Sunder Raj v. Dhiraj Lal Mansook Lal Shah

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941** ## **RCRev..No.75 OF 2020** **AGAINST THE ORDER/JUDGMENT IN RCA 132/2018 DATED 20-022020 OF ADDITIONAL DISTRICT COURT KOZHIKODE-III** **AGAINST THE ORDER/JUDGMENT IN RCP 48/2016 DATED 18-082018 OF PRINCIPAL MUNSIFF COURT KOZHIKODE-I** ## **REVISION PETITIONER/S:** **SUNDER RAJ AGED 56 YEARS, S/O P.T.POULOSE HOME NO.4/550, JOSEPH ROAD, POST BEACH, KECHERI AMSOM & DESOM, KOZHIKODE- 673032, ROOM NO.10/319, P.M.TAJ ROAD, CALICUT – 673 001. X** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.L.S.BHAGAVAL DAS** ## **RESPONDENT/S:** 1 **DHIRAJ LAL MANSOOK LAL SHAH, AGED 82 YEARS, S/O MANSOOK LAL, PRABHA APARTMENT D1(FIRST FLOOR) A.G.ROAD, POST BEACH, NAGARAM VILLAGE, KOZHIKODE-673 032.** **RCRev..No.75 OF 2020** ..2.. - **2 DEEPAK D. SHAH, AGED 52 YEARS, S/O DHIRAJ LAL MANSOOK LAL SHAH, PRABHA APARTMENT D1(FIRST FLOOR), A.G.ROAD, POST BEACH, NAGARAM VILLAGE, KOZHIKODE – 673 032** - **3 MOHAN RAJ, AGED 62 YEARS, S/O P.T.POULOSE 84 B, KALPAKA GARDEN, POTTATCH ROAD, CHALIKA VATTOM, VYTILA, ERNAKULAM – 682 019 R1 BY ADV. SRI.P.B.KRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev..No.75 OF 2020** **==> picture [17 x 9] intentionally omitted <==** ## **ORDER** ## **Dated this the 19th day of March 2020 K.Harilal, J** The revision petitioner herein is the tenant against whom an order of eviction has been passed by the Rent Control Court, Kozhikode in RCP No.48 of 2016 under Section 11(3) of the Kerala Buildings Lease and Rent Control Act, 1965 and stands confirmed by the Rent Control Appellate Authority, Kozhikode in RCA No.132 of 2018 . This revision has been filed challenging the concurrent findings of the courts below. The courts below concurrently found that the need projected by the respondents/landlords is bonafide, the claim for eviction is not hit by the 1[st] proviso to Section 11(3) of the Kerala Buildings Lease and Rent Control Act, 1965 (Rent Control Act for short) and the revision petitioner/tenant **RCRev..No.75 OF 2020** **==> picture [18 x 9] intentionally omitted <==** is not entitled to get protection under 2[nd] proviso to Section 11(3) of the Act. No point has been raised under the 2[nd] proviso to section 11(3) of the Act. Therefore, the question to be considered in this revision petition is where there is any illegality, impropriety or irregularity in the concurrent findings of the courts below that the need projected in the rent control petition is _bona fide_ and the same is not hit by the 1st proviso to Section 11(3) of the Act. 2. According to the landlords, they are conducting a wholesale textile business in another shop room and now they are in _bona fide_ need of the petition schedule shop room for starting a retail shop also. According them, due to recession, their wholesale business is facing a down fall and they want to start a retail shop also to enhance their volume of business. The petition schedule shop room is situated in the ## **RCRev..No.75 OF 2020** **==> picture [17 x 8] intentionally omitted <==** ground floor of the building and it is suitable for starting and establishing a retail textile unit. The landlords/respondents or any of their family members were not in vacant possession of any building/rooms suitable and sufficient for the above purpose anywhere else. Only rooms in the ground floor are suitable for the purpose of retail textile business and the rooms in the upstairs are not suitable or convenient for retail business. The revision petitioner/tenant is not depending upon the income from tenanted premises and he is not entitled to protection under 2nd proviso to Section 11(3) of the Rent Control Act and several other buildings are available in the locality for shifting the tenant's business from the tenanted premises. 3. The revision petitioner/tenant filed a counter statement denying the _bona fides_ of the need, **RCRev..No.75 OF 2020** **==> picture [18 x 8] intentionally omitted <==** contending that the need projected is a ruse for eviction only. According to the revision petitioner, the allegation that due to the recession, volume of the respondents' wholesale business has come down is not true and correct and there is no need to start a retail business to enhance their volume of business. He further submits that the vacant rooms in the possession of the respondents are sufficiently enough to meet their needs, if any. These vacant rooms are bearing corporation No.42/6108, 42/6111 and 42/6112. These rooms are vacant even now. In a greed for exorbitant enhanced rent, this rent control petition has been designed in the guise of bonafide need. He is depending mainly on the income deriving from the business in the tenanted premises and no other suitable rooms are available in the locality. ## **RCRev..No.75 OF 2020** **==> picture [17 x 8] intentionally omitted <==** 4. On the rival pleadings, both parties adduced evidence and the court below concurrently found as stated above. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 6. The learned counsel for the revision petitioner advanced arguments assailing the findings under 1st proviso to Section 11(3) of the Act. According to him, before the Appellate Authority, he has raised a specific contention that after the passing of the order of eviction by the rent control court, the respondents have got vacant possession of room bearing No.10/325 in the ground floor of the same building and on the application filed by him, the Commission has inspected the said room and filed a report stating the nature of the business, which is being conducted in the said shop ## **RCRev..No.75 OF 2020** **==> picture [18 x 8] intentionally omitted <==** room. What is reported by the Commissioner is a stage managed occupation only and actually the room was lying vacant immediately before the inspection of the commissioner. According to the learned counsel, in order to make it appear that another tenant by name 'Salu' is conducting a footwear business, which is styled as 'Maharba' in the aforesaid room bearing No.10/325, the respondents/landlords have placed some footwears in the said shop room. Actually nobody was in occupation of the said room bearing No.10/325. Paragraph No.3 of the Commission Report would give rise to an inference that the shop room was lying vacant and subsequently, the respondents/landlords made certain arrangements in the said shop room to make it appear that a footwear shop is being run in the said shop room. This is the sole point argued by the learned counsel for the revision petitioner before us. According ## **RCRev..No.75 OF 2020** **==> picture [18 x 9] intentionally omitted <==** to the learned counsel, the commission report filed before the Appellate Authority would prove that need is not _bona fide_ and the same is hit by 1st proviso to Section 11(3) of the Act; but the findings of the Appellate Authority are perverse. 7. Per contra, the learned counsel for the respondents/landlords advanced arguments contending that no inference can be drawn on the Commissioner Report to the effect that need is not _bona fide_ and the same is hit by 1st proviso to Section 11(3) of the Act. According to the learned counsel, in paragraph 5, the Commissioner has specifically stated that there are no vacant shops in the ground floor. It is also pointed out that, in paragraph 3 of the Commission Report, the Commissioner has reported that, a footwear shop is being conducted in Shop No.10/325. **RCRev..No.75 OF 2020** ..10.. 8. At first, we have gone through the pleadings of both parties under 1st proviso to Section 11(3) of the Kerala Buildings Lease and Rent Control Act. According to the respondents/landlords, neither the respondents nor any of their family members are in possession of any suitable or convenient room in the ground floor for conducting the proposed retail textile business. On the other hand, the petitioner herein contended that the respondents are in possession of vacant rooms bearing Corporation Nos.42/6108, 42/6111 and 42/61112 and those rooms are vacant at the time of filing the rent control petition also. Going by the judgment passed by the rent control court, we find that no attempt was made by the revision petitioner/tenant to prove that any of the aforesaid shop room is lying as vacant, for starting the proposed the retail textile business. In other words, in the trial stage, the revision ## **RCRev..No.75 OF 2020** ..11.. petitioner/tenant miserably failed to discharge his initial burden of proof under the 1st proviso to Section 11(3) of the Rent Control Act. 9. It is true that, before the Appellate Authority, the revision petitioner has filed a commission application with a contention that subsequently, after the passing of the order of eviction by the Rent Control Court, the petitioner has got vacant possession of another room bearing No.10/325 in the ground floor of the building. The Commission application was allowed and the Commissioner filed a report. In the above context, it has to be borne in mind that it is trite law settled by the decision of this Court in _**Korah Abraham v. Varughis [**_ 2004 (2) KLT 192] that “subsequent event could be brought to the notice of the rent control court, Appellate Authority and even before this Court so that the Court **RCRev..No.75 OF 2020** **==> picture [22 x 7] intentionally omitted <==** could mould the relief to do complete justice between the parties and also could shorten the litigation. But, the Court could at the threshold,when subsequent events are brought to its knowledge examine whether those events have any fundamental impact on the main issue and if not addressed would cause serious prejudice to the parties, either to the landlords or to the tenants. Subsequent events could be brought in by the landlords as well as the tenants, since rent laws are neither proland lord nor pro-tenant. But the court should be guarded that its process are not abused or taken undue advantage or misused or used as a medium to delay the right of parties.” Bearing the aforesaid proposition in mind, we have examined the question whether the alleged availability of vacant possession of another shop room is true and if true, whether the availability of the other room during the pendency of the appeal has any **RCRev..No.75 OF 2020** **==> picture [22 x 9] intentionally omitted <==** fundamental impact on the main issue involved in the rent control petition or in the appeal 10. We have already noticed that in the rent control petition, the respondent has miserably failed to discharge the burden of proof under the 1st proviso, though he specifically contended that the petitioners are in possession of three vacant shop rooms. 11. In the commission application, it is specifically pleaded that during the trial, the revision petitioners/tenants were not able to take out a commission to show the vacant rooms in the possession of the respondents/landlords. Now, the 1[st] respondent has newly let out one of the shop rooms in his possession in the ground floor bearing No.10/325, named Maharba Foot Wear, by executing a lease deed, to a newcomer. In order to prove the availability of ## **RCRev..No.75 OF 2020** **==> picture [22 x 9] intentionally omitted <==** vacant rooms and letting of shop rooms in the ground floor as a subsequent event, an Advocate Commission be deputed to inspect and report the plaint schedule building and its premises and the same will prove that the landlords have no _bona fide_ need to start a retail textile shop. The number of the shop room is 10/325 and there is no material to prove that the said shop room is one, mentioned in his counter statement as vacant room. In the counter statement, three other numbers are shown as the numbers of the vacant building. Therefore, it can be inferred that a new plea has been raised in respect of another room in the ground floor. 12. In the commission report filed before the Appellate Authority, it is reported that the shop room No.10/325, named Jaydeep Textiles, is a foot wear shop. There were only just two boxes of cloth materials **RCRev..No.75 OF 2020** **==> picture [22 x 9] intentionally omitted <==** inside the shop room, which is not visible as such. When enquired, it came to his knowledge that the business at this shop No.10/325 was a textile till two years back and as the business got dull, they have made it a foot wear shop, which is running there for two years. Even if the said part of the report is taken as its face value, it does not gives rise to an inference that, there is a change of tenancy and a new tenancy is created after the surrender of tenancy by the former tenant. What is stated is the change of business only. Merely on change of business, it cannot be inferred that there is a change of tenancy also. 13. More importantly, in paragraph 5 of the said report, it is stated that there are total seven shops in the ground floor including the revision petitioner/ tenant and there are six rooms in the upstairs. There are no vacant shop rooms in the ground floor and on the **RCRev..No.75 OF 2020** **==> picture [22 x 8] intentionally omitted <==** upstairs there is one shop, which is going to be opened. Thus, the Commissioner in paragraph 5, unequivocally stated that there are no vacant shop rooms in the ground floor. The learned counsel for the revision petitioner vehemently contended that the change of business would show the change of tenancy. We are unable to accept the said contention as the same tenant also can change his business and we reject the said contention. 14. That apart, we further find that even if the said contention, based on the alleged subsequent event is proved as such, the same has no fundamental impact, in view of the decision of the Hon'ble Supreme Court in _**K.K.Valsan and Another**_ v. _**G.M.Furthal and Others [2004 (3) KLT 1046]**_ . In the said decision, this Court held as follows: **RCRev..No.75 OF 2020** ..17.. “The landlord might have rented out several premises to different tenants, but he has always the option to seek eviction of a premises which is convenient for him for the purpose for which eviction has been sought for. Option has to be exercised by the landlord exclusively for which tenants have no role. Several factors would go into the mind of the landlord while exercising the option against whom the rent control petition has to be filed when there is more than one tenant. Factors like rent received from the particular tenant, convenience, relationship and so on may influence the landlord while exercising his option. After having decided to file rent control petition against tenant 'A', tenant 'B' vacates, it will for the landlord to decide whether he should occupy the vacant premises. The landlord after having made a preference cannot be forced to occupy the premises 'B' which became available subsequently **RCRev..No.75 OF 2020** ..18.. unless the tenant's need is wholly satisfied which is essentially a question of fact.” 15. In the above view, we find that even if the revision petitioner has got vacant possession of one room, in the ground floor and subsequently, he has let out the same to another tenant during the pendency of the appeal, the same has no fundamental effect at all. 16. Moreover, subsequent event having fundamental impact on the pleadings set up in the Rent Control Court alone need be looked afresh by the Appellate Court or Revisional Court, for the interest of justice in appropriate cases only. The parties to the Rent Control Petition can never be allowed to conduct a fishing enquiry in all stages till the final disposal by the Supreme Court. Otherwise fresh enquiry on matters which are not pleaded in trial, under the guise of subsequent event in Appellate and Revisional Stage **RCRev..No.75 OF 2020** **==> picture [22 x 9] intentionally omitted <==** would cause inordinate delay in attaining a finality and hardship to the opposite party. It is to be borne in mind that consistency and finality are the hall mark of the judicial proceedings. It cannot be invoked as of right. 17. In the above analysis, we find that the revision petitioner has failed to prove the subsequent events having fundamental impact and even if the same is proved, it is of no consequence or fundamental impact at all. Hence, this revision petition would stand dismissed. 18. The learned counsel for the revision petitioner submits that the respondent/ tenant is ready and willing to surrender the vacant possession of the tenanted premises, but he wants one year time for the same. The learned counsel for the respondent herein submits that a reasonable time can be given for the same. ## **RCRev..No.75 OF 2020** ..20.. 19. Having regard to the nature of business, which is being conducted in the tenanted premises, the revision petitioner is given eight months' time to vacate the petition schedule building, on the following conditions: _(1) The revision petitioner/ tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop room within eight months from today._ _(2) The revision petitioner/ tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default._ ## **RCRev..No.75 OF 2020** ..21.. _(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondents/landlord will be at liberty to proceed with the execution of the eviction order._ Hence, this revision petition fails and dismissed accordingly. **Sd/K.HARILAL JUDGE** kkj/SB/20/03/2020 **Sd/C.S.DIAS JUDGE**