George Oommen v. Cherian Mathulla and M/S Margin Free Market

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 RCRev..No. 465 of 2005(B) ------------------------RCA NO.14/04 OF THE RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA RCP NO.2/02 OF THE RENT CONTROLLER, THIRUVALLA. (S): REVISION PETITIONR/COUNTER PETITIONER --------------------------------------------------------- GEORGE OOMMEN, S/O.LATE GEORGE OOMMEN, RESIDING AT KAKKANADU HOUSE, KALIAKARA MURI, THIRUVALLA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.S.VENKATASUBRAMONIA IYER(SR.) RESPONDENT(S): RESPONDENTS -------------------------- 1. CHERIAN MATHULLA, S/O.K.C.MATHULLA, AGED 33 YEARS, RESIDING AT ELANJIMOOTTIL KANDATHIL, PALIAKARA MURI, THIRUVALLA VILLAGE. 2. M/S.MARGIN FREE MARKET, THIRUVALLA, REP. BY ITSS PARTNERS (A)CHERIAN MATHULLA, S/O.LATE K.C.MATHULLA, R/AT ELANJIMOOTTIL KANDATHIL PALIAKARA MURI THIRUVALLA TALUK (B)CHERIAN, W/O.CHERIAN MATHULKLA, RESIDING AT ELANJIMOOTTIL KANDATHIL PALIKAKARA MURI, THIRUVALLA VILLAGE, DO. ADV. SRI.S.V.BALAKRISHNA IYER (SR.) FOR R1,2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 6/11/2008, THE COURT ON 14/11/2008 PASSED THE FOLLOWING: ORDER IN IA NOS.1407/05 & 2073/08 DISMISSED. 14/11/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R. No. 465 of 2005** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of November, 2008.** ## **O R D E R** ## Ramachandran Nair, J. This revision petition is filed by the tenant in a petition for eviction under the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). Eviction was sought by the landlords under Sections 11(3), 11(4)(iii) and 11(8) of the Act. The Rent Control Court ordered eviction, after accepting the grounds pleaded under Section 11(8) of the Act. Both the landlords and the tenant filed appeals before the Appellate Authority and the appeals were heard together and by a common judgment, the Appellate Authority confirmed the order passed by the Rent Control Court. This is challenged in this revision petition. 2. The short facts leading to the dispute are the following: The second respondent is a firm of which the first respondent herein and his wife are partners. They filed the petition for eviction on various grounds. The tenant is running business in hardware and paints in the petition schedule room. The tenancy started in the year 1974 and the rooms were given on RCR 465/2005 -2- rent by the late father of the first respondent herein. The initial rent was Rs.250/- per month and by periodical revision it stood at Rs.700/- per month. The respondents are in occupation of the eastern room as well as the portion occupied by the staircase of the entire building, which, after conversion, are used for the business of running a margin free market. It was contended that this space is not sufficient for conducting the business. The entire building consists of 3 rooms, out of which 2 are in occupation of the tenant. For want of sufficient space, they are using two shops on the eastern side of the residential building, a godown belonging to their mother and the car shed which is used as a godown. An extension on the back side of the building was constructed for the use of the business. In view of the increase in the volume of business, there are no sufficient space for stocking the goods and to exhibit them for sale. Accommodation is necessary for the billing staff with computers and cash counter. They propose to open a medical store also as part of the business. Consumers should get sufficient moving space. It was also pointed out that the tenant is having another building just opposite to the petition schedule room, where he is conducting another business. It is in these circumstances, eviction was sought. 3. The tenant mainly contended that the need pleaded by the landlords is not genuine. Due to certain physical and mental infirmities, the RCR 465/2005 -3- father of the tenant started the business for him and after his death, he has been conducting the business with the help of his brother-in-law. It was further contended by the tenant that the room in his occupation opposite to the petition schedule room is not sufficient to accommodate the entire business. It is only being used as a godown for stocking cement, paint, etc. 4. Learned counsel for the petitioner mainly contended that the business in the petition schedule room that is being conducted by the landlords was initially being conducted by the wife of the first respondent and the first respondent joined as a partner only to get the building evicted. It is submitted that the partnership claimed is only a sham one and the real intention is only to evict the tenant from the building. Ext.A1 is the registered partnership deed executed by the first respondent and his wife who is the other partner of the firm. Secondly, it is contended that the facts to prove additional accommodation have not been established by the landlords. The eviction sought for additional accommodation for the busienss of the firm will not come within the purview of Section 11(8) of the Act. They are in occupation of various rooms adjacent to the petition schedule building and the comparative hardship has not been assessed properly by the authorities below. It is contended that the tenant, if evicted, will be ruined as he is physically and mentally weak. Learned counsel for the respondents contended that the above said arguments do not deserve any RCR 465/2005 -4- merit. 5. The evidence in this case consists of the oral testimony of P.Ws.1 to 4 and Exts.A1 to A15 on the side of the landlords and the oral testimony of CPWs.1 to 10 and Exts.B1 to B11 on the side of the tenant. Exts.C1, C1 (a), C2 and C2(a) are the commission reports and sketch. The Rent Control Court found that the evidence show the periodical increase in the business run by the landlords in the room in their possession. Exts.A4 and A5 balance sheets for the period 2001-02 showed that there is increase in the business from year to year. The evidence of P.Ws.1 and 2 and Exts.A14 photographs showed that large number of items totaling 4000 are being sold in the margin free market and there is lack of space for the free movement of the customers. The report of the Commissioner also supported the evidence of the landlords. Ext.A14 photographs show the internal arrangement of the margin free shop run by the landlords. The shortage of space is evident from there, the Rent Control Court observed. The room mainly occupied by the landlords is only one apart from the staircase room. Therefore, to conduct a margin free shop, further space is evidently required. Space is required for free passage of customers, to arrange the goods in an orderly manner and for placing the billing staff and computers. Therefore, the genuineness of the additional accommodation has been proved by the landlords. The Appellate Authority also concurred with the RCR 465/2005 -5- above finding rendered by the Rent Control Court. In para 6 of the judgment, after referring to the statutory requirements, the Appellate Authority has analysed the evidence in detail to find out whether the ingredients under Section 11(8) of the Act have been proved. 6. The evidence show that due to lack of space the landlords have put up an extension on the back southern side of the building and even then they are experiencing further difficulties to arrange stocks. The residential building of the landlords is just adjacent to the extension. There are two shop rooms which are also used for the margin free market. The gift shop, medical store and fish market are now functioning outside the building. A godown owned by their mother and also the car shed situated behind are also made use of as godowns for the business. When the evidence show that the business is increasing year by year, it is clear that the landlords will have to provide maximum convenience to the customers and there should be sufficient space for arranging articles. The evidence also showed that there are 4000 items being sold in the market. Therefore, they have to arrange it in an orderly manner after providing sufficient space for the consumers to pass through the passages also. Both the husband and wife are holders of M.B.A. Degree and they have invested large amount for the conduct of business. 7. The Appellate Authority has given in detail the financial RCR 465/2005 -6- particulars made available through Exts.A4 to A13. The steady increase in the volume of business is evident from the above documents. Thus, it is a case where the landlords have clearly established the requirement for additional space. The report of the Commissioner also showed the space available presently and the insufficiency of space is clearly stated in the said report. 8. The tenant failed to enter the box stating that he was ill at that time. His wife was examined as C.P.W.1. The said witness also could not deny the fact that large volume of business is there in the margin free market and that presently there is lack of space. 9. It was vehemently argued by the learned counsel for the petitioner that the partnership that is formed is a sham one and is formed only to seek eviction of the tenant. No such questions have been argued before the Appellate Authority or the Rent Control Court. Further, the evidence show that the business is run by the husband and wife and their joint efforts are put into the business. Exts.A1 and A2 show that it is a registered partnership. Therefore, the arrangement cannot be termed as a sham one only to get eviction of the building. Even though learned counsel for the petitioner relied upon a decision of the Apex Court in **Devi Das v. Mohan Lal** (AIR 1982 SC 1213) to contend that the lower authorities have not entered a clear finding on the said aspect, as we have already observed, the RCR 465/2005 -7- said plea has no legal and factual foundation and the tenant has not pursued such a contention before the final fact finding authority, viz. the Appellate Authority also. Merely by raising such a contention in the objections, the tenant cannot argue that the court has failed to address the question. Therefore, in exercise of the powers of revision, we cannot for the first time go into such questions which have no factual foundation. Hence, we reject the said argument. Even though the learned counsel sought for a remand of the matter to consider this aspect, we see no justification for such a demand at the revisional stage. The facts of the case considered by the Apex Court in Devi Das's case (supra) are totally different. 10. Learned counsel for the petitioner contended that the requirement for additional accommodation raised for the purpose of the firm does not come within the purview of Section 11(8) of the Act. It is contended that only if the landlord requires additional accommodation for personal use alone, an application for eviction can be maintained under Section 11(8). According to the learned counsel, herein the additional accommodation is sought for the purpose of a firm and the landlord of the building is not the firm, but the first respondent herein. It is therefore contended that the requirement of the firm cannot be that of the landlord. We extract Section 11(8) of the Act which is in the following terms: - “(8) A landlord who is occupying only a part of a building, may RCR 465/2005 -8- apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.” Exts.A1 and A2 will show that the partnership is a registered one and the husband and wife are the partners. It is not contended that the first respondent landlord is not having any interest in the business or is not having any active participation in the business. Evidently, the purpose sought for is for non-residential accommodation. Going by the evidence adduced, the first respondent is actively involved in the business and the business is being managed by the husband and wife as a partnership. It is therefore clear that the personal efforts of the first respondent is very much there for the conduct of the business of the firm. Thus, the premises now occupied by the firm is used personally by the first respondent who is the landlord of the building. A learned Single Judge of this court in **Rajkumar v. Abdulrahiman** (1987 (2) KLT 3) held in similar circumstances that when the landlord is an active partner of the business and is personally using the business and when additional accommodation is required for the partnership, the requirement is for his personal use. After referring to the requirements of the provision, it was held as follows: “In the case of a partner who is actively concerned with running partnership business, he must be deemed to be in occupation of the RCR 465/2005 -9- business premises and when accommodation is required for running a partnership business it is treated as being required for his own occupation. S.11(8) does not contain the words 'his own occupation'. What S.11(8) contemplates is requirement of additional accommodation for his personal use. Additional accommodation must be required for his personal use and not for his exclusive personal use. When a partnership is running a business, at least so far as the active partners are concerned they are personally using the premises. The landlord in this case as an active partner of the business is personally using the premises and when additional accommodation is required for the business of the partnership the requirement is for his personal use. It may be that it is for the personal use of other active partners also. But as long as the provision does not insist on the requirement for exclusive personal use, the court will not be justified in putting such a narrow construction to the provision.” We are of the view that the legal position as stated in the above decision, render a true interpretation of Section 11(8) of the Act. Otherwise, if a narrow interpretation is given to the term “personal use”, that will be against the object and purpose of the enactment itself. Therefore, we reject the said argument. 11. Even though the learned counsel for the petitioner further argued that in this case going by the evidence, the first respondent landlord is having other buildings and therefore on that ground also, resort cannot be RCR 465/2005 -10- made to Section 11(8) of the Act, we are not impressed by the said argument also. Merely because the landlord is having other buildings, it cannot be contended that he cannot seek eviction under Section 11(8) of the Act for additional accommodation. When the landlord is occupying a part of the building and when he require additional accommodation, eviction can be sought under Section 11(8) of the Act. This is the position as evident from the facts pleaded in this case. 12. Then the question is whether by granting eviction, the hardship that may be caused to the tenant will outweigh the advantage to the landlord. This is the requirement of the first proviso to Section 11(10) of the Act. Evidence has been adduced by both parties to prove their advantage and hardships. It is evident that the landlords would get advantage by getting eviction of the building since lack of space is clear from the evidence adduced. The evidence showed that the requirement pleaded by the landlord is genuine as now the entire market is run scattered here and there in different rooms and not in the same building. Therefore, it is a case where there is clear advantage for the landlords as there is difficulty for them because of the lack of space. 13. As far as the tenant is concerned, there is clear evidence to show that he is occupying a building on the opposite side of the petition schedule room. Even though it is stated that the entire business cannot be run by him RCR 465/2005 -11- in the same room, we are of the view that the fact that the tenant is having another room, itself will show that by vacating the premises, he will not be ruined. The landlords have clearly adduced evidence also to show that other buildings are available in the locality like rooms in the Revenue Tower, shop rooms constructed by C.P.W.5 and others on the side of the Main Road, CNP Towers, etc. These were not challenged in cross examination. C.P.W.6, the Engineer, Housing Board, who allot rooms in the Revenue Tower, made it clear that out of 165 rooms in the building, several are remaining vacant. Thus, the evidence showed that shop rooms are available in the locality. The next question is whether the physical infirmities of the tenant is a fact that has to be considered to consider the question of hardship. It is found that the tenant had been doing business in spite of his physical infirmities. He sits in the cash counter usually. Further, the physical disability pleaded cannot be a factor to assess the hardship. In legal terms, the hardship that has to be proved by the tenant is only to show that by ordering eviction he will be unable to continue the business profitably and other accommodation is not available in the locality. As far as the question whether other buildings are available in the locality, both the authorities have found that the evidence show that other buildings are available. This is a finding of fact which we are not persuaded to disturb. The Rent Control Court was of the view that even if the business is shifted, RCR 465/2005 -12- it will not cause any adverse impact on the business that is being conducted by the tenant. 14. Even though learned counsel for the petitioner submitted that the ground available to the landlords is under Section 11(3) of the Act and not under Section 11(8), we are not satisfied that the claim will arise only under Section 11(3) of the Act. Herein, the landlords are occupying part of the building and eviction is sought for additional accommodation. All the elements have been proved. The evidence available will show that there is lack of space for conducting margin free shop in the rooms now in possession of the landlords. Therefore, the contention that the claim will arise only under Section 11(3) of the Act, cannot be accepted at all. As we have already found, the hardship that will be caused to the tenant and the advantage that will be available to the landlords have been assessed correctly by the authorities below. The tenant is already in possession of another room on the opposite side. The evidence of various witnesses will show that alternate accommodation is available in the locality. On that ground also, we are satisfied that the contention raised by the tenant has only to be rejected. In the result, the revision petition is dismissed confirming the order of eviction passed by the authorities below. In the circumstances of the case, we grant six months' time to the tenant to vacate the petition schedule RCR 465/2005 -13- building on the following conditions: i) That the entire arrears of rent, if any, shall be deposited before the Execution Court within a period of one month from today and the petitioners shall also file an affidavit within the said time undertaking to give vacant possession of the tenanted premises on or before the expiry of the period of six months from today, i.e. on or before 14.5.2009. ii) that the tenants shall not induct any third party into the premises; iii) that an amount equivalent to the rent towards use and occupation of the building shall be regularly paid by the tenants until vacant possession is given; and iv) that if for any reason the tenants fail to comply with any of the aforesaid conditions, the order of eviction passed by the court below will forthwith become enforceable. ## **( P.R.Raman, Judge.)** ## **(T.R. Ramachandran Nair, Judge.)** **kav/**