M. James v. R. Vijayalekshmi Devi; S. Rangaswamy v. R. Vijayalekshmi Devi; Manoj Kumar A v. R. Vijayalekshmi Devi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940** **RCRev..No. 418 of 2017** **AGAINST THE JUDGMENT DATED 06-07-2017 IN RCA 3/2015 of THE RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA** **AGAINST THE ORDER DATED 25-11-2014 IN RCP 7/2012 of THE RENT CONTROL COURT,ADOOR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **M.JAMES, AGED 46 YEARS, CHARUVILA PUTHEN VEEDU,PANNIVIZHA, ADOOR VILLAGE.** **BY ADVS.SRI.TONY GEORGE KANNANTHANAM SRI.THOMAS GEORGE** ## **RESPONDENT/RESPONDENT/PETITIONER:** **R.VIJAYALEKSHMI DEVI W/O.LATE DR.SOMASEKHARA PILLAI,RESIDING AT EDACKATTUPUTHEN VEEDU,VETTIPPUZHA SOUTH, PUNALOOR VILLAGE,PATHANAPURAM TALUK, KOLLAM DISTRICT.** **BY ADVS.SRI.K.B..PRADEEP (CAVEATOR) SMT.J.HARIPRIYA SRI.K.B.PRADEEP SRI.K.B..PRADEEP CAVEATOR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.10.2018, ALONG WITH RCRev..5/2018, RCRev..429/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:2:-** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940** **RCRev..No. 429 of 2017** **AGAINST THE JUDGMENT DATED 06-07-2017 IN RCA 5/2015 of THE RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA** **AGAINST THE ORDER DATED 25-11-2014 IN RCP 10/2012 of THE RENT CONTROL COURT,ADOOR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **S.RANGASWAMY, AGED 63 YEARS, S/O. LATE K.G. SUBRAMANYAM, SHANKARA VILASOM, NUNNALAM MURI, ADOOR VILLAGE AND TALUK, PATHANAMTHITTA DISTRICT** **BY ADVS.SRI.SHIJU VARGHESE SRI.A.C.EAPEN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **R.VIJAYALEKSHMI DEVI AGED 63 YEARS, W/O. DR. SOMASEKHARAN PILLAI (LATE), EDACKATTU PUTHEN VEEDU, VETTIPPUZHA SOUTH, PUNALOOR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT, 689103.** **BY ADVS.SRI.K.B..PRADEEP (CAVEATOR) SMT.J.HARIPRIYA SRI.K.B.PRADEEP SRI.K.B..PRADEEP CAVEATOR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.10.2018, ALONG WITH RCRev..5/2018, RCRev..418/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:3:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940** **RCRev..No. 5 of 2018** **AGAINST THE JUDGMENT DATED 06-07-2017 IN RCA 4/2015 of THE RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA** **AGAINST THE ORDER DATED 25-11-2014 IN RCP 8/2012 of THE RENT CONTROL COURT,ADOOR** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **MANOJ KUMAR A, AGED 40 YEARS, S/O.LATE A.A.SUKUMARA PILLAI,PUTHIPPALLIL VEETTIL, PANIVIZHA, ADOOR VILLAGE AND TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.SHIJU VARGHESE SRI.A.C.EAPEN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **R. VIJAYALEKSHMI DEVI AGED 63 YEARS, W/O.DR.SOMASEKHARAN PILLAI (LATE),EDACKATTU PUTHEN VEEDU, VETTIPPUZHA SOUTH,PUNALOOR VILLAGE, PATHANAPURAM TALUK,KOLLAM DISTRICT - 689 103.** **BY ADVS.SRI.K.B.PRADEEP (CAVEATOR) SMT.J.HARIPRIYA** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.10.2018, ALONG WITH RCRev..429/2017, RCRev..418/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:4:-** ## **O R D E R** ## **K.HARILAL, J.** **Since all these revision petitions are directed against a common judgment passed by the Rent Control Appellate Authority and the parties are common, all these revision petitions are heard together and disposed of accordingly.** **2. All these revision petitions are filed, challenging the legality and correctness of the concurrent findings of the courts below, whereby the courts below have granted an order of eviction under Sections 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965,** _**(hereinafter referred to as**_ _**'the Act')**_ **, to the respondents herein. The landlord is one and the same person; but the tenants are different. The grounds raised in** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:5:-** **the rent control petitions, seeking an order of eviction are also common. [The parties are referred to as in the rent control petition.]** **3. According to the petitioner/landlady, she** _**bona fide**_ **needs the petition schedule premises in all the three rent control petitions, for starting a diagnostic centre and medical shop for her daughter 'Divya' and for the purpose of starting an Allopathic Consultation Clinic for Dr S.Suresh Kumar, who is the husband of the said 'Divya' as well as the son-in-law of the landlady. According to the petitioner/landlady, neither the petitioner nor the dependants for whom the petition schedule buildings are required, has any other buildings of their own in their possession to start the proposed medical shop and consultation clinic. But, several other shop rooms are available in the locality, to shift** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:6:-** **the business of the respondents/tenants from the tenanted premises. So also, they are not mainly depending upon the income from the tenanted premises. The building is aged more than 80 years and now, it is in a dilapidated condition, which requires reconstruction at the earliest. She has got a plan to construct the proposed building and she will be able to obtain licence for the construction of the building. She has also got the ability to rebuild and has sufficient funds for the reconstruction. The petitioner/landlady wants the entire building to be reconstructed for the occupation of the dependants. With the aforesaid averments, she prayed for an order of eviction passed under Sections 11(3) and 11(4) (iv) of the Act.** **4. The respondents/tenants resisted the claim for eviction, contending that there is no** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:7:-** **landlord-tenant relationship between the petitioner and the respondents, and they are entitled to get protection under Section 106 of the Kerala Land Reforms Act,1963** _**(hereinafter referred to as 'the K.L.R. Act')**_ **. Further, it is contended that the landlady has no title over the property also. Further, the need projected in the petition is not** _**bona fide**_ **and it is a ruse for eviction only. They are depending mainly on the income from the business in the tenanted premises, and no other vacant buildings are available in the locality to shift their business and thereby, they are entitled to get protection under the second proviso to Section 11(3) of the Act. With the aforesaid contentions, they have prayed for dismissal of the rent control petitions.** **5. Heard the learned counsel for the** **revision petitioners.** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:8:-** **6. Sri. Kurian George Kannanthanam, the learned Senior Counsel appearing for the revision petitioners/tenants advanced arguments mainly focusing on the following points:** **7. Firstly, it is contended that the courts below have concurrently went wrong by finding that there is a landlord-tenant relationship between the petitioner and the respondents. According to the learned counsel, the courts below have failed to appreciate the evidence on record with respect to the said issue in its correct perspective.** **8. Secondly, it is contended that the Rent Control Appellate Authority went wrong by admitting Exts.A11 and A12 in evidence, without considering the prejudice caused to the revision petitioners/tenants.** **9. Thirdly, as per Ext.A13 plan, without taking additional area, the proposed building** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:9:-** **cannot be constructed and that would affect the room, which is in their possession and does not form a part of the tenanted area, even if, it is unauthorised construction or unauthorised occupation. The Rent Control Appellate Authority has admitted the document in evidence, without considering the objection of the respondents/tenants.** **10. Fourthly, it is contended that the Rent Control Court went wrong in granting an order of eviction under Section 11(4)(iv) of the Act, without the production of approved plan granted by the Municipality.** **11. Being a revision filed under Section 20 of the Act, which is confined to legality, propriety and regularity of the findings of the courts below only, this Court is not inclined to re-appreciate the entire evidence on record, so as to arrive at a different finding, than** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:10:-** **that of the courts below and this Court has no jurisdiction or power to do so. This Court cannot interfere with the factual findings of the courts below, unless it is found that the findings of the courts below are perverse and vitiated by perversity or non-consideration of material evidence or misreading of evidence.** **12. Bearing the aforesaid legal position in mind, we have considered the points raised by the learned counsel for the revision petitioners/tenants. Coming to the first point, going by the impugned judgment passed by the Rent Control Appellate Authority, we find that the Appellate Authority has considered the aforesaid issue in paragraph Nos.13 to 15 of the impugned judgment, and the court below has placed reliance on Exts.A2, A4, A10, A6 to A9, B1, X1, X3, X5 and X6 and the evidence of PW.3, to arrive at a finding that the landlady has** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:11:-** **title over the petition schedule buildings. Ext.A2 is the partition deed, whereby the landlady has got title over the property. After examining Ext.A2, the courts below observed that the landlady is party No.5 and the petition schedule buildings are item No.5 property in Ext.A2 partition deed and as per Ext.A2, it is clear that the petition schedule building was allotted to the petitioner/ landlady. Ext.A4 land tax receipt would show that mutation in respect of the said allotment in favour of the petitioner/landlady was effected and she has been paying tax for the said property. Ext.A10 building tax receipt issued by the Municipality would show that the petitioner/landlady is paying building tax for the said property. Exts.A6 to A8 series are the applications submitted by the tenants and their predecessor before Adoor Municipality for** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:12:-** **the purpose of getting licence for conducting the business in the petition schedule premises and these applications, it is stated that the present petitioner/landlady and her mother Smt. Karthiyayani Amma Rajamma are the building owners. Ext.A9, the copy of the writ petition filed by the respondents/tenants before the High Court of Kerala would show that, in that writ petition they have admitted the landlordtenant relationship between the petitioner and the respondents before this Court. The aforesaid documents are further supported by Ext.B1 property tax receipt produced by the respondent in R.C.P. No.7 of 2012. Moreover, Ext.X1 to X4 series are the applications submitted by the respondents before Adoor Municipality, for getting licence for conducting business in the tenanted premises in the cases at hand. Ext.X1 to X4 were marked** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:13:-** **and proved through PW.2, one of the officers of the Adoor Municipality. Exts.X5 and X6 series would show that the respondents were paying rent of the petition schedule premises, by way of sending money order in favour of the petitioner/landlady. Exts.X5 and X6 series were marked through PW.3, the postman. In view of the aforesaid evidence on record, we find that there is no illegality or impropriety in the finding that the petitioner is the “landlord” falling under Section 2(3) of the Act.** **13. Though they have contended permanent tenancy under Section 106 of the K.L.R. Act, no evidence has been adduced to prove that they have took the property on ground rent and after that, they constructed the scheduled building for commercial or industrial purpose, before the 20[th] May, 1967. It shows that such a** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:14:-** **contention was raised without** _**bona fides.**_ **Thus, we are of the opinion that the Rent Control Appellate Authority meticulously examined all the documents produced by the petitioner/ landlady and arrived at a just and proper finding that, there is a landlord-tenant relationship between the petitioner and the respondents.** **14. Coming to the second point, we have examined the application filed under Order 41 Rule 27 of the Code of Civil Procedure,** **1908** _**(hereinafter referred to as 'the**_ _**C.P.C.')**_ **before the Appellate Authority to accept Ext.P11 building permit and Ext.A12 plan in evidence. We find that, even though the said petition was posted for objection of the respondents/tenants several times, no objection had been filed before the Appellate Authority against the production of Exts.A11 and A12 in** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:15:-** **the appeal. At last, after having granted several opportunities, the Rent Control Appellate Authority marked and admitted the documents in evidence as Exts.A11 and A12 respectively. In the absence of any objection to the petition filed under Order 41 Rule 27 of the C.P.C., we find that there is no** _**bona fides**_ **in the submission that the admission of those documents in evidence would cause prejudice to the respondents/tenants. So, we reject the said contention also.** **15. Coming to the third point, it is true that in the rent control petition, the petitioner/landlady has not produced the plan approved by the Municipality. Ext.A5 is the copy of the plan prepared for submitting before the Municipality. The question, whether the approved plan and permit are essentially required to be produced before the Rent Control** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:16:-** **Court to get an order of eviction under Section 11(4)(iv) was considered by the Full Bench of this Court in** _**Beeyathu v. Gopalan**_ **[2005(1) KLT 313]? In this decision, the Full Bench of this Court held that the approved plan is not essentially required to be produced in the Rent Control Court, and it can be produced at the time of execution, before the Execution Court. But, in the instant case, the petitioner/landlady has produced the approved plan and licence issued by the Municipality in her favour in the Rent Control Appellate Authority and the Appellate Authority has marked them, as Exts.A11 and A12. Therefore, we do not find any substance in the argument advanced by the learned counsel for the respondents/tenants that the petitioner/ landlady has not produced approved plan and licence. In view of the decision of the law** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:17:-** **declared by the Full Bench, we find that the production of the approved plan and licence before the Appellate Authority would satisfy the statutory requirement under Section 11(4)** ## **(iv) of the Act.** **16. Lastly, whether the belated production of the plan and permit before the Appellate Authority would cause prejudice to the respondents. It has come out in evidence that the respondents/tenants have approached the Civil Court, by filing original suits, seeking to protect their rights in the adjacent property and obtained an injunction against the petitioner/landlady. Therefore, there is no possibility to cause any kind of prejudice to them, by admitting the plan in evidence. That apart, the acceptance of the plan and permit will not stand in the way of the respondents' civil right, if any. According to the** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** **-:18:-** **respondents/tenants, without taking additional area, the proposed building cannot be constructed. We are of the opinion that, as regards the possibility of reconstruction, after granting an order of eviction under Section 11(3) of the Act also, the tenants have no say in this matter, as they have no right of restoration under Section 11(2) of the Act after reconstruction. Since the respondents have already approached the civil court and obtained an order of injunction, no prejudice would be caused to them due to the belated production of plan and permit in the appeal.** **17. Thus, we find that there is no illegality or impropriety in the findings, whereby the courts below granted an order of eviction under Sections 11(3) and 11(4)(iv) of the Act to the petitioner/ landlady. This revision fails and dismissed accordingly.** **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:19:-** **18. Having regard to the facts and circumstances of the case, the revision petitioners are given eight months time from today to vacate the tenanted premises on the** ## **following conditions:** _(i) The respondents in the Rent Control Petitions shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within eight months, from today._ _(ii)The respondents/tenants shall deposit the entire arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall_ **RCRev..Nos. 418 of 2017, 429 of 2017 & 5 of 2018** ## **-:20:-** _continue to pay rent without default._ _(iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order._ **The rent control revision is dismissed** **accordingly. All pending Interlocutory Applications will stand closed.** ## **Sd/-** ## **K.HARILAL, JUDGE** ## **Sd/-** ## **ANNIE JOHN,JUDGE** DST //True copy// P.A. To Judge