Joseph v. K.V. John @ Johny

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939 RCRev..No. 293 of 2017 ------------------------AGAINST THE JUDGMENT IN RCA 8/2016 of ADDL. DISTRICT COURT - VII, ERNAKULAM (RENT CONTROL APPELLATE AUTHORITY) DATED 11-04-2017 AGAINST THE ORDER IN RCP 48/2015 of III ADDL.MUNSIFF & RENT CONTROL COURT, ERNAKULAM, DATED 30-11-2015 ## REVISION PETITIONER(S)/RESPONDENT/RESPONDENT ------------------------------------------------------------ JOSEPH AGED 85 YEARS, S/O.SIMON, PROPRIETOR- ROYAL PLASTICS, DOOR NO.CC/4785, MADHAVA PHARMACY JUNCTION, BANERJI ROAD, KOCHI-682018. BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA ## RESPONDENT(S)/APPELLANT/PETITIONER: ------------------------------------------------ K.V.JOHN @ JOHNY S/O.K.M.VARAPPAN, AGED 78 YEARS, KATTUKARAN HOUSE, BANERJEE ROAD, KOCHI-682018, REPRESENTED BY POWER OF ATTORNEY HOLDER REJU JOHN, AGED 42 YEARS, KATTUKARAN HOUSE, BANERJI ROAD, KOCHI-682018. BY ADV. SRI.BASIL MATHEW BY ADV. SRI.DIPU JAMES THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-02-2018 ALONG WITH RCR.325/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **========================== R.C.R. Nos.293 & 325 OF 2017** **==========================** Dated this the 20[th] day of February, 2018 ## **ORDER** _Ravikumar, J._ The unsuccessful tenant in a rent control petition filed under sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') filed the captioned revision petitions challenging the judgment of the appellate authority in R.C.A.Nos.8/2016 and 3/2016. The said appeals arose from R.C.P.No.48/2015. The said petition was filed by the respondent herein. Hereafter, in this order, the revision petitioner is described as tenant and the respondent herein is described as the landlord unless otherwise specifically mentioned. In the petition, it is averred that he is the owner of petition schedule building No.66/4785 situated on the southern side of Banerji Road having a total carpet area of 260 sq.ft. In the said shop room, the tenant is conducting a shop by name "Royal **R.C.R Nos.293 & 325/2017** 2 Plastics" which is a registered SSI unit. The bona fide need projected by the respondent herein/the petitioner therein under section 11(3) of the Act for occupation of the tenanted shop room is that it is required for starting a consultancy business with the aid of internet for his younger son, Reju John. It is also averred therein that the tenant subsequently acquired a building which is reasonably sufficient for his requirements and the said building lies in the same locality. Before the Rent Control Court, Reju John, the son of the petitioner holding the power of attorney of the landlord and for whose occupation ejectment of the tenant was sought for, was examined as PW1. On the side of the landlord, Exts.A1 to A8 were got marked. On the side of the tenant, his power of attorney was examined as RW1. Later, evidence on the side of the tenant was re-opened and the Advocate Commissioner and the tenant himself was examined as RW2 and RW3. On the side of the tenant, Exts.B1 to B6 series were also got marked. Ext.C1 is the Commissioner's report. After evaluation of the evidence on record and appreciation of the rival contentions, the Rent Control Court allowed the application under section 11(3) of the Act, **R.C.R Nos.293 & 325/2017** 3 but rejected the claim for eviction under section 11(4)(iii). Aggrieved by the order of the Rent Control Court, tenant preferred R.C.A.No.3/2016 before the Rent Control Appellate Authority. The landlord, whose petition was dismissed under section 11(4)(iii) of the Act preferred R.C.A.No.8/2016 challenging the rejection of his petition thereunder. A common judgment was passed by the appellate authority in R.C.A.Nos.3/2016 and 8/2016. The appeal preferred by the tenant challenging the findings of the Rent Control Court in favour of the landlord under section 11(3) was dismissed and the appeal preferred by the landlord challenging the dismissal of the rent control petition under section 11(4)(iii) of the Act was allowed as per the common judgment. It is in the said circumstances that the captioned revision petitions have been filed by the tenant. The former revision petition is directed against the judgment of the appellate authority in R.C.A.No.8/2016 and the latter revision petition is filed against the judgment in R.C.A.No.3/2016. 2. We have carefully gone through the impugned judgment. Evidently, there is concurrent findings under section 11(3) of the Act **R.C.R Nos.293 & 325/2017** 4 whereas there is divergent findings under section 11(4)(iii) of the Act. As noticed hereinbefore, the bona fide need projected in the rent control petition is that the younger son of the landlord who was working as Lead Analyst in Knowleo Business Solution Pvt. Ltd. in Kochi and got 15 years experience in consultancy, wants to start a consultancy office in Ernakulam. There is no other building in possession of the landlord to provide for the said purpose. In short, it is for the purpose of starting consultancy with the aid of internet for the younger son, the landlord sought for ejectment of the tenant under section 11(3) of the Act. Though a feeble attempt was made by the tenant to dispute the ownership of the landlord over the building in question, the Rent Control Court found that the landlord had successfully established the title over the petition schedule shop room. The said finding is essentially one of fact and that there is concurrent finding on that question inasmuch as it was upheld by the appellate authority. No ground has been set forth in the revision petition at least to suggest that the said finding on facts is one arrived at by the authorities below sans any evidence or that the said finding is based on **R.C.R Nos.293 & 325/2017** 5 a misreading or utter perverse appreciation, of the evidence on record. In such circumstances, there is absolutely no reason to interfere with the finding of the authorities below that the respondent herein is the owner of the petition schedule shop room and further that the jural relationship between the respondent and the revision petitioner is that of landlord and tenant. That apart, we do not know how the tenant could dispute the title of the landlord in view of the provisions under section 116 of the Evidence Act. Any way, no ground has been made out to interfere with such concurrent finding on facts. 3. The next question to be considered is whether the concurrent finding of the authorities below to the effect that the landlord had succeeded in establishing the bona fide need projected in the rent control petition invites interference. Before dealing with the said question, it is only apropos to refer to the Constitutional Bench decision of the Apex Court in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh 2014 (4) KLT 182 (SC).** Paragraph 45 of the said decision is worthy to be extracted and it reads thus:- We hold, as we must, that none of the above Rent **R.C.R Nos.293 & 325/2017** 6 Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity. **R.C.R Nos.293 & 325/2017** 7 4. Going by the said decision, a finding of fact would be open to correction only if it is perverse or has been arrived at without consideration of the material evidence or based on no evidence or is the outcome of misreading of evidence or grossly erroneous and if that allowed to stand, it would result in gross miscarriage of justice. Thus, it is obvious that a concurrent finding of fact recorded by the Court/authority below in a rent control petition is revisionable in exercise of the revisional jurisdiction on certain permissible grounds, as mentined above. 5. We will now consider the question whether the revision petitioner had succeeded in establishing the existence of any such grounds capable of inviting interference with such a concurrent finding. 6. The claim of the landlord under section 11(3) was countered by the revision petitioner contending that, PW1, for whose occupation ejectment of the revision petitioner from the tenanted premises was sought for, is not a dependent of the landlord/respondent herein. That apart, it is contended that tenant has rented out the first floor of the **R.C.R Nos.293 & 325/2017** 8 building in question and it could be utilised by PW1 for the said proposed business. From the very contention of the tenant, it is evident that the said room is not now vacant. Even according to the tenant, it is rented out. How could the tenant then take up a contention that the occupant of the said rooms ought to be evicted for starting the proposed business by the landlord and that he should be spared. There can be little doubt with respect to the position that a tenant is having absolutely no right at all to dictate such terms to the landlord. The choice must be exclusively that of the landlord. This Court in the decision in **Venugopalan Nair v. Mohamedkunhi [2010** **(1) KLT 971)** held that the power of landlord to pick and choose a particular room from among overall tenants could not be questioned in the absence of an oblique motive. In the case on hand, no such oblique motive is alleged and proved. It is thus obvious that the tenant cannot dictate the landlord from where he has to conduct the intended business and that it is for the landlord to make the choice of building/room for conducting the intended business. At any rate, plea of eviction of another tenant by the tenant is absolutely unsustainable. **R.C.R Nos.293 & 325/2017** 9 Yet another contention of the tenant is that there are many vacant rooms available in the Tharavad house of the landlord where PW1 could start the proposed business. The very contention itself would reveal that the alternative building proposed by the tenant is the residential house of the landlord. The contention of the revision petitioner that the residential house could be occupied by the landlord for commercial purpose cannot be sustained at all. In view of the decisions referred (supra), it can only be held that the tenant got no such right to insist the landlord to occupy a non-commercial building for his commercial purpose. It is more so, when the building is a residential one. The other contention raised by the revision petitioner that the son of the landlord viz., PW1 is not a dependant of the landlord also counnot be countenanced. There is specific pleading regarding dependency of Reju John in the rent control petition and on that aspect, Sri. Reju John, the very son for whose purpose ejectment of the tenant was sought for, was examined. He was also the power of attorney holder of the respondent landlord. It cannot be said that it was a matter exclusively and personally known only to the landlord. **R.C.R Nos.293 & 325/2017** 10 In fact, PW1 had deposed in tune with the pleadings in the rent control petition on that aspect. No evidence whatsoever was adduced by the tenant to establish that vacant rooms are in possession of the landlord for starting the intended business except the contention relating the availability of rooms in the first floor of the building and in the Tharavadu house. As noticed hereinbefore, the room referred to as one available in the first floor of the building is admittedly, in occupation by another tenant. Therefore, we are of the view that such contentions were rightly rejected by the authorities below. We do not find any reason to hold that the conclusions arrived at by the authorities below were perverse or against the weight of evidence. They are actually the rightful conclusions based on the evidence on record. In such circumstances, the said finding that the landlord had succeeded in stablishing the bona fide need projected needs no interference. _7_ . Then the question is whether the tenant has succeeded in establishing that he is entitled to get the benefit of the first proviso or second proviso, to section 11(3) of the Act. We have already taken **R.C.R Nos.293 & 325/2017** 11 note of the contentions raised by the tenant to establish that the landlord is in possesson of rooms in the village, town or city where he could start the propose business. We have already repelled the said contention. The revision petitioner had not adduced any evidence to establish that apart from the room in the first floor of the building, the landlord is in possession of any building or rooms in the city, town or village where he could start the intended business. The very contention and evidence let in by the tenant itself would reveal that the room referred to by the tenant is not a vacant room. In such circumstances and for the reasons given hereinbefore, it can only be held that the tenant had failed to establish that he is entitled to get the benefit of the first proviso to section 11(3) of the Act. 8. The claim of the revision petitioner that he is entitled to second proviso was also rightly rejected by the Rent Control Court/appellate authority. No evidence was let in by the revision petitioner as to the income derived from the said business. So also, no evidence was let in to establish non-availability of any room reasonably sufficient for his requirements in the said locality. The **R.C.R Nos.293 & 325/2017** 12 twin conditions under the second proviso of section 11(3) are conjunctive and both have to be proved to earn eligibility for the benefit of the said proviso. Based on the evidence on record, the courts below arrived at the conclusion that the revision petitioner had failed in establishing those conditions. The upshot of the discussions is that there is no reason to interfere with the order of eviction under section 11(3) of the Act. 9. Now, we will deal with the question whether the findings of the appellate authority under section 11(4)(iii) invites interference. In fact, when once it is found that no interference is required with the order of eviction under section 11(3) of the Act, no fruitful purpose could be served by considering this question at the instance of the tenant. Still, we proceed to consider the same as the tenant insist for such consideration, as well. As noticed hereinbefore, the Rent Control Court rejected the claim for eviction under section 11(4)(iii) of the Act on the ground that the tenant has subsequently acquired a building reasonably sufficient for his requirements in the same city. In the rent control petition, it is averred that the respondent tenant is in **R.C.R Nos.293 & 325/2017** 13 possession of another building bearing No.66/4792 near the petition schedule building. It is also averred therein that he was conducting the same business thereon and that the said building is having plinth area of 400 sq.ft. It is in such circumstances that a contention under section 11(4)(iii) of the Act was taken up seeking ejectment of the tenant. A scanning of the evidence on record elaborately dealt with in the order passed by the Rent Control Court and also in the impugned judgment would reveal that the fact that the tenant has subsequently acquired a building is not in dispute; rather, it is admitted. At the same time, the contention is that the said room is being used as godown for the business being conducted by him. A perusal of the order passed by the Rent Control Court would reveal that the claim for ejectment under section 11(4)(iii) was rejected upon finding that space available there is not reasonably sufficient. Going by Ext.C1 report, the plinth area of the shop room is 260 sq.ft.. Admittedly, the room in possession of the revision petitioner tenant is also 250 sq.ft. The reason assigned by the Rent Control Court for rejecting the claim under such circumstances reads thus:- **R.C.R Nos.293 & 325/2017** 14 If the petitioner's suggestion is accepted the paraphernalia in the 260 square feet space of the petition schedule will have to be accommodated in the other space which is having more or less the same area. The impugned common judgment passed by the appellate authority would reveal that in R.C.A. 8/2016 filed by the landlord against the rejection of his claim under section 11(4)(iii) of the Act, the appellate authority reversed the findings of the Rent Control Court relying on a decision of this Court in **Mathew K.C and another v. D. Aruna [ILR 2014 (2) Kerala 931].** This Court held that the burden of the landlord is only to satisfy the court that the tenant had acquired a building of his own or has otherwise come in possession of another building. Once the said burden is discharged by the landlord, the onus will shift on to the shoulders of the tenant to establish that the subsequently acquired building or room in his possession is not reasonably sufficient for his requirements. In the case on hand, the revision petitioner would admit the subsequent acquisition of the building. The appellate authority on evaluation of evidence on record held that the tenant had failed to establish that the subsequently **R.C.R Nos.293 & 325/2017** 15 acquired building is not reasonably sufficient for his requirements. Since the onus to establish the same was on the tenant and he has failed to establish the said onus, the issue was found against him by the appellate authority and consequently, the findings of the Rent Control Court was reversed. In the contextual situation, it is relevant to refer to paragraph 20 of the decision in **Mathew** 's case. It was held therein that the reasonable sufficiency of the building as meant under section 11(4)(iii) of the Act could not be decided solely on the basis of area of the building and it does not matter whether the total space of the subsequently acquired building is lesser or larger. Further, the Division Bench went on to hold:- **“** The question of reasonable sufficiency must be assessed by the Court in terms of the nature of the business and also in terms of the requirements of the business.” Therefore, essentially, the question to be decided is whether the business being conducted in the tenanted premises can be conveniently conducted in the subsequently acquired premises. It is also relevant to notice that even going by the case of the tenant, the subsequently acquired building is being used for a purpose related to **R.C.R Nos.293 & 325/2017** 16 the same business. Evidently, the revision petitioner is using the subsequently acquired room as godown. The nature of the said room has been specifically described in Ext.C1 report. It would reveal that cutting machines were installed in that room. But going by the report, the activity which is being conducted in the tenanted premises and the activity which is being conducted in the subsequently acquired room is one and the same. In the contextual situation, it is also relevant to note that the Rent Control Court had also taken note of the decision in **Ahammed v. Krishnalal** [ **2005 (3) KLT 1004]** . In the said decision referred to by the Rent Control Court also, what was held is that reasonable sufficiency of a building as meant under section 11(4)(iii) could not be decided solely on the basis of the area of the building. It was further held therein that the total space of the subsequently acquired building is lesser or larger would not be a matter for consideration. It is the same position which was reiterated in **Mathew** 's case. On a careful analysis of the order passed by the Rent Control Court, we do not find any reason assigned by the Rent Control Court for deviating from the dictum laid down in **Ahammed** 's case **R.C.R Nos.293 & 325/2017** 17 which was reiterated by this Court in **Mathew** 's case. In such circumstances, in the light of the evidence elaborately discussed by the Rent Control Court as also by the rent control appellate authority, we are of the considered view that the rent control appellate authority is perfectly justified in upturning the findings of Rent Control Court under section 11(4)(iii) of the Act, especially, in the light of the decisions in **Ahammed** 's case (supra) and **Mathew** 's case (supra). Shortly stated, we do not find any reason to interfere with the finding of the rent control appellate authority in R.C.A.No.8/2016 reversing the finding of Rent Control Court under section 11(3) of the Act. In the light of the discussions, these revision petitions are liable to fail. 10. While we are about to part with the order, the learned counsel for the tenant submitted that some reasonable time may be granted to the tenant to give vacant possession of the petition schedule shop room to the landlord. Having heard the learned counsel on both sides, we are inclined to grant six months time. The revision petitioner tenant shall give vacant possession of the petition schedule room on the expiry of the said period. The tenant shall also continue **R.C.R Nos.293 & 325/2017** 18 to pay the rent at the admitted rate during the period of continuance. Subject to the above, this revision petition is dismissed. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH** **(JUDGE)** **spc/** //true copy// Sd/- P.A to Judge **R.C.R Nos.293 & 325/2017** 19 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **R.C.R Nos.293 & 325/2017** 20