Rineesh Kundilekkandi v. Vadavathi Rajeevan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945 RCREV. NO. 168 OF 2023** **AGAINST THE JUDGMENT DATED 26.05.2023 IN RCA NO.143 OF 2015 ON THE FILE OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE-III), THALASSERY AND COMMON ORDER PASSED IN I.A NOS.3 OF 2021 AND 5 OF 2021 IN R.C.A NO.143 OF 2015 DATED 07.12.2021 AND IN R.C.P NO.92 OF 2014 ON THE FILE OF THE RENT CONTROLLER (MUNSIFF), THALASSERY DATED 31.07.2015** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **RINEESH KUNDILEKKANDI, AGED 48 YEARS S/O. BHASKARAN, MURIYOTH HOUSE, ANDALUR, P.O.PALAYAD, TELLICHERRY TALUK, KANNUR DISTRICT, PIN - 670661** **BY ADVS. RAJESH V.NAIR R.PARTHASARATHY** ## **RESPONDENT/RESPONDENT/PETITIONER:** **VADAVATHI RAJEEVAN, AGED 60 YEARS S/O V.K.KUMARAN, "ARAMAM", DHARMADAM AMSOM, PALAYAD DESOM, TELLICHERRY TALUK, KANNUR DISTRICT, PIN - 670661 BY ADVS. BINDUMOL JOSEPH BEENA JOSEPH(K/77/2008) VINODKUMAR CHAMBALON(K/000279/1991)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.Rev. No. 168 of 2023 ## **P.B.SURESH KUMAR & P.G.AJITHKUMAR, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.168 of 2023** ## **-----------------------------------------------** ## **Dated this the 29[th] day of September, 2023.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenant in a proceedings for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act is the petitioner in this revision petition. The respondent is the landlord. The Rent Control Court ordered eviction of the tenant, and the Appellate Authority affirmed the decision of the Rent Control Court. The tenant is aggrieved by the concurrent decisions of the authorities below. 2. The case set out by the landlord in the eviction petition is that he intends to establish a motor spare parts business in the tenanted premises and that he therefore, needs the premises for the said purpose. The tenant contested the eviction petition contending _inter alia_ that there is no bona fides in the need set out by the landlord and even if the need is bona 3 R.C.Rev. No. 168 of 2023 fide, he cannot be evicted from the premises since he is entitled to the benefit of the first proviso to Section 11(3) of the Act, as the landlord is having a vacant premises in his possession which could be used for conducting the proposed business. 3. The landlord gave evidence in the proceedings as PW1. Another witness was examined on the side of the landlord as PW2. The tenant gave evidence as RW1. On an appraisal of the materials on record, the Rent Control Court found that the need set out by the landlord is bona fide and the tenant is not entitled to the benefit of the first proviso to Section 11(3) of the Act. It was on that basis that the eviction petition was allowed. As noted, the tenant challenged the order of the Rent Control Court in appeal. During the pendency of the appeal, the tenant filed two interlocutory applications as I.A Nos.3 of 2021 and 5 of 2021 invoking Order XLI Rule 27 of the Code of Civil Procedure for production of additional evidence. The Appellate Authority, as per order dated 07.12.2021, dismissed the above interlocutory applications. It is thereafter that the appeal was dismissed, affirming the decision of the 4 R.C.Rev. No. 168 of 2023 Rent Control Court. 4. It is seen that the landlord has admitted in his evidence that he has another building and the same was let out for running an English Medium School. It is to prove the said fact that the landlord examined PW2 on his side who is the Manager of the said school, and PW2 deposed that he is running the school since 2009 in the said premises and that it is a CBSE school. 5. The learned counsel for the tenant contended that the findings rendered by the authorities below on the issue relating to the benefit of the first proviso to Section 11(3) of the Act is unsustainable in law. The argument advanced by the learned counsel in this regard is that it is common knowledge that a CBSE school cannot run in the small premises claimed to have been let out by the landlord, and the authorities below, in the circumstances, ought to have rejected the evidence of PW2 and held that the premises is vacant. We do not find any merit in this argument. The parties are not in dispute as to the premises which the tenant refers to as vacant. It is in the light 5 R.C.Rev. No. 168 of 2023 of the specific contention taken by the tenant that the premises is vacant, the landlord examined PW2, who in turn deposed that the premises is occupied by him for running a school, that too, since 2009. Nothing is brought out by the tenant in the crossexamination of PW2 to discredit the evidence tendered by him that he is occupying the said premises. That apart, the tenant has not taken out a Commission to show that the said premises is vacant, if at all the same is vacant as contended by him. The tenant has also not brought on record any material which would show that the area of the said premises is inadequate for the purpose of running a school. In the absence of any such materials, we do not find any illegality, irregularity or impropriety in the findings rendered by the authorities below as regards the claim made by the tenant for the benefit of the first proviso to Section 11(3) of the Act. 6. It was also contended by the learned counsel for the tenant that the procedure adopted by the Appellate Authority in dealing with the two interlocutory applications preferred by the tenant for production of additional evidence in 6 R.C.Rev. No. 168 of 2023 the case was faulty. According to the learned counsel, inasmuch as applications have been preferred invoking Order XLI Rule 27 of the Code of Civil Procedure, the same should have been posted and considered by the Appellate Authority along with the appeal. Since the said course has not been followed by the Appellate Authority, according to the learned counsel, the decision of the Appellate Authority is liable to be set aside. The learned counsel has relied on the decision of the Apex Court in **State of Rajasthan v. T.N. Sahani** , (2001) 10 SCC 619, in support of the said argument. It was also argued by the learned counsel that additional evidence was attempted to be produced in appeal to show that after the institution of the eviction petition, the landlord obtained vacant possession of a few other premises which are suitable for carrying on the business proposed by him in the tenanted premises. It was the argument of the learned counsel that had those documents been admitted in evidence by the Appellate Authority, it could have very well been contended by the tenant that the attempt of the landlord is only a ruse to evict him. The learned counsel 7 R.C.Rev. No. 168 of 2023 has relied on the decisions of the Apex Court in **Pasupuleti Venkateswarlu v. Motor and General Traders** , (1975) 1 SCC 770 and in **Gaya Prasad v. Pradeep Srivastava,** 2001 (1) KLT 753(SC) to contend that authorities under the Act are bound to take note of the subsequent events while deciding the rights of parties. 7. It is unnecessary, according to us, to go into the correctness of the order passed by the Appellate Authority on the applications preferred by the tenant to adduce additional evidence, as we find that even if the said evidence was permitted to be let in, and even if it is found that the landlord obtained vacant possession of a few other premises during the pendency of the proceedings, the same would not have made any difference in the case of the landlord, for it is fundamental that the right of a party to obtain relief in a legal proceedings is to be decided with reference to the date of institution of the proceedings. True, it is held by the Apex Court in **Gaya Prasad,** placing reliance on **Pasupuleti Venkateswarlu** that wherever subsequent events of fact or law which have a 8 R.C.Rev. No. 168 of 2023 material bearing on the entitlement of the parties to relief, the court is not precluded from taking a cautious cognizance of the same to mould the relief. But, it was clarified that the subsequent events to overshadow the genuineness of the need must be of such nature and such a dimension that the need propounded by the petitioning party should have been completely eclipsed by the subsequent event. Paragraph 13 of the judgment in **Gaya Prasad,** which reiterates the said principle reads thus: “13. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A three Judge Bench of this Court in Pasupuleti Venkateswarlu v. Motor & General Traders (1975 (1) SCC 770) which pointed to the need for remoulding the reliefs on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. This is what learned Judges of the Bench said then: “We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must take cautious cognizance of events and 9 R.C.Rev. No. 168 of 2023 developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.” Reverting to the facts, as noted, the subsequent event pointed out is that the landlord obtained vacant possession of a few premises which could be made use of for conducting the proposed business. Is that an event which would overshadow the genuineness of the need of the landlord. According to us, merely for the reason that the landlord got vacant possession of a few premises during the pendency of the eviction petition, the need does not fall into obscurity, and if the need does not fall into obscurity, such an event cannot affect the right of the landlord to obtain an order of eviction. Be that as it may, let us also consider the question whether the scheme of the Act is such that it precludes a landlord from pursuing an eviction petition, if he gets in the course of proceedings another premises where he could accomplish the proposed need. According to us, that is not the scheme of the Act and if it is held so, the rights of parties as on the date of the institution of the proceedings would lose its relevance and the fate of the 10 R.C.Rev. No. 168 of 2023 proceedings would depend on subsequent events. In our view, if a landlord who gets a vacant premises which could be used for the need alleged in the eviction petition during the pendency of the proceedings, he is certainly entitled to make use of the same for other purposes, if he does not want that premises to be used for the proposed need. Identical view has been taken by a Division Bench of this Court in **Valsan v. Furtal** , 2004 (3) KLT 1046. In the said view of the matter, we do not find any merit in the rent control revision and the same is, accordingly, dismissed. However, having regard to the peculiar facts of this case and the orders passed by this Court in identical and similar matters, we deem it appropriate to grant six months' time from today to the petitioner to surrender vacant possession of the premises on condition that he shall file an unconditional undertaking before the Rent Control Court within one month from today to vacate the tenanted premises within six months and also that he shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly rent on or R.C.Rev. No. 168 of 2023 11 before the tenth day of every succeeding month, till he vacates the premises. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **P.G.AJITHKUMAR, JUDGE.** PV