Shyamkumar v. Puzhipurathu Rosa

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940** **RCRev.No. 283 of 2017** **----------------------** **AGAINST THE JUDGMENT IN RCA 16/2015 of THE DISTRICT JUDGE/ RENT CONTROL APPELLATE AUTHORITY, KALPETTA, WAYANAD DATED 17-03-2017** **AGAINST THE ORDER IN RCP 29/2014 of THE RENT CONTROLLER (MUNSIFF-MAGISTRATE), MANANTHAVADY DATED 30-06-2015** **REVISION PETITIONER/ APPELLANT/ RESPONDENT : --------------------------------------------** **SHYAMKUMAR, AGED 33 YEARS, S/O SOMAN, CHERUVUKALAYIL, DOWN BAZAR, MANANTHAVADY POST, AMSOM AND TALUK, (SILPA GENTS BEAUTY PARLOR, OPPOSITE PANCHAYATH BUS STAND).** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT/ RESPONDENT/ PETITIONER :** **-------------------------------------** **PUZHIPURATHU ROSA AGED 81 YEARS, W/O LATE JOSEPH, PALLICHANKUDY HOUSE, NALLURNAD POST AND AMSOM, PULIKKAD DESOM, MANANTHAVADY TALUK, WAYANAD – 670 645.** **R.BY ADVS. SRI.ABRAHAM MATHEW (VETTOOR) SRI.ANIL ABEY JOSE** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** ## **RKM** ## **K. HARILAL & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **R.C.R.No. 283 of 2017** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 6[th] day of July, 2018** ## **ORDER** ## _**Annie John, J.**_ The respondent before the Rent Control Court, who was the appellant before the Appellate Authority in an application under Section 11(3) of the Act is the revision petitioner herein. The respondent/ landlord had filed the rent control petition alleging that the petition schedule room was entrusted to the petitioner herein on 01.10.2004 for a period of three months for a monthly rent of Rs.3000/-. It was also alleged that she _bona fide_ requires the petition schedule room for the purpose of starting a Dental clinic for her grant daughter Neena Mathew, who has completed her BDS Course. According to the respondent landlord, the said Neena Mathew is dependent upon her and that she has no other vacant rooms in her possession for the said purpose. So the respondent landlord sought for an order of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as, 'the Act'). The petitioner herein, on R.C.R.No. 283 of 2017 2 appearance filed detailed counter denying the date of entrustment, rate of rent as well as the _bona fide_ need urged by the respondent landlord. It was also contended that the petition schedule shop room was originally in the possession of his father, who was running barber shop under a lease arrangement with the landlord. On his death, the petitioner tenant continued with the business and for that purpose, a new lease deed was executed. According to the petitioner, the rate of rent was only Rs.650/- per month and the need urged by the respondent landlord is not _bona fide_ and the petition schedule room will not satisfy the necessary pre-condition prescribed by the Indian Dental Association for the conduct of a Dental clinic. The respondent as well as his son, the father of the alleged dependent has in their possession, several vacant rooms in the same building and as well as in other building belonging to them and situated in Mananthavady town. So, the petitioner tenant sought for protection of the first proviso to Section 11(3) of the Act. Here, the grant daughter of the respondent/ landlord, for whose _bona fide_ need, the eviction was sought was examined as PW1 and Exts.A1 to A11 were marked on the side of the respondent. The petitioner was examined as RW1. Though the petitioner filed I.A.No.499/2015 seeking production R.C.R.No. 283 of 2017 3 of certain documents from the mananthavady Grama Panchayath, for the purpose of proving the availability of the vacant rooms in the possession of the respondent and her son, the said application was dismissed. The Rent Control Court, on an appreciation of the oral and documentary evidence before it, ignoring the fact that the petitioner was set _ex parte_ , by order dated 30.06.2015, passed an order of eviction under Section 11(3) of the Act. Aggrieved by the said order, the petitioner has filed RCA.No.16/2015. The Appellate Authority, on a re-consideration of the materials before it dismissed the appeal on 17.03.2017. Highly aggrieved by the order of the courts below, this revision has been preferred. It was stated by the petitioner that the courts below ought to have held that the petition schedule room is not suitable for conducting Dental clinic, in so far as, the petition schedule room does not satisfy the specifications stipulated by the Indian Dental Association for running a Dental clinic. The trial court erred in dismissing I.A.No.449/2015 for producing the assessment extract of the building owned by the landlord. The courts below erred in holding that the petitioner is not entitled for the protection of the first proviso to Section 11(3) of the Act. It was argued by the learned counsel for the revision petitioner that the R.C.R.No. 283 of 2017 4 respondent is having vacant rooms in her possession in the building housing the petition schedule room as well as in other building belonging to them. On these grounds and arguments advanced, the learned counsel for the revision petitioner prays for allowing the revision petition by setting aside the judgment of the lower court. 2. PW1 is none other than the grand daughter of the respondent/ landlord, who has given evidence as per the pleadings. PW1 is the power of attorney holder of the respondent and she is a Dental doctor and grand daughter of the respondent. There is no dispute regarding the execution of the power of attorney in favour of the respondent and also regarding the rental arrangement. The landlord tenant relationship is also admitted. According to him, the room which was sought to be evicted is not suitable for running a Dental clinic. PW1 has produced all her qualification by placing Ext.A7 Certificate issued by the Principal, Mar Baselious Dental College, Kothamangalam. Ext.A8 is the Provisional Certificate. Ext.A9 is the Rotating Internship Certificate in Dentistry. Ext.A10 is the BDS Completion Certificate. The respondent has succeeded in establishing that PW1 has having required qualification for starting a Dental clinic. According to PW1, she R.C.R.No. 283 of 2017 5 is fully depending upon the respondent for the purpose of starting the Dental clinic inside the petition schedule room and in the adjacent rooms. According to PW1's case, the respondent is having no other vacant rooms available in her possession for starting the Dental clinic. 3. There was an attempt on the part of petitioner to bring out during cross examination of PW1 that there are other vacant buildings in the possession of the respondent for satisfying the _bona fide_ requirement to start the Dental clinic. Bu the revision petitioner could not able to produce a single scrap of paper to establish that certain other rooms are lying vacant. Though PW1 was cross examined, nothing was brought out to disbelieve her _bona fide_ need as pleaded by the respondent. On going through the deposition of PW1, it is proved that she is a qualified Dental doctor and the petition schedule room and nearest premises are suitable for running the proposed Dental clinic. Now the revision petitioner's counsel has argued that there are so many rooms found to be vacant in the possession of the respondent so as to start the proposed Dental clinic. Even though the revision petitioner has pointed out that there are other vacant rooms in the possession of the respondent, he could not be able to produce any R.C.R.No. 283 of 2017 6 document to substantiate this fact. 4. Section 11(3) of the Act stated that “the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he _bona fide_ needs the building for his own occupation or for the occupation by any member of his family dependent on him”. 5. Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. 6. Provided further that the Rent Control court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. 7 _._ So, as per Section 11(3) of the Act, the landlord has to establish that the he _bona fide_ requires the building for his own occupation or for the occupation by any member of his family dependent on him. Here, the grand daughter of the R.C.R.No. 283 of 2017 7 respondent/ landlord has sought for eviction of the petition schedule room for the _bona fide_ need of the grand daughter, who has qualified as a Dental doctor and she _bona fide_ requires the same for conducting the Dental clinic. As per the first proviso to the Act, the court is barred from giving a direction to vacate the premises, if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper. Here, the revision petitioner's counsel has stated that the respondent/ landlord has got another vacant rooms and he can start the Dental clinic for the grand daughter in that particular room. It is well settled that the landlord is a master and they had to decide where they want to start the business or Dental clinic etc.? The tenant is not supposed to dictate and direct the respondent/ landlord to start the Dental clinic in some other rooms. The lower court found that the revision petitioner herein has failed to substantiate the first proviso to Section 11(3) of the Act. 8. According to the learned counsel for the petitioner, during cross examination, PW1 has admitted that she has got vacant rooms in her possession. Again she has R.C.R.No. 283 of 2017 8 given evidence to the effect that the room is not sufficient for running the Dental clinic in the petition schedule premises. Again it was argued that the room in the possession of the petitioner is only 150 to 200 sq.ft and the respondent is having another building in her possession. Ultimately he has argued that the Rent Control Court has denied his opportunity to produce the relevant documents to establish this fact. The respondent has sought for eviction under Section 11(3) of the Act and the lower court as well as the appellate authority has confirmed in finding to the effect that the respondent _bona fide_ requires the petition schedule shop room for conducting the Dental clinic. The petitioner, who is the tenant is bound to prove the first proviso to Section 11(3) of the Act. On going through the judgment of the Rent Control Court as well as the rent control appellate authority, we find that even after, the petitioner has not established to prove that the land owner is having any vacant possession of the other building. The only grievance of the petitioner is that he has sought for production of assessment extract maintained by the Panchayath, but it was disallowed. It is up to the respondent, who is the landlord to decide which room is suitable for conducting the proposed Dental clinic. In _**Jerry Joseph v. Selvaraj [2002 (2) KLT**_ R.C.R.No. 283 of 2017 9 _**129],**_ it is well settled that “the tenant cannot dictate to the landlord regarding his need or choice of the building. It has also held in _**Raghavendra Kumar v. Firm Prem Machinery & Co. [2000(1) SCC 679]**_ that “"it is true that the plaintiff/ landlord in his evidence stated that there were a number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant and that the suit premises is suitable for his business purpose. 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 the matter”. So the respondent has sought for eviction of the tenant on the said premises for starting the Dental clinic which is found to be suitable for his grand daughter. It was argued that the landlord had not been examined in this case. So he could be able to establish the _bona fides_ for the requirement of the petition schedule premises. In fact, respondent executed a power of attorney in favour of PW1. The power attorney is none other than the Dental doctor ie. the grand daughter of the petitioner. The power of attorney is also proved as Ext.A1. Ext.A2 is the rental agreement showing the entrustment of the petition schedule shop room of the petitioner. PW1 has categorically R.C.R.No. 283 of 2017 10 stated that she has _bona fide_ requires the petition schedule shop for starting the Dental clinic and this fact is substantiated by production of Exts.A7 certificate and A8 provisional certificate. The , non- examination of the landlord is not fatal as argued by the learned counsel for the petitioner. Apart from that, no other point has been raised by the petitioner herein and the respondent has established the _bona fide_ requirement of the petition schedule shop room for running a Dental clinic. Accordingly this revision will stand dismissed. The learned counsel for the revision petitioner/ tenant prayed for sometime to vacate the tenanted premises. The learned counsel for the respondent/ landlord submits that reasonable time can be granted for the same. Having regard to the facts and circumstances of the case, the revision petitioner/ tenant is given six months' time from today to vacate the tenanted premises on the following conditions :- 1. The revision petitioner/ tenant shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of the copy of this order. R.C.R.No. 283 of 2017 11 2. The revision petitioner/ tenant shall file an affidavit expressing an undertaking that he is ready and willing to vacate the tenanted premises within a period of six months' from today. 3. The affidavit shall be filed before the executing court within a period of one month from the date of receipt of the copy of this order. 4. In case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent/ landlord is entitled to enforce the order. Sd/- **K.HARILAL JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM