P. GOPALAKRISHNAN @ GOPAN v. LATHIPHA RAHMAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939** **RCRev..No. 182 of 2015 () --------------------------** **AGAINST THE JUDGMENT IN RCA 4/2014 of II ADDL.DISTRICT COURT,ERNAKULAM DATED 12-02-2015** **AGAINST THE ORDER IN RCP 103/2006 of III ADDL.M.C.EKM (RENT CONTROL) DATED 07-09-2013** **REVISION PETITIONER(S)/PETITIONER/RESPONDENT/RESPONDENT:-: ---------------------------------------------------------** **P.GOPALAKRISHNAN @ GOPAN, AGED 55 YEARS, S/O.P.B.MENON (LATE), PALAPPARAMBIL, KANNAMTHODATHU LANE, PROPRIETOR, GOPANS STUDIO, C.C.NO.50/946, CHUTTUPADUKARA, BANK JUNCTION, N.H.ROAD, EDAPPALLY, KOCHI - 682 024.** **BY ADV. SRI.S.DILEEP** **RESPONDENT(S)/APPELLANT/PETITIONER:-:** **-------------------------------------** **LATHIPHA RAHMAN, AGED 66 YEARS, W/O.A.A.ABDUL RAHMAN, BHARAT TUTORIAL AND COMMERCIAL INSTITUTE, RESIDING AT ALEVAKKATT ZIYAD MANZIL, PIPELINE ROAD, THRIKKAKARA P.O., KOCHI - 682 021.** **R1 BY ADVS. SRI.K.K.M.SHERIF ( BY ORDER ) SRI.A.A.ZIYAD RAHMAN ( BY ORDER)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **IAP** ## **K.HARILAL & P.SOMARAJAN, JJ** ......................................... ## **R.C.R.182 OF 2015** ................................. Dated this the 16[th] day of June, 2017 ## **O R D E R** ## **K.HARILAL, J** The revision petition has been filed by the tenant challenging the legality and propriety of the divergent findings of the Rent Control Court as well as the Rent Control Appellate Authority, under the first proviso to Sec.11(3) and concurrent findings under the second limb of the second proviso to Sec.11(3) of the Kerala Building (Lease and Rent Control) Act,1965 (for short 'the Act'). The Rent Control Court dismissed the rent control petition on a finding that the _bona fide_ of the need projected by the landlady is hit by the first proviso to Sec.11(3) but in appeal the appellate court revised the said findings and allowed an order of eviction under Sec.11(3) of the Act. 2. According to the landlady she needs the petition schedule building, for restarting her old traditional tutorial college and R.C.R.182 OF 2015 2 commercial institute known as Bharath Tutorial College and Commercial Institute in a modern style. She intends to start computer course and business of photo stat, typewriting, tailoring, designing and sales of sarees and churidars in the petition schedule building having three rooms and the hall behind. She is a post graduate and her daughter-in-law holds MSC Bed degree and had passed SET examination. Her own daughter, who holds B.Tech degree also, wants to be involved in the said tutorial college and commercial institute. Thus, she bona fide needs the petition schedule building for her own occupation. 3. According to the tenant, the _bona fide_ need is a ruse for eviction only and inter alia contended that the landlady has other vacant buildings, in her possession. So also he contended that he is mainly depending upon the income from the petition schedule building and no other buildings are available in the locality. The Rent Control Court found that the need projected is a _bona fide_ one but rejected the petition on a finding that the landlady has another vacant building in her possession and the tenant succeeded in proving that no other alternative buildings R.C.R.182 OF 2015 3 are available in the locality. Since the tenant has not preferred an appeal challenging the _bona fide_ need found in favour of the landlady, it stands confirmed. 4. Coming to the divergent findings under the first proviso to Sec.11(3) of the Act, it is the case of the landlady that the petition schedule building consists of 4 rooms bearing door numbers 50/944, 50/945, 50/946, 50/947. According to the landlady entire area of the room no.50/944 was occupied by the advocate's office of his deceased husband and now the said office is being held by her son who is also an advocate. In order to start Bharath Tutorial College and Commercial Institute, all the remaining three rooms and hall behind the Advocate's office is required. Hence, she has sought for evicting the tenants, who occupy room nos. 50/945 & 50/946. The tenant herein is in occupation of room no.50/946 and room no.50/945, which was occupied by tenant in RCA 5/2014, is now lying vacant as vacated by him. Room no.50/947 was also occupied by Kottakkal Arya Vaidya Sala and now it is also lying vacant for 5 years, prior to the filing of the petition. According to the landlady, the entire building, except the advocate office, is R.C.R.182 OF 2015 4 required for starting the aforesaid Multi Educational Institution and if the tenant in the instant case is evicted from the petition schedule shop room she can occupy the aforesaid 3 rooms. 5. It is the case of the tenant that the advocate's office is functioning in a portion of the building, having room no.50/944 and the hall laying behind the said room and room no.50/945 along with the eastern most vacant room could well be utilised to start Bharath Tutorial College and Commercial Institute, if the landlady really wants to start the said institution. Another contention is that availability of the vacant area in the building was not disclosed and no special reason has been given, for not utilising the said area. 6. The trial court after analysing the evidence on record found that the need projected in the Rent Control Petition is a bona fide one but further rejected the order of eviction under Sec.11(3) of the Act, on a finding that the landlady has neither pleaded nor satisfactorily proved the reason for not occupying the vacant portion of the building, in possession of the landlady. But in the appeal, the appellate court reversed the said findings and granted order of eviction on a finding that the R.C.R.182 OF 2015 5 landlady has not suppressed the availability of the vacant room in her possession and satisfactorily given the special reason for not occupying those vacant rooms. 7. It is not disputed that the specific case of the landlady is that all rooms, including the hall behind the advocate office, except the advocate office, in the building, are required for starting tutorial college and commercial institute. It has also come out in evidence that now the landlady is in possession of all rooms except the advocate office including the hall behind it, and the petition schedule shop room. According to her, even though she had already got vacant possession of the shop room, which was occupied by Kottackal Arya Vaidya Sala, she has been retaining the vacant possession of the said shop room, for the last 5 years, so as to start the tutorial college along with other shop rooms, after getting the vacant possession of the petition schedule shop room. It has also come out in evidence that she has obtained the vacant possession of the shop room involved in other RCA 5/2014. R.C.R.182 OF 2015 6 8. The question whether non disclosure of other vacant building in possession of the landlady is fatal or not was considered by this Court in **2016 KHC 639, Kunhamina v. V.K.T.Aboobacker Haji** , which held as follows: “ _11. So it is clear from the above dictum that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before Court and he had given special reasons for not occupying the same and both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non disclosure of this fact in the rent control petition and it is for the Court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bonafide need.”_ The aforesaid decision is seen laid down relying on the decision of the Supreme Court in **2001(2) SCC 355 M.L.Prabhakaran v. Rajiv Singam** _“It is held that whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non-disclosure by the landlord. It was held that the landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. In this case even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the_ R.C.R.182 OF 2015 7 _Rent Controller as well as before the High Court, thus no prejudice has been caused.”_ 9. When applying the aforesaid proposition of law settled by this Court as well as the Apex Court in the instant case, the availability of the other vacant area of the building, in the possession of the landlord, has come out in evidence in the instant case, during the course of evidence and by the Commission Report. It is pertinent to note that the Commission was appointed to ascertain the availability of the occupied and vacant area in the building. The Commission was appointed on the application of the landlord and the Commissioner was also examined as PW5 and the report was marked as C1. Therefore this Court finds that no prejudice was caused to any of the parties, by any kind of suppression of material evidence and entire evidence was available before the court. It is specific case of the landlady that she wants the entire area except the advocate's office, for starting the tutorial and commercial institute. From the evidence adduced by the landlady, it is discernible that the proposed tutorial and R.C.R.182 OF 2015 8 commercial institute is a multi educational institute intended to impart education in various branches of different subjects. Therefore it could be reasonably presumed that several class rooms are required for the same. 10. Going by the judgment passed by the trial court it could be seen that the trial court is seen confused with the identity of the hall behind the advocate's office and the trial court opined that the entire area in room no.50/944 is not occupied for advocate's office and remaining vacant area can be utilised for conducting the tutorial college, instead of the petition schedule shop room. In the above context, it is to be remembered that the Apex Court again and again reiterated, in various decisions, the proposition laid down in **Sarla Ahuja vs. United India Insurance Company Ltd. (1998(8)SCC 119)** that the tenant cannot sit in judgment over the wisdom or choice of the landlord and cannot make an endeavour or dictate as to how landlord could have adjusted himself without getting possession of the petition schedule shop room which is sought to be vacated. Further, in **Devamatha C.M.I Public** R.C.R.182 OF 2015 9 ## **School v. Employees State Insurance Corporation** **(2014(4) KLT SN 23)** , this Court held that several factors may go into the mind of landlord during the course of eviction proceedings and he may come in possession of another room and that may be immaterial. 11. In the instant case, the landlady herself admitted and brought out in evidence that she had obtained vacant possession of the shop room, which was involved in R.C.A.No.5/2014 and another shop room, which was occupied by Kottackal Arya Vaidya Sala. But further she has given special reason that those shop rooms have been retained as such, without letting out or occupying, for other purpose, with an intention to start the tutorial and commercial institute, after getting vacant possession of the petition schedule shop room. This Court is of the opinion that the retention of the other vacant rooms, for the long time, itself shows the _bona fides_ of the landlord to start the tutorial and commercial institute. 12. In the above analysis, this Court find that the entire occupied and vacant area in the entire building have come out R.C.R.182 OF 2015 10 in evidence and the landlord has satisfactorily given special reasons, for not occupying the vacant rooms. In the above analysis, we are not inclined to interfere with the findings of the Appellate Authority and the revision petition will stand dismissed. 13. The learned counsel for the revision petitioner prayed for granting six months time to vacate the petition schedule building. This Court is of the view that a reasonable time can be given to the revision petitioner to surrender the petition schedule building, on terms. (i) The respondent in the Rent Control Petition shall file an affidavit within a period of three weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months. (ii) The respondent/tenant shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two months from the date of receipt of a copy of this order and shall R.C.R.182 OF 2015 11 ## continue to pay rent without default. (iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically repealed and the petitioner/landlady will be at liberty to proceed with the execution of the eviction order. This Rent Control Revision is dismissed accordingly. Sd/- **K.HARILAL JUDGE** Sd/- **P.SOMARAJAN JUDGE** //True Copy\\ P.A to Judge IAP