IN THE HIGH COURT OF KERALA AT ERNAKULAM - RCRev. No. 401 of 2012 (D) (Against the judgment in R.C.A. No. 104 of 2008 of the Rent Control Appellate Authority, Ernakulam, dated 03/10/2012 in R.C.P. No. 44/07 of the Rent Control Court, Ernakulam, dated 28/08/2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935** ## **RCRev..No. 401 of 2012 (D)** **-------------------------------------[AGAINST THE JUDGMENT IN R.C.A. NO.104 OF 2008 OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM, DTD. 03/10/2012 IN R.CP.NO.44/07 OF THE RENT CONTROL COURT, ERNAKULAM DTD. 28/08/2008]** **................** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS 1 AND 6:** **--------------------------------------------------------------------------------------------** **1. M.G. JOY, AGED 55, S/O.LATE M.V.GEORGE, MNNULLIL HOUSE, THYKKOODAM, VYTTILA P.O., POONITHURA VILLAGE, KANAYANNUR TALUK.** **2. M.G.REJI, AGED 48 YEARS, S/O.LATE M.V.GEORGE, MANNULLIL, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK.** **BY ADV. SRI.P.MARTIN JOSE.** ## **RESPONDENTS/RESPONDENTS/PETITIONER-RESPONDENTS 2 TO 5 AND 7 TO 10:** **----------------------------------------------------------------------------------------------------------------------** **1. K.J. MATHEW, AGED 50 YEARS, S/O.LATE JOSEPH, KOOLIYATTIL HOUSE, MARKET ROAD, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682 301.** **2. M.G.BABU, AGED 53 YEARS, S/O.LATE M.V.GEORGE, MANNULLIL HOUSE, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 309.** **3. M.G.VARGHESE, AGED 52 YEARS, S/O.LATE M.V.GEORGE, MANNULLIL HOUSE, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 309.** **Prv.** ## **R.C.R. NO.401/2012-D:** ## **4. M.G.PETER, AGED 51 YEARS,** - **S/O.LATE M.V.GEORGE, MANNULLIL HOUSE, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 309.** **5. M.G.SUNNY, AGED 49 YEARS, S/O.LATE M.V.GEORGE, MANNULLIL HOUSE, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 309.** **6. M.G.ELSY, AGED 47 YEARS, D/O.LATE M.V.GEORGE, MANNULLIL HOUSE, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 309.** **7. M.G.REENA, AGED 45, D/O.LATE M.V.GEORGE, MANNULLIL HOUSE, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 309.** **8. M.G.JIJI, AGED 43 YEARS, D/O.LATE M.V.GEORGE, MANNULLIL HOUSE, KAIPPANCHERRY, IRUMPANAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK, PIN - 682 309.** **R1 BY ADVS. SRI.ABRAHAM P.GEORGE (CAVEATOR), SRI.K.VINODKUMAR, SMT.M.SANTHY.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-07-2013, THE COURT ON 07-08-2013 PASSED THE FOLLOWING:** **Prv.** **'C.R'** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = R.C.R No.401 of 2012 = = = = = = = = = = = = = = = = = = = Dated this the 7[th] day of August, 2013 ## **ORDER** ## **Ramakrishna Pillai, J.** The tenants are in revision. 2. In the eviction petition filed by the first respondent it was alleged that he is the owner of the petition schedule building by virtue of a settlement deed executed by his mother Thresia Joseph in the year 2005. The original tenant of the petition schedule building was one M.V.George on whose death, the revision petitioners and respondent Nos.2 to 8, who are the legal heirs, were in joint possession of the tenanted premises. In the year 1970, Thresia Joseph sought eviction of the original tenant in R.C.P No.75 of 1970 on the ground of re-construction. Though the petition was allowed and eviction was ordered, Thresia Joseph, the predecessor-in-interest of the first respondent, could not re-construct the building. Therefore, this Court as per order in C.M.P No.2910 of 1991 in C.R.P No.2576 of 1990 allowed the tenant to carry out the re- RCR.401/12 -:2:- construction. Accordingly, the building was re-constructed in the year 1992. An amount of `72,000/- was fixed as construction cost by this Court and the tenant was allowed to adjust the same in the monthly rent of `15. 3. It was alleged that the first respondent is unemployed and he is bound to look after his family and is in _bona fide_ need of the room for starting a bakery and fruit stall. It was further alleged that the revision petitioners and respondent Nos.2 to 8 are not at all depending upon the income derived from the business set up in the petition schedule building and no buildings are available in the locality to shift their business. 4. The revision petitioners, who are the 1[st] and 6[th] respondents in the R.C.P, resisted the claim petition. They have admitted the story regarding the previous eviction petition, the consequential order by this Court for re-construction and the order to adjust the cost of construction towards monthly rent. The definite case of the revision petitioners was that they are entitled to recover the said amount from the petition schedule building. It was also averred that the predecessor-in-interest of RCR.401/12 -:3:- the first respondent filed O.S No.15 of 2001 for fixation of fair rent, which was subsequently re-numbered as R.C.P No.150 of 2004. The R.C.P was allowed on 31.1.2011 under Section 5(1) of the Act fixing fair rent at `1,326/- per month w.e.f 1.1.2001 and also for enhancement of rate of interest at 15% of rent on every three years. The appeal carried by the revision petitioners is pending and the order of the Rent Control Court has been stayed. The cost of construction is not yet completely adjusted in the rent. The period of lease will expire only on adjusting the entire cost of construction as ordered by this Court. Accordingly, the eviction petition is premature. The tenant is entitled to the protection under Section 11(9) of the Act 2 of 1965. The _bona fide_ need of the revision petitioners was also challenged. It was further contended that the only source of livelihood of the revision petitioners is the income derived from the petition schedule building and no alternate buildings are available in the locality to shift their business. 5. The Rent Control Court, after considering the evidence consisting of the oral testimonies of PWs.1 & 2, RW.1 as well as Exts.A1 to A4, RCR.401/12 -:4:- Exts.B1 to B10 and Ext.C1 Commissioner's report, ordered eviction under Section 11(3) of the Act. Though the revision petitioners carried the matter in appeal to the Appellate Authority, it was without success. Thus, this revision petition. 6. We have heard Mr.S.Sreekumar, the learned Senior Counsel appearing for the revision petitioners and Mr.Abraham P. George, the learned counsel appearing for the first respondent. We have also perused the impugned judgment and other connected papers. 7. The following are the arguments advanced by the learned Senior Counsel for the revision petitioners: a) As per Ext.B1 order of this Court, the amount spent by the tenant is a charge on the building and he is entitled to adjust it towards future rent. Therefore, the period of tenancy fixed by this Court is that period on which the entire construction cost is adjusted towards the rent and hence, the petition is premature. b)PW1 has admitted in cross examination that his need for fixation of fair rent is persisting. R.C.P No.150 of 2004 which was filed for fixation of RCR.401/12 -:5:- fair rent by PW1 was pending consideration at the time when he was examined. Hence, the court below ought to have held that the need of the petitioners is not _bona fide_ and is only a ruse to evict the tenants. c) The court below has not taken into account the previous litigation, including the eviction of the tenant under the pretext of re-construction and the dilatory tactics adopted by the landlord to avoid re-construction and the interference by this Court to re-construct the building. d)There is no evidence to show that the revision petitioners are living out of the income derived from the business conducted in the petition schedule building and no alternate buildings are available in the locality to shift their business. 8. We would like to consider the impact of the previous order in the present eviction petition, as the same is pointed as a ground against the maintainability of the rent control petition itself. It is true that there was a previous proceeding for eviction for re-construction and as there was failure on the part of the predecessor-in-interest of the first respondent, the building was ordered to be re-constructed by this Court and the cost RCR.401/12 -:6:- of construction was fixed at `72,000/-. It was further made clear that the tenants are entitled to get a charge over the property in addition to their right to have it adjusted towards the future rent payable by them. Ext.B1 is the order. 9. The learned counsel for the first respondent would contend that there is nothing in Ext.B1 order to prevent the landlord from getting the tenancy terminated on any of the grounds available under the Kerala Buildings (Lease and Rent Control) Act. It was argued that there cannot be any restriction on the right of the landlord to seek eviction under the grounds made mention of under Section 11 of the Act. 10. The learned Senior Counsel for the revision petitioners invited our attention to the decision of this Court in **Subbiah Reddiar** v. **Chinnamma** [1991 (2) KLT 461] where, the tenant pleaded, by reference to a document produced from his side, that the demise in that case cannot be put to an end to till the entire advance of `64,000/- paid by him was wiped out in the manner indicated in the said document. The manner in which the debt of `64,000/- had to be re-paid was by adjustment of a sum RCR.401/12 -:7:- of `250/- per month from the rent as per the document relied on by the tenant in that case. There the court held that, that is a strong pin pointer indicating that till the amount due is wiped out in the said manner, the relationship between the parties would continue as landlord and tenant. 11. Relying on the said decision, it was argued by the learned Senior Counsel that till the entire amount of `72,000/- made mention of in Ext.B1 order is wiped of, the revision petitioners are entitled to continue in the tenanted premises. But, **Subbiah Reddiar's** case (cited supra) can be distinguished from the fact situation in the present case. In that case, the tenant was relying upon a bilateral agreement which provide for adjustment of rent against an advance amount paid. Therefore, the court found that the parties cannot go back from the said arrangement and no eviction can be sought till the entire amount is wiped of. There is a definite reason for the said finding. There, the landlord had received an amount from the tenant and it was agreed to by both parties that the same would be adjusted at a specified rate per month. That would indicate that the parties by the said agreement had fixed the period of tenancy, i.e. the RCR.401/12 -:8:- period by which the entire advance amount would be adjusted towards monthly rent which would attract Section 11(9) of the Act. 12. In the instant case, the amount of re-construction was quantified and a charge was created on the tenanted premises not with the consent of the respondents. Though it was stated that the amount spent by the revision petitioners would be adjusted towards monthly rent, Ext.B1 does not prohibit the respondents from paying the amount and getting the property released from the charge. 13. In answer to a specific query put by us during the course of argument, the learned counsel for the first respondent has submitted that the first respondent is ready to deposit the balance amount towards reconstruction. Here, we would like to point out that the present monthly rent is `15/-. Though the first respondent had moved the Rent Control Court for enhanced rent and obtained an order, the same is now stayed by the Appellate Authority. Ext.B1 order does not fetter the right of the landlord to seek eviction under any of the grounds made mention of under Section 11 of the Act. No Court can impose a restriction on the statutory RCR.401/12 -:9:- right conferred either upon the tenant or upon the landlord. Therefore, we repel the contention of the learned Senior Counsel for the revision petitioners that the first respondent is bound to wait till the entire amount of `72,000/- expended by the revision petitioners for re-construction is wiped of by the nominal monthly rent. 14. Both the authorities below have found that the need projected by the first respondent is _bona fide_ as he wanted to augment his income by starting a bakery and fruit stall in the tenanted premises. The courts below have accepted the case of the first respondent that he is finding it difficult to make both ends meet by the present income. We are not prepared to brand the need projected as a mere pretext or ruse for eviction. The fact that the first respondent had moved the Rent Control Court for enhancement of rent, is not a ground to suspect the genuineness of the need projected. 15. Though it was argued that the first respondent is having a building behind the tenanted premises, which is suited to his need as revealed by the Commissioner's report, it was rightly held by the Rent RCR.401/12 -:10:- Control Court that even RW1 is not having a case that the said building is lying vacant. The revision petitioners could not adduce any evidence to prove that the said building is in the exclusive ownership and possession of the first respondent. 16. Coming to the 2[nd] proviso, the burden is heavily on the revision petitioners/tenants to prove that they are entitled to the protection under both the limbs of 2[nd] proviso to Section 11(3). 17. The revision petitioners are running a bakery in the tenanted premises and according to them, that is their sole source of livelihood. It has come out through the testimony of RW1 in cross examination that he is operating a bus service. No satisfactory evidence is forthcoming from the revision petitioners that their sole source of livelihood is the income derived from the business set up in the tenanted premises. Ext.C1 Commissioner's report would reveal that other rooms are available in the locality which is suited to the requirement of the revision petitioners. 18. On a consideration of the entire facts and circumstances of the case, we are of the view that the order of eviction under Section 11(3) of RCR.401/12 -:11:- the Act by the court below is legally sustainable and does not call for an interference by this Court. Therefore, the revision petition fails and accordingly stands dismissed. 19. We also make it clear that the order of eviction is subject to the condition that the first respondent shall deposit the balance amount towards re-construction charges of the tenanted premises before getting this order executed. The amount to be paid by the first respondent to the revision petitioners shall be quantified by the Execution Court. 20. We grant the revision petitioners time upto 30.11.2013 to vacate the premises subject to the following conditions, so that they can get an alternate accommodation by that time: i. The execution proceedings, if any, pending before the Execution Court shall be kept in abeyance till 30.11.2013. ii.The revision petitioners shall file affidavit within one month from today before the Execution Court or the Rent Control Court, as the case may be undertaking to surrender vacant possession of the tenanted premises peacefully to the respondents on or before 30.11.2013 and to RCR.401/12 -:12:- continue to pay charges for use and occupation at the rent rate till they vacate the premises. iii.The revision petitioners shall deposit the entire arrears of rent as on today before the Execution Court or the Rent Control Court, as the case may, within one month, till vacant possession is handed over to the respondents. We make it clear that if any of the conditions is violated, the revision petitioners will not be entitled to get the benefit of time granted as above. Sd/- ## **T.R.RAMACHANDRAN NAIR JUDGE** Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge