Poovathil Gopalan v. K.V.Beevi and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 4TH DAY OF JUNE 2013/14TH JYAISHTA 1935** **RCRev.No. 403 of 2011 ( )** **--------------------------AGAINST THE JUDGMENT IN RCA 23/2010 of ADDL.D.C. KOZHIKODE-III, DATED 29-07-2011** **AGAINST THE ORDERIN RCP 90/2007 of PRL.M.C.KOZHIKODE-I, DATED 07-01-2010** **-----------** ## **REVISION PETITIONER/RESPONDENT:** **------------------------------** **POOVATHIL GOPALAN, AGED 68, 2/1661, SHAMJITH AUTOMOBILES, KARIKANKULAM, KARAPARAMBA P.O., KOZHIKODE-673 010.** ## **BY ADV. SRI.C.P.MOHAMMED NIAS** **RESPONDENTS:** **-----------** **1. K.V.BEEVI, AGED 60, D/O.ASSAN KOYA, KIZHAKKE VALIYA PARAMBATH, MALIKKADAVU P.O., VENGERI AMSOM DESOM, KOZHIKODE TALUK.** ## **2. K.V.KUNHIMOIDEEN KOYA,** **AGED 48, S/O.ASSAN KOYA, KIZHAKKE VALIYA PARAMBATH, MALIKKADAVU P.O., VENGERI AMSOM DESOM KOZHIKODE TALUK.** **3. K.V.MAMUKOYA, AGED 54, S/O.ASSAN KOYA, KIZHAKKE VALIYA PARAMBATH, MALIKKADAVU P.O., VENGERI AMSOM DESOM, KOZHIKODE TALUK.** **R.C.Rev.No. 403 of 2011 ( )** **4. K.V.BASHEER, AGED 50, S/O.ASSAN KOYA, KIZHAKKE VALIYA PARAMBATH, MALIKKADAVU P.O., VENGERI AMSOM DESOM, KOZHIKODE TALUK.** **5. K.V.ABDU RAHIMAN, AGED 48, S/O.ASSAN KOYA, KIZHAKKE VALIYA PARAMBATH MALIKKADAVU P.O., VENGERI AMSOM DESOM, KOZHIKODE TALUK.** **6. K.V.LATHEEF, AGED 46, S/O.ASSAN KOYA, KIZHAKKE VALIYA PARAMBATH, MALIKKADAVU P.O., VENGERI AMSOM DESOM, KOZHIKODE TALUK.** **7. JASMIN, AGED 54, W/O.K.V.AHEMMED KOYA, KIZHAKKE VALIYA PARAMBATH, MALIKKADAVU P.O., VENGERI AMSOM DESOM, KOZHIKODE TALUK.** **R1 TO 7 BY ADV. SRI.K.M.FIROZ R1 TO 7 BY ADV. SMT.M.SHAJNA** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ln** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** --------------------------------------------RCR No. 403 of 2011 ----------------------------------------- Dated this the 4[th] day of June, 2013 ## **ORDER** ## Ramachandran Nair, J. This revision petition is one filed by the tenant of a building who is conducting business named 'Shamjith Automobiles'. The building was owned by the respondents herein. Parties are described as arrayed in the revision petition. 2. Eviction was sought on different grounds under Sections 11(3) and 11(4)(ii) of the Act. The bona fide need pleaded is one to start a business in furniture for the 4[th] respondent who was examined as PW1. It is stated that he is not having any job or business and the petition schedule room is most convenient and suitable for the furniture business. RCR No.403/2011 2 3. With regard to the ground under Section 11(4)(ii) of the Act, it was stated in the eviction petition that the tenant is using the building without proper care and attention and has caused several items of damage to the building. It is also stated that the wall of the building was deteriorated and cracked due to heavy and rough use of machines inside the building. Accordingly, it is contended that the tenant used the petition schedule room in such a manner so as to destroy the building thereby reducing the value and utility of the building materially and permanently. 4. It is a case where the Rent Control Court found against the landlord with regard to the ground under Section 11(3) of the Act as well as Section 11(4)(ii). The findings have been reversed by the Appellate Authority. 5. With regard to the bona fide need pleaded by the landlord, the learned counsel for the petitioner while attacking the findings rendered by the Appellate Authority, submitted that what is pleaded by the landlords is that the room is required for starting furniture business for the RCR No.403/2011 3 fourth respondent herein. Even though he has been examined as PW1, he has not stated the preparations made for doing such a business as well as the financial background. It is also submitted that in the cross examination, he admitted that he is having income from doing real estate business as a broker. The learned counsel, therefore, submitted that on the basis of his evidence alone, the Appellate Authority reversed the finding of the Rent Control Court. 6. With regard to the plea under Section 11(4)(ii) of the Act, the learned counsel referred to the evidence of PW1, the report of the Commissioner and the averments in the Rent Control Petition and submitted that actually there was no proper pleadings on the part of the landlords with regard to the elements required to attract the ground under Section 11(4)(ii). It is also submitted that even if the report of the Commissioner is accepted in toto, it will not bring out a case to attract the plea under Section 11(4)(ii). The learned counsel explained that all that is found by the RCR No.403/2011 4 Commissioner is that a wooden platform has been attached to the wall at a height of 1.8 metres and there is an iron ladder fitted to the same and the space is being used as an office in the work shop. The learned counsel submitted that the Commissioner has not explained or has not given any opinion that cracks have been developed due to the rough use of machinery in the work shop as alleged in the eviction petition. It is also submitted that the building was taken on rent around 30 years back by the petitioner and there is no evidence to show that the landlord has conducted any periodical repairs and therefore; the cracks which have been seen by the Commissioner in the three walls can only be attributed to natural causes and due to the age of the building. 7. Relying upon the judgment of this Court in **Aboobacker** v **Nanu** (2001 KHC 805), the learned counsel submitted that to attract the ground under Section 11(4)(ii), the destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude. RCR No.403/2011 5 The learned counsel, therefore, submitted that the pleadings and evidence in this case are flimsy and the ground under section 11(4)(ii) is therefore not attracted and the finding otherwise made by the Appellate Authority cannot be sustained also. 8. The learned counsel appearing for the respondent submitted that the landlords have discharged the burden in properly pleading the bona fide need under section 11(3) and it is not the requirement of law that the landlord should plead and prove the financial background required for doing the business, the experience and the like. The learned counsel, by relying upon the findings rendered by the Appellate Authority in paragraphs-10 and 11 of the judgment, submitted that the said findings cannot be said to be perverse warranting interference in this revision petition. 9. With regard to the finding under Section 11(4)(ii) also, the learned counsel supported the said findings by referring to the pleas in the eviction petition, the evidence RCR No.403/2011 6 of PW1, the deposition of RW1 in cross examination and by relying upon the Commissioner's report. 10. On going through the orders passed by the Rent Control Court as well as the Appellate Authority and the pleadings of the parties and the relevant evidence, the learned counsel for the landlords is right in submitting that the Rent Control Court did not actually render any finding on the ground pleaded under Section 11(3). Even though in paragraph-7, the evidence has been discussed, the court went on to consider only the two limbs of second proviso to section 11(3) and accordingly entered a finding that the tenant is entitled for the benefit of the said proviso and hence the landlords are not entitled to get eviction under section 11(3). 11. With regard to the plea under section 11(4)(ii), it was found by the Rent Control Court that the landlords could not furnish any just and satisfactory materials to establish that the tenant used the petition schedule building in such a manner so as to destroy or reduce its value and RCR No.403/2011 7 utility materially and permanently. Reliance was placed on the judgment of this Court in **Aboobacker** v **Nanu** 2001(3) KLT 815 and **Ahmmed Kanna** v **Muhammed Haneef** (1967 KLT 841). 12. We will first consider the issues raised concerning the ground under Section 11(4)(ii). As we have already noticed, the only plea raised in paragraph-1 of the eviction petition is that the tenant has caused serious damage to the building without proper care and attention. Mention has been made about the cracks in the walls and there is a general averment that the tenant used the building in a manner to destroy the building thereby reducing the value and utility of the building materially and permanently. 13. Therefore, what is attributed specifically as sufficient to require eviction is the cracks which were developed in the walls due to heavy and rough use of the machines inside the building. 14. In the report of the Commissioner mention has been made about the cracks in the wall and the opinion of RCR No.403/2011 8 PW1 that the cracks might have been developed due to the construction of a platform by the tenant has been recorded. What is found by the Commissioner is that at a height of 1.8 metres from the floor of the room a wooden platform has been constructed and there is an iron ladder attached to the same and above the platform a table and a bill book have been seen. 15. We are not satisfied that the report of the Commissioner gives any details regarding the alleged damage caused to the building by the rough use of the machinery etc. Even with regard to the cracks developed, nothing is attributed against the tenant or the alleged rough use of the building by the tenant which might have caused the above crack. The opinion of the first petitioner/landlord cannot be termed as one which could be taken on its face value without any evidence on a technical aspect. Apart from the same, there was no plea in the eviction petition that only because of the construction of the platform by putting screws for fitting into the wall, cracks have been developed. RCR No.403/2011 9 The Appellate Authority has been led away by the said fact in entering a finding against the tenant on this aspect also. 16. Even though the learned counsel for the landlord submitted that the pleadings are sufficient, so as to attract Section 11(4)(ii) and that the tenant is not prejudiced in any manner with regard to the absence of any pleadings, we are not satisfied that in this case there are sufficient pleadings on the part of the landlord on this aspect. The evidence is also not conclusive to decide either way. In fact going by the judgment of this Court in Aboobacker's case (supra), destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude which is totally lacking in this case. Even though the learned counsel for the landlord argued that the evidence of PW1 coupled with the Commissioner's report justifies the finding rendered by the Appellate Authority, we are not satisfied with the same. The view taken that the evidence is sufficient is totally perverse and therefore calls for RCR No.403/2011 10 interference and we do so. 17. Then, the plea under Section 11(3) is the one which remains to be considered. Herein, the bona fide need pleaded is to start a furniture business for the 4[th] respondent herein. It is in evidence that he is not having any other job or avocation. He had studied up to degree classes. We have noticed from the cross examination of PW1 that no serious questions have been put to PW1 either with regard to the lack of preparation for doing the business or with regard to the financial background, the investment etc. required for doing the business. In fact the Appellate Authority relied upon the evidence of RW1 also wherein he has stated that the room in question could be used for such a business and he knew that he is sought to be evicted for starting the furniture business. The Appellate Authority was of the view that in the background of the case and in the light of the settled law that the bona fide need is a state of mind and it is the duty of the court to consider whether the said need is really natural, sincere, honest etc. and that RCR No.403/2011 11 the provisions of the statute cannot be stretched to such an extent. Even though the learned counsel for the tenant submitted vehemently that more relevant aspects including the financial background and the preparations for doing business ought to have been established by the landlords, we cannot agree. It is in evidence that the 4[th] respondent is not having any job or avocation, as we have noticed already. Therefore, the need projected cannot be said to be a mere desire so as to evict the tenant. 18. Therefore, the finding on this Count cannot be said to be perverse requiring interference by this Court. 19. With regard to the two limbs of the second proviso to Section 11(3), the findings are against the tenants. A discussion on the various aspects show that the Appellate Authority was of the view that there is no evidence to prove the income derived by the tenant from the business of the petition schedule property and actually he admitted in cross examination that so many other buildings have come up in the locality and rooms are available. He had also stated RCR No.403/2011 12 that he has not made any enquiry regarding the availability of the room for shifting his business. 20. Relevant evidence have been considered by the Appellate Authority on this aspect also. 21. In the light of the above discussion, we reverse the finding of Section 11(4)(ii) of the Act and confirm the finding on Section 11(3) of the Act and dismiss the revision petition to that extent. 22. We grant time to vacate the premises up to 31.3.2014 to the tenant on the following conditions: i) Any arrears of rent will be deposited within a period of one month. ii) He will file an affidavit undertaking to vacate the premises within the time granted by this Court which will be filed within one month from today. iii) We direct the tenant to pay rent at the rate of Rs.750/- per month for use and occupation of the building till peaceful vacant possession is handed over within the time granted by this Court. RCR No.403/2011 13 It is made clear that any of the conditions are violated, the petitioner will not be entitled for the benefit of the above conditions. **sd/- T.R.RAMACHANDRAN NAIR JUDGE sd/- A.V.RAMAKRISHNA PILLAI JUDGE** **css/ true copy** **P.S.TO JUDGE**