N.B. Shabu v. V.P. Jacob and Thresiamma Jacob

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932** ## **RSA.No. 109 of 2007()** **--------------------------------** **A.S.159/2001 OF PRL. SUB COURT, NORTH PARAVUR. O.S.615/1998 OF MUNSIFF COURT, ALUVA.** **................** ## **APPELLANT/RESPONDENT/DEFENDANT** **------------------------------------------------------------** **N.B. SHABU, ROOM NO.23-B, CHAMPION LODGE, BANK JUNCTION, ALUVA.** **BY ADV. SRI.K.V.SOHAN, SRI.PAULSON M.J.** ## **RESPONDENTS/APPELLANTS/PLAINTIFFS** **--------------------------------------------------------------** ***1. V.P. JACOB, S/O.PAUL, VITHIYATHIL HOUSE, THOTTAKKATTUKARA, ALUVA WEST VILLAGE, ERNAKULAM DISTRICT. *(DELETED)** ***1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 30/03/2009 IN I.A.704/2009 .** **2. THRESIAMMA JACOB, W/O.V.P.JACOB, DO.** ## **** ADDL. R3 IMPLEADED** ## **ADDL. R3: SHEELA DAVY, W/O.DAVY LONAPPAN, AGED 43 YEARS, CHIRAMEL KARATH HOUSE, THOTTAKKATTU KARA, ALUVA, ERNAKULAM DIST.** ## **** ADDL. R3 IS IMPLEADED AS PER ORDER DATED 14/10/2009 IN I.A.2360/2009** **R2 BY ADV. SRI.K.RAMACHANDRAN.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON 17/06/2010 DELIVERED THE FOLLOWING:** **RSA.No. 109 of 2007** ## **ORDER ON I.A. NO.182/2007 IN R.S.A. NO.109/2007** ## **DISMISSED** **17/06/2010.** **SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 109 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2010. ## **JUDGMENT** The defendant in O.S. 615 of 1998 before the Munsiff's court, Aluva, who suffered a decree and whose appeal was dismissed by the lower appellate court has come up before this court. The parties and facts are herein after referred to as they are available before the trial court. 2. The plaintiffs claim that they are running an establishment by name Champion Lodge. According to them, the defendant had taken a room on rent and was occupying the same. The lodge had 28 rooms. Most of the other allegations in the plaint are unnecessary for the present purpose. Suffice to say the plaintiffs wanted eviction of the defendant and the suit was laid. 3. The defendant resisted the suit. According to him, at present lodge is not being run in the building belong to the plaintiff, but it is a huge commercial RSA.109/2007. 2 building. He has taken a room on rent and is running his business therein under the name and style Saboos Publicity. Various other rooms in the building are let out for commercial purposes and accordingly it is contended that the room occupied by him is covered by the Rent Control Act. Therefore, according to him the suit is not maintainable and if the plaintiff wants to evict him, they will have to take recourse under the Rent Control Act. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A12 from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts.B1 to B2(d) marked. Ext. C1 is the rough sketch and Ext.C2 is the commission report. The trial court on a consideration of the materials before it came to the conclusion that no lodge is being run in the building and the arrangement between the plaintiff and the defendant was one of lease and not licence. Accordingly the suit was dismissed. The plaintiffs took up the matter in appeal. The RSA.109/2007. 3 appellate court on the other hand felt that the building is being used as a lodge and therefore does not fall within the ambit of Act 2 of 1965. It was also found that it could not be said that the tenant had leasehold right over the room. Finding that Act 2 of 1965 cannot be attracted to the facts of the case, the suit was decreed. The tenant assails the said judgment and decree. 5. The following questions of law are seen formulated in this Second Appeal: _“a) When the evidence adduced shows that plaint A schedule building is not being used as a hotel or a boarding house and the defendant is using the building for commercial activity for a long period of time can the court hold that the defendant is only an occupant of a lodge not entitled to the protection of the Building (Lease and Rent Control) Act?_ _b) Is not the lower appellate court committed illegality in not trying to find out the real nature of the transaction and machanically holding that the relation between plaintiffs and defendant is that of a licenceor or licensee?_ RSA.109/2007. 4 _c) is not the relation between plaintiffs and defendant that of a lessor and lessee and is the finding that it is only a license is correct?_ _d) Is not the documents, Ext.A1 and A3 void as the terms and conditions of which are made with the purpose of defeating the purpose of a statute?”_ 6. Learned counsel appearing for the appellant contended that the lower appellate court was not justified in reversing the decree and judgment of the trial court. The trial court has clearly found on the basis of the evidence before it that the building was no longer being used as a lodge and was being used for commercial purposes. The evidence is clear to the effect that a number of commercial establishments are being run in the building and therefore the building does not qualify to be a lodge, boarding house or lodge coming within the ambit of Act 2 of 1975. According to learned counsel, merely because there are some documents produced by the plaintiff consisting of rules RSA.109/2007. 5 and regulations to be followed by the persons, who took rooms on rent etc is not by itself is a ground to hold that it is the boarding house or a lodge. In support of his contention, learned counsel placed heavy reliance on the decision reported in **Sasidharan v. Sreedharan & Co.** (1992(2) KLT 118). 7. Per contra, learned counsel appearing for the respondents characterized the finding of the trial court as perverse and pointed out that the lower appellate court has addressed itself to the questions involved in the suit properly and has come to the right conclusion. 8. According to learned counsel, going by Exts.A3, B1, A11, A13, A14 etc., it can easily be seen that the building is used for lodging and falls outside the ambit of Act 2 of 1965. 9. A commission was taken out and the commissioner has filed a report and rough sketch. The report shows that a large number of rooms remain locked and only a few rooms in the building are occupied. The RSA.109/2007. 6 commission report also says that commercial activities are being conducted in several rooms in the building. It is true that the defendant is an artist and he is carrying on his profession in the room occupied by him. The question would be whether merely because some of the persons who had taken rooms on rent have used it for commercial purpose, could it be said that the building is no longer a lodge? Ext.A3 is the notice showing the terms and conditions for occupation of rooms in the Champion Lodge. It is clearly stated that those persons who occupied the room in the lodge will have to follow the rules and regulations mentioned there in scrupulously. Ext.A3 is seen signed by the tenant. According to him, Ext.A3 is a concocted document. He would say that he was earlier occupying Room No.9 and later he had shifted to Room No.23. The documents produced by the plaintiff are the documents which he had executed when he was occupying Room No.9. 10. It is immaterial whether the document produced by the plaintiff was executed by the tenant while RSA.109/2007. 7 he was occupying Room No.9 or 23. The rules and regulations are the same and the conditions for occupation are also identical. If as a matter of fact the tenant was occupying Room No.9 in the terms and conditions made in Ext.A3, obviously his occupation of Room No.23 will also have to be on the same terms and conditions. 11. The commission report then says that it does not appear that the building is being used as a lodge. But much credence cannot be given to the said view because most of the rooms remain locked. The commissioner then stated that when he visited the building, one or two rooms were being used for staying. 12. 'Building' is defined under under Section 2(1) of the Rent Control Act, which reads as follows: _“'building' means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes and includes-_ _(a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building,_ RSA.109/2007. 8 _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 landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding-house;_ _() 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.”_ A reading of the provision shows a room in a hotel or boarding house is excluded from the purview of the Act. The issue came up for consideration in the decision reported in **Sasidharan's case,** on which reliance is placed by the learned counsel for the appellant. In the said decision it is observed as follows: _“On an analysis of the definition, in order to constitute a hotel or lodging house the following ingredients are essential. (i) A building or part of a building, (ii) Where lodging with or without_ RSA.109/2007. 9 _board or other service is provided (iii) Such lodging with or without board must be provided byway of business, (iv) It must be for monetary consideration._ _Out of all these ingredients, it would appear that the most important element is that it must be a building whee lodging is provided for monetary consideration. In other words, if there is no lodging but mere boarding it will not be a hotel or a lodging house. This would clearly exclude restaurants or other hotels where simply food or other eatables are provided. Another noticeable feature is that such convenience must have been provided by way of business. An owner of a hotel must provide such lodging regularly as a business which shows that it must be done as a commercial pursuit which involves continuity, repetition and frequency. Thus a hostel attached to a college where lodging as well as boarding are provided for monetary consideration, will not be a hotel or lodging house since such institutions are not run by way of business. But it would be different, if a private person is running a college hostel on contract basis with profit motive., who accommodates students in a building._ RSA.109/2007. 10 _The word 'business' connotes a mercantile persuit or commercial adventure with an object to ear and gain profit. (See KesavanNair v. Babu Naidu, AIR 1954 Mad. 892). In Black's Law Dictionary the meaning of the work “Lodging house' is a follows:_ _“Lodging house. A house where lodgings are let; houses containing furnished apartments which are let out by the week or by the month, without meals, or with limited meals.”_ In Black's Law Dictionary 9[th] Edition at page 196 the term 'board' is shown to have the following meaning: _“2. Daily means furnished to a guest at an inn, boardinghouse, or other lodging.”_ 'Lodger' is defined in page 1026 as follows: _“A person who rents and occupies a room in another's house.”_ In Law Lexicon by P. Ramanatha Aiyar Reprint Edition 1992 at page 144 'boarding house' is defined as follows: _“Boarding-house. A house of entertainment, more home-like than a hotel or restaurant, where persons are furnished with board for a fixed price.”_ RSA.109/2007. 11 At page 752, “lodging house” is defined as follows: _““Lodging House” means a building or part of a building which is let in lodgings or occupied to any extent in common by members of more than one family.”_ There can be no doubt that the building is being used by way of business for monetary gains. There can be no dispute also that the building provides lodging. As rightly contended by the learned counsel for the respondent, the persons who took the rooms in the lodge, if they use it for commercial purpose, it does not mean that the building is no longer a lodge. The purpose for which the building is being used then will have to be considered. Records produced by the plaintiff clearly show that the building is being used as a lodging house. The trial court does not appear to be correct in its approach and there was no justification in holding that the building was not being used as a lodge since a few rooms are being used for commercial purpose. The trial court has omitted to note that most of the rooms remain RSA.109/2007. 12 locked and in some of the rooms inspected by the commissioner people were seen residing. It could not therefore be said that the rooms in the building are not being used for residential purpose. 13. It must be noticed that the plaintiff was constrained to file a police complaint against the defendant due to his wanton activities. Exts.A11 and A13 would also show that the building is used as a lodge. The observation of the lower court that if the plaintiff had a case that the defendant was using the room for purposes other than residence, they ought to have taken steps immediately is without much substance. It is not possible for the owner of a lodge to simply take steps against persons who hire the room merely because he does some commercial activity also therein. The mere fact that commercial activity is being done does not take the building out of the classification of a lodge. Viewed from this angle, the lower appellate court was fully justified in coming to the conclusion that the RSA.109/2007. 13 building in question is a lodge and falls outside the ambit of Act 2 of 1965. The suit was rightly decreed. This appeal is without any merit and accordingly it is dismissed. However, there will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.