Rose Johny and Johny Scaria v. Lissiamma Sebastian, Mini Sebastian and Vinu Sebastian

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **& THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935** **R.C.R. NO.398 of 2011 ( )** **---------------------------** **(AGAINST THE ORDER/JUDGMENT IN RCA. NO.3/2009 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM, DATED 22-08-2011, AGAINST THE ORDER/JUDGMENT IN RCOP NO. 1/2008 ON THE FILE OF THE RENT CONTROL COURT, KANJIRAPPALLY, DATED 29-11-2008.)** ## **REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS:** **----------------------------------------------** **1. ROSE JOHNY, AGED 39 YEARS, W/O.JOHNY, RESIDING AT KOZHIPPOOVANANICAL HOUSE, EDAKKUNNAM KARA, MUNDAKKAYAM VILLAGE.** **2. JOHNY SCARIA, AGED 42 YEARS, H/O.IST PETITIONER, RESIDING AT KOZHIPPOOVANANICAL HOUSE, EDAKKUNNAM KARA, MUNDAKKAYAM VILLAGE.** **BY ADVS.SRI.M.RAMESH CHANDER, SRI.ANEESH JOSEPH.** ## **RESPONDENT(S)/RESPONDENTS/COUNTER PETITIONERS:** **----------------------------------------------** **1. LISSIAMMA SEBASTIAN, AGED 57 YEARS, W/O.SEBASTIAN, RESIDING AT MURINGANA HOUSE, EDAKKUNNAM KARA, MUNDAKKAYAM VILLAGE, PIN-686513.** **2. MINI SEBASTIAN, AGED 32 YEARS, D/O.SEBASTIAN, RESIDING AT MURINGANA HOUSE, EDAKKUNNAM KARA, MUNDAKKAYAM VILLAGE, (EMPLOYEE MUNDAKKAYAM AIDED SCHOOL EMPLOYEES CO-OP. SOCIETY BRANCH NO.K.374, T.B.JUNCTION, MUNDAKKAYAM, PIN-686513.** **3. VINU SEBASTIAN, AGED 32 YEARS, D/O.SEBASTIAN, RESIDING AT MURINGANA HOUSE, EDAKKUNNAM KARA, MUNDAKKAYAM VILLAGE, PIN-686513.** **BY ADVS.SRI.T.V.GEORGE, SMT.DENNIS VARGHESE.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27-06-2013, THE COURT ON 2-08-2013 PASSED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = R.C.R No.398 of 2011 = = = = = = = = = = = = = = = = = = = Dated this the 2[nd] day of August, 2013 ## **ORDER** ## **Ramakrishna Pillai, J.** The landlords are in revision. 2. The application for eviction was filed on the twin grounds of arrears of rent and bona fide need i.e. under Sections 11(2)(b) and 11(3) of Act 2 of 1965. The bona fide need alleged is that the second revision petitioner, who is the husband of the first revision petitioner, requires the petition schedule building for starting a coffee and snacks bar and to sell mobile phone recharge and top-up coupons there. It is alleged that the second petitioner is depending upon the first petitioner for the building and they are not in possession of any other buildings. The further averment is to the effect that the second petitioner is unemployed and he has no movable or immovable properties. 3. The eviction petition was resisted by the respondents, who contended that the bona fide need alleged is not genuine. It was also contended that the first respondent is mainly depending, for her livelihood, upon the income derived from the business set up in the tenanted premises and no alternate space is available in the locality to shift her business. RCR.398/2011 ## **-:2:-** 4. The Rent Control Court on the basis of evidence consisting of the oral testimonies of PWs.1 and 2, DWs.1 and 2 as well as Exts.A1 to A15 series and Exts.B1 to B9, dismissed the claim petition finding that the need alleged is not bona fide. The matter was carried in appeal by the revision petitioners to the Appellate Authority, but without success. Thus, this revision petition. 5. Arguments have been heard. The impugned judgment as well as the order of the Rent Control Court and the connected records were perused. 6. Mr.T.V.George, the learned counsel for the respondents relying upon the decision of this Court in **Albert Mendez** v. **Rema Chandran** [2007 (3) KLT 23] would argue that the mere fact that husband is a member of family does not presuppose that husband is a dependant of the wife. Mr.George pointed out that there is no specific pleading to that effect in the rent control petition and, therefore, the petition is bound to fail. 7. Mr.M.Ramesh Chander, the learned Senior Counsel appearing for the revision petitioners, per contra, relying upon the decision of this Court in **Abdul Rub** v. **Jobby Tharian** [2003 (3) KLT 733] pointed out that law does not require meticulous survey of pleadings in rent control proceedings, and it is sufficient that essential facts in support of the claim is stated in the petition. According to him, for that reason the Rent Control Appellate RCR.398/2011 ## **-:3:-** Authority has found that the second petitioner is depending upon the first petitioner for the building. Mr.Ramesh Chander invited our attention to the last portion of paragraph (13) of the impugned judgment to substantiate his argument. The relevant portion reads as under:- “Even otherwise there could be no doubt that if the bonafide need claimed by the 2[nd] petitioner is actually true he would be entitled to an order for this purpose. He is certainly depending upon the 1[st] petitioner who is the owner of the building for the reason that there is no proof that he has got other buildings of his own.” 8. The aforesaid finding is quite justifiable in the light of the broad foundation of the pleading in the rent control petition. Having found so, the Appellate Authority proceeded to consider whether the need projected by the revision petitioners is bona fide. However, it was ultimately found that the need project is not bona fide and thus tilted the balance in favour of the respondents. To consider whether the said finding is correct or not, it is necessary to state the material facts in brief. 9. Admittedly, the second petitioner is the husband of the first petitioner, in whose name the petition schedule building stands. The tenanted premises is inside the compound of a cinema known as “Mundakkayam Threates” belonging to the first petitioner. She is the licensee RCR.398/2011 **-:4:-** under the Kerala Cinematograph Act and Rules. The tenanted premises was taken on rent by the husband of the first respondent, who is the father of respondent Nos.2 and 3 to conduct a pan shop. He died on 8.7.1999 and now, it is in the possession of the respondents. 10. The father of the second petitioner was the licensee of the movie house. He died in the year 1989. After his death, the first petitioner and her sister-in-law obtained the property and the movie house as per registered sale deeds. Later, the sister-in-law transferred her right in favour of the first petitioner in the year 2000 and the first petitioner became the owner of the entire property. She demolished the old building and reconstructed the present building. 11. The case of the revision petitioners is that in the year 2001 i.e. after the completion of renovation of the movie house, a room near the main gate (petition schedule building) was allotted to the first respondent on a daily rent of `40/- for conducting a coffee shop after receiving an advance of `75,000/-. An agreement was also executed on 24.9.2001. A suit was instituted by the first petitioner before the Munsiff's Court at Pala, for evicting the first respondent on the ground that she is a licensee. The suit was dismissed holding that the first respondent is a lessee and not a licensee. It is thereafter, the present eviction petition is filed. RCR.398/2011 **-:5:-** 12. Following are the reasons pointed out by the learned Appellate Authority for finding that the need projected is not bona fide. - i. There was no case for the petitioners at all in the suit filed by them before - the Munsiff Court, Pala, against the respondents that they require the petition schedule room for the proposed need. - ii. The second petitioner has admitted during cross examination that he had permitted another person to vend tea and coffee, a business of same kind, in the premises. iii.The second petitioner is managing the affairs of the first petitioner. The Appellate Authority came to this conclusion on the basis of recitals in Ext.A2 title deed where the avocation of the first petitioner is shown as house wife. 13. According to us the reasons stated above are not sufficient to hold that the need projected is not bona fide. 14. As rightly pointed out by the learned Senior Counsel for the revision petitioners, there was no reason for putting forth the bona fide requirement in the suit, since it was only a suit for eviction of the respondents based on the licence. 15. The reason that the second petitioner permitted another person to conduct tea and coffee vending in the premises also is not a good reason for RCR.398/2011 **-:6:-** holding that the need alleged is not bona fide. It is true that it has come out in evidence through the testimony of PW2 that he has permitted one of his staff to do such business in the premises. That would never lead to a presumption that such a permission was granted as they have never intended to do the proposed business. 16. The third reason is equally unconvincing because DW1 himself has admitted in the box that the second petitioner is not employed at all. The fact that the avocation of the first petitioner is shown as house wife in the title deed, it is not a good reason to hold that the entire business is run by the second petitioner, who is her husband. So long as the second petitioner is unemployed, he may be helping his wife in running the movie house. That does not mean that he should be satisfied with what he actually has and shall not try any another venture. 17. In this context, the learned Senior Counsel has invited our attention to the decision of the Apex Court in **Elias** v. **Cherian** [2009 (3) KLT 226 (SC)]. There the contention taken by the tenant was that the landlord has three sons who are well placed in life and, therefore, the social status of the landlord would not permit him to start the proposed business. There, the landlord had submitted that after retirement from his service in 1990 he had decided to start the business of selling cool drinks in the tenanted premises. RCR.398/2011 ## **-:7:-** In that case, the application for eviction was rejected by the Rent Control Court on the ground that the social status of the landlord would not permit him to start a “C” class business. The appeal filed by the landlord was allowed but was reversed by the High Court. The Supreme Court held that while assessing the bona fide need of the landlord, the social status of the landlord need not be considered. 18. Viewed in that profile, we are of the view that the mere fact that the first petitioner is running a cinema and the second petitioner, who is her husband, is helping her in the said business will not dis-entitle them in claiming the tenanted premises for housing a coffee kiosk which can be advantageously and conveniently carried on along with their present business. 19. On a totality of the facts and circumstances of the case, we are of the definite view that the need alleged by the petitioners is bona fide. The learned Appellate Authority proceeded to dismiss the appeal without considering whether the tenant is entitled to the benefit under second proviso to Section 11(3) of the Act 2 of 1965. Therefore, we are of the view that the matter has to be remitted back to the Rent Control Appellate Authority for considering the entitlement of the respondents under the second proviso to Section 11(3). RCR.398/2011 ## **-:8:-** In the result, the revision petition is allowed. The impugned judgment is set aside. We hold that the need projected by the revision petitioners is bona fide. R.C.A No.3 of 2009 is remanded to the Rent Control Appellate Authority, Kottayam, for considering whether the respondents are entitled to the protection under the second proviso to Section 11(3) of the Act. Parties are at liberty to adduce further evidence, if they choose. The entire exercise will be completed by the Appellate Authority within three months from the date of appearance of the parties and will give a verdict on the expiry of the said term. Parties shall mark their appearance before the Rent Control Appellate Authority on 14.8.2013. No order as to costs. Sd/- **T.R.RAMACHANDRAN NAIR JUDGE** Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj /True Copy/ P.A to Judge