Koorkapparambil Viswanathan v. Madathil Velandi Rohini and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932** **RCRev..No. 45 of 2005()** **---------------------AGAINST THE ORDER DATED 23/07/2004 IN RCA.119/1997 of ADDL. DISTRICT COURT, THALASSERY IN RCP.58/1996 of MUNSIFF COURT, THALASSERY** **....................** ## **REVISION PETITIONER/APPELLANT/RESPONDENT** **------------------------------------** **KOORKAPARAMBIL VISWANATHAN, S/O.KRISHNAN, AGED 56 YEARS, VENUS TRADING CO., ROOM NO.18/226, T.C.ROAD, NEAR TOWN HALL, THIRUVANGAD AMSOM DESOM, THALASSERY, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.T.P.SAJID (THALASSERY)** ## **RESPONDENT/ RESPONDENT/PETITIONER** **------------------------------------** **1. MADATHIL VELANDI ROHINI, W/O.SANKARAN, AGED 82, RESIDING AT PLANAKANDI HOSUE, NEAR FIRST RAILWAY GATE, THIRUVANGAD AMSOM DESOM, THALASSERY(DIED).** ## **2. SUPPLEMENTAL RESPONDENTS:** **-----------------------------------------------** **MADATHIL VELANDI SIVADASAN, S/O.ROHINI, AGED 55 YEARS, SECURITY, RESIDING AT PLANAKANDI HOUSE, NEAR FIRST RAILWAY GATE, THIRUVANGAD AMSOM DESOM, THALASSERY.** **3. BROTHER SASEENDRAN, AGED 50 YEARS, BUSINESS, DO.DO.** **4. SISTER RENUKA, AGED 48 YEARS, OCCUPATION NIL, DO.DO.** **ADV. SRI.A.MOHAMED MUSTAQUE SRI.M.K.SUMOD** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/06/2010, ALONG WITH RCR NO. 46 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RCR45/2005** ## **ORDER ON I.A.NO.379/2005 IN RCR NO.45/2005** ## **DISMISSED.** **9.6.2010 SD/-PIUS C.KURIAKOSE, JUDGE SD/C.K.ABDUL REHIM. //TRUE COPY//** **PA TO JUDGE** ## **PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------------------------R.C.R. Nos.45 AND 46 OF 2005 ------------------------------------------Dated this the 9[th] day of June, 2010** ## **O R D E R ~~~~~~~** ## **Pius C. Kuriakose, J.** The tenants are in revision being aggrieved by the common judgment passed by the Rent Control Appellate Authority, Thalassery in R.C.A.Nos.119/1997 and 134/1997. R.C.R.No.45/2005 is directed against the judgment in R.C.A.No.119/1997 which corresponds to R.C.P.No.58/1996. R.C.R.No.46/2005 is directed against the judgment in R.C.A.No.134/1997 which corresponds to R.C.P.No.59/1996. The landlord and the tenant are the same persons in both the cases. The parties will be referred to hereinafter as landlord and tenant. The landlord filed R.C.P.No.58/1996 in respect of building having door No.18/226 invoking the grounds under Sections 11(3) and 11(4)(iii) (bonafide need for own occupation and the tenants acquisition of possession of another building). Similarly, R.C.P.No.59/1996 was filed by the landlord in respect of building No.18/231 a smaller building invoking the grounds under Sections 11(3), 11(4)(iii) and also the ground under R.C.R. No.45 & 46/2005 2 Section 11(4)(v), that is, cessation of occupation for more than six months continuously without reasonable cause. The tenant is conducting spare parts business in building No.18/226 and he is using building No.18/231 as a store room for his spare parts business. The need projected by the landlord in the context of Section 11(3) was that the building is required bonafide for occupation by his dependent son Sivadasan, so that, Sivadasan can conduct hotel business in building having door No.18/226 and can use building having door No.18/231 as a store room for the hotel. 2. It was with reference to another building having door No.18/564 situated at Pallithazha, commercially a non-vantage area than the landlord invoke the ground under 11(4)(iii). The landlord's allegation was that the above building is much more spacious and advantageously located and is reasonably sufficient for all the requirements of the tenants. The allegation with respect to Section 11(4)(v) in RCP No.59/1996 was that the tenant has not occupying the above building continuously for more than six months. The tenants through their statement of R.C.R. No.45 & 46/2005 3 objections disputed the bonafides of the needs. They claimed the protection of the 2[nd] proviso to Section 11(3) also. They also contended that the claim under Section 11(3) was liable to be rejected due to the operation of the said proviso to sub-section 3 of Section 11. It was also contended that the eviction petition has been filed due to the landlord's displeasure in the tenant having refused to accede to the landlord's request for enhancement in rent. 3. The tenant's defence to the plea for eviction under Section 11(4)(iii) was that the business which the tenant is presently conducting in building No.18/564 was only a branch of the spare parts business which is conducting in building No.18/226. Significantly, the allegations of the landlord regarding the locational and other advantages of building having door No. 18/564 over the rooms, which were the subject matter of R.C.P.Nos.58/1996 and 59/1996, were not specifically denied by the tenant. The tenant strongly disputed the landlord's allegation that he has ceased to occupy the building which is subject matter of R.C.P.No.59/1996 continuously without 4 R.C.R. No.45 & 46/2005 reasonable cause. The parties adduced evidence. The Rent Control Court on appreciating the evidence would allow R.C.P.No.58/1996 on the ground under Section 11(3) and also under Section 11(4)(iii). However, in R.C.P.No.59/1996, the Rent Control Court dismissed the case for eviction under Section 11(3) holding that the landlord was in possession of 231A and that no special reasons had been pleaded or proved by the landlord justifying eviction order in R.C.P.No.59/1996 inspite of the possession of such building. Eviction sought for in R.C.P.No.59/1996 on the ground under Section 11(4)(iii) was however allowed by the Rent Control Court which also allowed the prayer for eviction under Section 11(4)(iii) in that case . 4. Appeals were preferred by the tenant to which the landlord preferred cross objections. The appeals and the cross objections were considered together by the Rent Control Appellate Authority. The Appellate Authority reappraised the evidence. The said authority concurred with the conclusions of the Rent Control Court in R.C.P.No.58/96 and confirmed the order of eviction passed in that case on the grounds of bonafide R.C.R. No.45 & 46/2005 5 own occupation and under Section 11(4)(iii). In R.C.A.No.134/1997, which was filed against R.C.P.No.59/1996, the appellate authority would concur with the Rent Control Court and confirm the order declining eviction under Section 11(4)(iii). At the same time, the order of eviction under Section 11(4)(iii) and 11(4)(v) was confirmed. 5. In these revisions filed under Section 20 various grounds have been raised assailing the judgment of the Appellate Authority as well as the order of the Rent Control Court. Mr.T.P.Sajid, learned counsel for the revision petitioner, addressed very serious arguments before us on the basis of the various grounds. Coming to the eviction order under Section 11(3), which is passed in R.C.P.No.58/96, the learned counsel submitted that the order declining eviction under Section 11(3) on the ground that the first proviso to Section 11(3) has become final in RCP No.59/96. According to the learned counsel, if the claim of the landlord under Section 11(3) is liable to be rejected in RCP.No.59/1996 due to the operation of the 1[st] proviso to 11(3), necessarily 1[st] proviso of Section 11(3) should continue to R.C.R. No.45 & 46/2005 6 operate in R.C.P.No.58/1996 and the claim for eviction under Section 11(3) in that case also should be declined. Coming to the eviction order passed in both the Rent Control Petitions under Section 11(4)(iii), Mr.Sajid submitted that, at best, it can be found that the tenant has acquired possession of one more building, namely, building having door No.18/564. Inorder that eviction order under Section 11(4)(iii) is passed, it is necessary that the tenant should be in possession for another building reasonably sufficient for his requirement. Possession of one building by the tenant cannot be a ground and justification for ordering eviction in respect of two buildings. Counsel submitted further in this context that though lease in respect of building having door No.18/564 is taken in the name of the revision petitioner, who is a septuagenarian, it is his son, who is actually conducting business in door No.18/564. It will be very painful for the revision petitioner to be asked to vacate the rooms, which are subject matters of R.C.P.Nos.58/1996 and 59/1996, at this the twilight stage of his life. The learned counsel submitted that, at any rate, there is no sufficient evidence to hold that the building having door No.18/564 is large enough to accommodate R.C.R. No.45 & 46/2005 7 the spare parts business and the store room which the tenant is presently having in room Nos.18/226 and 18/231. 6. The learned counsel would refer to the judgment of this Court in **Kunhiraman v. Kumaran** [2004(2)KLT 674] and submit that by initial burden on the landlord to prove that the tenant is in possession of a building, which is reasonably sufficient for his requirement, has not been discharged in the present case. Mr.Sajid would assail the eviction order passed by the authorities on the ground under Section 11(4)(v) in R.C.P.No.59/1996. According to him, it was common ground that spare parts business was even now being conducted by the tenant actively in door No.18/226. It is also common ground that the tenant has no storage place in that room. If that be so, the tenant's version that he continues to use the room in R.C.P No.59/1996 as a storage place for the spare parts was more probable. As far as a businessman is concerned, using premises as a storage place will amount to occupying the premise for business purpose. 8 R.C.R. No.45 & 46/2005 7. As a last submission, Mr.Sajid requested that, in case the court is not inclined to entertain any of his submissions, atleast an year's time be granted to the tenant for surrendering the premise. 8. All the submissions of Mr.Sajid were very stiffly opposed by Smt.Lekshmi Rajan, learned counsel for the respondents. She would remind us of the contours of the revisional jurisdiction under Section 20. According to her, since the findings entered by the authorities below are findings of fact entered on the basis of evidence, this Court will not be justified in accepting those findings within the contours of the revisional jurisdiction under Section 20. According to her, the circumstance that order of eviction have been declined in R.C.P.No.59/1996 will not have any effect in these cases, even though the evidence adduced by PW2 was to the effect that unless he got possession of the building in R.C.P.No.59/1996 also he will not be able to conduct hotel business in building having door No.18/226. According to her, though not under Section 11(3) eviction order is passed in R.C.P.NO.59/1996 also and R.C.R. No.45 & 46/2005 9 nothing can prevent the landlord from using that judgment as a store room for the proposed hotel business. 9. We have very anxiously considered the rival submissions. We have scanned the orders passed by the Rent Control Court and the judgment of the Appellate Authority. We remind ourselves of the contours of our jurisdiction in which we are presently sitting. We shall first deal with the order of eviction which has been concurrently falls in both the Rent Control Petitions under Section 11(4)(iii). According to us, the legislative object underlying Section11(4)(iii) is that in a situation where there is acute accommodation shortage, the tenants should not be allowed the luxury of having more building in their possession than what is actually necessary for their requirement. The specific plea of the landlord was that building having door No.18/564 situated in a commercially more important area of the town was larger and more suited for the requirements of the tenant. The defence was only that spare parts business was started by the tenant in building having door No.18/226 earlier and that the same business was started by him R.C.R. No.45 & 46/2005 10 later in building having door No.18/564 as a branch. We find that the specific case of the landlord that the building having door No.18/564 is larger and better and capable of accommodating the activities of the tenant in door Nos.18/226 and 18/231 is not even specifically denied. We find that on appreciating the oral evidence including the oral evidence adduced by the tenant himself the authorities below have come to a conclusion that building having door No.18/564 admittedly possessed by the tenant at the time of commencement of the lease is more than sufficient for the requirements of the tenants. 10. Under the above circumstances, we in the present jurisdiction cannot upset that finding and interfere with the order of the eviction passed under Section 11(4)(iii). We find that the finding that the landlord needs the building bonafide for accommodating his son for the purpose of doing hotel business in building having door No.18/226 is entered on the basis of the evidence adduced by the landlord and his son, which inspired the two fact finding authorities, namely, the Rent Control Court and the Rent Control Appellate Authority. Significantly, the R.C.R. No.45 & 46/2005 11 building in that room was sought for to be used as the showroom and the room which is the subject matter of R.C.P.No.59/96 evidently a smaller room was sought as a store room. R.C.P.No.59/1996 is dismissed on the basis of the landlord possessing building No.18/231A, which evidently a smaller room, comparable to the room in R.C.P.No. 59/1996. It was nobody's case that spare parts business should be conducted in that room; on the contrary, the case was only that, that room can be used as a store room. It was that case which was accepted by the authorities below for the purpose of declining eviction in that case on the basis of the 1[st] proviso to sub-section 3 of Section 11. We find it extremely difficult to accept the argument of the learned counsel for the revision petitioner that because R.C.P.No.59/1996 was dismissed, by virtue of the proviso, R.C.P.No.58/96 should also meet with the same fate. Of course, it seems that the landlord's son stated before the court in his evidence that unless he get the room, which is subject matter of R.C.P.No.59/1996 also he will not be able to conduct spare parts business in building having door No.18/226. The argument of Mr.Sajid was that in view of the finality attained by the order in R.C.R. No.45 & 46/2005 12 R.C.P.No.59/1996 declining eviction under sub-section 3 of Section11, it has to be held that the landlord will never be able to conduct hotel business in building having door No.18/226. Sub section 12 of of Section 11 gives one answer to the above argument. The question does not arise in this case at all, since though on a different ground eviction order has been passed in R.C.P.No.59/1996 also. Nothing will prevent the landlord from utilising the building in that case as a store room for his son's proposed hotel business. 11. Now, what remains to be considered is the legality propriety and regularity of the order of eviction passed under Section 11(4)(v) in RC.P.No.59/1996. We find that, the finding that the tenant has ceased to occupy the building in that case continuously for more than six months without reasonable cause is entered on the basis of very cogent evidence. The Commissioner inspected that building on as many as three occasions. The positive finding regarding cessation of occupation is entered on the basis of a very convincing report submitted by the Commissioner. More over, we find that no R.C.R. No.45 & 46/2005 13 documentary evidence has been produced before the Court by the tenant to prove his case that he has been storing articles in that building. At any rate, we do not find any illegality, irregularity and impropriety as envisaged by Section 20 for interfering with the eviction order passed in these cases under Section 11(4)(v). 12. The last plea of Mr.Sajid was stiffly opposed by Smt.Lekshmi Rajan. However, we feel that in view of the facts and circumstances present on these cases, there is justification for granting time to the revision petitioner to surrender both these buildings till 31.3.2011 subject to conditions. Result, therefore, is as follows: Both the Rent Control Revisions are dismissed confirming the orders of eviction passed by the appellate authority. The execution court is directed not to deliver the building till 31.3.2011 subject to the following conditions: The revision petitioner shall file separate affidavits before the execution court in both the cases undertaking to give peaceful surrender of the building to the landlord on or before R.C.R. No.45 & 46/2005 14 30.3.2011 and undertaking further that he will discharge arrears, if any, within one month from today and will continue to pay occupational charges current rent till 31.3.2011. We make it clear that unless the above conditions are complied with, the revision petitioner will not get the benefit of the time granted by this judgment. **(PIUS C. KURIAKOSE, JUDGE)** **(C.K.ABDUL REHIM, JUDGE)** ## **ps**