Sebastian Joseph S/o Late C.D. Joseph v. ITTAN S/o Poulsoe and George S/o Poulsoe

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938** **RCRev..No. 222 of 2015 () --------------------------** **AGAINST THE JUDGMENT IN RCA 40/2013 of RENT CONTROL APPELLATE AUTHORITY, PALAKKAD DATED 01-08-2015** **AGAINST THE ORDER IN RCP 10/2012 of RENT CONTROL COURT, ALATHUR DATED 31-10-2013** **REVISION PETITIONER IN R.C.R-APPELLANT IN R.C.A-RESPONDENT IN RCP:** **-----------------------------------------------------------------SEBASTIAN JOSEPH S/O LATE C.D.JOSEPH, RESIDING AT CHEMMANUR HOSUE, CHEMBUKKAVU VILLAGE, THRISSUR TALUK AND DISTRICT, PIN:680 020.** **BY ADVS. SRI.P.B.KRISHNAN** **SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.S.NITHIN (ANCHAL)** **RESPONDNETS IN C.R.C.-RESPONDENTS IN R.C.A.-PETITIONERS IN R.C.P:** **-------------------------------------------------------------------** **1. ITTAN** **S/O POULSOE, RESIDING AT MANNARKUDI HOUSE, VADAKKANCHERY AMSOM AND DESOM, ALATHUR TALUK, PIN:678 683.** **2. GEORGE** **S/O POULSOE, RESIDING AT MANNARKUDI HOUSE, VADAKKANCHERY AMSOM AND DESOM, ALATHUR TALUK, PIN:678 683.** **R1-R2 BY ADV. SRI.N.SUKUMARAN (SR.) R1-R2 BY ADV. SRI.N.K.KARNIS** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. R.C.R.No. 222 of 2015 ....................................................... Dated this the 21[st] day of March, 2016. ## **O R D E R** ## **K. RAMAKRISHNAN, J:** The tenant in R.C.P.No.10 of 2012 on the file of the Rent Control Court, Alathur is the revision petitioner herein. 2. It is an admitted fact that the respondents herein are the landlords of the building. They have got five shuttered rooms in the down stair portion and it was let out to the revision petitioner, who is the respondent in the lower court, on a monthly rent of Rs.20,000/as per Ext.A1 kaichit dated 30.9.2006. He is conducting a jewellery business therein. The respondents bonafide require the petition schedule building for staring a furniture business for the first respondent and they have no other building in their possession within the limits of Vadakkanchery town for the said purpose. They required the petition schedule building for the bonafide need of the first respondent. The petitioner is having many business and income and there are suitable buildings available in the locality. He is not solely depending on the income derived from the business conducted in the petition schedule building. Though the respondents wanted the tenant to vacate the premises, he did not do the same. So they have no other option except to file an application for eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter 2 R.C.R.No. 222 of 2015 called 'the Act' . 3. The revision petitioner, who is the respondent/tenant in the lower court, entered appearance and filed counter admitting the tenancy and also the rate of rent. He had contended that the need alleged is only a ruse for eviction and there is no bonafide need as such arises for the first petitioner in the lower court to start any business. They are having another building of their own, which is situated 250 meters away from the petition schedule building and it is in a commercial locality. Further there is vacant room available in the same building. If they want, they can occupy the same as well. When the landlords attempted to evict the tenant from the building forcibly, he filed O.S.No.210 of 2012 before the Munsiff Court, Alathur and obtained an order of injunction against forcible eviction. Aggrieved by the same, they have now filed the present petition for eviction with some imaginary need which in fact does not arise in the circumstances of the case. 4. Further both the petitioners are old persons and it is not expected that they will be able to do the furniture business as claimed by them. So they prayed for dismissal of the application. 5. In order to prove the case of the landlords, the first petitioner was examined as PW1 and Exts.A1 and A2 were marked on their R.C.R.No. 222 of 2015 3 side. Rws 1 to 3 were examined and Ext.C1 commissioner's report was also marked on the side of the respondents. After considering the evidence on record, the court below found that the need alleged by the landlords is bonafide and the landlords are not in possession of any building of their own in their possession so as to avoid eviction under the first proviso to section 11(3) of the Act and also the tenant is not entitled to get the second proviso protection and allowed the application under section 11(3) of the Act. Aggrieved by the same, the tenant filed R.C.A.No.40/2013 before the Rent Control Appellate Authority, Palakkad which was made over to the Third Additional District Court for disposal and the appellate authority dismissed the appeal confirming the order or eviction passed under section 11(3) of the Act. Aggrieved by the same, the present revision has been filed by the revision petitioner/tenant before the court below. 6. Heard Sri. P.B.Krishnan, learned counsel appearing for the revision petitioner and Sri. Sukumaran, learned senior counsel appearing for the respondents. 7. Learned counsel for the revision petitioner submitted that the petition for eviction was filed by a body of co-owners claiming eviction for themselves and if that be the case, if any one of the co- 4 R.C.R.No. 222 of 2015 owners is in possession of any building, then the bar under first proviso to section 11(3) of the Act will be attracted. He had relied on the decisions reported in _**Mary v. Kunjanam**_ (2002 (3) KLT 95), _**Raghavan v. Govindan Nambiar**_ (1995 (1) KLT 596) and _**Gupta**_ _**v. Mohammed**_ (1995 (1) KLT 701) in support of his case. 8. On the other hand, learned senior counsel appearing for the respondents submitted that admittedly the building which is under construction exclusively belongs to the second petitioner and the first petitioner has no right over the same. In order to attract the first proviso, it must be proved that, he must have control and exclusive possession over the same so as to use the same for his purpose independently. If such a right is not available, then it cannot be said that he is in possession of the same. The same position has been approved by this Court in the decision reported in _**Asher v. Hassankutty Hajee**_ (2004(2) KLT 446). 9. It is an admitted fact that the petition schedule building belongs to the respondents herein jointly. It is also an admitted fact that the building was let out to the revision petitioner herein as per Ext.A1 kaichit for the purpose of conducting a jewellery business. The need alleged by the landlords/ respondents in this petition was that the first respondent bonafide requires the petition schedule 5 R.C.R.No. 222 of 2015 building for the purpose of starting a furniture business and they are not in possession of any building and as such, they required the petition schedule building for their bonafide need. The counsel for the revision petitioner submitted that it is alleged in the petition that the need is for both and the eviction is sought by both the respondents. But a reading of the rent control petition will go to show that the petition schedule building jointly belongs to the petitioners in the lower court and the need projected is for the first petitioner, who is one of the co-owners of the building. The tenant had no case that the first petitioner is having any other business of his own or he is having other independent income as well. Merely because they are old, it is not a bar for them to start a business of their own. 10. Further, the dictum laid down in the decision reported in **Mary's case** (supra) only says that in the case of a joint tenancy, if a notice has been issued to one of the tenants, then that will be a notice to other tenants as well, individual notice to others is not required. That will not help the respondent in the lower court for a proposition that the principle of joint tenancy will apply in the case of co-owner ship property as well. 11.In the decision reported in Raghavan's case (supra) and 6 R.C.R.No. 222 of 2015 also Gupta's case (supra), it has been held by a Division Bench of this court that even if the co-owners are in possession of the building, unless they were able to prove that, that is not suitable for their purpose and they gave special reason for non occupation of the same, they are not entitled to get eviction as it will be hit by the first proviso to section 11(3) of the Act. It is further stated that even if the first proviso is not there, it will have to be read into section 11(3) of the Act for the purpose of ascertaining the need alleged by the landlords as if the co-owner is in possession of another building suitable for his purpose, it cannot be said that he is entitled to get eviction of the building which is in possession of the tenant without giving any special reasons for not occupying the same. So these two decisions will only go to show that even if the co owner is in possession of the building, joint ownership buildings are available with the landlords of which one of the co-owners is also having an undivided right, that also can be taken into consideration for the purpose of considering the bonafide need. But that decision is not applicable to the facts of this case because the building which has been projected by the tenant which is said to be under construction is exclusively belongs to the second petitioner in the lower court alone which is not a co-ownership property to hold that one of the 7 R.C.R.No. 222 of 2015 joint owners is also having right as that of the other co-owner. So the dictum laid down in the above two decisions are also not applicable to the facts of this case as the first petitioner in the lower court cannot claim any right in the building which is being constructed by the second petitioner in his own property. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the building said to be belonging to the second petitioner in the lower court cannot be said to be a building in the joint possession of the co-owners so as to attract the bar under the first proviso to section 11(3) of the Act. Further, this position has been distinguished in the decision reported in Asher' case (supra) relying on the decision reported in _**Lingala Kondala Rao v. Vootukuri Narayana Rao**_ (JT 2002 10 SC 117). So under such circumstances, it cannot be said that the building exclusively belongs to the second petitioner can be treated as a building belonging to the joint ownership of both the petitioners for the purpose of denying eviction invoking first proviso to section 11(3) of the Act. We do not find any substance in the submission made by the counsel for the revision petitioner on this aspect. 12. As regards the room available in the same building is concerned, it was brought out in the evidence of the commissioner 8 R.C.R.No. 222 of 2015 coupled with Ext.C1 commissioner's report that it is situated in the second floor of the building and it was found locked and entry to this room is through a staircase having only a width of three feet. The need alleged by the petitioners in the lower court is to start a furniture business. That room cannot be said to be suitable for starting furniture business. Further, there is no case for the tenant that those buildings were earlier occupied by the tenant and it was vacated later as well. If the upstair room is vacant for long time not occupied by the tenant, then it can be presumed that it was not suitable for the purpose for which the petitioners in the lower court want to get eviction of the petition schedule building for their purpose. So under the circumstances, even though it was not specifically mentioned about the existence of building in the petition, if it is brought out in evidence that such a building is available, then it is settled law that if no special reason is given by the landlords for non occupation of the same to the satisfaction of the court, the court below shall not order eviction under section 11(3) of the Act in view of the bar under first proviso to section 11(3) of the Act. In this case, landlords have given reason for non occupation of the same and the courts below have appreciated the same as a special reason and come to the conclusion that the building is not suitable for the 9 R.C.R.No. 222 of 2015 business which the landlords want to start in the petition schedule bundling. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the need alleged by the landlords is bonafide. 13. Further, it was brought out in evidence that PW1 is having other business and there are other buildings available in the locality and he is not eking out his livelihood from the income derived from the business conducted in the petition schedule building alone and rightly declined to grant the second proviso protection to the tenant and rightly ordered eviction under section 11(3) of the Act and we do not find any reason to interfere with the concurrent findings of the court below on this aspect invoking the power under section 20 of the Act. 14. Before disposing the case, learned counsel for the revision petitioner sought a reasonable time for vacating the premises. Considering the nature of business being conducted and time required for shifting the business, we feel it appropriate to grant six months time for the tenant to vacate the premises. So, six months time from today (till 21.9.2016) is granted to the revision petitioner to vacate the premises on condition that he shall file an undertaking before the rent control court or before execution court in the form 10 R.C.R.No. 222 of 2015 of an affidavit that he will surrender vacant possession of the building on the expiry of the period of six months granted by this Court i.e, on or before 21.9.2016 without any objection and shall remit the arrears of rent, if any, on the agreed rate within one month from today and continue to pay the same till surrender possession of the building as directed above and that he will not sublet or induct third parties in possession and cause any act of waste in the petition schedule building and he shall file an undertaking to that effect within a period of three weeks from today. If the undertaking is not filed within the time specified above, then the benefit given by this court namely six months time to surrender possession, will not be available to him. with the above directions and observations, the revision petition is dismissed. Considering the circumstances, parties are directed to bear their respective costs in the revision. Sd/- ## **P.N. RAVINDRAN, JUDGE.** ## **Sd/** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge R.C.R.No. 222 of 2015 11