Kuttikattill Alimon v. M. Prabhakaran

## **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 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 RCREV. NO. 2 OF 2019 AGAINST THE JUDGMENT DATED 26.10.2018 IN RCA NO.30 OF 2017 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE), TIRUR CONCURRING WITH THE COMMON ORDER IN RCP NO.29 OF 2012 DATED 17.08.2017 OF RENT CONTROL** **(MUNSIFF) COURT, TIRUR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **KUTTIKKATTIL ALIMON AGED 31 YEARS S/O.KUTTIKKATTIL MOIDEENKUTTY HAJI, SAJITHA JEWELLARY, MANGALAM AMSOM, KOOTTAYI DESOM, TIRUR.P.O., MALAPPURAM DISTRICT-676101.** **BY ADVS. SMT.DEEPA NARAYANAN PREETHI. P.V.** ## **RESPONDENT/RESPONDENT/PETITIONER:** **M.PRABHAKARAN, AGED 62 YEARS S/O.JANAKI AMMA, MATTAYI HOUSE, THRIKKANDIYUR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT-676104.** **BY ADV MEENA.A.(CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.2 of 2019 -: 2 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.C.Rev. No.2 of 2019** ## **-----------------------------------------------** ## **Dated this the 10[th] day of February, 2023** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenant in a proceedings for eviction under Sections 11(2)(b) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (the Act), is the petitioner in this revision petition. The Rent Control Court ordered eviction of the tenant under both heads, and the decision of the Rent Control Court was affirmed in appeal by the Appellate Authority. It is against the concurrent orders of eviction of the authorities below that this revision petition is filed by the tenant. 2. The subject matter of the proceedings is a portion of the ground floor of a two storeyed building. The remaining portion of the building is occupied by the landlord. The building originally belonged to the mother of the landlord, and the brother of the landlord let out the premises to the tenant on behalf of the legal representatives of their deceased mother for running a jewellery business. The building was obtained by the landlord in terms of the decree passed in a suit for partition of the properties held by his R.C.Rev. No.2 of 2019 -: 3 :- mother towards his share. It was alleged by the landlord in the eviction petition that the tenant was not paying rent from 11.04.2008. It was also stated by the landlord in the eviction petition that he along with his children Prajith and Chaithanya intend to establish a visual communication business and studio in the building and that such a business could be conducted conveniently only if he gets the portion of the building occupied by the tenant. It is on the aforesaid allegation and averments that the landlord claimed eviction of the tenant under Sections 11(2)(b) and 11(8) of the Act. The tenant raised objections to the eviction petition contending mainly that the rent of the premises is not in arrears and that the claim for eviction on the ground that the landlord needs the premises for conducting business along with his children is not _bona fide,_ as the landlord and his children have several other businesses and they are in possession of several other vacant premises to satisfy their requirements, if at all genuine. 3. The landlord gave evidence in the proceedings as PW1. The daughter of the landlord, Chaithanya gave evidence as PW2. Exts.A1 to A9 are the documentary evidence on the side of the landlord. The tenant gave evidence as RW1. Ext.B1 is the only documentary evidence on the side of the tenant. Exts.C1 to C4 are the reports and plans submitted by the Advocate Commissioner R.C.Rev. No.2 of 2019 -: 4 :- appointed in the proceedings. 4. As noted, the Rent Control Court upheld the claim of the landlord and ordered eviction of the tenant under both heads, and the Appellate Authority, on an elaborate consideration of the facts and circumstances of the case, affirmed the decision of the Rent Control Court. 5. Heard the learned counsel for the tenant as also the learned Senior Counsel for the landlord. 6. The learned counsel for the tenant did not make any submission as regards the findings rendered by the authorities below on the claim of the landlord under Section 11(2)(b) of the Act. He has made submissions only as regards the findings rendered by the authorities below on the claim of the landlord under Section 11(8). Even while making submissions as regards the findings on the claim of the landlord under Section 11(8), the learned counsel did not dispute the fact that the landlord is entitled to an order of eviction under that provision, if the claim put forward by him is _bona fide_ . The attempt of the learned counsel, in the circumstances, was only to show that the landlord has not established that the claim is _bona fide_ as required under Section 11(10) of the Act. In order to bring home the said point, it was contended by the learned counsel that there is no pleading in the eviction petition as to the exact area R.C.Rev. No.2 of 2019 -: 5 :- required for the proposed business. It was pointed out by the learned counsel that PW2, the daughter of the landlord has categorically stated in her evidence during cross-examination that the area required for the proposed business is only about 500 sq.ft. According to the learned counsel, admittedly, the landlord is in possession of an area more than 500 sq.ft. in the very same building and from the said fact alone, it could be seen that the claim is not _bona fide_ . It was also contended by the learned counsel that the landlord had in fact obtained a building permit for construction of a multi-storeyed building behind the building, of which the tenanted premises is a part, and when questioned about the same in crossexamination, the stand taken by the landlord was that he has dropped the idea of the said construction. It was pointed out by the learned counsel that after having obtained the order of eviction, he began construction of a multi-storeyed building in the vacant land behind the tenanted premises and as per the plan obtained by him for the said building, a substantial portion of the tenanted premises is to be demolished for access to the new building. In order to substantiate the said fact, the learned counsel brought our attention to the report of the Advocate Commissioner appointed by this Court in this revision. According to the learned counsel, in light of the subsequent developments aforesaid, the claim of the landlord R.C.Rev. No.2 of 2019 -: 6 :- cannot be said to be _bona fide_ at all. It was also argued by the learned counsel that inasmuch as the landlord has already put up a multi-storeyed building in the vacant land behind the tenanted premises, the hardship that would be caused to the tenant if he is ordered to be evicted would certainly outweigh the advantage the landlord may obtain by reason of the order of eviction. 7. Per contra, the learned Senior Counsel for the landlord contended that rights of parties are to be decided with reference to the date of application, and if the facts of the case are viewed in that perspective, there is absolutely no illegality, irregularity or impropriety in the impugned decisions. It was contended by the learned Senior Counsel that unlike a case falling under Section 11(3) of the Act where higher degree of _bona fides_ need to be established by the landlord in a case under Section 11(8) of the Act, the Court will have to take a liberal approach in the context of deciding the _bona fides_ . It was also argued by the learned Senior Counsel that the tenant in this case cannot be heard to contend anything about the comparative hardship, as he is not occupying the premises for a quite long time. 8. On a query from the Court, the learned counsel for the tenant conceded that the tenant is not occupying the premises. But according to him, it is not due to the reason that he does not R.C.Rev. No.2 of 2019 -: 7 :- require the tenanted premises, but because he is unable to use the premises on account of the partial demolition of the building by the landlord. 9. In response to the submission made by the learned counsel for the tenant, the learned Senior Counsel for the landlord submitted that the building is intact even now and that the tenant is taking the stand that the building has been partially demolished for the reason that the another tenant who was previously occupying the first floor of the building had removed the air conditioners fixed by them in that portion of the building. 10. The question that falls for consideration therefore is as to whether the decisions of the authorities below suffer from any illegality, irregularity or impropriety warranting interference of this Court in exercise of the revisional jurisdiction under Section 20 of the Act. 11. Before dealing with the argument advanced by the learned counsel for the tenants, it is necessary to understand the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, re-appreciate the evidence on record in R.C.Rev. No.2 of 2019 -: 8 :- order to come to a different conclusion on any factual issues, unless the finding can be said to be either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting correction under Section 20 of the Act. 12. It is trite that in order to sustain a claim under Section 11(8) of the Act, the claim put forward shall be _bona fide_ . But as rightly argued by the learned Senior Counsel for the landlord, the standards to decide the _bona fides_ of a claim under Section 11(3) and that of the requirement of additional accommodation coming under Section 11(8) are different, the former being more rigorous than the latter. It was held by this Court in **Lekshmana Naikan v. Gopalakrishna Pillai,** 1981 KLT 167 that additional accommodation cannot be denied, even if the requirement amounts to luxury. It is also trite that the crucial date of deciding as to the _bona fides_ of a requirement is the date of the eviction petition and if every subsequent development is to be taken into account for judging the _bona fides_ of the requirement, there would be no end to R.C.Rev. No.2 of 2019 -: 9 :- the litigation. But that does not mean that subsequent events need not be taken note of at all. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events [See **Gaya Prasad v. Pradeep Srivastava** , (2001) 2 SCC 604]. 13. Keeping in mind the principles aforesaid, let us examine the arguments advanced by the learned counsel for the parties. The pleading of the landlord in the eviction petition as regards the claim under Section 11(8) of the Act reads thus: “ത�ഴ� പട�കയ�ൽ വ�വര�ച പ�ട�കമറ� ഉൾഴക�ളന ഴകട�ടത�ഴ� ഗ�ണ� ഫ��റ�ൽ ഉള ഒര . മറ�യ# ഒന�# ന��യ�ലള ഒര മറ�യ# ഹരജ�ക�രഴ) യഥ�ർത കകവശത�ലളത�ണ� . ത�ഴ� പട�കയ�ൽ വ�വര�ച മറ� ഗ�ണ� ഫ��റ�ലള ഒര മറ�യ�ണ� ആയത� ഗ�ണ� ഫ��റ�ൽ . ഹരജ�ക�രൻ കകവശമള ഫ2ൽ പസ�വ�ച മറ�യഴട ഴത�ട� സ�ത�ഴ6യനത2�ണ� അഴതല�# മൻ പസ�വ�ച ര�ജ� വ�ധ� പക�ര# ഹരജ�ക�രന� ഉട2�വക�ശ കകവശ2�യ� . സ�ദ�ച�ടളത2�ണ� അങഴന ഹരജ�ക�രൻ കകവശമള ഫ2ൽ പസ�വ�ച രണ മറ�കള# പറഴ2 ത�ഴ� പട�കയ�ൽ വ�വര�ച മറ� കട� ഉൾഴDടത� അങഴന മന� മറ�കള�ല# കട� ഒന�യ� ഹരജ�ക�രന# ട�യ�ഴ) 2കള�യ പജ�ത�, ക6തനI എന�വർക# കട� കട�യ� ഫയ�ജ�ച� ഒന�യ� ഒര വ�ഷMൽ കമOണ�ഫകഷൻ ആൻറ� സഡ�ഫയ� തടങ� നടത� വരവ�ൻ . ഹരജ�ക�രന# ഫ2ൽ പസ�വ�ച രണ� 2കള# കട� ത�ര2�ന�ച�ടളത# ന�ശയ�ച�ടളത2�ണ� ആ മന� മറ�കള# മൻ പസ�വ�ച പക�രമള ഒര ബ�സ�നസ� തടങ� നടതവ�ൻ ഹരജ�ക�രന# 2കൾ പജ�ത�, ക6തനI എന�വർക# അതI�വശIവ# . . മഖI�വശI2�യ�ടളത2�ണ� അത�ന� എല�വ�ധത�ല# നല ഫപ�ഴ� സ�കരI2�യ�ടളത2�ണ� ത�ഴ� പട�ക മറ� കട� ബ�ക� ഫ2ൽ പസ�വ�ച രണ� മറ�കഫള�ട� കട� ഒന�യ� കട�യ� ഉപഫയ�ഗഴDടതവ�ൻ ക��ഞ�ൽ 2�തഫ2 ശര�യ�യ# സ�കരIപദ2�യ# ��ഭകര2�യ# ഫ2ൽ പസ�വ�ച പക�രമള ഒര സ�പന# തടങ� നടതവ�ൻ ഹരജ�ക�രന# ഫ2ൽ പസ�വ�ച 2കൾക# കട� ക��യകയള.” R.C.Rev. No.2 of 2019 -: 10 :- The aforesaid pleading, according to us, cannot be said to be inadequate to sustain a claim under Section 11(8). The contention raised by the learned counsel for the tenant that the landlord in a case of this nature has to plead the exact area required for the proposed business, is without any substance. True, the daughter of the landlord has stated in her evidence that the area required for the proposed business is 500 sq.ft. When it is categorically stated in the eviction petition that the proposed business can be conveniently conducted only if the entire building is available, the said statement can be considered only as one made by mistake, for the landlord is in possession of more than 500 sq.ft in the building. Merely for the reason that the daughter of the landlord has made an incorrect statement in the cross-examination, it cannot be said that the claim is not _bona fide_ . Similarly, merely for the reason that the landlord started construction of a new building after having stated in his evidence that he dropped the said idea, it cannot be said that the claim is not _bona fide,_ as it is for the landlord to decide as to whether he should go on with the construction and if so, at what time, etc. 14. It is relevant to note in this regard that the contentions raised by the tenant in his evidence as regards the claim made by the landlord under Section 11(8) is only that the R.C.Rev. No.2 of 2019 -: 11 :- landlord has in his possession other convenient places for conducting the proposed business and that his children who have other businesses have no need to conduct the proposed business. The relevant portion of the chief-affidavit filed by the tenant reads thus: “ഹരജ�ക�രഴ) ആവശIത�ന� 2ത�യ�കനത# ത�കയനത# ഹരജ�പട�ക എടD�മറ�ഴയക�ൾ സ�കരIപദ2�യ എടD�മറ�കൾ ഹരജ�ക�രഴ) തഴന ഫനര�ട� കകവശത�ൽ ഉളത�ണ�. ആ ഒറ ക�രണ# ഴക�ണ� തഴന ബഹ2�നഴപട ഫക�ടത�ക� ഫ2ൽ നമർ ഹരജ� പര�ഗണ�കനത�ന� ന�യ2തടസമളത�ണ�. 9. ഹരജ�യ�ൽ പസ�വ�ച ഹരജ�ക�രഴ) 2കൾഴകല�# തഴന business establishment ഉളത�ണ�. അവർഴക�ന# തഴന ഹരജ�യ�ൽ പസ�വ�ച പക�രമള ഒര കചവട# നടഫതണ ഒര ആവശI# തഴന ഇല�തത�ണ�.” According to us, the _bona fides_ of the claim for additional accommodation cannot be challenged at all on the aforesaid grounds. Merely for the reason that the children of the landlord have other businesses, it cannot be said that they do not intend to conduct the proposed business. Similarly, the convenience of the premises to conduct the business is one to be decided by the landlord and not to be dictated by the tenants. Needless to say, the tenant cannot be heard to contend that the claim of the landlord under Section 11(8) is not _bona fide_ . 15. Let us now examine the subsequent events which are highlighted by the learned counsel for the tenant to contend that the claim of the landlord does not survive. It is conceded by the R.C.Rev. No.2 of 2019 -: 12 :- learned Senior Counsel for the landlord that a portion of the building needs to be demolished for providing access to the building which is being put up by the landlord on the vacant land behind the tenanted premises. According to us, the said development can never be construed as a subsequent event that would overshadow the _bona fides_ of the claim made under Section 11(8) of the Act. 16. What remains to be considered is whether the argument advanced by the learned counsel for the tenant that the hardship to which the tenant is subjected to, on account of the order of eviction, would outweigh the advantage the landlord would obtain by reason of the order. We do not find any substance in this argument also. The pleading of the tenant in this regard is that the landlord has other means of livelihood and the only means of his livelihood is the income from the tenanted premises. As rightly found by the authorities below, the tenant has not established that his sole means of livelihood is the income from the business carried on by him in the tenanted premises. It is all the more so since it is admitted by the tenant that no business is carried on in the tenanted premises for quite some time. In light of the aforesaid discussion, the factual findings rendered by the authorities below cannot be said to be illegal or perverse, warranting interference of this Court in exercise of the R.C.Rev. No.2 of 2019 -: 13 :- jurisdiction under Section 20 of the Act. The revision petition is, therefore, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 21.01.2023 R.C.Rev. No.2 of 2019 -: 14 :- ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE 1: TRUE COPY OF THE TREASURY RECEIPT OF THE OF THE RENT DEPOSITED BY THE PETITIONER IN SUB TREASURY, TIRUR, DATED 25.01.2022. ANNEXURE 2: TRUE COPY OF THE MEMO FILED BY THE PETITIONER HEREIN BEFORE THE HON'BLE MUNSIFF COURT FILED BY THE PETITIONER, DATED 25.01.2022** **ANNEXURE A3: TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE TIRUR MUNICIPALITY DATED 25.07.2019. ANNEXURE A4: TRUE COPY OF THE BUILDING PLAN ISSUED BY THE TIRUR MUNICIPALITY DATED 25.07.2019 ANNEXURE A5: PHOTOGRAPHS SHOWING THE PRESENT STAGE OF CONSTRUCTION OF THE NEW BUILDING.**