Sunny Varghese v. Bobby Mani and others (R.C.R. Nos. 180 and 196 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 RCREV. NO. 180 OF 2011** **AGAINST THE ORDER DATED 12.11.2010 IN RCA NO.33 OF 2003 OF ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM WHICH WAS FILED AGAINST THE ORDER IN RCOP NO.47 OF 1997 OF PRINCIPAL RENT CONTROL COURT, KOTTAYAM** ## **REVISION PETITIONER/5TH RESPONDENT/5TH RESPONDENT:** **SUNNY VARGHESE, AGED ABOUT 50 YEARS** **TANDOOR RESTAURANT, 838/IX/KMC, KOTTAYAM.** **BY ADV SRI.JOHN JOSEPH VETTIKAD** ## **- RESPONDENTS/APPELLANTS/PETITIONERS/RESPONDENTS 1 4** **- & 6 20:** **1 BOBBY MANI, AGED ABOUT 41 YEARS** **S/O.M.O.MANI, RESIDING AT THANNICKAL HOUSE, PAKKIL P.O., KOTTAYAM-686012.** - **2 T.J.MANI, AGED ABOUT 57 YEARS** **S/O.M.O.MANI, RESIDING AT THANNICKAL HOUSE, MANGANAM, KOTTAYAM-686 561** 2 ## **R.C.R.Nos.180 and 196 of 2011** - **3 T.J.THOMAS, AGED ABOUT 52 YEARS** **S/O.MANI JOSHUA, RESIDING AT ABU DHABI, U.A.E., REP.BY POWER OR ATTORNEY HOLDER T.J.ABRAHAM, RESIDING AT THANNICKAL HOUSE, NEAR CMS COLLEGE, KOTTAYAM-686 001.** - **4 T.J.ABRAHAM, AGED 47 YEARS S/O.MANI JOSHUA, RESIDING AT THANNICKAL HOUSE, NEAR CMS COLLEGE, KOTTAYAM- 686 001.** - **5 M.C.MATHAI, AGED ABOUT 58 YEARS REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.T.THOMAS, ORION SUPER MARKET, KOTTAYAM-686 001.** - **6 SHAHUL HAMEED, AGED ABOUT 70 YEARS SPARE PARTS MERCHANT 803/IX/KMC, PALAI STAND, KOTTAYAM- 686 001.** - **7 P.R.OMANA, AGED ABOUT 48 YEARS POPULAR RADIO SERVICE, 804/IX/KMC, PALAI STAND, KOTTAYAM-686 001.** - **8 SASIDHARAN, AGED ABOUT 45 YEARS JANATHA SOUND, 804/IX/KMC, PALAI STAND, KOTTAYAM -686 001.** ***9 ABDUL RAHIM AGED ABOUT 50 YEARS, S/O.HASSANKUTY, 805/IX/KMC, PALAI STAND, KOTTAYAM-686 001. (DELETED)** 3 **R.C.R.Nos.180 and 196 of 2011** ***10 ABDUL LATHIF AGED ABOUT 46 YEARS, S/O.HASSANKUTTY, 805/IX/KMC, PALAI STAND, KOTTAYAM.(DELETED)** ***11 ABDUL SHERIF AGED ABOUT 40 YEARS, S/O.HASSANKUTY, 805/IX/KMC, PALAI STAND, KOTTAYAM-686001 (DELETED)** ***12 SHERIF BEEVI** **AGED 72 YEARS** **W/O HASSANKUTY, 805/IX/KMC, PALAI STAND, KOTTAYAM -686001(DIED)(DELETED)** ***(RESPONDENTS 9,10,11 AND 12 ARE DELETED FROM THE ARRAY OF PARTIES, AS PER ORDER DATED 27.7.2011 IN RCR 180/11)** ****13 Y.ABDUL ASSIS AGED ABOUT 68 YEARS** **DOING BUSINESS, 806/IX/KMC, PALAI STAND, KOTTAYAM – 686001 (DELETED)** **14 Y.HANIFA RAWTHER AGED ABOUT 59 YEARS** **806/IX/KMC, PALAI STAND, KOTTAYAM 686001.** 4 **R.C.R.Nos.180 and 196 of 2011** ## ****15 SANKARA PILLAI AGED ABOUT 78 YEARS** **DOING BUSINESS, 835/IX/KMC, PALAI STAND, KOTTAYAM 686001. (DELETED)** - ***16 SHAHUL HAMEED AGED ABOUT 82 YEARS** **DOING BUSINESS 837/IX/KMC, RESIDING AT OTTAPURACKAL HOUSE, ARUPUZHA, THAZHATHANGADY, KOTTAYAM-686001. (DELETED)** ***(RESPONDENT 16 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE REVISION PETITIONER VIDE ORDER DATED 21.8.17 IN I.A.1868/17)** - ****17 CHACKO JACOB AGED ABOUT 64 YEARS** **ALANKAR FOOT WEARS, 840/IX/KMC, KOTTAYAM-686001. (DELETED)** ****(RESPONDENTS 13, 15 AND 17 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF REVISION PETITIONER VIDE ORDER DATED 21.8.17 IN IA.2122/17)** **18 P.C.JOY AGED ABOUT 70 YEARS** **FAIR DEAL CORPORTION 841/KMC, KOTTAYAM-686001.** **19 P.S.SARALA GOPI AGED ABOUT 73 YEARS** **W/O KUTTAN GOPI, ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVAS IYER ROAD, KOTTAYAM-686001** 5 **R.C.R.Nos.180 and 196 of 2011** ## **20 A.G.LAL AGED ABOUT 40 YEARS** **S/O KUTTAN GOPI, ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVAS IYER ROAD, KOTTAYAM-686001.** - **21 A.G.ANILKUMAR** **AGED ABOUT 37 YEARS, S/O.KUTTAN GOPI,** **ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVAS IYER ROAD, KOTTAYAM-686001.** **22 LAILA MURALEEDHARAN AGED ABOUT 44 YEARS** **D/O KUTTAN GOPI, ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVAS IYER ROAD, KOTTAYAM-686001.** **23 SHEELA PRABHAKARAN AGED ABOUT 42 YEARS** **D/O KUTTAN GOPI, ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVAS IYER ROAD, KOTTAYAM-686001. BY ADVS.SRI.C.S.MANILAL SRI.S.NIDHEESH SRI.T.K.HASSAN SRI.K.PAUL KURIAKOSE** ## **THIS RENT CONTROL REVISION HAVING COME UP** 6 **R.C.R.Nos.180 and 196 of 2011** **FOR FINAL HEARING ON 21.10.2022, ALONG WITH RCRev.196/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 7 **R.C.R.Nos.180 and 196 of 2011** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 RCREV. NO. 196 OF 2011** **AGAINST THE JUDGMENT DATED 12.11.2010 IN RCA NO.33 OF 2003 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY,KOTTAYAM WHICH WAS FILED AGAINST THE ORDER DATED 11.4.2003 IN RCOP NO.47 OF 1999 OF THE PRINCIPAL RENT CONTROL** **COURT, KOTTAYAM** **REVISION PETITIONERS/ RESPONDENTS 2 TO 4, 10 TO 12, 14,15 AND 17/RESPONDENTS 2 TO 4, 10 TO 12, 15 AND 16.:** - **1 SHAHUL HAMEED, SPARE PARTS, MERCHANT 803/1X/KMC, PALAI STAND, KOTTAYAM.** - **2 P.R.OMANA, POPULAR RADIO SERVICE, 804/IX/KMC, PALAI STAND, KOTTAYAM.** - **3 SASIDHARAN K.M., JANATHA SOUND, 804/IX/KMC, PALAI STAND, KOTTAYAM.** 8 **R.C.R.Nos.180 and 196 of 2011** **4 Y.ABDUL ASSIS, DOING BUSINESS IN 806/IX/KMC, PALAI STAND, KOTTAYAM.** **5 Y.MUHAMMED HANIFA RAWTHER, 806/IX/KMC, PALAI STAND, KOTTAYAM.** ******6 SANKARA PILLAI, DOING BUSINESS IN 835/IX/KMC, PALAI STAND, KOTTAYAM. (DIED. LRS IMPLEADED AS ADDL PETITIONERS 19 TO 22)** *****7 CHACKO JACOB, ALANKAR FOOT WEARS, 840/IX/KMC, PALAI STAND, KOTTAYAM.** **(DIED. LRS IMPLEADED AS ADDL PETITIONERS 14 TO 18)** ****8 P.C.JOY, FAIR DEAL CORPORATION, 841/IX/KMC, PALAI STAND, KOTTAYAM.** **(DIED. LRS IMPLEADED AS ADDL PETITIONERS 10 TO 13)** |**9**|**A.G LAL,**| |---|---| ||**S/O KUTTAN GOPI,**| ||**ADIVAKAL SUSMITHA BHAVAN,**| ||**NEAR SREENIVASA IYER ROAD,**| ||**KOTTAYAM-1.**| 9 **R.C.R.Nos.180 and 196 of 2011** ****10 MARYKUTTY JOY, W/O LATE P.C. JOY, RESIDING AT PARANGOTTU HOUSE, P.O. MOOLAVATTOM, PIN 686 026.** ****11 ANITA MATHEWS, D/O LATE P.C. JOY, RESIDING AT MODISSERIL HOUSE, P.O. KOCHI, PIN 682 033. **12 AJUNA SHAJI, D/O LATE P.C. JOY, RESIDING AT ARUKANNIL HOUSE P.O., MOOLAVATTOM, PIN 686 026. **13 ASHA GEORGE, D/O LATE P.C JOY, RESIDING AT PARANGOTTU HOUSE, P.O MOOLAVATTOM, PIN 686 026.** ****(ADDITIONAL PETITIONERS 10 TO 13 IMPLEADED VIDE ORDER DT.24/07/2017 IN I.A. 1682/2017)** *****14 CHINNAMMA JACOB, W/O LATE CHACKO JACOB, PULLADATHIL(COTTACKAL) HOUSE, KARAPPUZHA P.O, KOTTAYAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN-686 003.** 10 **R.C.R.Nos.180 and 196 of 2011** *****15 LEO JACOB, S/O LATE CHACKO JACOB, PULLADATHIL(COTTACKAL) HOUSE, KARAPPUZHA P.O, KOTTAYAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN-686 003.** *****16 LIJO JACOB, S/O LATE CHACKO JACOB, PULLADATHIL(COTTACKAL) HOUSE, KARAPPUZHA P.O, KOTTAYAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN-686 003.** *****17 LINESH JACOB, S/O LATE CHACKO JACOB, PULLADATHIL(COTTACKAL) HOUSE, KARAPPUZHA P.O, KOTTAYAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN-686 003.** *****18 THANYA JACOB @ THANYA ABRAHAM, D/O LATE CHACKO JACOB, NEDUMCHIRA, CHENGALAM KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN-686 003.** *****(ADDITIONAL PETITIONERS 14 TO 18 ARE IMPLEADED VIDE ORDER DATED 24/07/2017 IN I.A 1793/2017)** ******19 SHOBANA C.S., D/O.SANKARA PILLAI, DEVIKRIPA, GANDHI NAGAR P.O., KOTTAYAM-686 008, PERUMBAYIKKAD VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** 11 ## **R.C.R.Nos.180 and 196 of 2011** ******20 PRAKASH KUMAR C.S., S/O.LATE SANKARA PILLAI, 'SREESHYLAM', GANDHI NAGAR P.O., KOTTAYAM-686 008, PERUMBAYIKKAD VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** ******21 GOPAKUMAR C.S., S/O.LATE SANKARA PILLAI, 'VISHNUKRIPA', GANDHI NAGAR P.O., KOTTAYAM-686 008, PERUMBAYIKKAD VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** ******22 SAJIKUMAR C.S., S/O.LATE SANKARA PILLAI, CHITTETHU, GANDHI NAGAR P.O., KOTTAYAM-686 008, PERUMBAYIKKAD VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** ******(ADDL.PETITIONERS 19 TO 22 IMPLEADED VIDE ORDER DATED 24/7/2017 IN IA 1799/2017)** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR(SR.) SRI.K.PAUL KURIAKOSE** **RESPONDENTS/APPELLANTS 1 TO 4 AND RESPONDENTS 1, 5 TO 9, 13, 16 AND 18 TO 20/ PETITIONERS 1 TO 4 AND COUNTER PETITIONERS 1, 5 TO 9 AND 14:** **1 BOBBY MANI, S/O M.O MANI, RESIDING AT** **THANNICKAL HOUSE, PAKKIL P.O., KOTTAYAM-12.** 12 ## **R.C.R.Nos.180 and 196 of 2011** - **2 T.J.MANI, S/O.MANI JOSHUA, RESIDING AT** **THANNICKAL HOUSE, MANGANAM, KOTTAYAM.** - **3 T.J.THOMAS, S/O.MANI JOSHUA** - **RESIDING AT ABUDABI, U.A.E., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER T.J.ABRAHAM, RESIDING AT THANNICKAL HOUSE, NEAR C.M.S.COLLEGE, KOTTAYAM-1.** **4 T.J.ABRAHAM, S/O.MANI JOSHUA RESIDING AT THANNICKAL HOUSE, NEAR C.M.S.COLLEGE, KOTTAYAM-1.** - ***5 M.C.MATHAI, REPRESENTED BY P.T.THOMAS HIS POWER OF ATTORNEY HOLDER, ORION SUPERMARKET, KOTTAYAM. (DELETED)** - **6 SUNNY VARGHESE, TANDOOR RESTAURANT 838/IX/KMC, KOTTAYAM.** - ***7 ABDUL RAHIM, S/O.HASSANKUTTY 805/IX/KMC, PALAI STAND, KOTTAYAM. (DELETED)** 13 **R.C.R.Nos.180 and 196 of 2011** ***8 ABDUL LATHIF, S/O.HASSAN KUTTY 805/IX/KMC, PALAI STAND, KOTTAYAM. (DELETED)** - ***9 ABDUL SHERIF, S/O.HASSAN KUTTY 805/IX/KMC, PALAI STAND, KOTTAYAM. (DELETED)** - ***10 SHERIF BEEVI, W/O.HASSANKUTTY** **805/IX/KMC, PALAI STAND, KOTTAYAM (DIED). *(DELETED)(RESPONDENTS 5,7,8,9 AND 10 ARE DELETED FROM THE ARRAY OF PARTIES VIDE ORDER DATED 27/07/2011 IN RCR 196/2011)** ****11 SHAHUL HAMEED, DOING BUSINESS IN** **837/IX/KMC, RESIDING AT OTTAPURACKAL HOUSE, ARUPUZHA, THAZHATHANGADY, KOTTAYAM. (DIED)** ****(IT IS RECORDED THAT R11 DIED AND NOT A NECESSARY PARTY AND THAT IT IS NOT NECESSARY TO IMPLEAD THE LEGAL HEIRS AS ADDTTIONAL RESPONDENTS IN THE REVISION AS PER ORDER DATED 17/07/2017 IN MEMO DATED 12/07/2017) (CF.2537/2017).** **12 P.S.SARALA GOPI, W/O.KUTTAN GOPI** **ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVASA IYER ROAD, KOTTAYAM-1.** 14 ## **R.C.R.Nos.180 and 196 of 2011** **13 A.G.ANILKUMAR, S/O.KUTTAN GOPI** **ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVASA IYER ROAD, KOTTAYAM-1.** - **14 LAILA MURALEEDHARAN, D/O.KUTTAN GOPI,** **ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVASA IYER ROAD, KOTTAYAM-1.** - **15 SHEELA PRABHAKARAN, D/O.KUTTAN GOPI,** **ADIVAKAL SUSMITHA BHAVAN, NEAR SREENIVASA IYER ROAD, KOTTAYAM-1.** **BY ADVS.SRI.C.S.MANILAL SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.10.2022, ALONG WITH RCRev..180/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 15 **R.C.R.Nos.180 and 196 of 2011** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** **R.C.R.Nos.180 and 196 of 2011** **------------------------------------------Dated this the 21[st] day of October, 2022** ## **O R D E R** ## **C.S.Sudha, J.** These R.C.Rs. have been filed under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act). R.C.R.No.180/2011 has been filed by the fifth respondent/tenant against the judgment dated 12/11/2010 in R.C.A.No.33/2003 on the file of the Rent Control Appellate Authority (RCAA), Kottayam, reversing the order dated 11/04/2003 in R.C.P.No.47/1997 on the file of the Rent Control Court (RCC), Kottayam. The respondents herein are the appellants and respondents 1 to 4 and 6 to 20 in the appeal. R.C.R.No.196/2011 has been filed by respondents 2 to 4, 10 to 12, 14, 15 and 17 in R.C.A.No.33/2003. The parties in these revision petitions will be referred to as described in the R.C.Ps. 2. The petitioners, the owners of the building which houses the petition schedule rooms, sought eviction under Sections 11(2)(b) and 11(4)(iv) of the Act. Section 11(2)(b) was not pressed during the course of the proceedings. As far as the ground under Section 11(4)(iv) is concerned, the RCC was of the opinion that the need alleged is not _bona_ 16 ## **R.C.R.Nos.180 and 196 of 2011** _fide_ and hence dismissed the R.C.P. In R.C.A.No.33/2003 filed by the petitioners against the order of dismissal, the RCAA disagreed with the said view of the RCC and after a re-appreciation of the evidence, the RCAA found the need to be _bona fide_ and hence reversed the finding of the RCC and ordered eviction under Section 11(4)(iv) of the Act. Aggrieved, the respondents/tenants have come up in revision. 3. The only point that arises for consideration is whether the findings of the courts below suffer from any illegality, irregularity or impropriety. 4. Heard Adv.John Joseph Vettikad, the learned counsel for the revision petitioner in R.C.R.No.180/2011 and Adv.Gopikrishnan Nambiar, the learned Senior counsel for the revision petitioners in R.C.R.No.196/2011 and Adv.C.S.Manilal, the learned counsel for the respondents. 5. According to the learned counsel for the respondents, the RCAA substantially erred in reversing the order of the RCC, a well reasoned order, relating to lack of _bona fides_ on the part of the petitioners. The RCAA failed to take note of the fact that though Ext.A5 agreement has been executed among the petitioners relating to reconstruction of the building, there is every possibility of differences of opinion cropping-up in the matter of reconstruction among the petitioners. According to the learned counsel, Ext.A5 provides no mechanism to resolve the differences 17 ## **R.C.R.Nos.180 and 196 of 2011** if any that may arise among the petitioners. It is also pointed out that the decision relied on by the RCAA, namely, **Subramaniyan Pillay v. Shamsar Jihan, 2009(1)KLT 425** to find that non examination of the other petitioners to be of no consequence, does not lay down any universal principle and that the same depends upon the facts and circumstances of each case. 6. We were taken through the reasonings of the RCC as well as the RCAA in arriving at the respective conclusions. The RCC as rightly pointed out by the RCAA, has based its findings on assumptions, presumptions and conjunctures and imaginary differences of opinion that are likely to arise in the future among the petitioners. No evidence or materials are referred to by the RCC on the basis of which it arrived at such a conclusion. If the petitioners do not reconstruct the building, remedies are provided to the tenants under the statute. Therefore the grounds or reasonings given by the RCC are not correct and therefore it has rightly been reversed by the RCAA. 7. The fact that the building is an old and dilapidated one and that it requires reconstruction, has been brought out. The fact that the petitioners have the ability to reconstruct, has also been established. It is also pointed out that the validity of the permit and licence has expired. The R.C.P. is of the year 1999. At that point of time, the petitioners did have a valid permit and licence. The petitioners cannot be expected to 18 ## **R.C.R.Nos.180 and 196 of 2011** keep on renewing the same till a final order in the R.C.P. is obtained. It is sufficient if valid licence and permit are obtained before the reconstruction starts as held by the Apex Court in **Harrington House School v. S.M.Istahani, AIR 2002 SC 2268** . It is sufficient that the landlord produces the renewed plan and permit before the executing court (See also **Jose v. Thomas, 1992(1) KLT 158** ). The RCAA has considered all the aspects of the case in detail and held that the petitioners-landlords are entitled to an order of eviction under Section 11(4)(iv) of the Act. We do not find any illegality, irregularity or impropriety warranting an interference by this Court. In the result, the R.C.R. is dismissed. The judgment in R.C.A.No.33/2013 ordering eviction under Section 11(4)(iv) is confirmed. The respondents shall vacate the petition schedule room within a period of one month from the date of this order. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/