the building till vacant peaceful possession is RCR No.329/2013 -9- handed over to the respondents; iv) If the above conditions are not satisfied, the petitioner will not get the benefit of this order. No costs. . ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(B. KEMAL PASHA, JUDGE)** **kav/**