M.K. Mahendrajith v. C.M. Madhusoodhanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942** ## **RCRev..No.398 OF 2018** **AGAINST THE ORDER/JUDGMENT IN RCA 180/2016 OF ADDITIONAL DISTRICT COURT - II, THALASSERY** **AGAINST THE ORDER/JUDGMENT IN RCP 68/2015 OF MUNSIFF COURT, THALASSERY** ## **REVISION PETITIONER/S:** **M.K.MAHENDRAJITH AGED 46 YEARS S/O.KARUNAKARAN, EP.XVI/513, OPPOSITE FORD SHOW ROOM, THOTTADA.P.O., EDAKKAD, KANNUR DISTRICT.** **BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA** ## **RESPONDENT/S:** **C.M. MADHUSOODHANAN AGED 63 YEARS S/O.ANANDAN, KRISHNA NIVAS, KOYYODE, CHEMBILODE VILLAGE, P.O.KOYYODE-670621.** **R1 BY ADV. SRI.P.U.SHAILAJAN R1 BY ADV. SRI.M.SURESH KUMAR R1 BY ADV. SMT.VIDYA KURIAKOSE R1 BY ADV. SRI.V.SREEJITH (K/1398/2000)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18-022021, THE COURT ON 25-02-2021 PASSED THE FOLLOWING:** **RCR No.398 OF 2018** **2** ## **'CR'** **A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ ------------------------------------------------R.C.R No. 398 of 2018 -------------------------------Dated this the 25[th] day of February, 2021** ## **O R D E R** ## **P.V.Kunhikrishnan, J** The revision petitioner is the respondent in RCP No. 68/2015 on the file of the Rent Controller/Munsiff, Thalassery. The respondent herein is the petitioner in the above Rent Control petition. The Rent Control petition was filed for eviction under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'Act, 1965'). Hereinafter, the Revision Petitioner and the Respondent are referred in accordance with their rank before the Rent Control Court. 2. The case of the petitioner before the Rent Control Court can be summarised like this:- The petitioner schedule room bearing No.EP XVI 513 belonged to the petitioner. It was given on lease to the respondent by the petitioner's mother, C.M.Rohini and the rent was fixed as Rs.900 per month. The petitioner is a yoga instructor and he wants to start a consultant and treatment centre in the petition schedule room and other **RCR No.398 OF 2018** **3** rooms adjacent to it to the benefit of the people suffering from permanent ailments of migraine, allergy, heart disease, blood pressure etc. The petition schedule room and other rooms are suitable for the said purpose. According to the petitioner, he can profitably conduct the said business, if he gets possession of the petition schedule room and other rooms near to it. The petitioner pleaded in the Rent Control Petition that no other vacant building is in his direct possession for conducting the said business. He contended that the need of the petitioner for the vacant possession of the petition schedule room is bonafide, genuine, and urgent. Even though a request was made to the respondent to get vacant possession of the room, the respondent refused to surrender the room. Hence, the petition was filed under Sec. 11(3) of the Act, 1965. 3. The respondent filed a counter in which the landlordtenant relationship and the rate of rent are admitted. According to the tenant, the bonafide need projected in the petition is only a ruse to evict the respondent. The respondent contended that the petitioner is the owner in possession of a big hall having double the size of the petition schedule room just on the adjacent **RCR No.398 OF 2018** **4** right side of the petition schedule room. There are other rooms also lying vacant in the possession of the petitioner. The respondent also contended that the petitioner is not a yoga instructor or expert and he has no intention to start such a business in his old age. Therefore, the respondent contended that the petition is liable to be dismissed. 4. To substantiate the case, the petitioner was examined as PW1, and the respondent was examined as RW1. Exts.A1 to A3 were marked on the side of the petitioner and Exts. B1 to B9 were marked on the side of the respondent. After going through the evidence and the documents, the Rent Control Court ordered eviction under Sec. 11(3) of the Act, 1965. 5. Aggrieved by the order of eviction, the respondent filed an appeal before the Rent Control Appellate Authority/Additional District Judge-II, Thalassery. The Rent Control Appellate Authority after considering the entire oral and documentary evidence concluded that there is nothing to interfere with the order of eviction passed by the Rent Control Court and accordingly dismissed the appeal. Aggrieved by the above eviction order passed by the Rent Control Court, which is **RCR No.398 OF 2018** **5** confirmed by the appellate authority, this revision is filed. 6. Heard counsel for the respondent/tenant and the petitioner/Landlord. 7. The learned counsel for the respondent-tenant raised only one point. The counsel submitted that he is entitled to the benefit of the 1[st] proviso to Sec. 11(3) of the Act, 1965. The counsel conceded that the tenant is not challenging the concurrent finding of the lower authorities about the bonafide need of the petitioner. But, the counsel for the respondent argued that the landlord admitted to the effect that he is in possession of another room and no special reasons are mentioned by the landlord to support the order of eviction in such a situation. The learned counsel takes us through the pleadings in the rent control petition and his counter. Thereafter, the learned counsel also takes us through the evidence adduced by the petitioner and the respondent. The counsel submitted that in the light of the oral and documentary evidence available in this case, it is clear that the petitioner/landlord is in possession of other rooms and no special reasons are mentioned for not occupying those rooms for his need. In such circumstances, the **RCR No.398 OF 2018** **6** counsel for the respondent submitted that the Rent Control Court erred in ordering eviction even if the bonafide need of the landlord is genuine. The counsel for the respondent also relied on the judgments of this Court in **Mohammed Basheer v A Mujib Rehman** [2005 (4) KLT 697] and **Suseela M.K.v.P.N.Mangalam and others** [2015 (5) KHC 277] 8. The counsel for the petitioner/landlord supported the concurrent findings of the Rent Control Court and the Appellate Court. The counsel submitted that the petitioner wants to start a consultant and treatment centre in the petition schedule room and other rooms adjacent to it. Therefore, simply because the petitioner is in possession of some other rooms, the respondent cannot take advantage of the same for his argument based on 1[st] proviso to Sec. 11(3) of the Act, 1965 because he needs those rooms also for his establishment. 9. The only point to be decided in this case is whether the respondent-tenant is entitled to the benefit of 1[st] proviso to Sec. 11(3) of the Act, 1965. For a proper consideration of the above contention of the respondent-tenant, it will be better to extract Sec. 11(3) and its 1[st] proviso. Sec.11(3) proviso is extracted **RCR No.398 OF 2018** **7** ## herein : “Sec.11 (1) xxxx (2) xxxx (3) A landlord may apply to the Rent Control Court for an order directing tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him : Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so.” A bare reading of the 1[st] proviso to Sec. 11(3) would make it clear that what has been enacted by the said provision is a limitation of the power of Rent Control Court to issue a direction to surrender the vacant possession of the premises under Sec.11(3) of the Act 1965. In other words, the 1[st] proviso to Sec.11(3) interdicts the Rent Control Court for granting an order of eviction based on the plea of bonafide needs in certain situations explained in that proviso. The Rent Control Court shall not give any such direction under Sec.11(3) of the Act, if the landlord has another building of his own in his possession in the same city, town or village except where Rent Control Court is satisfied that for special reason in any particular case, it will be just and proper to do so. What is the meaning of “another building” mentioned in the 1[st] proviso to Sec.11(3) of the Act, **RCR No.398 OF 2018** **8** 1965? The meaning of the word “another” as per Chambers 20[th] Century Dictionary is “a different or distinct”. The word “another” is used to refer to a different person or thing from one already mentioned or known about. In other words, it is an additional person or thing of the same type as one already mentioned or known about. Therefore, to get the benefit of 1[st] proviso to Sec. 11(3) of the Act, 1965 to the tenant, the landlord should have another building of his own in his possession in addition to the petition schedule building. Suppose the landlord is having a building with several rooms and different tenants are occupying those rooms, the landlord can file a petition against one of the tenants to surrender the room occupied by that tenant for bonafide purposes. The selection of the room in that situation is the discretion of the landlord. If he selects one of the rooms and files an eviction petition, the tenant of that room can't object to the same except to challenge the bonafide of the landlord in choosing that room. But on the other hand, if the landlord wants all the rooms in the building and he obtained all the rooms except one room he can file a Rent Control Petition before the Rent Control Court to get vacant possession of that room also. In **RCR No.398 OF 2018** **9** such situation, the landlord can plead and contend that he wants the petition schedule room and the other vacant rooms in his possession for his bonafide need. In such a situation, a tenant cannot take the benefit of 1[st] proviso to Sec.11(3) of the Act, 1965. The meaning of “another building” mentioned in the 1[st] proviso to Sec.11(3) of the Act 1965 doesn't intend to mean that the vacant building already in possession of the landlord, which also he requires for his bonafide purpose in addition to the petition schedule room. Therefore "another building” mentioned in 1[st] proviso to Sec.11(3) means a different room and not vacant rooms in possession of the landlord, which he required for the bonafide purpose pleaded in the Rent Control Petition along with the petition schedule rooms. 10. It is true that the building is defined in Sec.2(1) of the Act, 1965 which is extracted herein : ## **“2. Definitions:- In this Act, unless the context otherwise requires,-** (1) "building" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purpose and includes- (a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut; (b) any furniture supplied by the land lord for use in such building or hut or part of building or hut, ; **RCR No.398 OF 2018** **10** c) any fittings or machinery belonging to the landlord, affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let, but does not include a room in a hotel or boarding-house .” From the above definition, it is clear that building means any building or hut or part of a building or hut, let or to be let separately for residential and non-residential purposes. Definition of building includes a room also. But for example, if a landlord of a building requires all the four rooms in that building for his bonafide purpose and three of the rooms were vacant, and if a Rent Control Petition is filed to get the 4[th] room, the tenant cannot contend that since the landlord owns three vacant rooms, he is entitled the benefit of the 1[st] proviso to Sec.11(3) of the Act, 1965. A contention can be raised by the tenant in such a situation that the landlord need not require the 4[th] room in addition to the three rooms already in occupation by him for his bonafide purpose. But that contention cannot be raised for getting the benefit of the 1[st] proviso to Sec.11(3) of the Act, 1965. That contention can be raised only to contend that there is no bonafide to the landlord for claiming the 4[th] room when he is in the occupation of three other vacant rooms. In such a situation also, it is a settled position that a tenant cannot dictate **RCR No.398 OF 2018** **11** to a landlord about the requirement of the space for starting his business or for use of the same for his bonafide purpose. Hence, from the above discussion, it is clear that “another building” mentioned in 1[st] proviso to Sec.11(3) means a different room from the rooms which are already in possession of the landlord. 11. Now coming back to the facts of this case. The pleadings of the petitioner in the Rent Control Petition is important, which is extracted herein : “2. The petitioner is a Yoga Instructor and he wants to start a consultant and treatment centre in the petition schedule room and other rooms adjacent to it to benefit the people suffering from permanent ailment of migraine, allergy, heart disease, blood pressure etc. The petition schedule building and other rooms are suitable for the said purpose. The petitioner can profitably conduct the said business if he gets the possession of petition schedule room and other rooms near to it. No other vacant building is in the direct possession of the petitioner for ” conducting the said business. From the above averments, it is clear that the petitioner wants to start a consultant and treatment centre in the petition schedule room and other rooms adjacent to it to benefit the people suffering from different ailments. Therefore, the need put forwarded by the landlord is a consultant and treatment centre and further, the petitioner specifically stated that he wants the petition schedule room and other rooms. 12. The counsel for the respondent relying upon certain **RCR No.398 OF 2018** **12** admissions of PW1 in his evidence contended that the landlord is in possession of the other rooms and there is no special reason for not occupying those rooms. But we cannot agree with the argument of the counsel for the respondent/tenant. The landlord clearly explained the facts in his cross-examination. He deposed that the petition schedule building was given to him by his mother in 2013. At the time of transferring the property to the petitioner, there were five tenants in the building and a vacant room. Before filing the Rent Control Petition, one tenant was evicted from one of the rooms. The building in which the petition schedule room is situated contains two floors. Room No. 512, 513 and 514 are the rooms in the ground floor and petition schedule room is room No. 513. Room No. 512 is in the occupation of one Dineshan. The landlord submitted that he already filed a Rent Control Petition to vacate that room also and the same is pending. He deposed that the reason mentioned in that Rent Control Petition is also the same bonafide purpose pleaded in this Rent Control Petition. According to him, that room is in 'L' shape and the same is larger in extent compared to other rooms. He admits that at the time of filing the petition, **RCR No.398 OF 2018** **13** there are two vacant rooms in his possession. This sentence is relied on by the respondent/tenant to bolster up his contention based on the 1[st] proviso to Sec.11(3) of the Act, 1965. It will be better to extract the evidence of PW1, which is narrated above. “ 2013 ലലാണണ് ഹർജജിപ്പടജിക എടുപ്പടക്കമുള്ള കകടജിടടം 'അമ്മ എനജിക്കണ് വജിൽപ്പന കചെയ് **ത** ണ്. വജിൽപ്പന കചെയ്യുന്ന സമയതണ് 5 കുടജിയനലാരടം (2nd page) ഒകരലാഴജിഞ്ഞ മുറജിയുമലാണണ് ®æa കകവശതജിൽ വന്നതണ്. ഹർജജികകലാടുക്കുന്നതജിനണ് മുമലായജി ഒര കുടജിയലാകന ഒഴജിപ്പജിച. ഹർജജിപ്പടജിക എടുപ്പണ് എന്നു പറയുന്നതണ് 2 നജില building ആണണ്. അതജിൽ 512, 513, 514 മുറജികൾ തലാകഴനജിലയജിലലാണണ്. 513 നമർ മുറജിയലാണണ് ഈ കകസജികല മുറജി. 512 ദജികനശൻ എന്നയലാളുകട കകവശതജിലലാണണ്. ആ മുറജിയുടം ഒഴജിപ്പജിക്കലാൻ കവണജി കകസണ് ഫയൽ കചെയ് **ത** ണ് നജിലവജിലുണണ്. അതടം ഈ ഹർജജിയജിൽ പറഞ്ഞ അകത ആവശശ്യതജിനലാണണ് ഒഴജിപ്പജിക്കലാൻ കവണജി കകസണ് ഫയൽ കചെയ്തജിട്ടുള്ളതണ്. ആ മുറജി 'L' കഷേപ്പജിലുള്ളതലാണണ്. ആ മുറജി മറ്റുള്ള മുറജികകളേക്കലാളുടം വലുതലാണണ്. രണണ് മുറജികളുകട വലുപ്പടം ¥ÄßÈáIí എന്നു പറഞ്ഞലാൽ ശരജിയല. ആ മുറജിയുകട വലുപ്പടം സടംബനജിചള്ള അളേവുകൾ എനജിക്കറജിയജില. ആ മുറജി 350 sq ft ഉണണ് എന്നു പറഞ്ഞലാൽ എനജിക്കണ് നജികഷേധജിക്കലാൻ പറജില. ®æa ഹർജജിയജിൽ ഞലാനുകദ്ദേശജിക്കുന്ന സലാപനതജിൽ എത്രയലാകളേ (3rd page) പരജിശശീലജിപ്പജിക്കലാകമന്നണ് ഉകദ്ദേശജിക്കുന്നുകണകന്നലാ അതജിനു കവണ സസൗകരശ്യതജികന്റെ അളേവുകകളേലാ ഏകകദശമലായജി കപലാലുടം പറഞ്ഞജിടജില. മുകളേജികലക്കണ് ഒരലാൾക്കണ് മലാത്രടം കയറലാൻ പറ്റുന്ന കകലാവണജിയലാണുള്ളതണ്. 512 കകടജിടതജികല സസൗകരശ്യടം മലാത്രടം ഉപകയലാഗജിചണ് ഞലാനുകദ്ദേശജിക്കുന്ന സലാപനടം നടതജികകലാണ്ടുകപലാകലാൻ സലാധജിക്കുന്നതലാകണന്നണ് പറഞ്ഞലാൽ ശരജിയല. 512 ഒഴജിചള്ള മുറജികൾ സമലാനമലായ വലുപ്പതജിലുള്ളതലാകണന്നണ് പറഞ്ഞലാൽ ശരജിയല. ഒഴജിഞ്ഞു കജിടക്കുന്ന മുറജികൾ കകവശടം വച കലാരശ്യടം ഹർജജിയജിൽ പറയലാതജിരജിക്കുന്നതണ് കകലാടതജികയ കതറജിദ്ധരജിപ്പജിക്കലാനലാകണന്നണ് പറഞ്ഞലാൽ ശരജിയല. സമയതണ 2 ണ കകലാടതജിയജിൽ ഹർജജി കകലാടുക്കുന്ന ണ ” ് മുറജികൾ ഒഴജിഞ്ഞു കജിടക്കുന്നുകണന്നു പറയുന്നത് ശരജിയലാണ്. (emphasis supplied). The above underlined portion is clearly explained by the petitioner/landlord in his evidence. He admitted that one room was vacant at the time when the building was transferred to him by his mother. Subsequently, one of the tenants was evicted by him and therefore, there are two rooms vacant. In the Rent Control Petition, it is clearly stated that the petitioner wants the **RCR No.398 OF 2018** **14** petition schedule room and other rooms adjacent to it. From the above evidence, it is clear that the rooms vacant are rooms adjacent to the petition schedule room. Those rooms along with the petition schedule room are necessary to the petitioner/landlord to start the consultant and treatment centre. In such a situation, the respondent/tenant cannot contend that he is entitled to the benefit of 1[st] proviso to Sec.11(3) because the landlord is in possession of two vacant rooms. The “another building” mentioned in the 1[st] proviso to Sec.11(3) is a different room and not rooms owned by the landlord which also he requires for his bonafide need. Moreover, the contention that the landlord can do the business in the vacant room is not to be decided by the tenant. As we said earlier, the tenant cannot dictate the landlord about the extent or area necessary for his business. Therefore, the contention based on the 1[st] proviso to Sec.11(3) from the side of the respondent/tenant cannot be accepted at all. No other contentions are raised by the respondent/tenant.The decisions in **Suseela's** case and **Mohammed Basheer's** case (Supra) relied by the counsel for the tenant does not apply to the facts and circumstance of this case. **RCR No.398 OF 2018** **15** 13. Finally, the counsel for the respondent/tenant submitted that he may be given sufficient time to vacate the room. Admittedly the Rent Control Petition was filed in the year 2015. Now almost 6 years elapsed after filing the Rent Control Petition. Considering the facts and circumstances of the case, we feel that six months can be granted. 15. Therefore, this Rent Control Revision is dismissed granting six months to the respondent/tenant for vacating the petition schedule room on the following conditions: (1) The respondent/tenant will file an undertaking before the Rent Control Court to the effect that he will vacate the petition schedule premises within six months. (2) The respondent/tenant will pay the entire arrears of rent and also will continue to pay the contract rent as compensation for use and occupation. (3) If any of the above conditions are violated, the petitioner/landlord is free to execute the eviction order. ## Sd/- **A.HARIPRASAD JUDGE** Sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS