KASTHURBA MEDICALS, A PARTNERSHIP FIRM v. G. KRISHNAN & K.T. GOVINDAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934 RCRev..No. 428 of 2012 () ------------------------AGAINST THE ORDER/JUDGMENT IN RCA.79/2008 of D.C. & SESSIONS COURT,THRISSUR DATED 18-09-2012 AGAINST THE ORDER/JUDGMENT IN RCP.180/2005 of PRL.MUNSIFF COURT,THRISSUR DATED 31-05-2008 REVISION PETITIONER(S)/FIRST APPELLANT/FIRST RESPONDENT: ----------------------------------------------------------------------- KASTHURBA MEDICALS, A PARTNERSHIP FIRM REPRESENTED BY MANAGING PARTNERSOPHIYA JOHN W/O JOHN, KURUPPAM ROAD, THRISSUR. BY ADVS.SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT(S)/RESPONDENT AND THE 2ND APPELLANT/PETITIONER AND THE 2ND RESPONDENT : ------------------------------------------------------------------------ 1. G.KRISHNAN, S/O.LATE GOPALAKRISHNAN EMBRANTHIRI, NEW AGRAHARAM POONKUNNAM VILLAGE, THRISSUR TALK-690001. 2. K.T.GOVINDAN, PARTNER, KASTHURBA MEDICALS, OLD NO.XII/17 KURUPPAM ROAD, THRISSUR-690001. R1 BY ADV. SRI.C.S.AJITH PRAKASH CAVEATOR R BY SRI.C.S.AJITH PRAKASH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20.2.2013 THE COURT ON 04-03-2013, PASSED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R.No. 428 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 4TH DAY MARCH, 2013** ## **O R D E R** ## Ramachandran Nair, J. This revision petition is filed by the aggrieved tenant against the order passed by the Rent Control Appellate Authority, by which eviction has been ordered under Section 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short 'the Act'). After an assessment of the evidence adduced, it has been found that the landlord's need for having additional accommodation is justified. It was also found that the issue regarding comparative hardship is also in favour of the landlord. 2. This is a case where, on an earlier occasion the matter came up before this Court in R.C.R. No.191/2011. The eviction petition was initially allowed by the Rent Control Court as per order in R.C.P.No.180/2005 under Section 11(8) of the Act itself. The same was confirmed in appeal by the Appellate Authority. This Court as per the judgment in R.C.R.No.191/2011 set aside the orders in the light of a subsequent event. It was revealed before this Court that the lodging house which was referred to in para 2 of RCR No.428/2012 -2- the Rent Control Petition has been closed down by the landlord subsequent to the order of eviction passed by the Rent Control Court. Using the vacant space obtained by the landlord on the ground floor of the very same building, he has already started a hotel. This Court therefore found that even though the basic premise on which the eviction was sought for no longer exists, it may be possible for the landlord to obtain eviction of the premises under Section 11(8) of the Act itself, if the said space is required bonafide for more convenient and profitable conduct of the restaurant business. Accordingly, the pleadings were allowed to be amended by the landlord. If such amendments are allowed, the tenant was also allowed to raise counter pleadings and if the parties are desirous of adducing evidence, they should be permitted to do so. 3. After the said remand, the landlord amended the pleadings and the matter was disposed of afresh by the Appellate Authority. It is seen from the revised judgment passed by the Appellate Authority that Exts.C1, C2 and C3 reports of the Advocate Commissioner have been marked and the The Commissioner was appointed at the instance of the landlord. The tenant did not adduce any further evidence. RCR No.428/2012 -3- 4. The finding rendered by the Appellate Authority is that the landlord can make cash counter more spacious, if he gets vacant possession of the room occupied by the petitioner herein. Apart from the same, on the aspect of enlargement of vision also, if the tenant vacates the room the visibility of the hotel will increase. 5. Learned counsel for the petitioner Shri G. Sreekumar submitted that what was attempted by the landlord is to amend the pleadings by incorporating the plea regarding the requirement of space for additional accommodation for the hotel. It is submitted that originally the landlord wanted the space for the purpose of running a restaurant to cater to the needs of the inmates of the lodge he was conducting. It is submitted that since the conduct of the lodge itself has been stopped by the landlord, but as the said original pleadings still remain as part of the petition, then there will be a conflict between the pleadings which cannot be ignored. It is submitted that the said aspect has not been examined by the Appellate Authority in the right perspective. Still further, learned counsel argued that it is in evidence that another room has already been got vacated as per the order in an eviction petition, viz. T.M.C./39/2008. Therefore, RCR No.428/2012 -4- strictly, the schedule room is not required for the purpose of the landlord. It is also submitted that the landlord is a Chartered Accountant and the conduct of hotel business cannot be done by him, which is clear from the Regulations of the Institute of Chartered Accountants of India and for that reason also the eviction petition cannot be allowed. 6. Learned counsel for the landlord submitted that as far as additional accommodation sought, going by the amended pleadings, it is for the purpose of the hotel. This Court in the judgment in R.C.R. No.191/2011 permitted the landlord to amend the pleadings and the said judgment has become final. Therefore, the petitioner cannot be heard to say now that the amendment cannot survive. On the original pleadings itself eviction was ordered which has been confirmed in appeal. Only because the conduct of the lodge was stopped, this Court thought that the landlord can be permitted an option to amend the pleadings. It is therefore submitted that there is nothing wrong in considering the amended pleadings on its merits. It is also submitted that the petitioner did not adduce any further evidence after remand in spite of giving opportunity, whereas the landlord examined the Commissioner and marked two Commission reports. These two reports will RCR No.428/2012 -5- show that even after another room has got vacated, it will have to be utilised for the purposes of the hotel itself and this part of the room is required for expanding the cash counter. It is also submitted that the Commission Reports will show that in the room occupied by the tenant herein, he has practically stopped the business in medicine and only handful of medicines were kept there and therefore on the plea of comparative hardship also the landlord is perfectly justified in getting eviction. 7. Even though learned counsel for the petitioner vehemently contended that the view taken by the Appellate Authority cannot be justified, we are of the view that as the judgment in R.C.R.No.191/2011 has become final, the petitioner cannot be heard to say that the amendment sought for could not have been considered by the Appellate Authority. We have already adverted to the direction issued by this Court in R.C.R. No.191/2011. Such a direction was issued in the light of the fact that after the eviction petition was allowed by the Rent Control Court, the conduct of the lodge was stopped and the landlord started conducting a hotel there. It is in that context this Court, after taking the view that the basic premise on which eviction was sought for no longer exists, allowed the landlord to RCR No.428/2012 -6- amend the pleadings. The tenant was allowed to raise objections and both parties were allowed to adduce fresh evidence also. It is in that context, we will have to analyse the judgment of the Rent Control Appellate Authority. 8. The Advocate Commissioner inspected the premises on 12.7.2012 after giving notice to both parties. The Commissioner reported that the petitioner's hotel is situated in Thrissur town in the western side of Kuruppam Road. The office room of the hotel is only 60 sq.ft. and from appearance it is not at all seen spacious. One room which is in the possession of the landlord, viz. T.M.C.39/2008 which was got vacated, is also to be used as the space of office room. It is also reported that if the petitioner gets vacant possession of the room occupied by the respondent, viz. TM.C.39/210, he will get enough space to increase the seating capacity of the hotel, expansion of his hotel business and to build spacious office, cash counter and lobby for the hotel. 9. The second point to be ascertained was regarding the facilities for the cash counter. It is reported that the cash counter is having 6 ft. height, 6 ft. length and 3 ft. width. The said cash counter is situated in the space available under the stair case. The landlord can make the cash counter RCR No.428/2012 -7- spacious if he gets vacant possession of the room occupied by the respondent. It was also reported that the seating capacity of the customer lobby is only five and if the landlord gets the petition schedule room vacant,he can increase the space in the lobby. With regard to the entrance of the hotel also, it was reported the entrance is having only 5.4 ft. width and if the petitioner gets vacant possession of the room occupied by the tenant, the visibility of the hotel will increase. It was also reported that the seating capacity of the hotel can be increased by 20 if the petitioner gets vacant possession of the room occupied by the tenant. The Commissioner also reported about the items present in the room occupied by the tenant. It was reported that there is no business in medical shop and not enough medicine is seen placed in the medical shop and that the medicines in the shop can be counted in figures, viz. one packet of Asthalin, disposable syringe and some ayurvedic medicines. There is no pharmacist in the medical shop also. He is also doing the business in letting of electrical machines such as generator, vibrator, cutter and heater pump, engine and motor, etc. 10. The Commissioner was examined as C.W.1. A further report was RCR No.428/2012 -8- also submitted by the Commissioner after the inspection conducted on 3.8.2012 in the light of the work memo given the petitioner herein. It is reported with regard to the upper portion of the petition schedule building, that the same is used for the purpose of office of the Chartered Accountant. A rough sketch has also been prepared and produced along with the report. It is also reported that the petitioner has got vacant possession of one room, viz. T.M.C.38/2008 where the building materials for the construction work have been stored. Therefore, the Appellate Authority, after an analysis of the evidence, found that the petition schedule room can be used for additional accommodation and it was also found that there is nothing wrong in the requirement of the landlord. Even though learned counsel for the petitioner submitted that the petition schedule room is not required by the landlord, we do not agree. The room T.M.C.39/2008 is proposed to be used to increase the office room and the room T.M.C.39/2010 will be used to increase the seating capacity. The room occupied by the petitioner will benefit the landlord since it can be used to make the cash counter more spacious, apart from increasing the other existing facilities. We have already noticed that the cash counter is under the stair case. The RCR No.428/2012 -9- requirements of the hotel therefore will get more projected if the schedule room is also obtained. It cannot be said that the said need of the landlord for additional accommodation can be termed as ill conceived. As far as the conduct of hotel is concerned, that too in a place in the midst of the town, any additional space can be utilised for the effective functioning of the hotel. It can also be said that if the room is vacated, there will be more vision from the front side of the hotel also. These things cannot be said to be totally irrelevant in the context of requirement for additional accommodation. Therefore, we are satisfied that the landlord has established his credentials for getting additional accommodation under Section 11(8) of the Act. 11. The next argument is one regarding comparative hardship. It is the argument of the learned counsel for the petitioner that the finding on this aspect is also erroneous. Alternatively he pleaded for a remand of the matter to allow the petitioner to adduce further evidence on the business being done by him. 12. As far as the plea for remand is concerned, it is not at all justified since already, in the judgment in R.C.R.No.191/2011 both parties were RCR No.428/2012 **==> picture [21 x 9] intentionally omitted <==** allowed opportunity to adduce evidence. The tenant has not adduced any evidence whereas the landlord adduced further evidence after remand. Therefore, we reject the plea for a further remand. 13. The reports of the Commissioner will show that practically there is no medical business being conducted. The Appellate Authority observed that only one packet of Asthalin, disposable syringe and some ayurvedic medicines were seen and some machineries and pump sets for hire business were also placed therein. The tenant has not adduced any evidence with regard to the volume of business and other factors. Therefore, we are clearly of the view that the advantage which could be obtained by the landlord will outweigh the hardship of the tenant. 14. Lastly, it is contended that the landlord is a Chartered Accountant and therefore there is a prohibition under the Regulations of the Institute of Chartered Accountants of India to conduct hotel business and attention of this Court was taken to a material published in March 2010 in the issue of C.A. Journal. Learned counsel for the petitioner contended that in general a Chartered Accountant cannot do any other business. A reading of the said publication show that certain exceptions are noted therein. Learned RCR No.428/2012 -11- counsel also relied upon the decision of the Apex Court in **Maharshi Dayanand University v. Surjeet Kaur** (2010 (3) KLT SN 49 (C.No.56 - SC) in this context to contend that the Court has no competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of statutory provisions. The said principle is reiterated under Article 226 of the Constitution of India. But learned counsel for the landlord submitted that if at all any such stipulation is there, what is required is only a permission. He also submitted that the landlord's family has been in the business for a long time and the business has been inherited by him. We do not find any absolute prohibition in the matter. Further, this is a matter of evidence, There was no attempt on the part of the petitioner to adduce evidence in the matter. Therefore, the said contention is rejected. 15. For all these reasons, the revision petition is dismissed. The tenant is granted three months' time from today to vacate the premises on condition that he will remit the arrears of rent, if any, within three weeks from today. He will also file an undertaking before the execution court or the Rent Control Court, as the case may be, within two weeks from today, undertaking to vacate the premises within a period of three months and RCR No.428/2012 **==> picture [21 x 9] intentionally omitted <==** will continue to pay at the rate of the monthly rent to the landlord for use and occupation of the premises till he vacate the premises within the time prescribed above. For any failure to comply with any of these conditions, the petitioner will not get the benefit of this order. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(A.V. RAMAKRISHNA PILLAI, JUDGE)** ## **kav/**