P.SUKUMARAN v. C.SHEEJA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940** **RCRev.No. 120 of 2016** **AGAINST THE JUDGMENT IN RCA 14/2015 of RENT CONTROL APPELLATE AUTHORITY/ ADDITIONAL DISTRICT JUDGE-I, KOZHIKODE DATED 31-07-2015** **AGAINST THE ORDER IN RCP 105/2010 of RENT CONTROL COURT/ADDL. MUNSIFF COURT-II, KOZHIKODE DATED 29-11-2014** ## **REVISION PETITIONER/ RESPONDENT/ PETITIONER :** **P.SUKUMARAN, AGED 84 YEARS, S/O.KUNHIRAMAN, RESIDING AT 4/567, RAM SQUARE, P T USHA ROAD, KALATHIKUNNU AMSOM, DESOM, KOZHIKODE - 673 032.** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT/ APPELLANT/ RESPONDENT :** **C.SHEEJA, W/O.SUSHEERKUMAR, RESIDING AT ACHEZHIYAKATH HOUSE, NEAR SREEKANDESWARA KSHETHRAM, KASABA AMSOM, KARYAKUNNU DESOM, P.O., PUTHIYARA, KOZHIKODE - 673 004** **BY ADVS. SRI.P.V.ANOOP SRI.P.V.KUNHIKRISHNAN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24.07.2018, THE COURT ON 31.08.2018 PASSED THE FOLLOWING:** **RCRev.No. 120 of 2016** 2 ## **ORDER** ## _**Annie John, J.**_ This revision is against the judgment dated 31.07.2015 in R.C.A.No.14/2015 on the file of the Rent Control Appellate Authority/ Additional District Judge-I, Kozhikode, which was passed against the order dated 29.11.2014 in R.C.P.No.105/2010 on the file of the Rent Control Court/ Additional Munsiff-II, Kozhikode. The petitioner in a petition under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act'), who was the respondent before the Appellate Authority, is the revision petitioner herein. The respondent before the Rent Control Court, who was the appellant before the Appellate Authority is the present respondent. The revision petitioner filed the Rent Control Petition contending that the petition schedule room was let out to the respondent for a monthly rent of Rs.4,000/- for conducting as STD booth, Fax, Internet, Lamination, Photostat and a tea stall. The rent from April, 2010 is in arrears. It was also contended that the respondent has sublet the tea shop to another person. It was **RCRev.No. 120 of 2016** 3 further contended that his daughter Rachana _bona fidely_ requires the petition schedule room for starting a hosiery business and for that purpose, she is depending on the petitioner. The respondent is not depending on the petition schedule room for her livelihood and there are other vacant rooms available in the locality. 2. Per contra, the respondent filed a counter statement denying the averments in the petition. It was contended that rent up to June, 2010 has been given to the petitioner and there is no sub lease. The need alleged is not _bona fide_ in so far as the daughter of the petitioner is residing at her matrimonial house at Vatakara. The income she gets from the petition schedule room is her main source of livelihood and that there are no suitable rooms available in the locality. The petitioner and his daughter were examined as PW1 and PW2. Exts.A1 to A3 were marked. A witness was examined on the side of the respondent and Exts.B1 to B17 were marked on the side of the respondent. Exts.C1 and C1(a) were marked as court exhibits. The learned Rent Control Court by its order dated 28.01.2012 rejected the Rent Control Petition. Pursuant to the judgment in R.C.A.No.92/2012, the matter was remanded back for fresh consideration. Thereafter, the Rent Control Court **RCRev.No. 120 of 2016** 4 by its order dated 29.11.2014 allowed the Rent Control Petition under Sections 11(2)(b) and 11(3) of the Act. The claim for eviction under Section 11(4)(i) of the Act was rejected. Highly aggrieved by the order of the Rent Control Court, the respondent filed R.C.A.No.14/2015. The learned Appellate Authority, by its judgment dated 31.07.2015, allowed the Appeal by vacating the order passed under Section 11(3) of the Act. The order of eviction under Section 11(2) was confirmed. Highly aggrieved by the order of the learned Appellate Authority, the petitioner has filed this revision before this Court. 3. The Appellate Authority did not understand the case of the revision petitioner in its proper perspective and erred in holding that the respondent is entitled for the protection of the first proviso under Section 11(3) of the Act. The Appellate Authority ought not to have given the benefit of the first proviso under Section 11(3) of the Act to the respondent in the absence of a pleading seeking protection of the first proviso. The Appellate Authority ought not to have rejected the claim of the respondent in view of the categoric admission of RW1 that there are no vacant rooms available with the petitioner as on the date of the filing of the Rent Control Petition. **RCRev.No. 120 of 2016** 5 4. Therefore, the petitioner prays for setting aside the judgment in R.C.A.No.14/2015 on the file of the Rent Control Appellate Authority/ Additional District Judge-I, Kozhikode in R.C.P.No.105/2010 on the file of the Rent Controller/ Additional Munsiff-I, Kozhikode. 5. Originally, the Rent Control Petition was filed by the petitioner under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. The Rent Control Court, on 29.11.2014 allowed the petition under Sections 11(2)(b) and 11(3) of the Act and the eviction sought under Section 11(4)(i) was dismissed. Highly aggrieved by the said judgment, the petitioner has preferred R.C.A.No.14/2015. Vide order dated 31.07.2015, the Appellate Authority was pleased to set aside the order of the Rent Control Court, which was allowed under Section 11(3) of the Act. The order of eviction under Section 11(2)(b) was confirmed. 6. When the matter has come up for argument, the learned counsel for the revision petitioner and the respondent has no serious contention regarding the eviction order passed under Section 11(2)(b) of the Act. The case of the revision petitioner is that the petition schedule building belongs to him was leased out to the respondent as per the license agreement dated 07.01.2010 on a license fee of Rs.4,000/-. The **RCRev.No. 120 of 2016** 6 respondent had paid the license fee up to the month of March, 2010. Thereafter, she closed the shop without any sufficient reason. Meanwhile, the respondent entrusted the petition schedule building to one Gokulan and he is conducting a tea shop there at present. Rachana, the daughter of the petitioner is not having any independent job at present. So, the petitioner needs the petition schedule building to accommodate his daughter Rachana for the purpose of starting a business in hosiery. Rachana is having sufficient capacity to start the business and she is depending upon the petitioner for the purpose of building. Neither the petitioner nor his daughter Rachana has got any vacant shop room in their possession. The case of the tenant/ respondent was that the petitioner had collected an advance amount of Rs.50,000/- from the respondent. Initially, the respondent was in possession of the petition schedule building along with one Radhamani, as per agreement dated 01.02.2000. Meanwhile, Radhamani withdrew from the business and thereafter the building is in the absolute possession of the respondent. Subsequently, the respondent obtained the building from the petitioner on the 2[nd] day of January, 2003. The rent was enhanced to Rs.4,000/-. The respondent has spent some amount for the renovation of the **RCRev.No. 120 of 2016** 7 building i.e. for laying marbles on the floor, construction of a boundary wall etc. The respondent has paid the rent up to the month of June, 2010. As the petitioner did not issue receipt, the respondent sent the rent for the month of July, 2010 by money order. But the same has been returned by the petitioner. According to the respondent, since the rent was willfully refused by the petitioner, he is not entitled to get an order of eviction under Section 11(2)(b) of the Act. Even though the petitioner has alleged that the building was sublet by the respondent to one Gokulan, this prayer under Section 11(4)(i) of the Act has already been dismissed by the Rent Control Court. In fact, it has come out that, initially the petition was dismissed by the Rent Control Court, as per order dated 28.01.2012. The respondent herein took up the matter in R.C.A.No.94/2012. The Rent Control Appellate Authority remanded the matter for fresh disposal. Thus, the above Rent Control Petition once again came up for consideration before the Rent Control Court and thereafter, the Rent Control Court, refused the order of eviction under Section 11(4)(i) of the Act and allowed eviction under Sections 11(2)(b) and 11(3) of the Act. Admittedly, the rent for the month of July, 2010 was tendered by the petitioner to the respondent by money order. But the money order was not accepted by the **RCRev.No. 120 of 2016** 8 respondent. The case of the respondent is that he did not accept the money order sent by the petitioner as the entire arrears due has not been paid. It has already been found that the rent for the month of April, May and June were lying in arrears. So, the respondent cannot be blamed for not accepting the money order sent. So, it can be safely concluded that the petitioner has willfully kept the rent in arrears since March, 2010. Admittedly, a notice was issued by the respondent to the petitioner. Ext.A2 is the copy of the notice issued by the petitioner to the respondent and this notice was accepted by the respondent. Instead of paying the entire arrears of rent, the petitioner has sent a reply disputing the claim. Ext.A3 is the copy of the reply notice so issued. ## 7. Section 11(2)(b) & (c) of the Act reads thus : Sec.11(2)(b). If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him. **RCRev.No. 120 of 2016** 9 Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six percent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof. (c The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent with interest and cost of proceedings, within the said period of one month or such further period, as the case may be, it shall vacate that order. As per Section 11(2)(b) of the Act, if the rent is in arrears, it is the duty of the tenant/ respondent to tender or clear off the arrears immediately after receipt of the notice i.e. within 15 days of the date of receipt of the notice or refusal thereof with 6% interest per annum and postal charges incurred in sending the notice. Here, admittedly, the respondent has not paid the entire arrears of rent, even after receipt of Ext.A2 notice. Instead of that, he contended that there is no arrears of rent. But, he has failed to prove these facts by placing relevant records. Under Section 11(2)(b) of the Act, the order of eviction can be passed only on satisfying that the tenant has not paid or tendered the rent due. But the arrears contemplated in S.11(2) **RCRev.No. 120 of 2016** 10 (c) for vacating the order includes not only the arrears recovered through court of law but also the time barred arrears. If the tenant vacates the building, the landlord can recover the arrears of rent, that is within limitation period by way of a civil suit. 8. Therefore, we find that the findings entered by the courts below is only to be confirmed and we find no reason to interfere with the order passed by the trial court as well as the Appellate Court under Section 11(2)(b) of the Act. 9. The next main question is with regard to the _bona fide_ requirement of the daughter of the petitioner for starting the hosiery business. Petitioner's daughter Rachana is intending to start the business in hosiery inside the petition schedule building. The respondent has denied the fact and also contended that Rachana, the daughter of the petitioner has no necessity to start the business as she is residing along with her husband at Vatakara. The petition schedule shop room is situated at Kozhikode town. He has also contended that Rachana's husband is a rich man. The said Rachana was examined as PW2. She has given evidence reiterating the same facts as mentioned in the petition. The fact that the husband of Rachana is a rich man is not much disputed. But the fact that **RCRev.No. 120 of 2016** 11 Rachana's husband is a rich man is not a ground to deny the eviction as sought under Section 11(3) of the Act. ## 10. In _**Shiv Sarup Gupta v. Dr. Mahesh Chand**_ _**Gupta [1999(6) SCC 222]**_ the Apex Court has stated as follows : “the _bona fide_ requirement must be an outcome of sincere and honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle the landlord to seek ejectment of the tenant”. 11. It is a well settled fact that the landlord is a person, who has to decide where and when he would start the business of his own or not and the tenant cannot dictate the landlord to start business in some other buildings. 12. It is held in _**Deepa Chandra Juneja v. Lahwanti Kathuria [AIR 2008 SC 3095]**_ that the landlord is the best judge of his requirement. The court has no concern to dictate how and in what manner he should live. 13. It has further held in the aforesaid ruling that _bona fide_ personal need of the landlord is a question of fact and should not be normally interfered with. The learned counsel for the petitioner has argued that PW2, the daughter of PW1 _bona fidely_ requires the petition schedule shop room for the purpose of starting the business in hosiery in Kozhikode town. When **RCRev.No. 120 of 2016** 12 PW2 deposed herself before the court that she is intending to start the business of hosiery at Kozhikode, though she is settled in Vatakara and the claim cannot be rejected as not _bona fide_ for the reason that she is residing at Vatakara. The main argument advanced by the learned counsel for the respondent is that if really the need of the petitioner and his daughter Rachana was bonafide, they could have occupied the building with respect to which an order of eviction was obtained as per Ext.B16. Ext.B16 is the copy of the order in R.C.R.No.123/2007 of this Court. The building in dispute involved in the said R.C.A was ordered to be vacated by invoking Sections 11(2)(b) and 11(4)(i) of the Act and the bonafide need also urged in Section 11(3) of the Act was rejected. According to the learned counsel for the respondent, the petitioner has obtained vacant possession of the building in the year 2017 itself, i.e.after 11.04.2007. While the petitioner was examined as PW1, he admitted the fact that he has obtained vacant possession of the building involved in R.C.R.No.123/2007. He has also given evidence to the effect that he has kept the building vacant for about six years. Subsequently, he let out the building to another person. The present R.C.P. was filed in the year 2010. In cross examination, PW1 has deposed that the building in **RCRev.No. 120 of 2016** 13 Ext.B16 was let out in the year 1994 and he has filed R.C.P. in the year 2010 for eviction of Gireesh, who had occupied the building under Ext.B16 order. He has admitted that he has filed a petition under Sections 11(3) and 11(4)(i) and 11(2)(b) of the Act and the earlier R.C.P. was filed for the purpose of conducting business for his son-in-law i.e. none other than the husband of his daughter. According to him, eviction sought by the petitioner under Section 11(3) was rejected by the lower court as well the Rent Control Appellate Court and the Revisional Court. Again, he admitted that the said room was again rented out after closing it, nearly six years. The respondent has pointed out this fact and stressed on the point that the _bona fide_ requirement, as sought by the petitioner's daughter herein is not _bona fide_ in the light of the production of Ext.B16 order. It has come out that the petitioner has earlier filed a Rent Control Petition in the year 2000, seeking eviction of the petition schedule room by invoking Section 11(3) of the Act, which was found negative. Accordingly the prayer was rejected. The revision was also dismissed in the year 2007. The present R.C.P. was filed in the year 2010 i.e. three years after the date of Ext.B16 order. If that be so, it is evident that at the time of institution of the present R.C.P., the petitioner was in occupation **RCRev.No. 120 of 2016** 14 ## of the vacant room in his possession. ## 14. Section 11(3) of the Act reads thus :- “A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he _bona fide_ needs the building for his own occupation or for the occupation by any member of his family dependent on him” : ## 15. The proviso to Section 11(3) reads thus :- “Provided that the Rent Control shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so”. 16. The first proviso, is, in fact, so embedded in the main body of the sub section that it is really an integral part of it. Section 11(3) of the Act would have been incomplete without the 1[st] proviso. 17. The utility in relegating the principle in the form of a proviso was perhaps to cast the onus of proof at different stages of consideration. The primary burden is upon the tenant to show that the landlord has a building of his own in his possession unless it is an admitted fact. When it is established that the landlord is in possession of another building of his own in the same town or village the burden swings upon the landlord to establish special reasons. This fact has been reiterated in **RCRev.No. 120 of 2016** 15 ## _**Chacko P. Mathew v. Kuttappan [ILR 2003(1) Ker.243]**_ 18. In **Panoli Surendran v. P.M. Mammootty [2009(2) KLJ 136]** it is held that as per the first proviso to Section 11(3), the Rent Control Court is not justified in issuing an order of eviction, if it is proved that the landlord has another building of his own in his possession in the same city, town or village. It is the duty on the part of the tenant who claims the benefit of the first proviso to establish that, the landlord was having ownership and possession of another building in the same city, town or village. 19. In Ext.C1 report, the Commissioner has reported about the building on which the respondent obtained eviction as per Ext.B16 order. The Commissioner has stated that the said building is situated adjacent to the petition schedule building. It is marked in Ext.C1(a) in the rough sketch. It is admitted by the petitioner that, now the building is in the occupation of a tenant, who is conducting a business in the name and style “Elements, the Organ Shop” therein. The said building is a spacious one compared to the petition schedule building. PW1 has admitted that the present petition schedule building, sought to be evicted is only having a plinth area of 200 Sq.ft. According to the learned counsel for the petitioner, the petitioner was really **RCRev.No. 120 of 2016** 16 required the petition schedule room for the reason that his daughter _bona fidely_ requires the building to start a business when he occupied the said Ext.B16 building. Even though he had vacant possession of Ext.B16 room at the time of institution of the petition, he has sought for eviction of the present respondent from the petition schedule building, having the plinth area of 200 Sq.ft. Even the explanation on the part of the daughter of PW1 is to the effect that she wanted to conduct a business in the building, which was got evicted as per Ext.B16 order and which was in the occupation of P.K.Gireesh. Over and above, the Rent Control Petition filed in the year 2010 was also for the purpose of evicting the tenant to start the business for the son-in-law of the petitioner and that the _bona fide_ requirement, as stated by the petitioner in the earlier Rent Control Petition was rejected on a finding that there was no _bona fide_ requirement for starting the business in the room, which was got evicted in the year 2007. But, it is very important to note that eviction was sought for under Section 11(3) of the Act in the earlier Rent Control Petition also. But, it was admitted by PW1 that he has let out the building to another person after filing of the present Rent Control Petition. So, this evidence let in by the petitioner would clearly establish that the **RCRev.No. 120 of 2016** 17 intention of the petitioner is only to evict the respondent from the petition schedule building and let it for higher rate of rent, as done in the earlier Rent Control Petition, the building was let out to another person after filing of the present Rent Control Petition. The learned counsel for the petitioner has argued that the _bona fide_ need urged in earlier Rent Control Petition was not allowed. But, he got eviction of the vacant possession of the room and from his own evidence, it has turned out that the said room was vacant at the time of filing of the present Rent Control Petition against the respondent. ## _**20**_ . _**In Kunju T.P. v. Fathima and Others [ILR**_ ## _**2014 (3) Ker.463]**_ it was stated as follows :- “a combined reading of the provision and the proviso would indicate beyond doubt that it is only when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he needs to satisfy the Rent Control Court the special reasons for not occupying the said premises. In other words, to non suit the landlord, the vacant building should be of such a character, which would meet the requirements of the landlord”. 21. He has not explained or stated any special reason for non-occupation of the building by the PW2. In fact, the petitioner has not revealed the fact that he was holding a vacant possession of the building at the time of institution of the Rent Control Petition. It is sufficient enough to prove that the _bona fide_ requirement, as sought by the petitioner is not **RCRev.No. 120 of 2016** 18 correct. After the evaluation of entire evidence and arguments on both sides, we find that there is no _bona fides_ in the need claimed by the petitioner. So, the order of Rent Control Appellate Authority is based on correct perspective and we find no reason to interfere with the order of the Rent Control Appellate Authority. Therefore this rent control revision is dismissed. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True copy PA to Judge RKM