RCA 52 of 2005 (Rent Control Revision) - Murali & Bhagaldas v. A.S. Narayana Shenoy & A.V. Gopalakrishna Shenoy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 RCRev..No. 33 of 2008() ----------------------RCA.52/2005 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.142/2003 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVN.PETITIONERS/APPELLANTS/RES.NO.8/RESPONDENTS ------------------------------------------------------------------ 1. MURALI, AGED 59 YEARS, S/O. LATE NARAYANAN, 'LATHA SOUDHAM', PENAMPARAMBIL HOUSE, KARSHAKA ROAD, KOCHI-682 016. 2. BHAGAL DAS, AGED 48 YRS, S/O. LATE NARAYANAN, 'LATHA SOUDHAM', PENAMPARAMBIL HOUSE, KARSHAKA ROAD, KOCHI-682 016. BY ADV. SRI.SAJAN MANNALI RESPONDENTS: RESPONDENTS 1 TO 7 & 9/PETITIONERS/RESPONDENT ----------------------------------------------- 1. A.S.GUNA SHENOY, AGED 63 YEARS, S/O. LATE A.L.SREEDARA SHENOY, 40/4467, BANERJI ROAD, ERNAKULAM, KOCHI-18. 2. A.S.SASIDHARA SHENOY, AGED 57 YRS, S/O. LATE SREENIVASA SHENOY, 40/5540, T.D.ROAD, ERNAKULAM. 3. A.S.NARAYANA SHENOY, AGED 55 YEARS, S/O. LATE SREENIVASA SHENOY, 40/5540, T.D.ROAD, ERNAKULAM. RCR 33/08 2 4. A.V.GOPALAKRISHNA SHENOY, AGED 51 YEARS, S/O. LATE A.L.VASUDEVA SHENOY, 40/4468, BANERJI ROAD, ERNAKULAM, KOCHI-682 018. 5. A.S.SURESH SHENOY, AGED 45 YEARS, - S/O. LATE A.L.VASUDEVA SHENOY, 40/4450, T.D.ROAD, ERNAKULAM. 6. KERALA, AGED 61 YEARS, D/O. LATE NARAYANAN, MADAPPATTIL, 33/275 A, PALARIVATTOM, KOCHI-682 025. 7. MOHAN, AGED 58 YEARS, S/O. LATE NARAYANAN, 'LATHA SOUDHAM', PENAPARAMBIL HOUSE, KARSHAKA ROAD, KOCHI-682 016. 8. LEELA, D/O. LATE NARAYANAN, - 8/251, THATHAKKATTU HOUSE, EAST OF INTUC JUNCTION, NETTOOR P.O., KOCHI-4. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON 4/3/2008 PASSED THE FOLLOWING: ## **K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.33 of 2008** ## **========================** **Dated this the 4th day of March, 2008.** ## **ORDER** ## **Ravindran,J.** The petitioners are respondents 3 and 4 in R.C.P.No.142 of 2003 on the file of the Third Additional Munsiff & Rent Control Court, Ernakulam. Respondents 1 to 5 herein are the petitioners and respondents 6 to 8 are respondents 1, 2 and 5 therein. Respondents 1 to 5 herein, the landlords, instituted R.C.P.No.142 of 2003 under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 hereinafter referred to as the "Act" for short, to evict the petitioners, respondents 6 to 8 and others from the petition schedule shop room. By order passed on 27.11.2004, the Rent Control Petition was allowed on the following terms: "(a) The respondents/tenants are directed to RCR 33/08 -: 2 :- vacate the petition schedule building within 30 days from the date of order. (b) The petitioners are directed to complete the construction works of the proposed building within a period of six months from the date of eviction of atleast they shall complete the construction works of the ground floor so as to provide 450 Sq. ft. on the south western corner in the ground floor of the proposed building for occupation of the respondent. (c) Both parties are at liberty to approach the court for fixation of fair rent after reconstruction." 2. Against the order passed in R.C.P.No.142 of 2003, the first petitioner herein filed R.C.A.No.52 of 2005 and the second petitioner and the seventh respondent herein jointly filed R.C.A.No.53 of 2005 in the Court of the District Judge & Rent Control Appellate Authority, Ernakulam. By judgment delivered on 22.10.2007, the appeals were dismissed, upholding the order passed by the Rent Control Court. Hence this revision petition. 3. The petition schedule shop room is situated by the side of Sahodaran Ayyappan Road at Valanjambalam in Ernaulam. According to the land lords, it originally belonged to late A.L.Sreedhara Shenoy, their predecessor-in-interest. Late RCR 33/08 -: 3 :- A.L.Sreedhara Shenoy had let out the petition schedule shop room to late Narayanan, the predecessor-in-interest of the respondents in R.C.P.No.142 of 2003 as per a registered rent deed and he was running a hotel therein under the name and style "Cinema Cafe". The petition schedule shop room is a single storied building having a plinth area of 450 sq. ft. Besides, the petition schedule shop room, the land lords also own the appurtenant vacant land. The Rent Control Petition was filed on the ground that the land lords bonafide need to reconstruct the petition schedule shop room by putting up a multi-storied building in the vacant land and at the site of the tenanted premises. The land lords contended that they have obtained the necessary permit and approval from the Corporation of Cochin, that they have the financial capacity to construct a multi-storied building and that the new building can be put up only if the petition schedule shop room is demolished. The land lords further contended that they are prepared to give the tenants the first option to occupy the same plinth area in the reconstructed building. It is the case of the land lords that as the second petitioner herein representing the other tenants had informed RCR 33/08 -: 4 :- them that the tenants will vacate the building as and when required, the land lords started the foundation work in the vacant plot on 17.8.2003 and the work of laying the foundation was completed upto the petition schedule building. Thereafter on 18.10.2003, the work had to be stopped since the tenants did not vacate the petition schedule shop room. 4. In the Rent Control Court, respondents 1, 6 and 7 did not appear and were set ex parte. The eighth respondent herein, who was the eighth respondent in R.C.P.No.142 of 2003 was removed from the party array by order passed on 3.6.2004 on I.A.No.142 of 2003. Respondents 2 an 4 (the second petitioner and the seventh respondent herein) jointly filed their objections and the third respondent (the first petitioner herein) filed a separate objection. They denied the statement in the Rent Control Petition that the petition schedule shop room belonged to late A.L.Sreedhara Shenoy. They also disputed the averment in the Rent Control Petition that the petitioners therein are the legal heirs of late A.L.Sreedha Shenoy. The respondents contended in their objections that the real owner of the petition schedule shop room is M/s. New Guna Shenoy and Company, a partnership firm, RCR 33/08 -: 5 :- represented originally by Sreenivasa Shenoy. (father of petitioners 2, 3 and 5 in the Rent Control Petition) and that it was from the firm that late Narayanan took the building on rent. Respondents 2 and 4 in the Rent Control Petition further contended that all the legal heirs of late Narayanan have not been impleaded in the Rent Control Petition and that the land lords are bound to prove that the petition schedule shop room was let out to late Narayanan and that the respondents in the Rent Control Petition are continuing the said tenancy arrangement. Respondents 2 and 4 in the Rent Control Petition also alleged that the building is not situated in a commercially important locality and that the vacant land behind the petition schedule shop room is not available for construction as it is appurtenant land set apart for the convenience of Link Lakshman Apartments. They also contended that there is a scheme for widening the Sahodaran Ayyappan road and that the building does not need reconstruction. The third respondent in the Rent Control Petition (the first petitioner herein) in the separate objection filed by him reiterated the contentions raised by respondents 2 and 4. RCR 33/08 -: 6 :- 5. In the Rent Control Court, the fifth petitioner was examined as PW1. The contractor entrusted with the construction of the building was examined as PW2, the Advocate Commissioner deputed by the Rent Control Court was examined as PW3 and Exts.A1 to A5 series were produced and marked. On the side of the tenants, the second petitioner herein was examined as RW1. The report filed by the Advocate Commissioner deputed by the Rent Control Court was marked as Ext.C1. 6. The tenants had disputed the contention of the land lords that late A.L. Sreedhara Shenoy was the owner of the petition schedule shop room. They had also disputed the status of the land lords as the legal representatives of late A.L. Sreedhara Shenoy and their claim that they jointly own the petition schedule shop room. The tenants had contended that late A.L. Sreedhara Shenoy was not the original owner of the building and that M/s. New Guna Shenoya and Company, a partnership firm, is the real owner. The fifth petitioner in the Rent Control Petition, examined as PW1 had deposed that all the petitioners in the Rent Control Petition are the partners of the said firm. Reliance was also RCR 33/08 -: 7 :- placed on Ext.A1 partnership deed dated 30.12.1996 to which all the petitioners in the Rent Control Petition were parties. Faced with that situation, the tenants questioned the maintainability of the Rent Control Petition on two grounds, namely, the partnership firm has not joined as a party to the proceedings and that there is no pleading in the petition to the effect that the partnership firm is the real land lord and that the petitioners are suing in their capacity as the partners of the said firm. Relying on the decision of the Apex Court in **Narayanappa** v. **Bhaskara Krishnappa** - A.I.R. 1966 S.C. 1300 and of this Court in **Javerilal Kalyanji** v. **M/s. Sheth Brothers** - 1989(2) K.L.T.555 and the admission of the tenants that the property belongs to the partnership firm, M/s. New Guna Shenoy and Company of which the land lords are partners and the contents of Ext.A1, the Rent Control Court held that the land lords who are partners of the said firm are the joint owners of the assets of the partnership and that every partner of the firm is a co-owner of the entire assets of the partnership firm. Overruling the contention raised by the respondents as regards the non-joinder of the firm as a party, the Rent Control Court held that though a firm can be a land lord RCR 33/08 -: 8 :- and is competent to institute a Rent Control Petition in the name of the firm, institution of the petition by all the partners together is more proper than instituting an eviction petition in the name of the firm. The Rent Control Court accordingly held that the denial of the land lords' title by the tenants is not bonafide and that the Rent Control Petition is maintainable. 7. While considering the bonafide need put forward by the land lords under Section 11(4)(iv) of the Act, the Rent Control Court took note of the admitted fact that the petition schedule shop room was constructed about 60 years back, the observations in Ext.C1 report submitted by the Advocate Commissioner, the financial capacity of the land lords to construct a new building, the existence of a valid plan and building permit and also the commercial importance of the locality. The Rent Control Court held that the requirement put forward by the land lords is bonafide and genuine. As regards the entitlement of the tenant to be allotted a space in the reconstructed building, the land lords had expressed their willingness to provide 450 sq. ft. of space on the south western corner in the ground floor of the newly constructed building. The RCR 33/08 -: 9 :- Appellate Authority dismissed the appeals filed by the tenants and affirmed the order passed by the Rent Control Court. 8. We heard Sri.Sajan Mannali, the learned counsel appearing for the petitioners/tenants. The learned counsel for the petitioners did not seriously canvass the correctness of the findings of the courts below. The learned counsel, relying on Annexures A1 and A2 produced along with the revision petition contended that the land lying behind the petition schedule shop room in which the new building is proposed to be constructed, is the subject matter of O.S.No.342 of 1997 on the file of the Sub Court, Ernakulam and that the dispute is presently pending in R.F.A.No.429 of 2007 on the file of this Court. The learned counsel for the petitioners submitted that since there is a dispute regarding the ownership of the land lying behind the petition schedule shop room, the construction of the building was stopped and therefore, there is no possibility of the tenants obtaining adequate space in the reconstructed building. The learned counsel lastly submitted that as the tenants are running a hotel in the petition schedule shop room, they may be given six months time to vacate the premises, having regard to the fact RCR 33/08 -: 10 :- that the land where the building is situated, is the subject matter of a civil suit. 9. We have considered the submissions made at the Bar by the learned counsel for the petitioners. The Rent Control Court and the Appellate Authority have concurrently held that the denial of the land lords' title by the tenants is not bonafide in the light of the testimony tendered by the fifth petitioner in the Rent Control Petition examined as PW1 and the recitals in Ext.A1 partnership deed. It is evident that the land lords are the partners of M/s. New Guna Shenoy and Company. We agree with the findings of the Rent Control Court and the Appellate Authority that the land lords, who are the partners of the said firm, are competent to institute the Rent Control Petition and that as the partners of the firm, they had title to the property. As held by the Apex Court **Narayanappa** v. **Bhaskara Krishnappa** - in AIR 1966 S.C. 1300 (supra) since a firm has no legal existence, the partnership property will vest in all the partners and in that sense, every partner has an interest in the property of the partnership firm. In the light of the authoritative pronouncement of the Apex Court, as the land lords have proved that they are RCR 33/08 -: 11 :- the existing partners of the firm, title to the petition schedule property vests in each one of them and they have an interest in the petition schedule shop room. As regards the maintainability of the petition for non-joinder of the partnership firm as a party, we hold that in the light of the authoritative pronouncement of the Apex Court in **Narayanappa** v. **Bhaskara Krishnappa** - A.I.R. 1966 S.C. 1300 (supra) and the decision of this Court in **Javerilal Kalyanji** v. **M/s. Sheth Brothers** - 1989 (2) K.L.T. 555 (supra), that it is perfectly maintainable. No prejudice whatsoever is caused to the respondents by the firm not joining as a petitioner, when all the partners of the firm had jointly filed the petition for eviction. We therefore, repel the contention of the tenants that the land lords had no title to the petition schedule shop room and that the Rent Control Petition was not validly instituted. 10. As regards the claim for eviction under Section 11(4) (iv) of the Act, though the tenants had disputed the need for reconstruction of the petition schedule shop room, the courts below have held that the building is about 60 years old and that it is situated on Sahodaran Ayyappan Road at Valanjambalam, RCR 33/08 -: 12 :- which is a fast developing area where multi storied buildings have come up. The land lords have proved that on the rear side of the building, there is vacant land in which a multi storied building can be constructed. They have the financial capacity to construct a building and also have the necessary building permit from the Corporation of Kochi. The Rent Control Court and the Appellate Authority had also held that the building is situated in a fast developing area and that PW2, the contractor engaged for carrying out the work had also spoken about the progress made in the work in the vacant land and the condition of the existing shop room. The Rent Control Court and the Appellate Authority have, taking note of the importance of the locality where the petition schedule building is situated, the financial capacity of the land lords and the development in the locality, held that the claim of the land lords is bonafide. We find no error much less any error of law in the findings of the Rent Control Court and the Appellate Authority. After all, unlike the other grounds for eviction, the tenant in a petition for eviction under Section 11(4) (iv) of the Act has the first option to have space allotted to him in the reconstructed building. We notice that in the case on hand, RCR 33/08 -: 13 :- the land lords had offered to provide 450 sq. ft. on the south western corner in the ground floor of the newly constructed building and the order passed by the Rent Control Court safeguards the said right of the tenants. Though the learned counsel had relied on Annexures A1 and A2 to contend that the land lords are involved in a civil dispute, no material has been placed before us to establish that it relates to the petition schedule building. In any case, the tenants who have not vacated the premises even after the order passed by the Rent Control Court on 27.11.2004 cannot be heard to contend that in view of the pending civil dispute reconstruction is not possible in the near future. The case on hand being a petition for eviction for reconstruction and as the right of the tenants is adequately safeguard by the order passed by the Rent Control Court, we hold that the reliance placed by the petitioners on Annexures A1 and A2 is misconceived and is without any merit. The findings of the Rent Control Court and the Appellate Authority cannot be said to be perverse warranting interference under Section 20 of the Act. We therefore hold that there is no merit in this revision petition and that it is liable to be dismissed. We do so. RCR 33/08 -: 14 :- 11. The learned counsel for the petitioners had submitted that in the event of the revision petition being dismissed, they may be granted six months time to surrender vacant possession of the petition schedule shop room. Taking note of the fact that the petitioners are running a hotel in the petition schedule shop room for the past several years, we grant them six months time from today to surrender vacant possession of the petition schedule shop room to the land lords, subject to the following conditions: The petitioners and other tenants shall file an undertaking in the form of an affidavit in the Execution Court undertaking to surrender vacant possession of the petition schedule shop room to the respondents - land lords on the expiry of six months from today. Such undertaking shall be filed within three weeks from today. The petitioners and other tenants shall in the above said affidavit also undertake to pay the arrears of rent if any within one month from today and to pay the rent due from time to time till they surrender vacant possession of the petition schedule shop room. They shall also undertake that they will not induct strangers into the petition schedule shop room. If no such undertaking is filed as stipulated above, it will be open to RCR 33/08 -: 15 :- the land lords to execute the order of eviction on the expiry of the period of three weeks specified above. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 6/2