R.C.R.Nos.142 and 143 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 RCREV. NO. 142 OF 2019 AGAINST THE JUDGMENT DTD 26/11/2018 IN RCA 66/2011 OF III RENT CONTROL APPELLATE AUTHORITY, THRISSUR AGAINST THE ORDER DTD 19/3/2011 IN RCP 111/2008 OF RENT CONTROL COURT, THRISSUR** **REVISION PETITIONERS/RESPONDENTS 1 TO 4 AND 6/RESPONDENTS 1 TO 4 AND 6:** **1 P.C.PAULY, AGED 49 YEARS S/O.LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILVATTOM VILLAGE, ENGINEERING COLLEGE P.O., THRISSUR - 680 009. 2 P.C.ALEX, AGED 47 YEARS S/O.LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILVATTOM VILLAGE, ENGINEERING COLLEGE P.O., THRISSUR - 680 009. 3 TESSY DAVY, AGED 53 YEARS W/O.KURUTHUKULANGARA KOOLAVEETIL DAVIS, AYYANTHOLE P.O., D/O.LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILVATTOM VILLAGE, ENGINEERING COLLEGE PMO, THRISSUR - 680 002. 4 LISSY JOSE, AGED 51 YEARS D/O.LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILAVATTOM VILLAGE, ENGINEERING COLLEGE PMO, NOW IN THE ADDRESS OLARI P.O., THRISSUR - 680 002. 5 JOY JOSEPH, AGED 62 YEARS S/O.OUSEPH, KOLLANNUR THARAYIL HOUSE, KOTTEKAD , P.O.KUTTUR, THRISSUR - 680 004. BY ADV G.SREEKUMAR (CHELUR)(SR.)** 2 **R.C.R.Nos.142 and 143 of 2019** ## **RESPONDENTS/APPELLANTS/PETITIONERS:** **1 GEORGE, S/O.LATE CHACKOLA JOSE, CHEMBUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK, PRESENTLY RESIDING AT THAVOOS LANE, MISSION QUARTERS, THRISSUR - 680 001. 2 ALEX, S/O.LATE CHACKOLA JOSE, CHEMBUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK, PRESENTLY RESIDING AT OLLUKARA ROAD, CHIYYARAM, THRISSUR - 680 001. 3 PAULSON, S/O.LATE CHACKOLA JOSE, CHEMBUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK - 680 001. BY ADVS.SRI.GEORGE CHERIAN SRI.RAJESH CHERIAN KARIPPARAMBIL P.T.MOHANKUMAR** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.11.2022, ALONG WITH RCRev..143/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **R.C.R.Nos.142 and 143 of 2019** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **RCREV. NO. 143 OF 2019** **AGAINST THE JUDGMENT DTD 26/11/2018 IN RCA 68/2011 OF III** **RENT CONTROL APPELLATE AUTHORITY, THRISSUR AGAINST THE ORDER DTD 19/3/2011 IN RCP 115/2008 OF RENT** **CONTROL COURT, THRISSUR** ## **REVISION PETITIONERS/RESPONDENTS 1 TO 4/RESPONDENTS 1 TO 4:** **1 P.C.PAULY AGED 49 YEARS S/O LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILVATTOM VILLAGE, ENGINEERING COLLEGE P.O., THRISSUR-680 009 2 P.C.ALEX AGED 47 YEARS S/O. LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILVATTOM VILLAGE, ENGINEERING COLLEGE P.O., THRISSUR-680 009 3 TESSY DAVY AGED 53 YEARS W/O. KURUTHUKULANGARA KOOLAVEETIL DAVIS, AYYANTHOLE P.O., D/O. LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILVATTOM VILLAGE, ENGINEERING COLLEGE P.O., THRISSUR-680 002. 4 LISSY JOSE AGED 51 YEARS D/O. LATE CHACKO PAILOTH, PUTHUSSERY VETTIYADAN HOUSE, MANNUMKAD DESOM, VILVATTOM VILLAGE, ENGINEERING COLLEGE P.O., THRISSUR-680 002. BY ADV G.SREEKUMAR (CHELUR)(SR.)** 4 **R.C.R.Nos.142 and 143 of 2019** ## **RESPONDENTS/APPELLANTS/PETITIONERS:** **1 GEORGE S/O LATE CHACKOLA JOSE, CHEMBUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK, PRESENTLY RESIDING AT THAVOOS LANE, MISSION QUARTERS, THRISSUR-680 001.** **2 ALEX S/O LATE CHACKOLA JOSE, CHEMBUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK, PRESENTLY RESIDING AT OLLUKARA ROAD, CHIYYARAM, THRISSUR-680 001.** **3 PAULSON S/O LATE CHACKOLA JOSE, CHEMBUKAVU VILLAGE, MISSION QUARTERS, THRISSUR TALUK-680 001. BY ADVS.SRI.GEORGE CHERIAN P.T.MOHANKUMAR RAJESH CHERIAN KARIPPAPARAMBIL** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.11.2022, ALONG WITH RCRev..142/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 **R.C.R.Nos.142 and 143 of 2019** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.Nos.142 and 143 of 2019** **------------------------------------------Dated this the 21[st] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** These rent control revisions under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) have been filed against the common judgment dated 26/11/2018 in R.C.A.Nos.66 and 68/2011 on the file of the Rent Control Appellate Authority (RCAA), Thrissur, from the order dated 19/03/2011 in R.C.P.Nos.111 and 115/2008 on the file of the Rent Control Court (RCC), Thrissur. The revision petitioners herein are the respondents in the appeals and in the R.C.Ps. The respondents herein are the appellants in the appeals and the petitioners-landlords in the R.C.Ps. The parties and documents in this revision petition will be referred to as described in the R.C.Ps. 2. The petitioners had filed five R.C.Ps., namely, R.C.P.Nos.110, 111, 112, 113 and 115/2008. It is submitted that during the course of the trial, the respondents in R.C.P.Nos.110, 112 and 113/2008 have vacated and surrendered the tenanted premises to the petitioners. Now it is only the 6 ## **R.C.R.Nos.142 and 143 of 2019** respondents in R.C.P.No.111/2008 who are the respondents in R.C.P.No.115/2008 also, who are contesting the matter. The R.C.Ps. were filed under Sections 11(3), 11(4)(ii) and 11(8) of the Act. The case of the petitioners is that the petition schedule rooms are part of a larger building. The petition schedule building is a three storied building with ground floor and two floors. It is facing High Road on the western side and another road on the eastern side. In the ground floor of the building facing High Road, Trissur, the petitioners are running a jewellery shop which is their source of livelihood. The income from the said business is insufficient for the maintenance of three families. The petitioners have therefore decided to get all the tenants vacated and divide the petition schedule building into three parts for the purpose of conducting three separate jewelleries by the three petitioners. Therefore, the petition schedule rooms are _bona fide_ required for own occupation of the petitioners. The room presently in the possession of the petitioners is insufficient for the proposed business. It is proposed that the room facing the western side, be used by first petitioner and the northern room facing the road on the eastern side, that is, the tenanted premises in R.C.P.No.115/2008 and the entire first floor facing the eastern side also be given to the second petitioner. It is proposed that the third petitioner is to be given the southern portion of the ground floor facing the eastern side, that is 7 ## **R.C.R.Nos.142 and 143 of 2019** the tenanted premises in R.C.P.No.111/2008 as well as the second floor. It has been further decided that the first petitioner would continue the business in the portion presently being conducted. Petitioners 2 and 3 would conduct retail business in gold and manufacture of gold ornaments. The petition schedule rooms are therefore _bona fide_ required for the own occupation by the petitioners for the aforesaid purpose. No other suitable building(s) is available with the petitioners for the aforesaid purpose. There are other buildings available in the possession of the respondents, which are also situated near the tenanted premises. The income from the petition schedule rooms is not the sole source of livelihood of the respondents. They have other sources of income. No hardship would be caused to the respondents in case they are evicted from the tenanted premises. On the other hand, if the respondents do not vacate, irreparable injury, hardships and loss would be caused to the petitioners. The hardship that would be caused to the petitioners, if the respondents are not evicted will be far more than the hardship that would be caused to the respondents if they are evicted. 3. The respondents denied the need alleged and contended that it is a mere ruse for eviction. No suitable rooms are available in the locality for them to shift their business. They also contended that the business being conducted in the schedule rooms is their sole source of livelihood. 8 **R.C.R.Nos.142 and 143 of 2019** 4. Before the RCC, PW1 was examined and Exts.A1 to A23 were marked on the side of the petitioners. RWs.1 to 3 were examined and Exts.B1 to B20 were marked on the side of the respondents. The Advocate Commissioner was examined as CW1 and his report has been marked as Ext.C1. The RCC dismissed the R.C.Ps. finding that the need alleged is not _bona fide_ . The RCAA in the appeals preferred by the petitioners, reversed the order of dismissal and allowed eviction under Section 11(3) as well as under Section 11(8) of the Act. Aggrieved, the respondents/tenants have come up in revision. 5. Heard Adv.Sreekumar Chelur, the learned Senior counsel for the revision petitioners and Adv.George Cherian, the learned counsel for the respondents. 6. Section 20 of the Act allows the aggrieved party to challenge the legality, regularity or propriety of the order or proceeding of an Appellate Authority. The power of revision is limited to make a scrutiny of records to satisfy itself as to the three tests laid down in Section 20. It cannot convert itself into evidence collecting or fact-finding Court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA have relied on irrelevant consideration, ignored valuable items of evidence, or applied wrong principles of law. The revisional authority has to 9 ## **R.C.R.Nos.142 and 143 of 2019** satisfy itself of the legality, regularity or propriety of the order or proceedings of appellate authority. It can interfere only where the impugned order is illegal, irregular or improper. Where there is no illegality, impropriety or irregularity in the orders of the RCC and the RCAA, there is no justification for invocation of the revisional jurisdiction under Section 20 of the Act. 7. In the R.C.Ps. in the case on hand, though reference is made to Section 11(4)(ii) also, no pleadings or evidence has been adduced to substantiate the same. Therefore the RCC was right in rejecting eviction on the said ground. The petitioners further claimed eviction under Section 11(3) and under Section 11(8) also. A reading of the R.C.Ps. would reveal that the ground sought for eviction squarely comes under Section 11(8). Pleadings regarding comparative hardship are also clearly referred to in the R.C.Ps. Therefore, the RCC was right in holding that the eviction has been claimed under Section 11(8) and not under Section 11(3) though there is a reference to Section 11(3) also in the petitions. However, the RCC found the need to be not _bona fide_ . According to the RCC, the materials on record show that a major part of the three storied building housing the petition schedule rooms is in the possession of the petitioners. Compared to the vacant area in the possession of the petitioners, the space in the possession of 10 ## **R.C.R.Nos.142 and 143 of 2019** the respondents was found to be quite small and therefore in the opinion of the RCC, had the need putforward by the petitioners been genuine, they could very well have started their business in the rooms which are presently in their possession. Holding so, the need putforward by the petitioners has been rejected. 8. We are unable to agree to this finding of the RCC. As rightly held by the RCAA, when the specific case putforward by the petitioners is that they want the entire three storied building housing the petition schedule rooms for the expansion of their business, it is immaterial that they had not mentioned in the R.C.Ps. the fact that some portion of the building is in their possession. The RCC found the petitioners in vacant possession of some rooms in the building. However, the RCAA on a reappreciation of evidence found that the finding of the RCC on the said aspect is wrong. Even assuming that the petitioners are in possession of vacant rooms or space in the three storied building, that would not dis-entitle the petitioners from getting an order of eviction under Section 11(8), because their specific case is that they want the entire building for their proposed business. As held by the Apex Court in **Sarla Ahuja v. United India Insurance Company Ltd., (1998)8 SCC 119** , when the landlord asserts that he requires his building for his own occupation, the RCC shall not proceed on the presumption that the 11 ## **R.C.R.Nos.142 and 143 of 2019** requirement is not _bona fide_ . When other conditions required are satisfied and when the landlord shows a _prima facie_ case, it is open to the RCC to draw a presumption that the requirement of the landlord is _bona fide_ . It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of _bona fides_ of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in that matter (See also **Prativa Devi v. T.V. Krishnan, (1996)5 SCC 353** and **R.C.Thamrakar v. Nidi Lekha, (2001)8 SCC 431** ). 9. In these circumstances, we find that the RCAA was right in reversing the finding of the RCC that the need alleged is not _bona fide_ and concluding that the need alleged is in fact _bona fide_ . As noticed earlier, from the pleadings in the RC.Ps. it is very clear that the need putforward by the petitioners is one falling under Section 11(8). Sections 11(3) and 11(8) are mutually exclusive and are independent grounds for eviction. Therefore, the RCAA went wrong in saying that both Sections 11(3) and 11(8) are attracted in this case. 12 ## **R.C.R.Nos.142 and 143 of 2019** 10. The first proviso to sub-section (10) to Section 11 says that in an application made under sub-section (8), the RCC shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it, would outweigh the advantage to the landlord. The petitioners have clearly pleaded their case relating to the comparative hardship. This allegation to which we have already referred to, is denied by the respondents who contend that the business being conducted in the tenanted premises is their only source of livelihood and that there are no other suitable rooms available in the locality for them to shift their business. The RCC did not consider the question of comparative hardship as the ground under Section 11(8) was rejected. The two factors raised by the respondents to contend that comparative hardship would be greater in case eviction is ordered, has been considered by the RCAA though it was considered under the second proviso to Section 11(3). However, going by the pleadings of the respondents, the non existence of other suitable rooms and the business in the tenanted premises is their sole source of livelihood are the only two factors pointed out to show that the comparative hardship that would be caused to them would be greater, if eviction is ordered. These two aspects have been considered by the RCAA though under a different head and found against the respondents. No materials have been brought in 13 **R.C.R.Nos.142 and 143 of 2019** to show that the finding of the RCAA on this aspect is wrong. 11. The learned counsel for the respondents submitted that it is the duty of the court to consider the question of comparative hardship when a need under Section 11(8) for additional accommodation is urged. There can be no quarrel to that proposition advanced by the learned counsel. However, there has to be some materials on record on the basis of which, the court can decide the question of comparative hardship. It cannot make an assessment out of thin air. Here, as noticed earlier the only case of the respondents is that there are no suitable buildings available in the locality for them to shift their business and that the income from the tenanted premises is their sole source of income in reply to the petitioners' case regarding comparative hardship. This aspect has been considered by the RCAA and found against the respondents. Therefore we are not in a position to conclude that the question of comparative hardship as putforward by the respondents has not been considered by the RCAA. 12. A feeble argument was also advanced that Section 15 of the Act is attracted here. According to the learned counsel, earlier R.C.Ps. had been filed by the petitioners for the same purpose, which were thereafter not pressed. Before a plea under Section 15 can be given effect to, it shall be proved that–(a) the litigating parties are the same ; (b) the subject matter of 14 ## **R.C.R.Nos.142 and 143 of 2019** the R.C.Ps. are identical, and (c) the matter must have been finally decided by a court of competent jurisdiction, the words 'purports to have been finally decided' in the Section indicates that the decision should reflect a final decision on the issues raised and not a dismissal on technical ground. Purports indicate a proper decision arrived at by the court. A petition dismissed as 'not pressed' will not preclude the landlord from filing another petition on the same ground ( **Vasu v. K.V.Varghese, 2007(4) KHC 1031** ). When the landlord in a previous petition for eviction did not press the grounds under Section 11(8), there was no consideration of the grounds under the Section on merits and the claim under Section 11(8) of the Act was not finally decided in the former proceedings. Hence, the subsequent R.C.P. is not barred under Section 15 of the Act ( **Radha Lekshmy G. v. Indian Saree House, 2014(2) KHC 567** ). In these circumstances, we find no illegality, irregularity or impropriety in the findings of the RCAA. Hence no interference is called for. In the result, this rent control revisions are found to be without any merit and hence dismissed. Taking into account the facts and circumstances in this case, we deem it appropriate and reasonable to grant the respondents six months' time to vacate the building on condition that they file an undertaking before the RCC on or before **19/12/2022** to vacate 15 ## **R.C.R.Nos.142 and 143 of 2019** the tenanted premises within a period of six months from today and also on condition that the respondents-tenants shall pay the arrears of rent if any, on or before **19/12/2022** and also continue to pay the monthly rent on or before the 10[th] day of every succeeding month till they vacate the building. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/