P. KADEESUMMA and others v. VANIYANKANDI JANAKI and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937 RCRev..No. 35 of 2016 () ------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 87/2011 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY DATED 27-05-2015 AGAINST THE ORDER/JUDGMENT IN RCP 10/2008 of RENT CONTROL COURT, KUTHUPARAMBA DATED 09-02-2011 REVISION PETITIONER(S):APPELLANTS/RESPONDENTS -------------------------------------------- 1. P.KADEESUMMA AGED 60 YEARS W/O LATE KELOTH MAMMU, KELOTH HOUSE, CHAVASSERY AMSOM ULIYIL DESOM, PO. ULIYIL, THALASSERY TALUK 2. P. RASIYA, AGED 38 YEARS, D/O LATE KELOTH MAMMU, KELOTH HOUSE, CHAVASSERY AMSOM ULIYIL DESOM, PO. ULIYIL, THALASSERY TALUK 3. P. ABDUL KHADER, AGED 35 YEARS, S/O LATE KELOTH MAMMU, KELOTH HOUSE, CHAVASSERY AMSOM ULIYIL DESOM, PO. ULIYIL, THALASSERY TALUK 4. P. RASHEED, AGED 32 YEARS, S/O LATE KELOTH MAMMU, KELOTH HOUSE, CHAVASSERY AMSOM ULIYIL DESOM, PO. ULIYIL, THALASSERY TALUK 5. P. ASMA, AGED 30 YEARS, D/O LATE KELOTH MAMMU, KELOTH HOUSE, CHAVASSERY AMSOM ULIYIL DESOM, PO. ULIYIL, THALASSERY TALUK 6. P. SHAMEERA @ P. SAMEERA, AGED 33 YEARS, D/O LATE KELOTH MAMMU, KELOTH HOUSE, CHAVASSERY AMSOM ULIYIL DESOM, PO. ULIYIL, THALASSERY TALUK 7. P. SUHRA, AGED 42 YEARS, W/O NOORUDHEEN, NIYAS MAHAL, KEEZHUR AMSOM 34 PUNNAD DESOM, P.O. PUNNAD BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): ---------------------------- 1. VANIYANKANDI JANAKI, AGED 83 YEARS, W/O LATE MANNAN, ARALAM AMSOM DESOM, P.O. ARALAM THALASSERY TALUK REPRESENTED BY HER GRANDSON AND POWER OF ATTORNEY HOLDER K. SHIBIN S/O LATE MUKUNDAN, POOLAYULLAPARAMBA THILLENKERI AMSOM, ALAYAD DESOM, P.O THILLENKARI THALASSERY TALUK-670 702 2. HASHIM S/O LATE KELOTH MAMMU, KELOTH HOUSE, CHAVASSERY AMSOM ULIYIL DESOM, PO. ULIYIL, THALASSERY TALUK-670702 3. C.K. MAMMU, AGED 81 YEARS, S/O ABU, CENTRAL TRADING COMPANY ROOM NO. K.C.P. 13/1982, MAIN ROAD, IRITTY KEEZHUR AMSOM DESOM, PO IRITTY-670 703 R1 BY ADV. SRI.R.SURENDRAN, CAVEATOR R1 BY ADV. SRI.R.SURENDRAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.35 of 2016** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] January, 2016** ## **O R D E R** ## **K. Ramakrishnan, J.** The respondents in R.C.P.No.10 of 2008 on the file of the Rent Control Court, Koothuparamba (except respondents 5 and 7) are the revision petitioners herein. The first respondent herein filed R.C.P.No.10 of 2008 for eviction of the respondents therein from the petition schedule building on the ground of bonafide need and sub lease under sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as “the Act” for short. It is alleged by the landlady in the petition that the petition schedule building belongs to her and she leased out the same to one Keloth Mammu on a monthly rent of Rs.3,000/- and he died and respondents 2 to 6 and 8 and 9 are his legal heirs. After the death of Mammu, the tenancy right devolved upon them and they sub leased the building to the 7[th] respondent in the rent control petition without the consent of the petitioner and he is now conducting a grocery shop as a sub lessee. The petitioner's grandson Shibin who is aged 22 years, is without any employment and he wants to start a stationary business to eke out his livelihood. His father died four years back. He is depending on the petitioner for that purpose. She is not in RCR 35/2016 2 possession of any other vacant building. There are other buildings available in the locality for shifting the business of the respondents in the court below. She sent a notice directing them to surrender vacant possession of the petition schedule building after terminating the sub lease. They sent a reply with false allegations stating that there was no sub lease and there was a partnership between Mammu and the 7[th] respondent and after the death of Mammu the legal heirs reconstituted the partnership with the 7[th] respondent and as such there is no sub lease. They denied the allegation of bonafide need also. Since the tenants have not vacated the premises, the landlady filed the application for eviction on these grounds. 2. Respondents 1, 2 and 7 in the court below filed objections denying the allegations in the petition. They have denied the allegation of sub lease and stated that there was a partnership between Keloth Mammu and the 7[th] respondent on 1.1.1982 for the purpose of conducting business in grocery articles and it was for that purpose the building was taken on lease. After the death of Mammu, the wife and children were also joined as partners. The business is being conducted under the name M/s. Central Trading Company and there was no sub lease. Further, after some time the third respondent was inducted as partner on behalf of the legal heirs of Mammu and it was reconstituted on 27.3.2001. Thereafter, the 7[th] respondent retired from the RCR 35/2016 3 partnership and again the partnership was reconstituted on 1.4.2009 with the third respondent and Ali as partners. At present, the 7[th] respondent has no interest in the firm. The third respondent is the present managing partner of the firm. All the partners are necessary parties to the proceedings. The relationship between the landlady and Shibin was not cordial even before the death of his father and he is not depending on the petitioner and the father of the said Shibin is conducting a medical shop at Iritty and after his death Shibin is conducting the medical shop. So, he has no intention to start a business. They have also contended that they are depending on the income derived from the business being carried on in the petition schedule building for eking out their livelihood and there is no other building available in the locality and the petitioner is in possession of another building as well. So, they have prayed for dismissal of the petition. 3. In order to prove the case of the landlady, Shibin on whose bonafide need the petition was filed, was examined as PW1 and Exts.A1 to A22 were produced and marked on their side. RWs1 and 2 were examined and Exts.B1 to B21 were produced and marked on the side of the respondents/tenants. After considering the evidence on record the rent control court found that there is no sub lease and denied eviction under section 11(4)(i) of the Act. But the rent control RCR 35/2016 4 court found that the bonafide need alleged by the petitioner is genuine and the respondents are not entitled to get the proviso protection and allowed eviction under section 11(3) of the Act. Aggrieved by the same, the respondents in the court below filed R.C.A.No.87 of 2011 before the Rent Control Appellate Authority, Thalassery. It was made over to Additional District Court I, Thalassery and as per the impugned judgment dated 27.5.2015 the appellate authority dismissed the appeal confirming the order of eviction passed under section 11(3) of the Act. Aggrieved by the same, the present revision petition has been filed by the petitioners herein. 4. Since Shri R.Surendran has entered appearance for the first respondent, we felt that the revision petition can be disposed of at the admission stage after hearing the learned counsel appearing for the first respondent as well. 5. Heard Shri P.U.Shailajan, learned counsel for the revision petitioners and Shri R.Surendran, learned counsel for the first respondent. 6. Learned counsel for the revision petitioners submitted that the original power of attorney was not marked in this case and as such it cannot be said that the application was properly filed and it was not verified and signed by the person who executed the power of attorney. There was no proper verification of the petition. He had also argued RCR 35/2016 5 that the relationship between PW1 and the landlady was not cordial and that could be proved only if the landlady was examined in court. She did not give evidence before the court below. The contention of the tenants that their relationship was not cordial was not disproved in accordance with law and as such the court below has not properly appreciated the evidence before coming to the conclusion that the bonafide need is genuine. Further, the evidence adduced will go to show that there are no vacant buildings available and the tenants are eking out their livelihood by the income derived from the business being carried on in the petition schedule building. So, the court below ought to have dismissed the petition for eviction. 7. On the other hand, learned counsel for the first respondent submitted that being a concurrent finding on fact, the scope of reappreciation of evidence on facts is limited under section 20 of the Act and the courts below had considered all the aspects and rightly held that the bonafide need is genuine and the tenants are not entitled to get the proviso protection. 8. We have gone through the order of the rent control court and the judgment of the appellate authority. The first contention raised by the learned counsel for the petitioners that there was no proper authorisation to file the petition can be answered by the dictum laid down by this court in the decision reported in **Rajan v. Padmavathy** RCR 35/2016 6 **Gopalan Nair and another** (2011 (4) KHC 383) wherein it has been held that under Order VI Rule 14 C.P.C. any person duly authorised by a party is competent to sign or to sue or defend on behalf of that person. Authorisation need not be in writing. It can be oral authorisation as well. When this aspect was challenged, this court has directed the first respondent to file an affidavit as to whether any power of attorney has been executed in favour of PW1 and the first respondent has filed an affidavit to that effect. Further, it can be seen from the records that the petition itself was filed through the power of attorney holder and this aspect was not challenged in the counter statement filed as well. So, at this stage or at the appellate stage the petitioners are not entitled to challenge the maintainability of the petition on this technical ground. Further, even in their appeal before the appellate authority they have shown the landlady represented through power of attorney. They cannot now contend that there was no proper authorisation for the power of attorney to file the rent control petition. 9. As regards the bonafide need is concerned, PW1 on whose behalf the petition for eviction was filed, had gone to the witness box and deposed that he is not having any business of his own and he wants to start a business in grocery articles and he is depending on the landlady for that purpose. He denied the allegation that the RCR 35/2016 7 relationship between him and the landlady is not cordial. The fact that the landlady had executed a power of attorney in favour of PW1 through whom the petition itself was filed, will go to show that the relationship is cordial. Further, even if there is any strained relationship between the father of PW1 and the landlady, that will not affect the landlady helping her grandson for starting a business in the building belonging to her. The further evidence of PW1 will go to show that he is only helping his father's brother in conducting the medical shop and he has no interest in the medical shop and that he wants to start a business of his own for which he requires the petition schedule building. The document produced, viz. Ext.A15 will go to show that the licence stands in the name of V.K. Madhusoodanan, father's brother of PW1. There is nothing on record to show that he is having any independent income and he is conducting any independent business as well. The evidence of Rws.1 and 2 is not helpful in rejecting the said contention. So, the rent control court and the appellate authority were justified in coming to the conclusion that the bonafide need alleged by the petitioner is genuine. 10. Further, the contention that the landlady had obtained a building from a tenant and it is in her possession has disproved by producing Exts.A9 to A13 which will go to show that a petition was filed in the year 1997 for bonafide need of her another son V.K. RCR 35/2016 8 Chandran and it was got evicted through court proceedings and Exts.A17 to A22 will go to show that the said Chandran is conducting business in that room. So, it cannot be said that the landlady is in possession of suitable room for this purpose, so as to attract the bar under the first proviso to section 11(3) of the Act and this contention was rightly rejected by the court below. 11. Even if the court found that the need alleged is bonafide, if the tenant is able to establish that he is solely depending on the income derived from the business being carried on in the petition schedule building and there are no other suitable buildings available in the locality, this court can deny an order of eviction in view of the protection available to the tenant under the second proviso to section 11(3) of the Act. There is no document produced on the side of the revision petitioners to prove that the income derived from the business conducted in the petition schedule building is their only income. Further, the word 'tenant' relates to the person to whom the building was entrusted. If there are numerous persons who hold the tenancy as tenants in common, unless it is proved by the person who hold the tenancy for the tenants in common that all of them are depending for their livelihood on the income derived from the business being conducted in the petition schedule building, the benefit of the second proviso to section 11(3) of the Act cannot be extended to such RCR 35/2016 9 persons. Further, the evidence of PW1 will go to show that there are other vacant buildings available in the locality and this aspect has not been properly challenged in cross examination as well and that no attempt was made on the side of the respondents to prove that they have made any earnest attempt to enquire about the availability of other suitable buildings. Further, availability of other buildings is proved by the landlady by producing Ext.A7 series extract of building tax assessment register. So, the rent control court as well as the appellate authority were perfectly justified in denying the second proviso protection to the tenants and rightly ordered eviction under section 11(3) of the Act. Being a concurrent finding of fact, this court feels that this is not a fit case to invoke the revisional power under section 20 of the Act to upset the findings of the courts below. Before we dispose of the revision petition, learned counsel for the revision petitioners sought for six months time to vacate the tenanted premises. This was opposed by the learned counsel for the first respondent. Considering the circumstances of the case case and also the nature of the business being conducted by the petitioners, we feel that six months time sought for by the petitioners to vacate the premises appears to be reasonable. Accordingly, six months time from today is granted to the revision petitioners to surrender vacant possession of the petition schedule building on condition that they shall RCR 35/2016 10 file an undertaking in the form of an affidavit before the rent control court that they will vacate the premises within the time provided by this court without any objection and on further condition that they will deposit the arrears of rent, if any, and also continue to pay the rent at the rate agreed between the parties till they vacate the premises. They shall further undertake not to induct strangers in the petition schedule building or alienate or commit any acts of waste therein. The undertaking shall be filed within a period of three weeks from today. If the undertaking is not filed within that time, then the petitioners are not entitled to the benefit of extension of time to surrender the building as directed by this court. The revision petition is dismissed with the above directions. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**