M/S Ullatil Agencies; M/S Ullatil Chitty Funds; Isaac Thomas v. Fathima Beevi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RCRev..No. 263 of 2008() ------------------------ (S): REVISION PETITIONERS/APPELLANTS/COUNTER PETITIONER ---------------------------------------------------------------------- 1. M/S.ULLATTIL AGENCIES, THOUFEEQ BUILDING MARKET ROAD, KOTTAYAM. 2. M/S.ULLATTIL CHITTY FUNDS, THOUFEEQ BUILDINGS, MARKET ROAD, KOTTAYAM. 3. ISSAC THOMAS, AGED 96 YEARS, S/O.ITHAK RESIDING AT ULLATTIL HOUSE, NEAR UNION CLUB, KOTTAYAM. BY ADV. SRI.BABU VARGHESE RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ FATHIMA BEEVI, AGED 70 YEARS, W/O.K.P.ABOOTTY, THAYALAKANDI HOUSE,CHIRAKKARA, TELLICHERRY-4,REPRESENTED BY POWER OF ATTORNEY HOLDER K.P.ABOOTTY, PALATHINKAL HOUSE,MARKET ROAD, KOTTAYAM. ADV. SRI.MOHAN JACOB GEORGE FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON 19.11.2008 PASSED THE FOLLOWING: ORDER IN IA NO.2398/08 & 2543/08 DISMISSED. 19.11.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE ## **P.R.Raman & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R. No.263 of 2008** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of November, 2008.** ## **O R D E R** ## Ramachandran Nair, J. The revision petitioners herein are tenants of a building which was sought to be evicted by recourse to the provisions of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred th as 'the Act') by the respondent/landlady. The bonafide need pleaded is for starting a business for the younger son of the landlady who is unemployed. It is for conducting wholesale and retail sale of stationery articles, paper and books. 2. Both the authorities below have found that the bonafide need pleaded is genuine and accordingly ordered eviction of the petitioners. Learned counsel for the petitioners, apart from reiterating the contentions that were raised before the authorities below, contended that the bonafide need pleaded is not genuine, in that, the notice seeking eviction was issued in the year 1997, but the eviction petition was filed only in the year 2005, thus casting a shadow over the genuineness of the need pleaded. Secondly, it was contended that the petitioners had occasion to institute criminal proceedings against the husband of the landlady who is her power of RCR 263/2008 -2- attorney holder, in connection with the dishonour of a cheque and therefore the eviction sought is purely ill-motivated. It was also contended that the room in question is on the up stair and it cannot be used as a godown as projected, in the pleadings. 3. The building in question was rented out to the petitioners in the year 1968. It is in the first floor of the building owned by the landlady. It consists of two rooms with a common door number. The rent paid is Rs.75/- and Rs.175/- for these rooms. In 1997 the landlady demanded vacant possession as per Ext.A2 notice. The requirement sought for was for the bonafide use of her unemployed and dependent sons, T.K. Nazar and T.K. Sajidi, for conducting a shop for the wholesale and retail business in stationery articles, paper, books, etc. Even though the notice was received by the petitioners, no reply was given. In the petition for eviction, it is pleaded that the landlady was waiting for getting vacant possession, as the petitioners/tenants only sought for time to vacate the premises. The elder son Nazar accepted an employment in Dubai and is presently stationed there. The younger son Sajidi who is aged 31, has no employment and he intends to start the proposed business. The floor area required is 2000 sq. ft. and apart from the room in question, another room in the ground floor which is let out to Kottayam Wholesale Co-operative Stores, is also required RCR 263/2008 -3- for using as a show room and the petition schedule room is to be used as a godown. The room in the ground floor is also sought to be evicted by filing a separate petition. The younger son is working as an apprentice in a grocery and stationery stores named K.P. Stores from June 2004 and he has got experience to conduct business. 4. Overruling various objections raised by the tenants, the Rent Control Court ordered eviction. The evidence consists of the depositions of P.Ws.1 to 3 and Exts.A1 to A6 on the side of the landlady and the oral evidence of C.P.W.1, a partner of the firm of the tenants. P.W.1 is the power of attorney holder and husband of the landlady, P.W.2 is the son for whose requirement eviction is sought and P.W.3 is the proprietor of K.P. Stores with whom the son is working as an apprentice. 5. The evidence of P.Ws.1 to 3 have been accepted by the Rent Control Court to enter a finding that the bonafide need pleaded is genuine. It was found that the building in question is situated in a commercially important area of Kottayam Town and there are other wholesale stores in the locality. The son has no permanent employment and has gained experience by his present engagement. As far as the financial ability of the parties are concerned, P.W.1 gave evidence that he has provided required money to P.W.2 for starting business and his brothers who are already in RCR 263/2008 -4- various businesses, will help him. All these facts were assessed by the Rent Control Court to find in favour of the landlady. As far as the protection available to the tenants under Section 11(3) of the Act is concerned, the tenants did not adduce any evidence to show that the partners of the firm are mainly depending on the income from the business. Availability of alternate accommodation in the area was spoken to by P.W.1 and the evidence of C.P.W.1 showed that he had not made any enquiry regarding the availability of the rooms. Thus, the said point was found against the tenants. 6. Before the Appellate Authority, the alleged delay in seeking eviction and the motive behind the petition for eviction was also argued. The Appellate Authority found that even though the notice was issued in the year 1997, going by the evidence it is clear that the first son is in Dubai and the younger son is not doing any business and therefore the alleged delay cannot defeat the claim raised. The contention regarding the alleged motive was also rejected finding that in the criminal case P.W.1 was acquitted, even though an appeal is pending before this court. That apart, it is not a ground at all to find that the motive behind the petition for eviction is really bad. The contention that the room cannot be used as a godown was also rejected. RCR 263/2008 -5- 7. Heard learned counsel for the petitioners Shri Babu Varghese and Shri Mohan Jacob George, who appeared for the respondent on caveat. 8. Before this court, learned counsel for the petitioners have produced along with I.A.No.2543/2008 as Annexures A1 and A2, a registered lawyer notice dated 26/3/2003 issued by the landlady and its reply given by the counsel for the tenants. It is stated that in Annexure A1 notice the business proposed is a different one; to start a typewriting and computer institute and hence it is contended that there is no real need as projected. 9. The main argument that is raised herein is the alleged delay in filing the eviction petition from the date of issuance of Ext.A2 notice. It is true that Ext.A2 was issued in the year 1997. The bonafide need shown there is for starting business by two sons including the younger son. In the petition for eviction it is stated in paragraphs 5 to 7 that after issuance of the registered notice, no reply was given by the tenants, but they represented that they will vacate the room on getting a suitable building. It is also alleged that the tenants stopped the business in the year 2003. It is specifically pleaded that the other son Nazar accepted employment in Dubai. The younger son requires the building for conducting the proposed business. Going by these facts, we find that, it is not a case where the changed circumstances, if any, are fatal to the bonafide need pleaded. It is RCR 263/2008 -6- clear from the pleadings and the evidence of P.Ws. 1 and 2 that the father and the younger son are residing in Kottayam itself, near the very same building while the landlady and other children are in Tellicherry. The younger son is working as an apprentice in K.P. Stores in Kottayam itself from the year 2004. The eviction petition was filed in the year 2005. Going by Section 11(3) of the Act a notice demanding eviction of the building is not a requirement. Therefore, the facts pleaded and the evidence adduced have to be analysed in that context. The evidence of P.Ws.1 and 2 clearly shows that after the issuance of the registered notice, the elder son got employment in Dubai and presently as the younger son is without any good avocation in life, he wants to start the business. We are of the view that the contention raised by the learned counsel for the petitioners that the delay itself will defeat the claim, is not correct in view of the facts pleaded and the evidence adduced. Merely on the ground of delay, the petition cannot be dismissed. 10. The next question is whether the bonafide need pleaded is genuine. It is clear from the averments in the petition for eviction that the younger son of P.W.2 wants to conduct a business of wholesale and retail sale of stationery articles, paper, books, etc. This was the business proposed in the notice, Ext.A2 also. P.Ws.1 and 2 have clearly spoken in their RCR 263/2008 -7- depositions about the said need. The schedule room is having a floor area of 1500 sq. ft. which is to be used as a godown of the shop and the room that is in the ground floor is to be used as a show room. It is clear from the evidence of P.W.2 that he has not started any business at Tellicherry as alleged in the objection filed by the tenant. He is residing along with his father, in a residential building very near to the schedule building. He is working as an apprentice in K.P. Stores, which is dealing with the sale of stationery articles. P.W.3 is the proprietor of the said shop and this fact is proved by him. The area wherein the petition schedule building is situated, is a commercially important one and various wholesale and retail shops are there. As far as the financial ability is concerned, the father as well as his brothers are helping him for augmenting the source. Learned counsel for the petitioners, relying upon Annexure A1 produced along with I.A.No.2543/2008, submitted that in the said notice issued in 2003 the need projected is to conduct a typewriting and computer institute. This document was never produced either before the Rent Control Court or before the Appellate Authority. Therefore, no reliance can be placed on Annexure A1. Apart from that, the need now projected in the eviction petition has to be considered in the light of the various circumstances pleaded and proved. Merely because in the said notice it is stated that he wanted to have a RCR 263/2008 -8- typewriting and computer institute, that will not show that the need projected in the eviction petition is not bonafide. It is up to the landlady and her dependent son to opt for the particular business proposed to be conducted in the schedule building. Because of various economic and commercial factors, persons may choose one or the other business and merely because at an earlier point of time they thought of conducting a particular business, that is not a ground to throw out the case at the threshold. Even though we are not admitting Annexures A1 and A2 in evidence, we find that they are not sufficient to hold that the bonafide need to do the business in stationery articles, etc. is not a genuine one. 11. Then, the other circumstance pointed out is that there was a criminal case filed by the petitioners against the father, P.W.1 in relation to the dishonour of a cheque and this eviction petition is in retaliation of the same. The Appellate Authority has considered the above aspect and found that it has no bearing on the issue. The criminal case in question is C.C.No.34/1995 of the Chief Judicial Magistrate's Court, Kottayam filed under Section 138 of the Negotiable Instruments Act. The husband of the landlady was acquitted as per judgment dated 10.8.2000. It is stated that the petitioners have filed Crl. A.No.705/2001 before this court. Merely because the said appeal is pending, it cannot be said that, it has prompted RCR 263/2008 -9- the landlady to seek eviction and on that ground the claim is not bonafide. As rightly found by the Appellate Authority, that has no bearing on the question to be decided in the case. 12. Learned counsel for the petitioners placed reliance upon a decision of a Division Bench of this court in **Subbiah Reddiar v. Chinnamma** (1991 (2) KLT 461) to contend for the position that the above aspect is relevant. That was a case in which the tenant had advanced Rs.64,000/- for the construction of the building from which the landlord sought eviction of the tenant. One of the contentions raised was that till the amount is repaid by adjustment, the tenant is not liable to be evicted and the relationship as landlord and tenant will continue. This court while considering the said issue, observed that the Appellate Authority was in error in holding that the documents produced by the tenant are foreign to the scope of enquiry to be made under Section 11(3) of the Act. The said finding rendered by this court is based on the particular facts of that case and it cannot be stated as a general proposition at all and there is nothing common therein with this case. Therefore, we are not satisfied that eviction has to be refused based on the said circumstance and we reject the said contention. RCR 263/2008 -10- 13. As far as the bonafide need is concerned, learned counsel for the landlord relied upon the principles stated by the Apex Court in **Ram Dass v. Ishwar Chander and others** {(1988) 3 SCC 131}. It was held by the Apex Court that “the bonafide need of the landlord should be genuine and honest, conceived in good faith; and the court must also consider it reasonable to gratify that need. Landlord's desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that desire, to become a 'requirement' in law must have the objective element of a 'need'. It must also be such that the court considers it reasonable and, therefor, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.” We are of the view that the need that is put forward is a bonafide and genuine and, it satisfies the test laid down in the above decision. 14. Even though the tenants contended in the objections that the younger son, P.W.2 is having rice business at Tellicherry, that was not proved in evidence. Further, there is evidence of P.W.3 to show that he is working under him as an apprentice. The said fact also stands against the RCR 263/2008 -11- case pleaded by the petitioners. The other plea raised that it cannot be used as a godown, was a rejected by the Appellate Authority and the Rent Control Control Court. The building is situated in the market road in a busy commercial area. This is clear from the evidence of P.Ws.1 and 2 that in the road leading to the building, lorries usually come and there are various godowns in the nearby buildings. It is also brought to our notice that already eviction has been ordered in respect of the room in the ground floor and the matter is pending in appeal before the Appellate Authority. Regarding the financial capability of the parties, the authorities were satisfied that they have got the required financial capacity to start the business. Money is being arranged by P.W.1 as well as the brothers of P.W.2 for investment in the business. The law does not require that the parties should adduce evidence to show that they are ready with the money and only the financial capacity of the parties should be assessed by the court to find out whether the claim is bonafide. 15. We are of the view that the case pleaded and proved by the landlord in this case has been assessed properly by the authorities below in the light of the evidence adduced and no vitiating circumstances have been found. We have already held that the alleged delay in filing the application and the fact that the tenants had to file a criminal case against the landlord RCR 263/2008 -12- under Section 138 of the Negotiable Instruments Act are not crucial factors to deny the eviction sought. It cannot be said that the attempt made by the landlord is a ruse to evict the tenants from the building. Admittedly, the younger son is not employed and he is not having any business. For getting experience, he is working as an apprentice along with P.W.3, in a shop at Kottayam itself wherein the same business is being conducted. Therefore, the claim raised by the landlady to help her younger son who is dependent upon her for the building. The view taken by the authorities below is a plausible one on the facts and evidence in the case. There is no scope for interfering with the same in exercise of the powers of revision conferred on this court under Section 20 of the Act and the view taken cannot be said to be so perverse as contended by the learned counsel for the petitioners. Therefore, the revision petition is dismissed confirming the order of eviction passed by the authorities below. In the circumstances of the case, we grant six months time from today to the tenants to vacate the premises on the following conditions: i) That the entire arrears of rent, if any, shall be deposited before the Execution Court within a period of one month from today and the petitioners shall also file an affidavit within the said time undertaking RCR 263/2008 -13- to give vacant possession of the tenanted premises on or before the expiry of the period of six months' from today, i.e. on or before 19.5.2009. ii) that the tenants shall not induct any third party into the premises; iii) that an amount equivalent to the rent towards use and occupation of the building shall be regularly paid by the tenants until vacant possession is given; and iv) that if for any reason the tenants fail to comply with any of the aforesaid conditions, the order of eviction passed by the court below will forthwith become enforceable. **( P.R.Raman, Judge.)** **(T.R. Ramachandran Nair, Judge.)** **kav/**