Manjula w/o Venkiteswaran V.R. v. Rajesh J. Pai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939** **RCRev..No. 90 of 2015 () -------------------------** ## **AGAINST THE ORDER/JUDGMENT IN RCA 51/2012 OF THE ADDITIONAL DISTRICT JUDGE-V, ERNAKULAM, DATED 31-01-2015** **AGAINST THE ORDER/JUDGMENT IN RCP 145/2010 OF THE ADDITIONAL MUNSIFF AND RENT CONTROL COURT, ERNKAULAM, DATED 13-06-2012** ## **REVISION PETITIONER(S)/PETITIONER/RESPONDENT/PETITIONER:** **-------------------------------------------------------** **MANJULA, W/O.VENKITESWARAN.V.R,59/280,VADEPARAMBIL HOUSE, MAHAKAVI BHARATHIYAR ROAD,COCHIN-35.** ## **BY ADV. SRI.ABRAHAM JOHN** **RESPONDENT(S)/RESPONDENT/APPELLANT/RESPONDENT: ----------------------------------------------** **RAJESH J.PAI, S/O.N.JAYACHANDRA PAI,SALIGRAM,MARKET ROAD,ERNAKULAM.** **R,R BY ADV. SRI.K.N.SIVASANKARAN R,R BY ADV. SRI.SUNIL SHANKER** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 31-08-2017, ALONG WITH RCR. 91/2015, RCR. 92/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & A.M.BABU, JJ.** **.......................................... R.C.R Nos.90, 91 and 92 of 2015 ........................................... Dated 31[st] August, 2017** ## **ORDER** ## **A.M.BABU, J.** One and the same landlord filed three petitions to evict two tenants from three rooms. One of the tenants is holding two rooms under separate leases. His name is Venkiteswaran. His wife, by name Manjula, is the tenant of the third room. Eviction of Venkiteswaran was sought under Sec. 11 (3), (4) (iii) and (8) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). Manjula was sought to be evicted under Sec. 11 (3) and (8) of the Act. The trial court consolidated the three petitions for trial and disposed of the cases by a common order. The trial court directed the eviction of Venkiteswaran under Sec. 11 (4) (iii) and (8) of the Act. The petition filed against Manjula was dismissed. The landlord filed appeal against Manjula. Venkiteswaran filed appeals against the landlord. The appellate authority dismissed the appeals filed by Venkiteswaran and allowed the appeal filed against Manjula. Both the tenants are in revision. 2. The case of the landlord may be briefly stated as follows: He is running a juice shop in his own room. The 2 R.C.R Nos.90, 91 and 92 of 2015 remaining rooms in the same building have been tenanted to Venkiteswaran and Manjula. The landlord bona fide requires the premises occupied by Venkiteswaran and Manjula to do business in textile. The entire space occupied by the tenants is absolutely necessary for doing the business proposed. The locality is suitable to conduct textile business in wholesale and retail. The landlord has sufficient funds to start the business. The request made to the tenants to vacate the premises was not heeded to. Venkiteswaran is in possession of two rooms of his own which are reasonably sufficient for his requirement. Those rooms are just 100 metres away from the tenanted premises. 3. The tenants filed objection in each proceedings. They admit the leases. Their contentions are stated below: The landlord has no intention to do textile business in the premises tenanted to the tenants. The landlord has no practical experience or knowledge for doing any such business. He has several other buildings in his possession in the same locality for him to do textile business if he really wants to do such a business. The income derived from the textile shop run in the tenanted premises is the main source of income of the tenants. No suitable building is available in the locality for them to shift 3 R.C.R Nos.90, 91 and 92 of 2015 their business. 4. Originally the ground under Sec.11 (8) of the Act was not contained in the rent control petitions. Subsequently by amendment that ground was incorporated. After amendment the tenants filed additional counter-statements. They contended that the claim under Sec.11 (8) of the Act was not maintainable inasmuch as the room where the juice shop was conducted was not a part of the building occupied by the tenants. 5. Both sides adduced evidence before the trial court. PW1 and RW1 were examined. Exts A1 to A3, B1 and B2 and C1 to C1(b) were marked. 6. We have heard the learned counsel Sri.Abraham John and the learned counsel Sri.Sunil Shanker who appear for the landlord and the tenants respectively. 7. The learned counsel for the tenants started his arguments highlighting two technical contentions. The learned counsel submitted that the ground under Sec.11 (8) of the Act was not pressed before the trial court, but the trial court granted eviction under the said ground. The trial court has stated at paragraph 13 of its order that the landlord did not press the ground under Sec.11 (8) of the Act. The trial court 4 ## R.C.R Nos.90, 91 and 92 of 2015 said that despite the said submission made on the side of the landlord, the court would consider the ground under Sec.11 (8) since the proper ground for the landlord was the one under the said sub-section and not the one under sub-sec (3). There has been a dispute when the revisions were heard as to whether the ground under Sec.11 (8) was withdrawn by the landlord. The learned counsel for the landlord submitted that he did not withdraw the ground under Sec.11 (8). If a ground was withdrawn or any concession was given by any counsel, it was incumbent on the trial court to get it in writing. That was not done. We do notice that the alleged withdrawal of the ground was not taken as a ground in the memoranda of appeals filed by tenant Venkiteswaran. Nothing on that aspect is seen to have been argued before the appellate authority on the side of the tenants. For these reasons we proceed to decide the revisions as if no concession was made on the side of the landlord so far as the ground under Sec.11 (8) is concerned. 8. We shall approach the question from another angle. For that purpose we refer to a decision of the full bench of this court. The decision is **Pottarath Kunhammi vs Varikkapulakkal Abdulla Kutty @ Abdul Haji (2015 (1)** 5 R.C.R Nos.90, 91 and 92 of 2015 **KHC 684).** The full bench holds that the ground under Sec. 11 (3) of the Act and the one under Sec.11 (8) are mutually exclusive and independent. However, it is held, those two grounds are not always mutually destructive. It is therefore held that the court would not be precluded from allowing a petition under Sec.11(3) even if Sec.11 (8) alone or also is mentioned in the rent control petition, and vice versa, provided the facts pleaded and proved in the case would justify such a conclusion. In view of the decision referred to above, even if the ground under Sec.11 (3) alone is claimed in the rent control petition, the court can, in an appropriate case, grant eviction under Sec.11 (8) instead of Sec.11 (3). We have read the pleadings and the evidence in the case. We are satisfied from the evidence adduced by the parties that the tenants did understand that the claim of the landlord was under Sec.11 (8) and not under Sec.11 (3). We therefore do not find any merit in the first technical submission of the learned counsel for the tenants. 9. The second technical contention of the learned counsel is that the room where the juice shop is conducted by the landlord is not the part of the building where the textile shop is run by the tenants. As to the question whether the 6 R.C.R Nos.90, 91 and 92 of 2015 room where the juice shop is housed is part of the said building or not there are the assertions of PW1 and RW1 in their respective affidavits filed in lieu of their examination-in-chief. We do not find anything in the cross-examination of PW1 to find that he conducts the juice shop in a room which is not the part of the main building. But we find something in the evidence of RW1 to find that the room occupied by the landlord does form part of the main building. The appellate authority has discussed such evidence. The appellate authority has considered the admission of RW1 that the juice shop and the main building share a common wall and have a common roof. The appellate authority has considered the evidence of RW1 that the northern wall of the main building is the southern wall of the juice shop. The said admissions of RW1 would clinch the issue. The landlord gets sufficient support from Ext C1 report of the commissioner. Ext C1 suggests that the juice shop is a part of the main building. Separate rooms are given separate numbers by the local authority only for the purpose of assessment of the rooms to tax. Such separate numbering cannot be taken as evidence to find that the juice shop is run in another building. We are in complete agreement with the trial court as well as the appellate authority that the landlord is 7 R.C.R Nos.90, 91 and 92 of 2015 occupying a portion of the building to conduct the juice shop. 10. Admittedly the landlord is conducting a juice shop. That shop is proved to be a portion of the building in which three rooms are tenanted to the tenants. PW1 has made his mind clear in the witness box that he intends to start a textile business in the premises now occupied by the tenants. The trial court as well as the appellate court did not find anything tangible to suspect the said evidence of PW1. He is now doing a small business. He owns a building where he could do the business proposed after evicting the tenants. The landlord is proved to be the owner of several other buildings which are also in the possession of other tenants. Therefore we do not find any reason to suspect his financial capacity to do textile business. We do not find anything in the cross-examination of PW1 to suspect his bona fides. The tenanted premises where a textile shop is currently run is most suitable for the landlord to run a similar business. We approve and confirm the concurrent findings of the courts below that the need for additional accommodation put forward by the landlord is bona fide. Despite that finding, the trial court did not allow the petition filed against tenant Manjula. That mistake committed by the trial court was corrected by the appellate authority. 8 R.C.R Nos.90, 91 and 92 of 2015 11. The proviso to Sec.11 (10) of the Act provides that in the case of an application made under sub-sec (8) of Sec.11, the rent control court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. It has come out in evidence that there are other vacant rooms in the locality to where the tenants can shift their textile shop. The learned counsel for the tenants submitted that his clients had spent a huge amount of ten lakhs rupees to prepare and decorate the rooms to make them suitable to do textile business. If that contention is accepted, this court in revision may have to go deep into the question of comparative hardship. But the tenants could not produce any evidence to prove that they spent a huge amount for the said purpose. RW1 was cross-examined on this respect. He spoke that he was keeping accounts. He also spoke that documents were available with him to prove the investment of a huge amount to make the rooms suitable for textile business. RW1 deposed that he was in possession of documents to prove that he furnished the rooms. He stated as to what precisely were those documents. He stated that the document given to him by the contractor and the account books maintained by himself were 9 R.C.R Nos.90, 91 and 92 of 2015 available with him. He also stated that spending of money for furnishing et cetera could be proved by those documents. But he produced none. The tenants on whom the burden is failed to discharge it. We are therefore not in a position to hold that the tenants would be taken care of by the proviso to Sec.11 (10) of the Act. That perhaps is the reason why the tenants did not raise a contention in their counter-statements touching the hardship contained in the said proviso. We confirm the order of eviction passed against the tenants under Sec.11 (8) of the Act. 12. The next ground taken for eviction was the one under Sec.11 (4) (iii) of the Act. That ground was taken only against tenant Venkiteswaran. If the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village, he shall be liable to be evicted on the motion of the landlord under Sec.11 (4) (iii) of the Act. Admittedly tenant Venkiteswaran owns two rooms in a building which is just 100 metres away from the rooms tenanted to him. This fact is admitted by RW1 in his cross-examination. He spoke that those rooms were purchased by him not for doing any business, but only as an investment. RW1 spoke that those two rooms were let out by him after the letting in favour 10 R.C.R Nos.90, 91 and 92 of 2015 of his wife was made. The lease in favour of his wife commenced in the year 2009. It was thereafter the two rooms were let out by him. He let out those rooms in 2010 as deposed by him. That means he did subsequently acquire possession of two rooms. The case squarely falls under Sec.11 (4) (iii) of the Act. 14. What remains is whether the said rooms were reasonably sufficient for Venkiteswaran to do his textile business. The burden of proof is on him and him alone. He did not do much to discharge the said burden. True, he stated in his affidavit in lieu of his examination-in-chief that the two rooms owned by him were not reasonably sufficient for his requirement. But such an oral assertion is not sufficient to prove the fact. There are other modes of evidence to prove the fact. The best is to get the report of a commissioner. That was not attempted. We are therefore not in a position to accept the oral assertion of RW1 that the two rooms owned by him were not reasonably sufficient for his requirement. 14. Having considered the evidence in the case, we see little scope for interference with the order of eviction passed against the tenants. The revisions which are devoid of merits are liable to be dismissed. We do so. 11 R.C.R Nos.90, 91 and 92 of 2015 15. The learned counsel for the tenants requested to grant a period of one year to vacate the premises. The time requested for is too long. The landlord has been waiting to get vacant possession of the tenanted premises since 2010. At the same time we consider that a breathing time is needed for the tenants to find out an alternative premises to shift their business. We are therefore inclined to grant a period of eight months from today to the tenants to vacate the premises subject to the conditions we impose. The time given by us to the tenants to vacate the premises in our opinion is pretty long. Therefore we caution the tenants that they should not be under an impression that they need to search for another building only in the eighth month. We also caution that the tenants should not be under an impression that they would get extension of time. 16. All the revisions stand dismissed. In the circumstances of the case, we make no order as to costs. We, however, grant a period of eight months from today to the tenants to vacate the premises subject to the following conditions: The tenants shall file an affidavit in each rent control petition undertaking to vacate the premises within a period of eight months from today. It shall also be undertaken 12 R.C.R Nos.90, 91 and 92 of 2015 in each affidavit that no further time will be sought under any circumstance. The affidavits shall be filed before the rent control court within a period of three weeks from today. The rent in future till the date of vacating the premises shall be paid on or before the due date. **K.HARILAL Judge** **A.M.BABU Judge** _sks_