PAPPU JAYAVARDHANAN v. BHARATHY ANANDAVALLY & OTHERS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930** **RCRev..No. 144 of 2007(F)** **------------------------------------RCA.NO.14/2004 OF DISTRICT & SESSIONS COURT,KOLLAM, RCP.NO.6/2000 OF THE RENT CONTROLLER, KARUNAGAPPALLY.** **....................** ## **REVISION PETITIONER/RESPONDENT/COUNTER PETITIONER:** **-----------------------------------------------------------------------------------------** **PAPPU JAYAVARDHANAN, AGED 51, PROPRIETOR, JAYA ENGINEERING, EAST OF PADANAYARKULANGARA TEMPLE, PADANAYARKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE, FROM KONNAYIL VEEDU, ATHINADU NORTH, KOTTAPPURAM MURI, KULASEKHARAPURAM VILLAGE.** **BY ADV. SRI.P.B.SURESH KUMAR.** ## **RESPONDENTS/APPELLANTS/PETITIONERS:** **----------------------------------------------------------------** **1. BHARATHY ANANDAVALLY, AGED 55 YEARS, PLAVILA KIZHAKKATHIL VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE.** **2. NATARAJAN RAJAN, AGED 35 YEARS, PLAVILA KIZHAKKATHIL VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE.** **3. NATARAJAN RAJU, AGED 33 YEARS, KIZHAKKATHIL VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE.** ## **4. ANANDAVALLY GEETHA,** **AGED 30 YEARS, KIZHAKKATHIL VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE.** ## **R1 TO R4 BY ADV. SRI.K.SUBASH CHANDRA BOSE.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON 21/05/2008 PASSED THE FOLLOWING:** ## **K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.144 of 2007** ## **========================** ## **Dated this the 21[st] day of May, 2008.** ## **ORDER** ## **Ravindran,J.** The tenant in R.C.P.No.6 of 2000 on the file of the Court of the Munsiff/Rent Controller, Karunagappally is the petitioner. The respondents/land lords instituted the Rent Control Petition seeking eviction of the petitioner under Sections 11(2)(b) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act" for short. By order passed on 29.11.2003 the Rent Control Court dismissed the petition holding that the rent in arrears has been deposited and the need put forward by the land lords is not bonafide. The land lords thereupon filed R.C.A.No.14 of 2004 in the Court of the District Judge and Rent Control Appellate Authority, Kollam. By judgment delivered on 15.12.2006, the Appellate Authority allowed the appeal and ordered eviction under Section 11(3) of the Act. Hence this revision petition at the instance of the RCR 144/07 -: 2 :- tenant. 2. The case set out in the Rent Control Petition is as follows: The land where the petition schedule shed is situated was purchased by the first respondent and her husband late Sri.Natarajan as per sale deed dated 20.2.1979. After the death of late Sri.Natarajan, the respondents are in possession and enjoyment of the said land. The thatched shed situated on the western side of the land belonging to the respondents was let out to the petitioner/tenant on 14.7.1998 on a monthly rent of Rs.300/- for running Jaya Engineering Works. The rent is in arrears since then and in spite of repeated demands, the tenant has failed to pay the rent. The second respondent though married is unemployed and does not have any avocation or income of his own. Therefore, he needs the site of the petition schedule shed and the appurtenant land to construct a shed to run business in fire wood, coconut shells and stationery items. Though the second respondent has made arrangements in that regard, when he approached the local authority for a licence to run the business, he was informed that the licence can be issued only after the shed is constructed and that the shed cannot be put up RCR 144/07 -: 3 :- in the land retaining the petition schedule shed. The land lords also allege that suitable buildings are available in Karunagappally where the tenant can run his business and that the second respondent/land lord does not have any other land in Karunagappally where he can start his own business. 3. The petitioner/tenant resisted the Rent Control Petition contending inter alia that he and his father had taken the site of the petition schedule shed on lease from late Sri.Natarajan in the year 1978, that Jaya Engineering Works was started in the shed put up by them therein, that late Sri.Natarajan had agreed to assign the site of the petition schedule shed to them and received a sum of Rs.2,000/- as advance, that later when it was found that a portion of the land was revenue poramboke and another portion was land belonging to the Civil Supplies Corporation, the sale did not take place and that after Sri.Natarajan passed away a rent deed was executed in favour of the land lords. The petitioner denied the allegation that he had kept the rent in arrears. He further contended that the second respondent is running Brothers Restaurant in Karunagappally town, besides a business in fire wood in the land in which the petition schedule RCR 144/07 -: 4 :- shed is situate. The petitioner further contended that there is adequate vacant land available with the land lords wherein a shed can be conveniently put up, that he is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule shed and that no other suitable accommodation is available in Karunagappally town to which he can shift his business. 4. In the Rent Control Court, the first respondent was examined as PW1, the second respondent was examined as PW2, two other witnesses were examined as PWs 3 and 4 and the Advocate Commissioner deputed by the Rent Control Court was examined as PW5. The petitioner/tenant examined himself as RW1 and two other witnesses as RWs 2 and 3. Exts.A1 to A8 were marked on the side of the land lords and Exts.B1 to B7 were marked on the side of the tenant. The report submitted by the Advocate Commissioner was marked as Ext.C1. While the Rent Control Petition was pending, the tenant deposited the arrears of rent upto August, 2003 and also undertook to pay the future rent from time to time. Therefore, the Rent Control Court held that the rent is not in arrears. On the question whether the land lords RCR 144/07 -: 5 :- bonafide need the petition schedule shed, the Rent Control Court held that the need put forward is not bonafide. Though the Rent Control Court noticed that in view of its finding under Section 11 (3) of the Act, the claim of the tenant for the protection of the second proviso to Section 11(3) of the Act does not arise for consideration, it proceeded to consider the issue and held that the tenant has not proved that he is entitled to the benefit of the second proviso to Section 11(3) of the Act. On the ground that the need put forward is not bonafide, the Rent Control Petition was dismissed. On appeal by the land lords, the Appellate Authority reversed the finding of the Rent Control Court under Section 11(3) of the Act and held that the need put forward is bonafide. The claim of the tenant for the protection of the second proviso to Section 11(3) of the Act was repelled. The appeal was accordingly allowed, the order passed by the Rent Control Court was set aside and an order of eviction under Section 11(3) of the Act was passed. The judgment of the Appellate Authority is under challenge in this revision petition by the tenant. 5. We heard Sri.K.P.Sujesh Kumar, the learned counsel RCR 144/07 -: 6 :- appearing for the petitioner/tenant and Sri.K.Subhash Chandra Bose, the learned counsel appearing for the respondents/land lords. The learned counsel for the petitioner contended that the testimony tendered by PWs 1 and 2 is not in accordance with the need set out in the Rent Control Petition and that on the evidence on record, the finding of the Appellate Authority that the need put forward is bonafide is perverse and is not sustainable in law. The learned counsel for the petitioner brought to our notice that the claim put forward in the Rent Control Petition is that the land lords need the site of the petition schedule shed for the purpose of putting up a shed after demolishing the existing shed so as to enable PW2 to start a business in fire wood, coconut shells and stationery items. The learned counsel pointed out that the first respondent when examined as PW1 had deposed that eviction is sought to construct a permanent building with RCC roof at the site of the petition schedule shed and the appurtenant land. She also deposed that she is not aware of the number of floors in the proposed building. The second respondent when examined as PW2 had deposed that he does not propose to construct a new shed, but only intends to renovate the existing shed. The learned RCR 144/07 -: 7 :- counsel for the petitioner contended that the case set out by PWs 1 and 2 in the box is totally at variance with the case set out in the Rent Control Petition and therefore, the need put forward is not bonafide and is only a ruse to evict the tenant. The learned counsel for the petitioner also brought to our notice that PW5, the Advocate Commissioner has in Ext.C1 reported that the respondents jointly own a parcel of vacant land, 4 cents in extent, close to the site of the petition schedule shed, having independent access and that if at all the land lords need to put up a shed, it can be put up therein. Though during chief examination PWs 1 and 2 had deposed that they do not have any vacant land in the neighbourhood, during cross examination, PW1 deposed that the said property was assigned 3 to 4 years back, but she does not remember to whom it was sold. The learned counsel for the petitioner further submitted that the evidence on record proves that the land lords have vacant land available in their possession wherein a shed can conveniently be put up and that in the light of the evidence on record, the finding of the Appellate Authority that the need put forward is bonafide is perverse and is liable to be set aside. Per contra, the learned RCR 144/07 -: 8 :- counsel for the respondents/land lords relying on the decisions of the Apex Court in **Sait Nagee Purushotham & Co. Ltd.** v. **Vimalabai Prabhulal** - 2005(4) K.L.T. 452 and of this Court in **Venkitaramanan** v. **Rajamma** - 2004(3) K.L.T. 930 and **Madhava** v. **Pathumabi** - 2005(3) K.L.T. 369 contended that the tenant cannot dictate to the land lord where and in what manner the shed should be put up and also as to the manner in which the vacant land available with them is to be utilised. The learned counsel for the respondents further contended that as PW2 is admittedly unemployed and has no income of his own, it is for him to decide whether he should pull down the existing shed and construct a new one or carry on business in the existing shed with suitable alterations and modifications. 6. We have considered the rival contentions. The land lords have in the Rent Control Petition stated as follows: RCR 144/07 -: 9 :- RCR 144/07 -: 10 :- 7. It is evident from a reading of the Rent Control Petition that the need put forward in the petition is to remove the existing shed and to put up a new shed at the site of the existing shed and the appurtenant land with a view to enable PW2 to do business in fire wood, coconut shells and stationery items. It is also pleaded that the land lords have no other land of their own in Karunagappally. PW1, who is none other than the mother of PW2 had deposed that the proposal is to construct a permanent building with concrete roof though she is not aware of the number of floors in the proposed building. On the other hand, PW2 on whose behalf the need is put forward had deposed that he does not propose to construct a new shed, but to run the business in the existing shed. Though at first blush, it would appear that there is merit in the contention of the land lords that it is for them to decide where and in what manner the business should be carried on, in the light of the pleadings and evidence in the case on hand, we are persuaded to take the view that the need alleged in the Rent Control Petition has not been proved or established by the land lords. The land where the petition schedule shed is situated has an area of approximately six cents. RCR 144/07 -: 11 :- The case set out in the Rent Control Petition is that on account of the nature and lie of the land, a shed cannot be put up excluding the site of the existing shed let out to the tenant and therefore, the land lords need the entire land for putting up a new shed so as to enable PW2 to run a business in fire wood, coconut shells and stationery items. PW2 has deposed that he does not propose to construct a new shed, but to run the proposed business in the existing shed. It has come out in evidence and it is not in dispute that PW2 is already running a business in fire wood on the western side of the very same parcel of land. It has also come out in evidence that the land lords are in possession of yet another parcel of vacant land, four cents in extent, situated close by. Though an attempt was made by PWs 1 and 2 to deny ownership of the said parcel of land, in the light of the testimony tendered by PW1, we are persuaded to hold that the said parcel of land was also available with the land lords when the petition for eviction was filed and thereafter also and that a shed can be conveniently put up therein, if a new shed is to be put up to enable PW2 to start his own business. 8. We shall now refer to the decision of the Apex Court in RCR 144/07 -: 12 :- **Sait Nagee Purushotham & Co. Ltd.** v. **Vimalabai Prabhulal** - 2005(4) K.L.T. 452 and the decisions of this Court in **Venkitaramanan** v. **Rajamma** - 2004(3) K.L.T. 930 and **Madhava** v. **Pathumabi** - 2005(3) K.L.T. 369 referred to and relied on by the learned counsel for the land lords. In **Sait Nagee Purushotham & Co. Ltd.** v. **Vimalabai Prabhulal** - 2005(4) K.L.T. 452, the Apex Court while repelling the contention of the tenant that as the land lords already have businesses at Chennai and Hyderabad, the need alleged, viz, to set up a business at Calicut is not genuine or bonafide, held that it is the prerogative of the land lord who is already having a business to expand his business and that the tenant cannot contend that as the land lord already has his business, the need is not genuine. The Apex Court held that it is always the privilege of the land lord to choose the nature and place of business and that the tenant cannot dictate terms to the land lord and advise him on what he should do and what he should not. 9. In **Venkitaramanan** v. **Rajamma** - 2004(3) K.L.T. 930, the land lord sought eviction of tenanted premises to provide additional facilities in his hotel including an air conditioned RCR 144/07 -: 13 :- restaurant. The Rent Control Court and the Appellate Authority held that it would not be possible to conduct an air conditioned restaurant in the tenanted premises which was a small room. The petition for eviction was accordingly dismissed. Reversing the decisions of the authorities below, a Division Bench of this Court held that it is for the land lord to decide in what manner the space is to be utilised and what are the modifications, additions, alterations, etc. to be made to set up an air conditioned restaurant and to provide additional facilities in his hotel. This Court held that if the land lord got the tenanted premises, it could be utilised for setting up an air conditioned restaurant which will enable him to expand his business. 10. In **Madhava** v. **Pathumabi** - 2005(3) K.L.T. 369 the tenant who was running a tailoring shop resisted the petition for eviction under Section 11(3) of the Act instituted by the land lady to provide accommodation to her unemployed children to run a business in ready made garments. The contention of the tenant that the building "is not reasonably sufficient" to run a business in ready made garments was rejected by a Division Bench of this Court holding that unlike Section 11(4)(iii) of the Act, Section 11 RCR 144/07 -: 14 :- (3) does not stipulate that the room should be one which is reasonably sufficient for the need put forward by the land lord and that the court is not expected to embark upon an enquiry to find out whether the land lord would succeed in establishing the proposed business in the tenanted building, that adequacy of space is a matter to be considered by the land lord and that the tenant cannot have a dictatorial role in the assessment of the land lord. It was however held that the tenant can contend that the need put forward is not bonafide by bringing forth all relevant materials in evidence. ## - 11. In **Shiv Sarup Gupta** v. **Dr.Mahesh Chand Gupta** (1999) 6 S.C.C. 222, the Apex Court while considering the bonafide need urged by the land lord in respect of a residential building held as follows: "13. Chambers 20th Century Dictionary defines bona fide to mean "in good faith: genuine". The word "genuine" means "natural: not spurious: real: pure: sincere". In Law Dictionary, Mozley and Whitley define bona fide to mean "good faith, without fraud or deceit". Thus the term bona fide or genuinely refers to a state of mind. Requirement is RCR 144/07 -: 15 :- not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the land lord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the land lord and its bona fides would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair of the land lord and then ask the question to himself - whether in the given facts substantiated by the land lord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the land lord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the RCR 144/07 -: 16 :- reality was to the contrary and the land lord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the land lord. Once the court is satisfied of the bona fides of the need of the land lord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the land lord his subjective choice shall be respected by the court. The court would permit the land lord to satisfy the proven need by choosing the accommodation which the land lord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the land lord by holding that not one but the other accommodation must be accepted by the land lord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against." (Emphasis supplied) 12. The Apex Court has in the above decision held that a requirement in the sense of felt need, which is the outcome of a RCR 144/07 -: 17 :- sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the land lord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. It was also held that that the bonafide need set out should be capable of successfully withstanding the test of objective determination by the court. It was also held that the failure on the part of the land lord to substantiate the pleaded need or in a given case, positive material brought on record by the tenant enabling the court to draw an inference that the reality was to the contrary and the land lord was merely attempting to find out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court to deny its judicial assistance to the land lord. The Apex Court also held that once the court is satisfied of the bonafides of the need of the land lord by applying objective standards, then in the matter of choosing out of more than one accommodation available to the land lord, his subjective choice shall be respected by the court and the court would permit the land lord to satisfy the proven need by choosing the accommodation which the land lord feels would be most suited for the purpose; the court would RCR 144/07 -: 18 :- not in such a case thrust its own wisdom upon the choice of the land lord by holding that not one, but the other accommodation must be accepted by the land lord to satisfy his such need. 13. Applying the tests laid down by the Apex Court in **Shiv Sarup Gupta** v. **Dr.Mahesh Chand Gupta** to the factual setting in the case on hand, we are not persuaded to hold that the need put forward by the land lord in the instant case is bonafide. The case set out in the Rent Control Petition is that in order to enable PW2 to start a business in fire wood, coconut shells and stationery items, the land lords propose to pull down the existing shed and to put up a new shed. In the schedule to the Rent Control Petition, the premises is described as "thatched shed and its site having an area of approximately 10 sq. mtrs." It is also alleged in the Rent Control Petition that besides the land where the petition schedule shed is situate, the land lords do not have any other land of their own in Karunagappally. It has come out in evidence that the land lords own a parcel of vacant land 4 cents in extent, close to the petition schedule shed. Though PW1 attempted to deny ownership of the said parcel of land by claiming that it was assigned 3 to 4 years back, no evidence has RCR 144/07 -: 19 :- been adduced to establish the said case. Further, the testimony tendered by PWs 1 and 2 is totally at variance with the case set out in the Rent Control Petition. It is also to be noticed that the Advocate Commissioner had found fire wood stacked in the eastern portion of the land where the petition schedule shed is situated. The land lords had in the Rent Control Petition stated that after removing the existing shed, they propose to put up a new shed to enable PW2 to run his business. PW1 has deposed that the proposal is to construct a cement concrete building with multiple floors. PW2 had deposed that he proposes to do business in the existing shed. On an overall view of the facts and circumstances obtaining in the case, we agree with the finding of the Rent Control Court that the need alleged is not bonafide. In our opinion, the finding of the Appellate Authority that as the tenant has no independent source of income, the need is bonafide, is not sustainable in law. The finding of the Appellate Authority is not sustainable on the evidence on record. The Appellate Authority has failed to advert to the stated need and the significant fact that the said need has not been established. 14. As noticed by the Apex Court in **Shiv Sarup Gupta** v. RCR 144/07 -: 20 :- **Dr. Mahesh Chand Gupta** (supra), the failure of the land lord to substantiate the pleaded need or positive material brought on record by the tenant would enable the court to draw an inference that the land lord was merely attempting to find out a pretence or pretext for getting rid of the tenant. It is not in dispute that PW2 is also presently engaged in running Brothers Restaurant, the licence of which stands in the name of his mother PW1. Coupled with the said fact, in the case on hand, the stated need is not spoken to by PWs 1 and 2. There is also the further fact that the land lords own 4 cents of vacant land adjacent to the petition schedule shed. No reason is stated either in the Rent Control Petition or by the land lords when they were examined as PWs 1 and 2 as to why the vacant land available with them is not suitable for the proposed business. After all, the need put forward is to only construct a shed to do business in fire wood, coconut shells and stationery items. We are therefore of the considered opinion that the land lords have signally failed to prove that they bonafide need the petition schedule shed and its site for setting up a business for PW2. The evidence in the case on hand is totally at variance with the pleadings. On the evidence RCR 144/07 -: 21 :- tendered by PWs 1 and 2, it is not possible to hold that the need alleged is not a mere desire or a ruse to evict the tenant. Further the land lords have not chosen to disclose to the court that they own a vacant parcel of land close by. They have also no case that the said parcel of land is unsuitable for the proposed business. 15. In the result, we hold that the land lords have signally failed to prove the bonafide need set out in the petition for eviction. The finding of the appellate authority to the contrary is based on no evidence and is liable to be set aside. We accordingly allow this revision petition, set aside the judgment of the Rent Control Appellate Authority, Kollam in R.C.A.No.14 of 2004 and restore the order passed by the Court of the Munsiff/Rent Controller, Karunagappally in R.C.P.No.6 of 2000. No costs. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 19/4