Indira Devi and J.P. Raj v. Edvin Teddy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939** **RCRev..No. 237 of 2016 ()** **-------------------------AGAINST RCA 1/2016 of III ADDL. RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM DATED 28-06-2016** **AGAINST RCP 55/2012 of THE ADDITIONAL MUNSIFF (RENT CONTROL COURT), THIRUVANANTHAPURAM DATED 28-10-2015** **REVISION PETITIONERS/RESPONDENTS IN RCA/ PETITIONERS IN THE TRIAL COURT.:** **--------------------------------------** **1. INDIRA DEVI AGED 69, D/O LATE BHAVANIKUTTY AMMA, T.C 25/2222, PADMAVIHAR, THAMPANOOR, THIRUVANANTHAPURAM.** **2. J.P RAJ, AGED 37 S/O LATE JAI PRAKASH, K.N.T.C. 25/2222, PADMAVIHAR, THAMPANOOR, THIRUVANANTHAPURAM.** **BY ADVS.SRI.K.B.PRADEEP SRI.MILESH.V.PAVIYALA** **RESPONDENTS/APPELLANT IN RCA/ COUNTER PETITIONER IN THE TRIAL COURT.:** **---------------------------------------** **EDVIN TEDDY S/O C.S. TEDDY NEW NET INTERNET CAFE, T.C. XXXV/2221, MANJALIKULAM ROAD, OPPOSITE S.M.V. SCHOOL STADIUM, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.L.GOPALAKRISHNAN POTTI R1 BY ADV. SRI.A.DINESH RAO** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. -----------------------------------------R.C.R. No.237 of 2016 ----------------------------------------Dated this the 23[rd] day of March, 2017** ## **O R D E R** **--------------** ## _**Raja Vijayaraghavan,J.**_ - 1.The order of eviction passed in favor of the landlords by the Rent Control Court on the ground of bona fide need for own occupation was reversed by the Appellate Court by the impugned judgment. The landlords have challenged the same in this revision petition filed under section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as 'the Act' for brevity). - 2.According to the landlords, who are the revision petitioners herein, the 1[st] petitioner had let out the petition schedule shop room to the counter petitioner on 8.2.2006 for a monthly rent of Rs.2,000/-. The period of R.C.R. No.237/2016 2 lease was fixed at 11 months. The rent was enhanced in course of time. The 1[st] petitioner assigned the property to her nephew, the 2[nd] petitioner herein on 26.12.2008. The 2[nd] petitioner is not highly educated. He had worked at various places but his career prospects are grim in view of his sparse educational qualifications. He therefore wants to start a business in Internet services, trading in mobile phone accessories, ancillary materials etc., in the petition schedule shop room. The said room is ideal for his business as it is situated next to his residential home. He has to support his widowed mother and also the mentally challenged son of the 1[st] petitioner. - 3.The tenant filed his objection denying the pleadings raised by the petitioners. He denied that the rent is in arrears and challenged the bona fides of the petitioners in seeking eviction on the grounds alleged. It was contended that the 2[nd] petitioner was having a building of his own at Ayurveda College Junction and set up the bar under the R.C.R. No.237/2016 3 first proviso to section 11(3) of the Act. According to the tenant, he was entitled to the protection of the 2[nd] proviso to section 11 (3) of the Act. - 4.The Rent Control Court framed the necessary issues for consideration. Oral as well as documentary evidence was adduced by the petitioners to prove their case. The counter petitioner did not deem it necessary to mount the box and to adduce any evidence. - 5.The Rent Control Court after evaluating the oral as well as documentary evidence came to the conclusion that the petitioners were able to establish that the need projected was bona fide. It was further held that the contention that the 2[nd] petitioner was having a building of his own at Ayurveda College Junction remained unsubstantiated. In so far as the second proviso to section 11(3) is concerned, it was held that the tenant was not entitled to the benefit. Holding so, the petition was allowed under section 11(2) - (b) and 11(3) of the Act. R.C.R. No.237/2016 4 6.Against the aforesaid finding, the tenant approached the Appellate Authority, which after re-appreciating the evidence, took the view that the need projected by the landlord was not genuine and it was only in the realm of desire. On its basis, the finding of the lower court was overturned and it was held that the need of the petitioners cannot be said to be bona fide. However, in so far as the 1[st] and second provisos to section 11(3) and also with regard to the finding under 11(2)(b) of the Act, the conclusions arrived at by the rent Controller was confirmed . - 7.We have heard the learned counsel for the petitioners as well as the counter petitioner. - 8.The learned counsel appearing for the petitioners submits that the Appellate Authority has clearly misread the evidence adduced and has reversed the finding of the Rent Control Court, which had appreciated the case in its true perspective. According to the learned counsel, the R.C.R. No.237/2016 5 compelling circumstances for which he had sought vacant possession of the building was highlighted by the 2[nd] petitioner while he had mounted the box and gave evidence as PW 1. None of these aspects were challenged by the tenant while cross-examining the 2[nd] petitioner. The tenant had kept himself away from the box and according to the learned Counsel, the findings of the appellate Court cannot be justified. - 9.The learned counsel appearing for the tenant on the other hand submitted that the pleadings forms the back bone of a case and no amount of evidence let in by the 2[nd] petitioner without the necessary pleadings could have been taken into consideration. According to the learned counsel, the Appellate authority had considered the matter in great detail and the judgment was rendered on a correct appreciation of the evidence. - 10.We have considered the submissions advanced and have gone through the materials on record. Since the findings R.C.R. No.237/2016 6 of the court below are divergent, we went through the evidence to ascertain whether the finding of the Appellate Authority is unreasonable and betrays lack of reason. 11.We find from the evidence that the need projected was that the 2[nd] petitioner was in need of the petition schedule shop room for commencing a business. He has stated in his evidence that he has passed Class-X and thereafter did not pursue his studies. Though he was working in an automobile service centre at the time of filing the petition at the time of tendering evidence, he was unemployed. He also had produced materials before the Appellate Court to evidence this fact. He stated that his future prospects are grim because of his low educational qualifications. He also testified that he has to support his mother and also the son of the 1[st] petitioner, who, though is 32 years of age, is mentally challenged. He stated that he still remains unmarried as he fears that he would not be able to support his wife and family with his limited financial R.C.R. No.237/2016 7 resources. We have also gone through the evidence of the 1[st] petitioner, who was examined as PW2 and the mother of the 2[nd] petitioner, who was examined as PW3 as well. The Appellate Authority took the view that the 2[nd] petitioner was employed at the time of filing of the petition and therefore, his need was not bona fide need. According to the Appellate Authority, as the 2[nd] petitioner has not pleaded that he wanted to commence a business to augment his income, the need of the 2[nd] petitioner can only be fanciful and imaginary. 12.We find it difficult to accept the conclusions arrived at by the Appellate Authority. Section 11 (3) of the Act enables the landlord to apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependant on him. In this case, the 2[nd] petitioner, who, after purchasing the property has R.C.R. No.237/2016 8 come forward with a petition seeking eviction for own occupation. True, he was employed at the time of filing of the petition. But that would not be a bar in the petitioners approaching the appropriate court seeking eviction if he is able to show that he bona fide needs the building for his own occupation. The onus of proving the bona fides of the said need is of course on the landlord and he is bound to satisfy the court that the need put forward is not a pretext for evicting the tenant. The Judge is required to place himself in the armchair of the landlord and ask himself as to whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere and honest. If the answer is in the affirmative, the need is positive. If, on facts, the landlord fails to substantiate the pleaded need or in a case wherein positive material is brought on record by the tenant enabling the court to draw an inference that the intention of the landlord is nothing but a pretense to evict R.C.R. No.237/2016 9 the tenant, relief can be denied to the landlord. The concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. [See **Shiv Sarup Gupta v. Mahesh Chand Gupta** [AIR 1999 SC 2507)]. 13.We are unable to accept the finding of the Appellate Authority that the bona fides of the landlord will be shattered because of the fact that the 2[nd] petitioner was employed at the time of filing of the petition. The 2[nd] petitioner had fairly stated in the petition that he was employed at Popular Hyundai at Karamana and was drawing a monthly salary of Rs.5,900/-. He also stated that his future prospects are grim if he continues in the employment and wanted to start business of his own. The petition was filed on 30.7.2012 and prior to letting in evidence, the 2[nd] petitioner filed I.A. No.6396 of 2005 to incorporate the plea that his service was terminated on R.C.R. No.237/2016 10 30.11.2012 and he is unemployed since then. The Appellate Authority was not impressed and holding that the bona fide need must be in existence at the time of petition and it cannot be for a future need, the eviction order was refused. Though ordinarily, the rights of the parties stands crystallized on the date of suing, the court is not powerless to take note of subsequent events and mould reliefs accordingly. In **Kunjamma v. Usha** (1991 (2) KLT 772), it was held by a Division Bench of this Court that it is reasonable for a landlord/landlady to anticipate the delay in the finale of the rent control petition and to file a petition sufficiently early. The said decision of the landlord in appropriate cases such as the instant one can only be said to be pragmatic and reasonable. It is unreasonable to expect the 2[nd] petitioner to relinquish his employment at the time of filing the petition and wait for the ultimate result which may happen after years. The act does not say that a landlord should lose his existing job or R.C.R. No.237/2016 11 resign from it or reach a level of starvation to consider about getting possession of the premises for establishing his business. After having gone through the evidence let in by the petitioner, we find no reason to conclude that his claim was not bona fide. The mere fact that as on the date of filing of the petition he was employed, is no reason to reject his application. We are concerned of the bona fides of the need of the 2[nd] petitioner for the petition schedule premises. - 14.We have no doubt in our mind that the view that the view taken by the Appellate Authority is wholly unreasonable and that no reasonable person acting with objectivity would have reached that conclusion on the materials available. The approach of the Appellate Authority was too conservative and pedantic. The Appellate Authority has ignored the weight of evidence and has overlooked the relevant precedents to arrive at a wrong conclusion. It betrays lack of reason and R.C.R. No.237/2016 12 objectivity and would render the finding illegal, improper and irregular. We find that the order of the Rent Control Court is more balanced in its approach. - 15.Having regard to above, we are unable to sustain the order passed by the Appellate Authority and set aside the same. We restore the order passed by the Additional Munsiff (Rent Control Court) Thiruvananthapuram in R.C.P.No.55 of 2012. The revision petition will stand allowed and the respondent is directed to grant vacant possession of the petition schedule building to the 2[nd] petitioner. - 16.While the judgment was being dictated, noting that the finding is adverse to the respondent, the learned counsel sought for a breathing time to vacate the petition schedule building. Having regard to the facts, we direct the respondent to file an affidavit before the Rent Controller within two weeks from the date of receipt of the copy of this order expressing his readiness and willingness to R.C.R. No.237/2016 13 surrender the vacant possession of the shop room within a period of six months from today. He shall also undertake in the said affidavit that he shall deposit the entire arrears of rent, if any, within one month from the date of receipt of this order and shall continue to pay the rent, without default within the said period of six months, the respondent shall vacate the premises. In the event of failure to comply with the conditions, the petitioners shall be at liberty to proceed with the execution. **Sd/K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** vps