R Velswamy v. Prathap Kumar Pratap Bhavanam and Sharmila Prathap Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MR. JUSTICE EASWARAN S.** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **RCREV. NO. 281 OF 2018** **AGAINST THE JUDGMENT DATED 09.03.2018 IN RCA NO.30 OF 2016 OF RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM ARISING OUT OF THE ORDER DATED 31.10.2015 IN RCP NO.76 OF 2012 OF ADDITIONAL MUNSIFF COURT (RCC), THIRUVANANTHAPURAM** ## **- REVISION PETITIONER: APPELLANT/2ND COUNTER PETITIONER:** **R VELSWAMY AGED 68 YEARS PROPRIETOR, RSV STORES, MAIN ROAD, KAZHAKUTTOM, THIRUVANANTHAPURAM AND RESIDING AT SREE RAMAVILASOM, TC.2/270, ATTINKUZHY KAZHAKKUTTOM P.O., THIRUVANANTHAPURAM - 695 582** **BY ADVS. SHINOD G.P. GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR** ## **- RESPONDENT: RESPONDENTS/PETITIONERS:** **1 PRATHAP KUMAR PRATAP BHAVANAM, CHANDAVILA, KATTAIKONAM P.O., THIRUVANANTHAPURAM - 695 584 THIRUVANANTHAPURAM** **2 SHARMILA PRATHAP KUMAR, AGED 39 YEARS W/O.PRATHAP KUMAR, PRATAP BHAVANAM, CHANDAVILA, KATTAIKONAM P.O., THIRUVANATHAPURAM., PIN - 695584** **BY ADVS. P.VISWANATHAN (SR.) SUNIL N.SHENOI SHAJAHAN P.M.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.04.2024, ALONG WITH RCRev..290/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RCREV. NOs. 281 and 290 OF 2018** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MR. JUSTICE EASWARAN S.** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **RCREV. NO. 290 OF 2018** **AGAINST THE JUDGMENT DATED 09.03.2018 IN RCA NO.29 OF 2016 OF RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM IN RCP NO.76 OF 2012 OF ADDITIONAL MUNSIFF COURT (RCC), THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ COUNTER PETITIONER NO.1:** **SATHEESAN AGED 59 YEARS S/O.DHARMARAJAN, PARTNER, M/S MARGIN FREE BAZAR, MAIN ROAD, KAZHAKUTTOM, RESIDING AT KODIYIL VEEDU, NEHRU JUNCTION, KAZHAKUTTOM, THIRUVANANTHAPAURAM THIRUVANANTHAPURAM** **BY ADVS. GEORGE A.CHERIAN S.SREEDEV ENOCH DAVID SIMON JOEL(K/925/2009) RONY JOSE(K/705/2012) LEO LUKOSE(K/001131/2016) CIMIL CHERIAN KOTTALIL(K/345/2017) SUZANNE KURIAN(K/001654/2018)** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 PRATHAP KUMAR AGED 45 YEARS S/O.J.G.VASALAN, PRATAP BHAVANAM, CHANDAVILA, KATTAIKONAM P.O., THIRUVANANTHAPURAM THIRUVANANTHAPURAM, PIN - 695584** **2 MRS.SHARMILA PRATHAP KUMAR, AGED 39 YEARS PRATAP BHAVANAM, CHANDAVILA, KATTAIKONAM P.O., THIRUVANANTHAPURAM, PIN - 695584** **BY ADVS.** **RCREV. NOs. 281 and 290 OF 2018** **3** **P.VISWANATHAN (SR.) SUNIL N.SHENOI SHAJAHAN P.M.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.04.2024, ALONG WITH RCRev..281/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RCREV. NOs. 281 and 290 OF 2018** **4** ## **O R D E R** ## **AMIT RAWAL (J)** This order shall dispose of two RCRs, Nos.281/2018 and 290/2018, in R.C.A Nos.29/2016 and 30/2016 on the files of the Rent Control Appellate Authority, Thiruvananthapuram against the concurrent findings of fact and law whereby, the petitioners/tenants have been ordered to be evicted from shops referred to in the scheduled property. 2. The respondents/landlords instituted R.C.P No.76/2012 against a set of six tenants seeking eviction under various grounds. ## 1. Bonafide need 2. Under provisions of Section 11(2)(b), 11(3) and 11(4)(iv) of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Rent Act’). 3. The aforementioned provisions of law provided eviction on the ground of bonafide need and reconstruction of the building. It was mentioned that the shops in occupation **RCREV. NOs. 281 and 290 OF 2018** **5** of the tenants are required by the petitioners for running the business of their own whereas the different tenants have been occupying the shops in the schedule property referred as ‘A’ on different dates. Prior to the institution of the petition, the requisite legal notices were sent which were duly replied by few of the tenants. The petitioners/tenants appeared through different counsels and raised objections qua maintainability of the petition by challenging the bonafide need and other grounds. Since the parties were at variance, the learned Rent Controller framed the following issues in RCR No.281/2018: “1.Whether the petitioner is entitled to an order of eviction under Section 11 (2) (b) of the Act? 2. Whether the petitioner bonafide needs the petition schedule building for own occupation? 3. Whether the petitioner has any other building in the same locality? 4. Whether the tenant is depending for his livelihood mainly on the income derived from the business carried on such building? 5.Whether any other suitable building available in the locality for the tenant to carry on his business? 6. Whether the petitioner is entitled to an order of eviction under Section 11 (4) (iv) of the Act?” **RCREV. NOs. 281 and 290 OF 2018** **6** 4. On perusal of the aforementioned issues, it is evident that issue with regard to the maintainability of the eviction petitions, as raised in the written statement, was not pressed or sought to be recasted at any stage of the trial or before the Appellate Court. 5. In support of the respective stands, respondents/landlord examined himself as PW1 whereas, the six tenants were examined themselves as CPW1 to CPW6. The respondents/landlord in support of the petition brought on record the documents, which reads as under: |A1|18/04/11|Certified copy of the Sale Deed| |---|---|---| |||No.1322/11| |A2|05/07/12|Letter from State Public Information| |||Officer| |A3|10/05/12|Copy of the Revision Petition 40/2012| |A4&|27/08/12|Plan & Building permit| |A4(a)||| |A5|02/03/15|Statement of account| |A6 series|04/08/10|Term Deposit Advice (3 Nos.)| |A7|23/08/12|Lawyer's notice| |A7(a)|23/08/12|Lawyer's notice| |A7(b)|23/08/12|Lawyer's notice| |A7(c)|23/08/12|Lawyer's notice| |A7(d)|23/08/12|Lawyer's notice| |A7(e)|23/08/12|Lawyer's notice| **RCREV. NOs. 281 and 290 OF 2018** **7** |A8, A9 &||Unclaimed posts (3 nos)| |---|---|---| |A10||| |A11|05/10/12|Reply notice| |A11(a)|05/10/12|Reply notice| |A12|12/09/11|Deed of Power of Attorney| |A13|31/01/13|Certified copy of Sale Deed| |||No.430/13| |A14|07/02/14|Certified Copy of Deed No.674/14| On the other hand the tenants did not produce any document on record, but Court Exhibits are: |C1|& C1(a)|31/10/14|Commission Report & Report| |---|---|---|---| ||||from Expert Engineer| |X1|||Authorisation letter| |X2||27/08/12|Copy of plan, building permit| ||||& Permit Register| 6. On analysis of the evidence both oral and documentary, the learned Rent Controller allowed the eviction petition and ordered the eviction of the tenants under the provisions of Section 11(3) and 11(4)(iv) of the Rent Act. 7. Out of six tenants, four had vacated and only two appeals were preferred before the lower Appellate Authority. The Lower Appellate Authority on examination of rival contentions and materials on record upheld the findings of the **RCREV. NOs. 281 and 290 OF 2018** **8** Rent Controller. All the other tenants accepted the order of the Rent Controller and vacated the premises by handing over the vacant possession. The learned counsel appearing on behalf of two tenants running the business under the name and style of ‘Margin Free Bazaar' at a rent of Rs.11,000/-per month as item no.1 of the building portion and item no.2 of the building portion for utensils and textiles at the rate of Rs.7,500/- per month, raised the following grounds to assail the findings. 1. Joint petition against all the tenants at the instance of landlord is/was not maintainable. 2. Rent Controller failed to frame proper issue though duty was cast upon the Rent Controller to frame the issue looking at the objections taken in the written statement. Even otherwise the issue with regard to non-framing of legal issues can be taken up at any stage of trial. 3. The ratio decidendi culled out in the Full Bench of this Court in **Jamal v. Safia Beevi [2005 KHC 579]** would be squarely applicable to the facts and circumstances of the case. 4. The landlord has not come up with clean hands **RCREV. NOs. 281 and 290 OF 2018** **9** as his intention was malafide. The said intention is reflected from the averments recorded in paragraph 15 of the Rent Petition asking for demolishing of the entire building by constructing first floor and the ground floor for the purpose of letting out. 5. The petitioners would suffer severe hardship in case they are ordered to be evicted. 8. On the other hand, the learned Senior Counsel instructed by Sri.Shinod G.P., countered the arguments that the petitioners/tenants did not at any point of time sought the indulgence of the Rent Controller of framing proper issues or had taken the objection before the Lower Appellate Court. Therefore, direction No.3 of the Full Bench would be squarely applicable to the facts and circumstances of the case. 9. Sub Section 4 and (iv) of Section 11 of the Rent Act enables the landlord to seek ejectment of the tenants for the purpose of reconstruction of the building. In that aspect, the tenants cannot dictate to the landlords to do in a particular manner. In support of the contention relied upon the judgment in **Sajith Bhaliga v. Paul and Others [2013(2) KHC 293]** for, by reconstructing the value and **RCREV. NOs. 281 and 290 OF 2018** **10** utility of the building instead would be improved and not diminished. The tenants would have a right to seek the repossession at the fair market price/rent. One of the tenants, that is petitioner in RCR No. 281/2018 has already vacated the premises, but kept the shop under lock and key. None of the grounds as provided under second proviso to sub Section 3 of Section 11 _qua_ hardship had been brought on record for the effectual and proper adjudication of _lis_ . 10. We have heard the learned counsel for the parties and appraised the paper books. 11. In the first blush, the argument of the learned counsel representing the petitioners/tenants _qua_ maintainability of the petitions against joint petition for seeking eviction against six tenants looked attractive. The said contention had already been pondered by the Full Bench of this Court in the judgment cited supra, whereby in Paragraph 10, it has been held that the joint petition for seeking eviction for the purpose of bonafide need would not be maintainable as the tenants could have a different cause of action to belie the bonafide need. But we cannot shut our eyes to the directions contained in Paragraph 13 of the Full Bench which is extracted hereunder: **RCREV. NOs. 281 and 290 OF 2018** **11** “13. We therefore answer the questions as follows: (i) Landlord can unite several causes of action against single tenant if he is occupying the same building in the event of which there will not be misjoinder of causes of actions and misjoinder of parties since tenant is single tenant same structure. (ii) Landlord can prefer an application under S.11(4) against various tenants who are occupying distinct portions of the same structure since the tenants are jointly interested in the causes of action and the defence available to all the tenants would be by and large common and hence there will not be any misjoinder of causes of actions or misjoinder of parties. (iii) Landlord cannot unite different causes of action in a single petition filed against various tenants whether they are in occupation of same building or different building. Such a petition would be bad for misjoinder of causes of actions and misjoinder of parties. (iv) Objection as to the misjoinder of causes of actions and misjoinder of parties should be taken at the earliest opportunity; failing which Court would not interfere unless it is shown that serious prejudice has been caused to the parties. (v) Rent Control Court can consolidate the applications for eviction if there are similarity or identity of the matters in issue in the petitions which is to be left to the discretion of the Rent Control Court, depending upon the facts and circumstances of each case. We are of the view, as far as the present case is concerned, Rent Control Court and the Appellate Authority concurrently found that landlord is entitled to an order of eviction under **RCREV. NOs. 281 and 290 OF 2018** **12** S.11(2)(b), 11(4)(i) and 11(4) (iv) of the Act. Further, tenants could not establish that any prejudice has been caused to them by entertaining the petition. No such plea was raised by the tenants at the appellate stage ,much less, no evidence was adduced to establish that any prejudice has been caused to them. We therefore uphold the finding of the Appellate Authority and dismiss the Revision Petitions.” 12. The penultimate paragraph of the judgment cited supra would reveal that when there is a concurrent finding of fact and objection or recasting of the issue, the landlords or tenants cannot be permitted to raise it for the first time in the revisional court. Thus, the contention _qua_ maintainability of the joint petition is hereby rejected. 13. As regards the maintainability of petition on other grounds, that is under section 11(3) proviso 2 and 11(4)(iv), before we deal with such objection, the provisions are extracted hereinbelow: “11 (3) 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: Provided that the Rent control court shall not give any such direction if the landlord has another building of his **RCREV. NOs. 281 and 290 OF 2018** **13** 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: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument: Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.” “(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,- **RCREV. NOs. 281 and 290 OF 2018** **14** (iv) if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction : Provided that the landlord who evicts a tenant and does not reconstruct completely the building within a time which may be fixed or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has wilfully neglected to reconstruct completely the building within such time: Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction: Provided further that the tanant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent;” **RCREV. NOs. 281 and 290 OF 2018** **15** 14. On going through the entire evidence as well as the material on record, both the Courts have concurrently held that tenants have not been able to establish the hardship in case they are ordered to be evicted. In other words, no statement of account has been placed on record. The assertion with regard to one of the tenants that the petitioner in RCA.281/2018 has vacated and kept the shop under lock and key, has not been emphatically denied during the course of the hearing. This is also a determining factor for us to see the bonafide of the tenant in defending the eviction. As regards the other tenants, that is the petitioner in RCA.290/2018 has also failed to place on record any statement of account to bring the case within the parameters of proviso 2 to Sub Section 3 of Section 11 of the Rent Act. The question involves is whether the need for seeking eviction was malafide or bonafide. 15. It is settled law that the tenant cannot be permitted to dictate the terms to the tenant nor the courts can be permitted to sit in the armchair of the landlord to examine his bonafide need. In this regard we would like to extract paragraphs 14, 15 and 16 of the rent control petition which **RCREV. NOs. 281 and 290 OF 2018** **16** ## reads as under: “14. The petitioners bona fide need vacant possession of the Petition A- schedule building for their own purposes. The petitioners need to demolish the entire structure and reconstruct a three-storey building in its place. After such reconstruction, they need to commence their own shop trading in electrical & electronic goods, sanitary goods etc in the entire ground floor. 15. The petitioners also need the upper storeys of the proposed building for their own purposes and are hence unable to re-induct any of the counter-petitioners in such premises. The upper floors of the proposed building are intended to be constructed as residential occupancies for the reasons mentioned below. 16. The site of the building is at Kazhakkuttam Junction. It is very near to the Technopark. Persons from other parts of the State and of India who come to work in Technopark are all in acute need of residential accommodation. There is a sharp and high demand for residential accommodation in that area for such employees of the Companies in Technopark. Bearing in mind this requirement, the petitioners need to construct the two upper floors above the ground floor of the proposed building as residential quarters for such persons.” 16. On cumulative reading of the aforementioned paragraphs, it is clear that bonafide of the landlord is established. It is categorically stated that after seeking **RCREV. NOs. 281 and 290 OF 2018** **17** eviction he wants to run the business of electrical & electronic goods, sanitary goods etc in the ground floor and also wanted to construct the first floor as over a period of time, many IT Sectors have established in and around the area. Both the courts below have ordered ejectment on both the grounds. The Rent Act protects the tenant to reclaim the possession in case the landlord intends to demolish the building and reconstruct at a fair market rate. On pertinent query to the counsel representing the petitioners as to whether their clients are willing to take the shop after landlord demolishes the building and reconstructs, they replied that they do not have any instructions. ## 17. Paragraph 13 of the **Sajith Bhaliga** (supra) is required to be extracted and the same reads as under: “The need urged by the landlords is that the scheduled shop room is required for starting a home-stay business in the ground floor of the whole building including the scheduled shop room for the 3rd respondent who is a widow and who has to look after and maintain her daughter. It has come out in evidence that the husband of the 3rd respondent was appointed as a Ship Engineer and unfortunately, within two or three weeks of his appointment, the ship became missing in her first voyage. Subsequently, the third respondent became employed as a teacher in Rajagiri School which according to the Courts below, is an unaided school. She find it difficult to pull on with the meager income to support herself and her **RCREV. NOs. 281 and 290 OF 2018** **18** daughter. As a subsequent event, the first respondent who was employed in UAE Exchange and Finance Services Ltd. has demited his office and resigned when he was transferred to New Delhi, as he has to look after the affairs of his sister, the 3rd respondent and her daughter. He also wants to join in the said new venture. There is enough scope and potential for such a business in the said locality, as the buildings in the locality are being used as frequent hang outs by foreigners. Over and above the scheduled shop room, there are six other bedrooms in the ground floor of the building. By pointing out that the first respondent as PW 1 has deposed that the landlords are intending to utilize the scheduled shop room as a coffee shop, the learned Senior Counsel argued that the landlords have deviated from the need originally projected by them. On going through the evidence of PW 1 it can be seen that the landlords are intending to make use of the entire ground floor of the building for home stay business, and that the proposed coffee shop is also a part of such homestay, which is highly required for the persons occupying such home stay. Therefore, it has clearly come out that the need urged by the landlords, is bona fide.” 18. In view of the aforementioned ratio, the objection of the petitioners/tenants do not merit consideration. It is settled law that the Revision Court cannot re-appreciate evidence except when there is gross illegality and perversity against the concurrent finding of fact, which we do not find in view of the observations aforementioned. **==> picture [411 x 64] intentionally omitted <==** **RCREV. NOs. 281 and 290 OF 2018** **19** Rent Control Revision do not merit acceptance, dismissed. Petitioners/tenants are granted one month time to vacate the premises. Sd/- **AMIT RAWAL JUDGE** Sd/- **EASWARAN .S JUDGE** lsn