Mannamparambil Damodaran Chettiyar v. Vijayan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939 ## **RCRev..No. 152 of 2017 (A)** AGAINST THE JUDGMENT DATED 20.2.2017 IN RCA NO.20/2014 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT), TIRUR. AGAINST THE ORDER DATED 11.3.2014 IN RCP NO.33/2012 ON THE FILES OF THE RENT CONTROL COURT, TIRUR. ## REVISION PETITIONER/APPELLANT/RESPONDENT: MANNAMPARAMBIL DAMODARAN CHETTIYAR, S/O.CHATHUKUTTY CHETTIYAR, AGED 71 YEARS, NEAR URBAN CO-OPERATIVE BANK, TIRUR, TIRUR AMSOM, MALAPPURAM DISTRICT. BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.VINOD RAVINDRANATH SMT.MEENA.A. SRI.SAJU.S.A SRI.K.C.KIRAN SRI.M.DEVESH SRI.VINAY MATHEW JOSEPH SRI.ASHWIN SATHYANATH ## RESPONDENTS/RESPONDENTS/PETITIONERS: 1. VIJAYAN, S/O.MELEVEETTIL VELU, AGED 66 YEARS, THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. 2. UNNIKRISHNAN, S/O.MELEVEETTIL VELU, AGED 63 YEARS, THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. 3. SASIDHARAN, S/O.MELEVEETTIL VELU, AGED 59 YEARS, THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. 4. BABU, S/O.MELEVEETTIL VELU, AGED 54 YEARS, THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. 5. DINESAN, S/O.MELEVEETTIL VELU, AGED 49 YEARS, THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. :: 2 :: RCRev..No. 152 of 2017 (A) 6. VINEED, S/O.LATE VISWANATHAN, AGED 35 YEARS, MELEVEETTIL HOUSE,THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. 7. VIKRAM, S/O.LATE VISWANATHAN, AGED 32 YEARS, MELEVEETTIL HOUSE,THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. 8. GEETHA, W/O.LATE VISWANATHAN, AGED 56 YEARS, MELEVEETTIL HOUSE,THRIKANDIYOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676104. - R1 TO R8 BY ADV. SRI.RAJIT R1 TO R8 BY ADV. SMT.V.VIJITHA THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K. Harilal & P. Somarajan, JJ.** **---------------------------------------------------R.C.R. No.152 of 2017 (A) ---------------------------------------------------Dated this the 7[th] day of June, 2017** ## **O R D E R** ## **Harilal, J.** The Revision Petitioner is the tenant, who is confronting with an order of eviction passed concurrently under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The landlords, six in numbers, filed the Rent Control Petition (for short 'RCP') stating that the third petitioner is an Engineer, retired from the Kerala Government Irrigation Department and that now he is residing in a rented house at Ottappalam and that he needs the petition schedule building for starting a stationery and vegetable business. It was also stated that the fourth petitioner is conducting jewellery works in the adjacent room of the petition schedule room and no other rooms are lying vacant in the possession of the landlords. They also averred that the rent was in arrears from 1.1.1976 and even though they have issued statutory notice under Section 11(2)(b), the tenant simply ## **R.C.R. No.152 of 2017 (A)** :: 2 :: denied the liability and not paid any amount so far. Therefore, they are entitled to get an order of eviction under Sections 11(2)(b) and 11(3) of the Act. 2. The tenant resisted the said claim, contenting that the need is a ruse for eviction, as the third petitioner is residing temporarily at Ottappalam and he wants to start a business at Tirur. It was also contended that the third petitioner has no previous experience in the business of vegetables and that even if the third petitioner is in need of a shop room for conducting business, the room adjacent to the petition schedule shop room is sufficient and suitable for the said purpose. So also, the tenant claimed protection under the second proviso to Section 11(3) of the Act. 3. On the aforesaid rival pleadings, both parties adduced evidence and, after considering the evidence, on record, the Rent Control Court allowed the RCP under both the grounds, In appeal, the Rent Control Appellate Authority (for short ‘Appellate Authority’) also confirmed the findings of the Rent Control Court. ## **R.C.R. No.152 of 2017 (A)** :: 3 :: 4. Though, this Revision Petition has been filed on various grounds, the thrust of the argument advanced by the learned counsel for the Revision Petitioner/tenant is that the Appellate Authority has not considered the first proviso to Section 11(3) of the Act in its correct perspective. It is argued that the Appellate Authority omitted to arrive at a conclusive finding on the first proviso to Section 11(3) of the Act, in view of the evidence, on record. According to the learned counsel for the Revision Petitioner, the Appellate Authority has went wrong in applying the principles laid down in the decision in **Asher** v. **Hassankutty Hajee (2004 (2) KLT 446)** and erroneously arrived at a finding that even if adjacent vacant room is there in the possession of the fourth petitioner or any other petitioners, it will not result in the RCP being dismissed due to the operation of the first proviso to Section 11(3) unless it is proved that the said adjacent room is in the exclusive possession of the third petitioner alone. Further, the learned counsel invited our attention to the proposition laid down in _**Asher's case**_ (supra) and submitted that the facts of that case are entirely different from that of the instant case and the proposition laid down in _**Asher's case**_ (supra) ## **R.C.R. No.152 of 2017 (A)** :: 4 :: must be understood in view of the facts of that case and the findings made thereunder cannot be applied as such to the instant case, wherein facts are different; but the principle can be applied in accordance with facts of the case on hand. Thus, the Appellate Authority has not exercised the appellate jurisdiction in its correct perspective by not arriving at a just and proper finding, on the first proviso to Section 11(3) of the Act, in view of the facts of the instant case. 5. Per contra, the learned counsel for the Respondent/landlord opposed the said argument and contended that the Appellate Authority has construed the decision in _**Asher's case**_ (supra) in its correct perspective and the fact that the landlord in _**Asher's case**_ (supra) is a single person but the landlord in the instant case is a group of persons does not make any difference in applying the proposition laid down in _**Asher's case**_ (supra) and the group of landlords stand in a better footing than a single landlord while interpreting the proposition laid down in _**Asher's case**_ (supra). In support of the aforesaid argument, in addition to _**Asher's case**_ (supra), the learned counsel cited the decisions in **Paul** v. **Pradeep** ## **R.C.R. No.152 of 2017 (A)** :: 5 :: ## **(2006 (2) KLT 20)** ; **Abdul Nazar** v. **Mammad Koya (2011 (2) KLT 914)** and **Kunju** v. **Fathima (2014 (3) KLT 563** ). 6. In view of the submission at the Bar, the questions to be considered are: (1) whether the Appellate Authority has went wrong in applying the proposition laid down in _**Asher's case**_ (supra), without considering the facts of the case on hand; and (2) whether there is any illegality or impropriety in not arriving at a conclusive finding with respect to the bar under the first proviso to Section 11(3) of the Act, on a finding that unless it is proved that the adjacent room is in the exclusive possession of the third petitioner alone the first proviso has no application at all. Thus, the question in controversy centers round the application of the proposition laid down by the Division Bench in _**Asher's case**_ (supra) in the case on hand and the findings made thereunder. 7. We have meticulously considered the proposition laid down by this Court in _**Asher's case**_ (supra). On an analysis of the aforesaid judgment, we find that this Court interpreted the first proviso to Section 11(3) of the Act, after a meticulous examination of ## **R.C.R. No.152 of 2017 (A)** :: 6 :: the ingredients constituting the said proviso, in the light of the decision of the Apex Court in **Lingala Kondala Rao** v. **Vootukuri Narayana Rao (JT 2002 (10) SC 117).** In paragraph 6 of the said decision, the Apex Court held that the expression in the first proviso to Section 11(3) “the landlord has another building of 'his own' 'in his possession'” requires emphasis. “His own” means belonging to oneself, often used with reflective force such as my own, his own etc. 8. After applying the proposition laid down in Asher's case to the instant case, the Appellate Authority held as follows: - “therefore, applying the principles laid down in _**Asher's case**_ , it has to be held that even vacant possession of adjacent room of the petition schedule room is there in the possession of 4[th] petitioner or any other petitioners it will not result in the petition being dismissed due to the operation of the first proviso to sub-section (3) of Section 11 unless it is proved that the said adjacent room is in the exclusive possession of the 3[rd] petitioner alone.” On the above reasoning, even though the evidence adduced by the parties and the Commission Report were reiterated in the impugned judgment, the ## **R.C.R. No.152 of 2017 (A)** :: 7 :: Appellate Authority has not arrived at a conclusive finding on the availability of the alleged adjacent room under the first proviso. 9. As regards the first proviso to Section 11(3) of the Act, it is the case of the tenant that the adjacent room, which is lying vacant, originally belonged to the mother of the landlords and by the death of mother, the ownership and possession devolved upon all the six landlords and now they are in possession of the adjacent vacant room and he denied the allegation that the fourth petitioner is in occupation of the said room and he is conducting jewellery works in the said room. According to him, the fourth petitioner is working as an appraiser in two banks and he is not conducting jewellery works in the adjacent vacant room, which is in possession of the landlords. Further, the tenant asserted that all the landlords are in possession of the said adjacent vacant room and they could have given the said room to the third petitioner instead of the petition schedule shop room. 10. The landlords also have admitted that the alleged adjacent room belonged to their deceased mother and after the ## **R.C.R. No.152 of 2017 (A)** :: 8 :: death of the mother, the said room devolved upon all the legal heirs who are the petitioners in the Rent Control Petition. But, according to them, the fourth respondent alone is in possession of the said room as he is conducting jewellery works therein. 11. We have meticulously analysed the aforesaid finding in view of the interpretation given to the first proviso by this Court in _**Asher’s case**_ (supra) and we find that the Appellate Authority failed to apply the proposition in its correct perspective in the instant case. It is to be borne in mind that in _**Asher’s case**_ (supra) the landlord was a single person and it has come out in evidence that he is a coowner of the adjacent vacant room. In that context, this Court has interpreted the expressions “his own” and “in his possession” and laid down that “his own” means belonging to oneself as my own, his own etc. But, in the instant case, the landlords who are seeking an order of eviction under Section 11(3) of the Act are six in numbers and the alleged adjacent room also belongs to them jointly. In that view, we are of the opinion that, in the instant case, the expression in the first proviso to Section 11(3) of the Act must be interpreted in ## **R.C.R. No.152 of 2017 (A)** :: 9 :: such a way “their own” “in their possession” and “their own” means belonging to themselves as their own. 12. When applying this interpretation to the instant case, it has come out in evidence that the alleged adjacent vacant room belonged to the mother of the landlords and after the death of the mother, the ownership of the said room devolved upon all the six landlords, who have filed the RCP seeking eviction, on the _bona fide_ need. It is trite law that need is always that of landlord. In the above analysis, we find that since all the landlords are admittedly the owners of the alleged adjacent room, the Appellate Authority ought to have considered the following questions. (1) Whether the adjacent room was vacant? (2) If vacant, whether all the landlords are in possession of the said room? (3) Whether the said room is suitable for the proposed business of the third petitioner? But, the Appellate Authority had omitted to arrive at a definite finding on the above questions on an erroneous finding that since the third petitioner is not in possession of the alleged vacant room, aforesaid questions do not require a definite finding. We find that the Appellate Authority failed to consider and arrive at a conclusive ## **R.C.R. No.152 of 2017 (A)** :: 10 :: finding, on the basis of the evidence on record, on the first proviso to Section 11(3) of the Act. Hence, we find that the concurrent findings under the first proviso to Section 11(3) of the Act requires reconsideration by the Appellate Authority to arrive at proper findings on the questions raised above. 13. Coming to the _bona fides_ of the need, it is the case of the landlords that the third petitioner is a retired Engineer from the Kerala Government Irrigation Department and, after retirement, he has no income other than the pension and he intends to start a business in stationery and vegetables in the petition schedule building. The courts below meticulously considered the evidence tendered by the third petitioner as PW1 and arrived at a finding that the need projected by the landlords is a _bona fide_ one and that the tenant miserably failed to controvert the evidence adduced by the landlords. The tenant has no case that the courts below failed to consider any relevant evidence or considered any irrelevant evidence, while considering the _bona fides_ of the third petitioner. Considering the limited scope and extent of revisional jurisdiction ## **R.C.R. No.152 of 2017 (A)** :: 11 :: under Section 20 of the Act, we do not find any reason to interfere with the _bona fides_ found in favour of the landlords. 14. Coming to the protection under the second proviso to Section 11(3) of the Act, the Rent Control Court and the Appellate Authority concurrently found that the tenant miserably failed to discharge the burden of proof. Therefore, this Court is not inclined to re-appreciate the evidence, on record, in this respect, particularly when the landlords failed to bring out any material contrary to the aforesaid plea. In this analysis, the concurrent finding on the _bona fides_ and the denial of protection to the tenant under the second proviso to Section 11(3) of the Act will stand confirmed. 15. Coming to the concurrent findings and the order of eviction under Section 11(2)(b) of the Act, according to the landlords, the tenant has not paid any amount as rent since 1.1.1976. The learned counsel for the tenant vehemently contended that it is impossible to believe that the landlords kept silence for a long 36 years after the default in payment of rent. But, going by the evidence, on record, it is seen that no evidence has been adduced ## **R.C.R. No.152 of 2017 (A)** :: 12 :: by the tenant to prove that he has paid or tendered the entire arrears till receipt of the notice under Section 11(2)(b) of the Act or within 15 days from the receipt of the said notice with interest and postal charges of notice. The only evidence for payment of rent is the memo filed before the court below for the rent from July 2010 to January 2014 only, after the filing of the RCP. Needless to say, even if he has paid any amount or the full amount after the filing of the RCP, that payment cannot be considered, while passing an order of eviction under Section 11(2)(b) of the Act. Moreover, the tenant in Ext.A4 reply notice replied in a single sentence, by a mere denial of the demand and nothing was stated about the details of payment of rent allegedly made by him. Needless to say, the tenant miserably failed to discharge the burden of proof under Section 11(2)(b) of the Act. In view of the aforesaid analysis, we are not inclined to draw a general or common presumption as drawn by the learned counsel for the tenant, while determining an issue, on the basis of the evidence on record. 16. Consequently, the Appeal is remitted back to the Rent Control Appellate Authority, Tirur for fresh consideration and for a ## **R.C.R. No.152 of 2017 (A)** :: 13 :: finding on the question whether the alleged _bona fide_ need is hit by the first proviso to Section 11(3) of the Act only. It is made clear that all other findings on _bona fides_ and the second proviso to Section 11 (3) and the order of eviction under Section 11(2)(b) of the Act will stand confirmed. The Appellate Authority shall consider and pass final judgment afresh on the basis of the decision to be taken on the first proviso to Section 11(3) of the Act, within a period of two months from the date of appearance of the parties. The parties shall appear before the Appellate Authority on 10.7.2017. **K. Harilal Judge** **P. Somarajan Judge** ahz/