Khaderkutty v. Kurian K. Varghese (and Jacob K. Varghese)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 RCRev..No. 148 of 2009() -----------------------RCA.36/2007 OF RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM RCOP.12/2005 OF RENT CONTROL COURT, KOTTAYAM .................... REVISION PETITIONER/APPELLANT/RESPONDENT -------------------------------------------------------- KHADERKUTTY, S/O.MOIDEEN, KOCHUVEETTIL HOUSE, VELOOR, KOTTAYAM, BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT RESPONDENT/RESPONDENT/PETITIONER: ---------------------------------------------- KURIAN.K.VARGHESE, S/O.K.THOMAS VARGHESE KOTTAKUZHIYIL HOUSE, PUTHENANGADY, VELOOR, REPRESENTED BY POWER OF ATTORNEY HOLDER THOMAS K.VARGHESE, KOTTAKUZHIYIL HOUSE, PUTHENANGADY, VELOOR, KOTTAYAM. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27/07/2009, ALONG WITH RCR NO. 153 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ.** ----------------------------------------------------- RCR. Nos. 148 & 153 of 2009 ----------------------------------------------Dated this the 27[th] day of July, 2009 ## **O R D E R** ## **Pius C. Kuriakose, J.** These revision petitions initiated by the tenant are directed against the common judgment of the Rent Control Appellate Authority, Kottayam in RCA Nos. 36, 37 and 51 of 2007. RCR. No. 148 of 2009 pertains to the judgment in RCA No. 36 of 2007 which relates to RCOP. No. 12 of 2005 on the files of the Rent Control Court, Kottayam. RCR No. 153 of 2009 pertains to the judgment in RCA. No. 37 of 2007 which relates to RCOP. No. 14 of 2005. The parties will be referred to as tenant and landlord respectively and the buildings are portions of one larger building. Noticing the identity of the causes of action and the partial identity of the parties and the subject matter, the Rent Control Court tried the three rent control petitions, RCOP. Nos. 11, 12 and 14 of 2005 jointly and it is submitted that the tenants who RCR..Nos. 148 & 153 of 2009. -2- were in possession of the other portions of the larger building owned by the landlord have already vacated the premises either in proceedings for eviction through court or otherwise and that it is only the tenant of the buildings which are subject matter of these two RCRs. - one and the same person - who alone is continuing the battle. 2. The landlord of the building which is subject matter of RCOP. No. 12 of 2005 is one Kurian K.Varghese and the landlord of the building involved in RCOP. No. 14 of 2005 is his brother Sri.Jacob K.Varghese. Eviction was sought for in both the RCOPs. on the grounds of own occupation (subsection (3) of Section 11) and reconstruction (Clause (iv) of subsection (4) of Section 11. The need projected in the context of subsection (3) of Section 11 in both these cases was that Sri. Jacob K. Varghese is a Chartered Accountant practising his profession under the name and style “Jacob K. Varghese & Company” at Mumbai and that RCR..Nos. 148 & 153 of 2009. -3- Sri. Jacob K. Varghese wants to set up practice at Kottayam, his home town by opening an office with modern facilities in a modern building to be put up after reconstructing the larger building of which the petition schedule buildings are part. In the context of the ground under clause (iv) of subsection (4) of Section 11 it was alleged that the larger building has become old, dilapidated and unsightly and that the landlords who are owners of the building have decided to reconstruct the buildings. It was averred that the condition of the building warrants reconstruction and that the landlords have the ability to carry out the reconstruction and also that they have obtained the requisite plan and permit from the local authority. The bona fides of the need and the claim both in the context of subsection (3) of Section 11 and clause (iv) of subsection (4) of Section 11 were resisted by the tenants through the statement of objections filed by them. The Rent Control Court enquired RCR..Nos. 148 & 153 of 2009. -4- into the petitions and at trial evidence on the side of the landlords consisted of Exts.A1 to A15 and the oral evidence of PW-1 Sri. Jacob K. Varghese. On the side of the tenants the same consisted of Exts.B1, B1(a) and B2 and the oral evidence of the tenant in RCOP. Nos. 12 and 14 of 2005 (revision petitioner in these revisions) and also the wife of the deceased tenant in RCOP. No. 11 of 2005, one Chellamma. The Rent Control Court would hold evaluating the evidence that the bona fides of the need and the claim projected in the rent control petitions under subsection (3) of Section 11 stood established. It was also held that the tenants were unsuccessful in proving that they were entitled to the protection of the second proviso to subsection (3) of Section 11. The court did not discuss or decide the ground for eviction under clause (iv) of subsection (4) of Section 11 on the reason that since the bona fide need for own occupation has been found in favour of the landlord it is not RCR..Nos. 148 & 153 of 2009. -5- proper to consider the case under Section 11(4)(iv). The Rent Control Appellate Authority considered the appeal preferred by the tenants against the common order passed by the Rent Control Court together and dismissed the appeals confirming the order of eviction passed under subsection (3) of Section 11. The Appellate Authority also, found it unnecessary to examine the case for eviction on the ground of reconstruction. 3. These revisions are filed impugning the orders of eviction raising various grounds and we have heard the submissions of Sri.R.D.Shenoi, senior counsel for the revision petitioner tenant and also those of Sri.Joseph Abraham, counsel for the landlords who had lodged caveats in anticipation of the revisions. It was with reference to RCR. No. 148 of 2009 that Mr.R.D. Shenoi, senior counsel addressed his submissions first. Though Mr.Shenoi addressed us seriously on all the grounds raised in the RCR RCR..Nos. 148 & 153 of 2009. -6- the learned senior counsel would give more thrust to the points referred to in the following paragraphs. 4. Mr.Shenoi submitted that it will become evident by the testimony of PW-1 Sri.Jacob K. Varghese himself that the need sought to be achieved by getting eviction under subsection (3) of Section 11 was the need of a partnership firm either to shift its main place of activity over to Kottayam or to establish a branch at Kottayam. Sri.Kurian K.Varghese, the petitioner in RCOP. No. 15 of 2005 admittedly not a partner of Jacob K.Varghese and Company, is not entitled to maintain an action under subsection (3) of Section 11 for accomplishing the above need. In this context Mr. Shenoi highlighted before us the statement of PW-1 that the Bombay Office will be retained “with a partner”. Mr. Shenoi submitted that it was in evidence that the landlord had come into possession of one portion of the larger building having door No.682 some 15 to 16 years RCR..Nos. 148 & 153 of 2009. -7- prior to the institution of the RCOP. According to him, the said room was evicted from the possession of the revision petitioner himself stating the reason that the landlord Jacob K.Varghese wants to start a professional office in the same. Even a board of the professional office of the landlord was displayed in front of that room. But till this moment the landlord Jacob K. Varghese did not even feel like starting his office in that room despite his alleged need for commencing professional practice in his home town. Mr.Shenoi further submitted that even if the landlord comes out with an explanation that the office in his mind is a big one, well furnished and fully equipped and that such an office can be started only if he comes into possession of the three rooms which are subject matter of the rent control revision petitions also, even then the landlord has to explain the inordinate delay caused by him in the matter of instituting the present rent control petitions. Relying strongly on the RCR..Nos. 148 & 153 of 2009. -8- judgment of the Supreme Court in Lohia Bazar case ( Mattulal v. Radhe Lal, AIR 1974 SC 1596) it was argued by Mr. R.D.Shenoi that if there was an element of genuineness in the need projected by the landlord he would have “bestirred himself immediately” upon getting possession of that room and initiated proceedings for getting possession of the rooms which are subject matter of the rent control petitions so that the need could be accomplished at the earliest. Mr.Shenoi would then argue that in the case filed by Kurian K.Varghese, RCOP. No. 12 of 2005, there was no pleadings at all to the effect that Sri.Jacob K.Varghese, the person who wanted to occupy the building on getting eviction was a dependent on him. Total absence of pleading regarding dependency was fatal to a case for eviction under subsection (3) of Section 11. Mr. Shenoi however, conceded that this argument is available only in RCR No. 148 of 2009 and that in RCR. No. 153 of 2009 which RCR..Nos. 148 & 153 of 2009. -9- corresponds to RCOP. No. 14 of 2005, a petition filed by Mr.Jacob K.Varghese who himself was the landlord of the building which was subject matter of that case, the question of dependency cannot have any application. According to the learned senior counsel since the consistent case of the landlord is that he requires all the rooms as well as room No.682 which is in his possession for about 20 years now for accomplishing the projected need, failure of RCOP. No. 12 of 2005 should lead inevitably to the failure of RCOP. No. 14 of 2005 also. The learned senior counsel would now submit that perhaps there was evidence in this case to hold that ground for eviction under clause (iv) of subsection (4) of section 11 – reconstruction is established in this case. According to him, the tenant's grievance will be less in case this court is inclined to substitute the impugned order under subsection (3) of Section 11 by order of eviction on the ground of reconstruction since if that be the case the tenant RCR..Nos. 148 & 153 of 2009. -10- will be entitled to be re-inducted into the premises after reconstruction. According to Mr. R.D.Shenoi, despite the finding of the courts under the second proviso to subsection (3) of Section 11, the reality is that the tenant is eking out his livelihood with the income derived from the business which is carrying on in the petition schedule premises and it will be impossible for the tenant to secure suitable premises anywhere near the locality on reasonable terms. Mr. Shenoi also argued that the non-examination of the landlord Sri.Kurian K.Varghese in RCOP. No. 12 of 2005 was fatal to that case. The learned counsel pointed out that not even the power of attorney holder of the landlord, another brother of Sri.Kurian K.Varghese was examined in that case. Bona fides of the landlord could be established only by the landlord since one's state of mind could be established only by himself. 5. All the submissions of Mr.R.D.Shenoi were forcefully RCR..Nos. 148 & 153 of 2009. -11- and we must say effectively resisted by Mr. Joseph Abraham. Taking us to the pleadings and the evidence Mr. Joseph argued that the case of the landlord Jacob K.Varghese has consistently been that the establishment which he runs presently at Bombay belongs to him. What was stated by PW-1 regarding the continuance of the establishment at Bombay was only that the office at Bombay will not be closed down, but it will be continued as a branch of the establishment at Kottayam with a partner. Even if it is accepted that the word “partner” was used by PW-1 in the sense as understood in Partnership Law, then also the evidence was only to the effect that a firm will be constituted in Bombay. There is no conflict between pleadings and evidence as alleged by the learned senior counsel, according to Mr. Joseph. 6. Mr. Joseph would submit that though it is true that Sri.Jacob K.Varghese conceived the need of starting an RCR..Nos. 148 & 153 of 2009. -12- office for practice his profession in his home town several years earlier than 2005, when only the rent control petitions were instituted, there was justifiable excuses for the landlord in not instituting eviction proceedings earlier. He submitted that the family of his client was a middle class Christian family where the bonds were very strong between parents and the children. The landlords lost their mother very early in their lives and it was the father who brought them up with his limited resources. All the sons were given proper education and all of them became obliged to settle down in far away places like Bombay, United States and Madras in connection with employment or profession and the father who was looking after the assets at Kottayam even after they were settled in favour of the sons was permitted by the sons to sustain himself with the income from the properties settled in their favour including the rental income. Thus the landlords could not have filed RCR..Nos. 148 & 153 of 2009. **==> picture [21 x 9] intentionally omitted <==** eviction petitions during the lifetime of the father since that would have resulted in disruption of the rental income with which only the father was supporting himself mainly. Mr.Joseph submitted that it is in evidence that as soon as the father passed away PW-1 Jacob K.Varghese met the tenants and requested them for surrender. The rent control petitions were filed within an year or so of the father's demise and the delay after the father's demise in the matter of filing the RCOPs was only for the purpose of giving reasonable time to the tenants to vacate without litigation. Mr. Joseph would take strong exception to the submission of the learned senior counsel that Khaderkutty, the revision petitioner himself was the tenant of room having door No.682 and had surrendered that room some 20 years ago obliging the landlord's request for surrender for the purpose of starting his office. This version of Sri.Kharderkutty in evidence was rank perjury and in this context Mr.Joseph RCR..Nos. 148 & 153 of 2009. -14- highlighted before us the tenant's pleadings which would indicate that another person was the tenant of the room having No.682. 7. Answering the arguments of Mr.Shenoi that RCOP. No. 12 of 2005 was liable to fail for want of sufficient pleadings Mr.Joseph submitted that in the lawyer notice Ext.A10 it had been clearly stated by Sri. Kurian K.Varghese, the landlord that Sri.Jacob K.Varghese, his brother was dependent on him and the lawyer notice had been produced along with RCOP and had to be construed as part of the pleadings. Mr.Joseph submitted that the tenant had through his pleading contended that Sri.Jacob K.Varghese is not a dependent on Sri.Kurian K.Varghese and therefore it cannot be said that any prejudice has been caused to the tenant due to the insufficiency in the pleading of the landlord. In this context Mr.Joseph placed strong reliance on the judgment of the Supreme Court in Ram RCR..Nos. 148 & 153 of 2009. -15- Sarup Gupta v. Bishun Narain Inter College (AIR 1987 SC 1242) and also the judgment of Justice Pareed Pillay in Commercial Financiers v. Thressia, 1990(1) KLT 774. Mr. Joseph submitted that barring the rooms occupied by the revision petitioner the other rooms intended to be utilised by the landlord for accomplishing his genuine need have already been obtained by the landlord. Tenant in RCOP. No. 11 of 2005 did not file a revision against the common judgment of the Rent Control Appellate Authority and that tenant has been evicted through court. The landlord will be able to accomplish his need once the revision petitioner surrenders the rooms. 8. Sri.R.D.Shenoi, senior counsel would in reply reiterate his submission that there is material contradiction between the pleadings and evidence in RCOP. No. 12 of 2005. The learned counsel asserted that the establishment run at Bombay by Sri.Jacob K.Varghese is a partnership firm RCR..Nos. 148 & 153 of 2009. **==> picture [21 x 9] intentionally omitted <==** and according to the learned senior counsel when the word “partner” is used by a knowledgeable person like PW-1 it has to be taken that the word has been used with the meaning given to it in legal parlance. Mr.Shenoi submitted that Sri.Jacob K.Varghese should have the courage to file an affidavit before this court, so that the confusion regarding the legal constitution of the establishment “Jacob K.Varghese and Company” carried on by him at Bombay is removed. Mr.Shenoi would reiterate his argument based on the observations of the Supreme Court in Lohia Bazar case that the delay of 15 years caused in the matter of instituting the eviction proceedings is fatal. 9. We have very anxiously considered the submissions addressed at the Bar in the light of the judicial precedents which were cited before us by the learned counsel on either sides. According to us, there is no warrant for interfering with the conclusions concurrently entered by the courts RCR..Nos. 148 & 153 of 2009. -17- below that the revision petitioner is liable to be evicted on the ground under subsection (3) of Section 11, within the contours of this court's power under section 20 of Act 2 of 1965. 10. As rightly submitted by Mr. Joseph, the case of the landlord Jacob K.Varghese as pleaded and as pursued in evidence is that the establishment which he is presently having at Bombay belongs to him. His version in crossexamination that the office at Bombay will be continued as a branch office “with a partner” came as an answer to the question as to whether the Bombay Office will be closed down. The answer clearly indicates that the constitution of the establishment presently at Bombay is not that of a partnership. The answer at worst only indicates that the Bombay office will be continued in partnership with somebody inducted as a partner. Thus we are not in a position to accept the argument of the learned senior RCR..Nos. 148 & 153 of 2009. -18- counsel Mr.R.D.Shenoi that there is fatal contradiction between the need projected in RCOP. No. 12 of 2005 and the need which was sought to be established by Sri.Jacob K.Varghese PW-1. 11. The judgment of the Supreme Court in Lohia Bazar case will certainly support the argument that unexplained delay in the matter of instituting proceedings for eviction can prove fatal to a petition for eviction on the ground of bona fide need. The delay in the present case appear to be longer than the delay which was deprecated by the Supreme Court in Lohia Bazar case. But an explanation founded on evidence available in the case is being offered. The family of the landlords is a middle class Christian family and the learned senior counsel Mr. Shenoi also did not dispute the submission of Mr.Joseph that in such families the bonds are very strong. The evidence reveals that the landlord - sons lost their mother early in their lives and it was the father RCR..Nos. 148 & 153 of 2009. -19- who brought them up. It is also revealed that all the four sons are away and it was the father who was looking after their assets in their absence and that the father was allowed to take the income from the assets including rental income derived from the tenants. The explanation that during the lifetime of the father the sons could not have initiated proceedings for evicting the tenants which would have led to disruption in the income derived by the father is a convincing one. We accept the explanation and hold that delay cannot defeat the present RCOPs which were instituted without much delay after the father breathed his last. 12. The argument of the learned senior counsel in the context of absence of pleadings regarding dependency has necessarily to be repelled. It is seen that in the lawyer notice produced along with the RCOP it had been specifically stated that Jacob K.Varghese is a dependent on Kurian RCR..Nos. 148 & 153 of 2009. -20- K.Varghese and it is seen that the tenant by denying such dependency through his pleadings has not sustained any prejudice due to insufficiency of pleadings in the RCOP regarding the dependency of Jacob K.Varghese on Mr.Kurian K.Varghese for the purpose of building. We find that the argument of Mr. Joseph in this context is supported by a judgment of the Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College, (AIR 1987 SC 1242) and also by the judgment of Justice Pareed Pillay in Commercial Financiers v. Thressia, (1990 (1) KLT 774) with which we are in agreement to the extent it pertains to Law of Pleadings. 13. As for the argument of the learned senior counsel that the ground for own occupation has not been established in RCOP. No. 12 of 2005 since neither the landlord nor his power of attorney holder was examined we are of the view that on the facts of that case where PW-1 Jacob K.Varghese RCR..Nos. 148 & 153 of 2009. -21- for whose need the RCOP was instituted by his brother Kurian K.Varghese has been examined Sri. Jacob K.Varghese was equally if not more competent as the landlord himself for proving the landlord's need. In fact the defacto needy person was Jacob K.Varghese himself and the need which the landlord Kurian K.Varghese was expected to prove was the need of Sri. Jacob K.Varghese. Such need has been best established by the oral evidence adduced by Mr.Jacob K.Varghese. 14. In obvious response to the challenge made by the learned senior counsel for the tenant Sri.Jacob K.Varghese has readily filed an affidavit before this court on 24-7-2009. The affidavit is clearly to the effect that Jacob K.Varghese and Company, Chartered Accounts at Bombay is a proprietory concern exclusively owned and managed by Jacob K. Varghese and that it is not a partnership firm. We accept the above affidavit. We do not find any reason why RCR..Nos. 148 & 153 of 2009. **==> picture [21 x 9] intentionally omitted <==** the averment in the affidavit should not be accepted as correct. 15. Thus in our opinion the finding concurrently entered by the Rent Control Court and the Appellate Authority which are the two fact finding authorities under the Kerala Rent Control Act that the buildings in question are needed bona fide by the respective landlords for occupation of Sril.Jacob K.Varghese PW-1 does not suffer from any illegality, irregularity or impropriety attracting Section 20 of Act 2 of 1965. As already indicated, it has also been found that the tenant is not entitled to protection of second proviso to subsection (3) of Section 11. The finding in this regard entered by the courts below is again founded on evidence. Thus we become obliged to confirm the order of eviction passed under subsection (3) of Section 11. Since order of eviction is passed under subsection (3) of Section 11 it is not necessary to consider the plea for RCR..Nos. 148 & 153 of 2009. **==> picture [21 x 9] intentionally omitted <==** eviction on the ground of reconstruction. We will only observe that all the statutory requirements for granting eviction order under Section 11(4)(iv) are also established by the evidence available on record in the case. We also however refrain from considering grant of order of eviction under that ground since we are confirming the order of eviction passed under subsection (3) of Section 11. 16. As his last request Mr.Shenoi sought for reasonable time for vacating the premises. Mr.Joseph opposes grant of times beyond two months time since according to the learned counsel the building permit is expiring shortly after two months. Despite the opposition of Mr.Joseph we feel that the tenant should be given time till 31-01-2010 subject to conditions. 17. Result of the above discussions will lead these revision petitions to the following result: - 1) The revision petitions are dismissed confirming the RCR..Nos. 148 & 153 of 2009. -24- order of eviction passed under Section 11(3). 2) The decision of the authorities below that the case need not be examined under Section 11(4)(iv) in view of the finding under subsection (3) of Section 11 is approved. 3) The revision petitioner is given time till 31-01-2010 to surrender the premises which are subject matter of the rent control petitions, subject to the following conditions: The revision petitioner shall file affidavit within two weeks from today before the execution court undertaking to surrender the buildings peacefully on or before 30-01-2010. Through this affidavit, he shall also undertake to discharge arrears of rent, if any, within one month and to pay occupational charges at the current rent rates till the date of actual surrender. - 4) Once the execution court notices the affidavit filed - on time, that court will adjourn the E.P. to 31-01-2010. - 5) The apprehension expressed by Sri.Joseph Abraham RCR..Nos. 148 & 153 of 2009. **==> picture [21 x 9] intentionally omitted <==** that the validity of Exts.A5 and A6 building permit and plan is going to be expired shortly does not appear to be well founded. It is seen that the building permits will expire only in 2011. 6) It is made clear that the benefit of time granted under this judgment will become available to the tenant only if he files the affidavit on time. **(PIUS C.KURIAKOSE, JUDGE)** **(P.Q.BARKATH ALI, JUDGE)** ksv/