Sunil K.K. v. Mary Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 27TH DAY OF SEPTEMBER 2019 / 5TH ASWINA, 1941** **RCRev..No.279 OF 2016** **AGAINST THE ORDER IN RCA 26/2015 OF RENT CONTROL** **APPELLATE AUTHORITY, ERNAKULAM** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **SUNIL K.K. AGED 49 YEARS, S/O.SRI.LALAN, AISWARYA ENGINEERING WORKS, NEAR KAIRALI VAYANASALA,THURUTHEPARAMBU ROAD, VAZHAKALA, ERNAKULAM,PIN-682 021.** **BY ADVS. SRI.V.RAMKUMAR NAMBIAR SRI.G.RAJAGOPAL SRI.R.SURENDRAN** ## **RESPONDENT/RESPONDENT/PETITIONER:** **MARY JOSEPH AGED ABOUT 70 YEARS, W/O.LATE SRI. K.M.JOSEPH,KURISINGAL HOUSE, VAZHAKALA, THRIKKAKARA P.O.,ERNAKULAM, PIN-682 021 IN VAZHAKALA VILLAGE,KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **R1 BY ADV. SRI.SUDHEESH S. R1 BY ADV. SRI.ANIL S.RAJ R1 BY ADV. SMT.ANILA PETER R1 BY ADV. SMT.K.N.RAJANI R1 BY ADV. SRI.RADHIKA RAJASEKHARAN P.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09-07-2019, THE COURT ON 27-09-2019 PASSED THE FOLLOWING:** **RCRev..No.279 OF 2016** **2** ## **ORDER** ## **Shircy V, J** The revision petitioner/tenant is aggrieved by the concurrent findings of both the authorities below that he is liable to be evicted under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short 'the Act'). 2. The factual matrix leading to the filing of this revision petition briefly is as under: The petition schedule building, a two shutter room measuring 400 sq. ft situated in Thrikkakkara village is owned by the landlady. The room was let out for running an engineering workshop as per a rent deed dated 12.10.2000 which was renewed on 1.10.2005. The present rate of rent is Rs.2,800/- per month. The petition schedule room is required to start a business for computer peripherals and accessories for her daughter-in-law. She is solely dependent on her for the business. No other suitable building or rooms are available in the city or in the locality for the requirement of her daughter-in-law. Though **RCRev..No.279 OF 2016** **3** the tenant agreed to vacate the premises, did not vacate in-spite of notice dated 11.1.2012.The income he derives from the petition schedule room is not his only source of income as he is engaged in so many other business which would generate income. 3. Per contra, the tenant disputing the bona fide need set up in the petition, filed a counter statement. He is running a workshop and lives with the income he derives from the business. No suitable building is available in the locality to run his business. The petition was filed to claim exorbitant rent from him. The allegation that the room is required for her daughter-inlaw to run a business is untrue and it is only a ruse to evict him. 4. Before the Rent Control Court, the landlady was examined as PW1 and another witness was examined as PW2. Exts. A1 to A3 were also marked on the side of the land lady. The tenant was examined as RW1 and Exts.B1 to B5 were marked on his side. Ext. C1 was also marked. 5. The Rent Control Court, after evaluation and appreciation of the evidence adduced by the parties, allowed the **RCRev..No.279 OF 2016** **4** petition as prayed for with a direction to the tenant to vacate the premises within a period of 30 days. 6. The said order was challenged in RCA No.26 of 2015 by the tenant. By a judgement dated 19[th] July, 2016, the order of the Rent Control Court was confirmed and appeal was dismissed. Aggrieved by the said judgement, this revision petition has been filed at the instance of the respondent/tenant. 7. Heard Adv.V. Ramkumar Nambiar, the learned counsel for the revision petitioner/tenant and Adv. Anil S. Raj, the learned counsel for the respondent/landlady. 8. The learned counsel for the tenant vehemently contended that both the courts ignored the material facts and did not properly appreciate the evidence adduced by the parties. It is pointed out that the records would reveal that a vacant room is available with the landlady in the very same building and she had to admit it when she was examined before the court. But no special reason was stated by her for seeking the tenanted premises for her purpose without occupying the vacant room and **RCRev..No.279 OF 2016** **5** that itself would tell upon the genuineness of her need. Both the authorities did not consider that fact in the correct perspective and wrongly concluded that the failure to state special reasons is not fatal to the case of the landlady. Both the courts below have materially erred in not appreciating the said fact. 9. Under Section 20 of the Act this Court is not expected to re-appreciate the evidence but the consideration of evidence can only be confined to find out whether there is any illegality, irregularity or impropriety in the impugned order. ## 10. In **Abdul Salam vs. Sebastian** [2013(4) KLT 592] a Division Bench of this Court observed in para 15 as follows: 15 ''..... When the argument is that the approach made by the authorities are perverse, it cannot be said that this Court cannot look into the pleadings and scan through the evidence to find out whether conclusions have been arrived at properly on the pleadings and evidence'' 11. Admittedly, the tenanted premises is a two shutter shop room in the ground floor of a building having four rooms. Eviction was sought for by the landlady to set up a business **RCRev..No.279 OF 2016** **6** establishment for her daughter-in-law who is depending upon her for the business proposed to be started in the tenanted premises occupied by the tenant. The Rent Control Court as well the Appellate Authority ordered eviction under Section 11(3) of Rent Control Act on the finding that the bona fide need urged by the landlady is genuine and not a ruse for eviction as contended by the tenant. The tenant has vehemently contended that the landlady in cross examination had admitted that a room on the southern side of the building is in her possession and is lying vacant even before the petition and so the contention raised by her that no vacant rooms are with her for conducting the business is absolutely false. It is a fact that at the instance of the landlady, a Commission was taken out and the Commissioner has filed a report as Ext.C1. In Ext.C1 it has been clearly reported by the Commissioner that the tenanted premises is a two shutter shop room situated in the middle of the ground floor of a four room building and one single shutter room having a plinth area of around 160 sq.feet adjoining to the petition schedule room is lying vacant and it is in the possession of the landlady. As PW1 she had **RCRev..No.279 OF 2016** **7** fairly admitted that the said room was occupied by a tenant and he vacated the same in the year 2007. Therefore, from 2007 onwards the room was lying vacant ie; even before the filing of the Rent Control Petition. But it is pertinent to note that she failed to disclose the said fact in her pleadings though she deposed in box, that the said room is a small one not suitable for the proposed business. The learned Counsel for the tenant relying on various decisions of the Apex Court as well this Court, (which could be dealt with in detail later) had argued that the petitioner has not shown special reasons in the petition for not using the same for the proposed business. 12. Before we examine respective contentions of the learned counsel for the parties, it would be appropriate to extract Section 11(3) and the 1[st] proviso to Section 11(3) of the Act which reads as under :- “11(3) A 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 dependant on him: **RCRev..No.279 OF 2016** **8** 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 jut and proper to do so.” 13. It is well settled that the burden of proof of establishing that the landlord/landlady has ownership and possession over another building in the same city or town is on the tenant who claims the benefit under the proviso. But when the initial burden is discharged by the tenant, the burden shifts to the landlord to establish special reasons not to occupy the said premises, but for seeking eviction of the tenant from the tenanted premises. Here, the fact that the landlady is in possession of vacant room in the very same building was not disclosed in the petition, but when it was revealed from the commission report, the landlady had to admit it before the Court. According to the learned counsel for the tenant that itself would show the malafide intention of the landlady that the need projected is a pretext for eviction to rent out the shop room for higher rent. **RCRev..No.279 OF 2016** **9** ## 14. The learned Counsel for the tenant has relied on the decision in **M.M.Quassin v Manohar lal and others (AIR 1981 SC 1113)** where it was observed in para 18 as under 18 ''…...........Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession,that by itself may not be sufficient to negative the landlord's claim but in such a situation the court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the court …....'' Relying on the said decision a Division Bench of this Court in **Janatha Drugs v. Maithri Construction [2007(4) KLT 625]** held that the burden is on the landlord to plead and prove special reasons when he gets possession of the other rooms. In **Mareena @ Santha v. Elizebath and another [2013 KHC 222]** this Court observed in para No.12 as follows: “.....Suffice it to say that after the room was obtained by the landlady, attempts should have been made to bring the matter to the notice of the Court by **RCRev..No.279 OF 2016** **10** amending pleadings showing special reasons, if any, and adducing evidence with regard to the same. In the absence of the same, the conclusion made by the Appellate Authority that the room in question is more suitable for conducting business in computer cannot be supported.” In **Abdul Salam's case** (supra) the Division Bench held in paragraph 12 as follows. “12......True that in the eviction petition the landlord has to only give the particulars but, at the time of evidence he will have to establish by proof as to how the inconveniences have occurred requiring landlord to shift its office to the room occupied by the tenant. No attempt has been made by the landlord while being examined by the court or while filing the chief affidavit to explain the inconveniences also. What has been explained is a lone sentence in para 3 of the chief affidavit which we have extracted in para 9 above. It is argued by the learned counsel for the landlord that the burden is on the tenant to disprove it which we cannot agree. He has not discharged the burden by adducing evidence in support of the plea of inconvenience. In a case like this where the landlord clearly admitted in evidence that vacant rooms are in their possession **RCRev..No.279 OF 2016** **11** which are having independent entries, the first proviso to S.11(3) of the Act obliges the landlord to attribute special reasons for not occupying it. Then only the Court will be able to analyse it and can go into the sufficiency of the said reasons. Under S.11(3) of the Act what the landlord is to establish is a genuine bonafide need and it is well settled that a mere desire is not sufficient.” 15. In **Chandran v. Sunil Kumar [2004 (3) KLT** **420]** it has been observed by another Division Bench of this Court that facts brought out by way of cross-examination are not substitute for pleadings. Pleadings have to contain the material facts on which the party relies on claim or defence as the case may be, but not the evidence on which they are to be proved. 16. On the other hand, the learned Counsel for the landlady has heavily relied on the decision in **Raghavan vs. Govindan Nambiar [1995 KHC 109]** and argued that the primary burden to show that landlord has a building of his own in possession, is of course on the tenant unless it is an admitted fact. When once it is shown that the landlord is in possession of another building of his own in the same town or village, the **RCRev..No.279 OF 2016** **12** burden swings over to the landlord to establish special reasons. This burden can be discharged either by his own evidence or through the answers elicited from the witnesses of the tenant or through other modes. 17. It has also been pointed out that the Apex Court in **M.L. Prabhakar** v. **Rajiv Singal** (2001 KHC 1023) while dealing with Section 14(1)(e) of the Delhi Rent Control Act, which is pari materia to proviso 1 of 11(3) of the Act, relying on the decision of the same court in **Ram Narain Arora** v. **Asha Rani and ors.** (1999 (1) SCC 141) observed that even though the landlord has not mentioned about the other premises, the material in respect of the other premises was placed before the rent controller as well as before the High Court, thus no prejudice has been caused and that the parties have squarely dealt with this question. Relying on this observation of the Apex Court, it has been argued that materials in respect of the vacant room in the possession of the landlady was before both the authorities and hence no prejudice was caused to the tenant due to the non-disclosure of the same and it is not fatal to the case of the landlady. **RCRev..No.279 OF 2016** **13** ## 18. The landlady also seeks support of the decision in **Jerry Joseph v. Selvaraj [2002 KHC 398]** where it has been observed in paragraph 17 and 18 as follows . “17. The Rent Control Court as well as the appellate authority found that the non disclosure of the availability of alternate accommodation in the petition by the revision petitioner is fatal and that fact goes against the bona fides of the claim for eviction made by the petitioner under S.11(3) of the Kerala Act 2/1965. 18. It is now settled that even if the landlord failed to mention in the petition for eviction about the other premises belonging to him, if materials about those alternate accommodation have been placed before the court and the matter has been adequately considered by the court without causing any prejudice to the tenant, the non disclosure of the availability of buildings in the petition is immaterial.” ## 19. In **Madhava v Pathumabi (2005 KHC 993)** it was held that it is for the landlord to decide whether the space available is sufficient for the need. Adequacy of the space is a matter to be considered by the landlord. The tenant cannot have a dictatorial role in that assessment of the landlord. **RCRev..No.279 OF 2016** **14** 20. Relying on these decisions the learned Counsel for the landlady would argue that no prejudice was caused to the tenant due to the non disclosure of the availability of the small room on the southern side of the tenanted premises and the parties understood the case from the materials placed before the Court. Therefore, there is no illegality, irregularity or impropriety to exercise revisional jurisdiction under S.20 of Act. 21. The Rent control Court as well the appellate authority concurrently found on the basis of data available that bona fide need put forward by the land lord is genuine. We find no material to hold otherwise. But it is to be noted that landlady had in her ownership the vacant possession of the southern side room from the year 2007 ie; even before the time of filing of the Rent Control Petition. As referred above, there was no plea regarding it but she had admitted the same only when she was cross examined by the learned Counsel for the tenant. Therefore, the facts involved in **M.L. Prabhakar's case** (supra) is different from the facts of this case. In our considered view, the words 'special reasons' stress that the very reason for not occupying or **RCRev..No.279 OF 2016** **15** utilizing the vacant space in possession, the difficulty or inconvenience in using it and demanding the schedule room itself should be made clear by pleadings and evidence; otherwise it would cause prejudice to the tenant. The available records do not indicate that both the parties understood the case of special reason for not occupying the vacant premises without necessary pleadings from the materials placed and therefore, no prejudice has been caused to the tenant. The landlady is bound to explain about the premises which has been in her possession even before filing of the Rent Control Petition and the special reasons for demanding the tenanted premises. When the legislature insists for special reasons for not occupying the premises in her possession, it is not just and proper to evict the tenant from the premises in the absence of the same specifically in the pleadings as well in the evidence. 22. In the light of the evidence adduced in this case, in fact we are of the view that the non disclosure of the vacant room in the possession of the landlady is fatal to the case put forward by the landlady. Still, we find that it is just and proper to give an **RCRev..No.279 OF 2016** **16** opportunity to the landlady to show the special reason for not choosing to occupy the premises which was in her possession even before filing of the petition. In the interest of justice, we find that the case can be remanded to the court below to give an opportunity to the landlady to plead the special reasons for not choosing to occupy the premises in her possession for the proposed business. There is absolutely no reason to interfere with the finding regarding the claim put forth by the landlady and we too find that bona fide need is established by her. But as she failed to establish special reasons for not occupying the said room to start the proposed business for her daughter-in- law, we think that it is just and proper to afford an opportunity to her to file an amendment petition to plead that aspect alone. The tenant is also given liberty to file counter to the pleadings thus raised by the landlady by way of amendment. We, therefore set aside the impugned order of the Appellate Authority and the Revision Petition is allowed. The matter is remanded back to the Rent Control Court for affording an opportunity to the landlady to amend the pleadings and to **RCRev..No.279 OF 2016** **17** adduce evidence for not choosing to occupy the premises that was in her possession even before the filing of the petition. Both the parties will be given appropriate opportunity to adduce evidence with regard to the said aspect. For this limited purpose alone, the matter is remanded to the Rent Control Court. The parties are directed to bear their respective costs in this proceedings. The parties shall mark their appearance before the Rent Control Court on 10.10.2019. Transmit the records forthwith. Sd/- A.HARIPRASAD JUDGE 27.09.2019. Sd/SHIRCY V JUDGE smm **RCRev..No.279 OF 2016 18**