Kochuvarkey v. Murali Hotels and Resorts (P) Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022 / 27TH KARTHIKA,** ## **1944** ## **RCREV. NO. 365 OF 2018** **AGAINST THE ORDER/JUDGMENT DATED 03.07.2018 IN RCA NO.70 OF 2010 OF ADDITIONAL DISTRICT COURT, THRISSUR CONCURRING WITH THE COMMON ORDER IN RCP NO.28 OF 2000 DATED 16.08.2010 OF MUNSIFF COURT,CHAVAKKAD** **PETITIONER IN R.C.R./APPELLANT IN R.C.A./RESPOINDENT NO.3 IN R.C.P.:** **KOCHUVARKEY,** **AGED 88 YEARS, S/O.CHUNGATH THARUTHUNNI, EMPIRE FABRICS, WEST NADA, GURUVAYOOR, THRISSUR - 680 101.** **BY ADVS. P.B. KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** **RESPONDENTS IN R.C.R/RESPONDENTS IN R.C.A./PETITIONER AND RESPONDENT NO.2 IN R.C.P:** - **1 MURALI HOTELS AND RESORTS (P) LTD., WEST NADA GURUVAYOOR, CHAVAKKAD TALUK, GURUVAYOOR P.O., THRISSUR - 680 101, REPRESENTED BY ITS MANAGING DIRECTOR.** - **2 V.V.MURALEEDHARAN, S/O.VELAPPU, AGED 61, DIRECTOR, MURALI HOTELS AND RESORTS (P) LTD, WEST NADA, GURUVAYOOR P.O., THRISSUR-680101.** 2 R.C.R. No.365 of 2018 - **3 V.K.PRIYADARSHINI,** - **W/O.V.V.MURALEEDHARAN AGED 58, DIRECTOR, MURALI HOTELS AND RESORTS (P) LTD., WEST NADA, GURUVAYOOR P.O., THRISSUR-680101.** - **4 THARIAN,** **S/O.C.T.LAZAR, AGED 70, EMPIRE FABRICS, WEST NADA, GURUVAYOOR, NOW RESIDING AT CHUNGATH HOUSE, KOTTAPADI, THRISSUR-680505. BY ADVS.** **SRI.G.SREEKUMAR (CHELUR) SRI.S.NITHIN (ANCHAL)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.C.R. No.365 of 2018 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.365 of 2018** ## **-----------------------------------------------** ## **Dated this the 18[th] day of November, 2022** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenant in a proceedings for eviction under Sections 11(2)(b), 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (the Act), is the petitioner in this revision petition. 2. The subject-matter of the proceedings is a shop room which is part of a building. A substantial portion of the building is used by the landlord themselves as a lodge and the remaining portion is leased out to a few tenants. The building is situated right in front of one of the entries to the Guruvayoor Temple. The tenanted premises is a corner room abutting a public road leased out by the predecessor of the landlord to the predecessor of the tenant. As far as the claim under Section 11(2)(b) is concerned, the case set out in the eviction petition was that the tenant has not been 4 R.C.R. No.365 of 2018 paying rent from 11.3.1987. As far as the claim under Sections 11(3) and 11(8) is concerned, the case set out in the eviction petition was that the landlord intends to establish a restaurant in the tenanted premises and also in the other four rooms adjoining the tenanted premises, by removing the walls separating the same for the convenience of the inmates of the lodge and also in view of expecting business from the general public who will have access to the tenanted premises from the abutting public road. The tenant filed objections to the eviction petition stating, among others, that there is no landlord-tenant relationship between the parties; that the rent is not in arrears; that the need set out by the landlord is not _bona fide_ ; that the need, if at all _bona fide_ , the landlord has other places in the very same building which can be used for running a restaurant. 3. The Rent Control Court found that denial of the title of the landlord by the tenant is not _bona fide_ and that the rent of the premises has been in arrears since 11.3.1987. The Rent Control Court also found that the claim of the landlord does not fall under Section 11(3), but would fall under Section 11(8) and that the landlord is therefore entitled to an order of eviction only under R.C.R. No.365 of 2018 5 Section 11(8). Accordingly, the eviction petition was allowed by the Rent Control Court under Sections 11(2)(b) and 11(8). Aggrieved by the decision of the Rent Control Court, the tenant filed an appeal before the Appellate Authority. The Appellate Authority, on a reappraisal of the materials on record, affirmed the decision of the Rent Control Court. In the course of the proceedings before the Appellate Authority, the landlord preferred an interlocutory application as I.A.No.4680 of 2016 seeking a direction to the tenant to pay rent for the premises at the rate of Rs.30,000/- per month and the said interlocutory application was allowed by the Appellate Authority directing the tenant to pay the rent at the rate of Rs.12,500/- per month from the date of application. The tenant is aggrieved by the decision in the appeal as also in the order passed in I.A.No.4680 of 2016 and hence, this revision petition. 4. Heard the learned counsel for the tenant as also the learned counsel for the landlord. The records of the case were also perused. 5. The learned counsel for the tenant contended, at the outset, that the eviction petition in so far as it relates to the ground under Section 11(8) of the Act, is not maintainable. 6 R.C.R. No.365 of 2018 According to the learned counsel, admittedly, the four rooms adjoining the tenanted premises which are intended to be made use of by the landlord for the purpose of running the proposed restaurant is part of the lodge run by the landlord and the same cannot be said to be in the occupation of the landlord and the claim would not, therefore, fall under Section 11(8). It was also argued by the learned counsel that there is a semi built up space in the building in the possession of the landlord where the landlord can conveniently conduct the restaurant and that therefore, the need set out for eviction of the tenant is not _bona fide._ It was pointed out by the learned counsel that the landlord was earlier running a restaurant in the building and the same was closed down later. According to the learned counsel, the said circumstances would also show that the need set out by the landlord is not _bona fide_ . Placing reliance on a document produced along with I.A.No.1 of 2022 in the revision petition, it was also argued by the learned counsel that in the course of the proceedings, the landlord evicted a few tenants who were occupying other shop rooms in the building and those shop rooms were later leased out by the landlord to new tenants at a higher rent. According to the learned counsel, the said conduct of R.C.R. No.365 of 2018 7 the landlord would also demonstrate that there is no bona fides in the claim set out under Section 11(8). Further, the learned counsel argued that at any rate, the Appellate Authority was not justified in ordering revision of rent in an interlocutory application preferred by the landlord in the appeal against the order of eviction. The learned counsel has relied on the decision of this Court in **Sreenivasan v. Rugmini,** (2017 (4) KLT 391), in support of the said argument. 6. Per contra, the learned counsel for the landlord supported the decisions of the authorities of below. 7. We have examined the contentions put forward by the learned counsel for the parties on either side. 8. Let us first deal with the contention raised by the learned counsel for the tenant as to the correctness of the order passed by the Appellate Authority in I.A.No.4680 of 2016. As noticed earlier, the proceedings was one instituted under Sections 11(2)(b), 11(3) and 11(8) of the Act for eviction of the tenant. In the proceedings before the Rent Control Court, the parties did not join issue on the fair rent payable in respect of the premises. As noted, since the rent control petition was allowed directing eviction of the tenant under Sections 11(2)(b) and 11(8), the only question before 8 R.C.R. No.365 of 2018 the Appellate Authority was as to whether the Rent Control Court was justified in ordering eviction of the tenant under the said sections. It is in that appeal that the landlord preferred I.A.No.4680 of 2016 claiming rent at an enhanced rate. According to us, it was inappropriate for the Appellate Authority in directing the tenant to pay rent at an enhanced rate in the appeal preferred by the tenant against an order of eviction, in the absence of a specific provision to that effect. Even though the landlord has a right to receive fair rent for the premises in terms of the provisions of the Act, the same has to be fixed in a properly instituted proceedings under Section 5(1), that too, after affording an opportunity to the tenant to let in evidence. The fixation of rent cannot be made in an interlocutory application. Needless to say, the direction issued by the Appellate Authority in terms of the order passed in I.A.No.4680 of 2016 is liable to be interfered with. 9. Now let us deal with the arguments advanced by the learned counsel for the tenant as regards the sustainability of the order of eviction granted by the Rent Control Court under Section 11(8) of the Act as affirmed by the Appellate Authority. The arguments, as noted, pertain to the bona fides of the landlord in 9 R.C.R. No.365 of 2018 seeking eviction under Section 11(8). True, the need set out for eviction under Section 11(8) shall be _bona fide_ and that the said provision can be invoked by the landlord only if a portion of the building of which the tenanted premises is a part, is in his occupation. In the case on hand, that portion of the building other than the portion occupied by the tenant, is occupied by the landlord for running the lodge. According to the tenant, the portion of the building occupied by the landlord for running the lodge cannot be treated as a portion of the building occupied by the landlord for seeking eviction of the tenant under Section 11(8). We do not agree. Merely for the reason that the landlord is running a lodge on a daily rent basis in the four rooms adjoining the tenanted premises which are intended to be used along with the tenanted premises for running the restaurant, it cannot be said that the said portion of the building is not in the occupation of the landlord. 10. Similarly, there are of course, materials on record which would indicate that the landlord was earlier running a restaurant in the building and that it was stopped later. Merely for the reason that the landlord has stopped running a restaurant in the premises once, it cannot be said that the claim is not _bona fide._ The 10 R.C.R. No.365 of 2018 landlord may have many reasons for not continuing the restaurant earlier started. In the absence of any concrete evidence to indicate that the landlord was earlier running a restaurant in the building in a manner better than the manner in which they could run a restaurant in the premises sought to be evicted, according to us, the same may not affect the _bona fides_ of the need put forward by the landlord. 11. There is also no substance in the argument raised by the tenant based on the document produced as Annexure A along with I.A.No.1 of 2022. It is a communication sent by the Public Information Officer of the concerned local authority, stating that licences have been issued to three persons namely, K.T.Murali, Lalitha K.B. and Riju P.K for running establishments in the names Krishnakripa Sweets and Cool Bar, Radhakrishna Collections and Rasi Fancy in the building complex respectively. In the affidavit filed in support of the interlocutory application, it is stated by the tenant that those premises were earlier occupied by three other tenants and they were running therein, establishments in the names Sherina Stores, S.D.Pharmacy and Fashion Saloon respectively. According to the tenant, if the need put forward by the landlord is _bona fide_ , he could have used the said premises for the purpose of running the 11 R.C.R. No.365 of 2018 proposed restaurant. There is nothing on record to indicate as to how the landlord obtained possession of the rooms referred to in the affidavit. There is also nothing on record to indicate as to whether those are premises wherein the landlord can run the proposed restaurant in a manner better than the manner in which a restaurant could be run in the tenanted premises. This argument also, in the circumstances, is liable to be rejected. 12. True, there is a built up space in the building complex where the landlord could run a restaurant. But, it has come out that the said space can be used only for the purpose of running a restaurant for the inmates of the lodge, for it has no access from the public road. As noted, the tenanted premises is one abutting the public road and the need set out is not to run a restaurant solely for the inmates of the lodge but also expecting business from the general public. As such, according to us, merely for the reason that there is some space inside the building which could be used for the purpose of running the restaurant, it cannot be said that the need put forward is not bona fide. The argument aforesaid also therefore fails. Needless to say, the revision petition is devoid of merits and the same is liable to be dismissed. 12 R.C.R. No.365 of 2018 13. However, having regard to the peculiar facts of this case, especially the fact that the tenant is running a business in the premises for quite a long period, we deem it appropriate to grant him a reasonable time to surrender vacant possession of the premises. In the result, this revision petition is dismissed. The tenant, however, is granted six months' time to surrender vacant possession of the premises on condition that he shall file an unconditional undertaking before the Rent Control Court within two weeks from the date of receipt of a copy of this order to vacate the tenanted premises within six months and also that he shall pay the arrears of rent, if any, within the aforesaid time limit, and continue to pay the monthly rent on or before the 10[th] day of every succeeding month. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB 13 R.C.R. No.365 of 2018 ## **APPENDIX** ## **PETITIONER'S/S ANNEXURES:** ## **ANNEXURE-A** **ORIGINAL OF THE INFORMATION RECEIVED UNDER THE RIGHT TO INFORMATON ACT, 2005, ISSUED BY THE GURUVAYOOR MUNICIPALITY, DATED 28.10.2022.**