T.A. Nazar and others v. Sabu

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939** **RCRev..No. 151 of 2017 () --------------------------** **AGAINST THE JUDGMENT IN RCA 24/2016 of II ADDL. DISTRICT JUDGE(RENT CONTROL APPELLATE AUTHORITY),KOLLAM DATED 24-03-2017** **AGAINST THE ORDER/JUDGMENT IN RC(OP) 14/2014 of RENT CONTROL COURT, KOLLAM DATED 31-08-2016** ## **PETITIONERS/APPELLANTS/RESPONDENTS:** **------------------------------------** ## **1. T.A. NAZAR,AGED 60** **S/O.ABDUL KHARIM,MERCHANT,NEW STORES,MUKKADA, KUNDARA,RESIDING AT THOTTUMMUKHATHU VEEDU, MANGAD CHERRY,KILIKOLLOOR VILLAGE,KOLLAM.** **2. THANOOBA,** - **AGED 48 YEARS,W/O.T.A.NAZAR,RESIDING AT THOTTUMMUKHATHU VEEDU,MANGAD CHERRY, KILIKOLLOOR VILLAGE,KOLLAM.** **3. T.A.MANZOOR,** - **AGED 53 YEARS,B/O.THANOOBA,RESIDING AT THOTTUMMUKHATHU VEEDU,MANGAD CHERRY,KILIKOLLOOR VILLAGE,KOLLAM.** **4. M/S.NEW STORE, BUILDING NO.EP XV/804,MUKKADA,KUNDARA, KOLLAM.** ## **BY ADV. SRI.TOM K.THOMAS** **RESPONDENT/RESPONDENT/PETITIONER:** **---------------------------------** ## **SABU,** **AGED 62 YEARS,S/O.GANGADHARAN,NEEROZHUKKU VEEDU, FROM MANGALASSERY, THADATHIVILA VEEDU,KANJIRACODE CHERRY, MULAVANA VILLAGE,KOLLAM.691001** ## **BY ADV. SRI..GEORGE VARGHESE (MANACHIRACKEL) (CAVEATOR)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **kp** ## **P.N.RAVINDRAN & DEVAN RAMACHANDRAN, JJ.** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=** R.C.R.No.151 of 2017 **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=** Dated this the 24[th] day of May, 2017 ## **ORDER** ## _**Devan Ramachandran, J.**_ The unsuccessful tenants in the statutory appeal filed under the provisions of the Rent Control Act is before us in this revision. For the purpose of convenience we will be referring to the parties in this judgment as Landlord and Tenants. 2. Compendiously stated, the rent control petition was instituted by the landlord of the building seeking eviction against the tenants on the ground that he requires the building for the purpose of starting a Panchakarma Clinic and an Alopathy Clinic for the benefit of his children who are depending upon him for such accommodation. The tenants/appellants-herein refuted the assertions of the landlord/respondent-herein on the allegation that the need urged by him is not bona fide and that it is only a ruse or pretext to evict them so to use the building for being let out to other persons. They assert that the landlord was trying to find reasons to evict them for last several years and that they have even gone to the extend of challenging and impeaching the character and conduct of the landlord in their oral testimony. R.C.R. No. 151 of 2017 -:2:- 3. The tenants maintain that the mere expression of desire would not be sufficient for a landlord to get an order of eviction and they rely on the judgment of this Court reported in **Anandaraja Guptha K.N.** v. **D.V.Usha Vijaykumar** 2008 KHC 5170. The tenants specifically allege that the landlord is in possession of another shop room which can be offered by him to his children for their business if it is so required. 4. _Au contraire_ , the landlord avouches that he requires the petition schedule building to offer accommodation for his children because the other shop room which he possesses is being used by him for his business as a lottery agency. 5. The Rent Control Court, on evaluation of all the evidence on record, found the need asserted by the landlord to be bona fide and ordered eviction, declining the benefit of the second proviso to Section 11(3) to the tenants. The Rent Control Appellate Authority has confirmed these findings. It is in the said circumstances, that the tenants are before us in this revision. 6. We have heard Mr. Tom K. Thomas, the learned counsel for the revision petitioners and Mr. George Varghese learned counsel for the respondent who have lodged a caveat in this matter. We have also considered in detail the materials on record and the evidence let in by both parties. R.C.R. No. 151 of 2017 -:3:- 7. We see the contention of the tenants that ever since 1958, the tenancy was in force beginning with the lease agreement that was entered into with the landlord's father. The tenants say that the conduct of the landlord in suppressing the fact that the lease was originally entered into with his father would go to show the need now claimed by him is only a stratagem employed for the purpose of obtaining their eviction one way or other. We see that the landlord had, in refutation to these allegations, offered himself as a witness as PW1 and that he had deposed specifically with respect to the need that was projected by him, that is, to provide accommodation for his children. The children of the landlord were also examined as PW2 and PW3 who have also deposed unequivocally as to their need for accommodation to start the clinics as has been asserted by their father, namely the landlord. 8. The Rent Control Court, as we can see from its judgment, concluded the bonafides of the need of the landlord in his favour. It, thereafter, assessed the entitlement of the tenants to the benefit of the second proviso to Section 11(3) and found on the basis of evidence and the deposition of PW4 that he was not so entitled to and there were other building available for the purpose of alternative accommodation, disentitled him to any benefits under the proviso. The Rent Control Court on a conspectus of all the evidence and factors R.C.R. No. 151 of 2017 -:4:- before it allowed the rent control petition, thus compelling the tenants to file an appeal against it as R.C.A.No.24 of 2006 before the Court of the II Additional District Judge (Rent Control Appellate Authority), Kollam. 9. The learned Rent Control Appellate Authority, had made an assessment of the all the evidence and pleadings very meticulously and exhaustively, and being without any reason to disagree with the findings and conclusions of the Rent Control Court, was pleased to dismiss the appeal confirming the order of the Rent Control Court. 10. We see that there is no dispute as to the tenancy arrangement between the landlord and the first respondent/the first appellant herein. It is also virtually admitted and proved that the tenancy arrangement has been commenced in the year 1958 under an agreement of lease with the landlord's father. The landlord has pleaded and established with cogent and reliable material that the need that has been impelled by him, which is to provide accommodation for his dependent children for the starting of a Panchakarma and Alopathy clinic, are virtually unimpeached and without any contra evidence. Undoubtedly, the only defence that has been taken by the tenant is that the landlord has only shown a desire to start a clinic in that building and that he has not taken any definite step for the purpose of fulfilling such desire. R.C.R. No. 151 of 2017 -:5:- 11. We cannot, but notice that the evidence of PW1 and PW3, who are the children of the landlord, are very specific, where they say that they are not merely desirous of starting a clinic or a hospital in the said building but that they are in the process of canvassing and engaging all requisite resources for the purpose of such business. PW2 and PW3 have stated assertively that they have no other accommodation and they are dependent on their father for the purpose of such accommodation. The evidence of PW1 to PW3 virtually remains uncontroverted and we see no reason in any manner to dissuade or persuade ourselves to disbelieve the evidence that has been given by the witnesses. 12. We also can see that several documents have been brought on record and marked as exhibits in an endevour to establish the tenants' additional contention that the landlord has another room in the said building and that he has let that to another person as a proxy for conduct of a lottery business. However, we see that the documents and the evidence on record do not substantiate this and on the contrary establishes that the landlord himself is conducting a business in the said shop room. This, certainly, does not in any manner disentitle the landlord from seeking eviction of the additional shop rooms for the purpose of accommodating his children who are dependent upon him for such accommodation. We are firm in our R.C.R. No. 151 of 2017 -:6:- mind that even assuming that the landlord is seen to have another shop room in his building, which is put to him for his own purposes, it would not disentitle him in any manner to seek eviction for the purpose of his children as long as the evidence is clear that the children have no other means of accommodation and that they are depending on their father for such purpose. 13. We have also considered in detail the contention of the tenant that he is entitled to the benefit of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. We see that the learned Rent Control Court and the learned Appellate Authority has assessed the materials on record available, specifically in the light of evidence given by PW2 and PW4 and has entered into a conclusion that it is not possible to hold that the vacant rooms as mentioned in Ext.B26 register is not available. It is also now established that merely for the reason that no building is noted in the register of accommodation, a conclusion cannot be drawn affirmatively that vacant rooms are not available in the locality. We are afraid that the tenants have not been able to move forward or to establish there were no vacant rooms in the locality, except by producing Ext.B26 register, which as we have already noticed could not be a conclusive evidence as to whether rooms are available in the locality. 14. In such circumstances, we see no reason to differ from the R.C.R. No. 151 of 2017 -:7:- view taken by the learned Rent Control Court or the concurrent finding of the Rent Control Appellate Authority and we are, therefore, persuaded only to confirm the orders, impugned herein. 15. At this point of time Mr.Tom K. Thomas, learned counsel appearing for the tenants prays that his clients may be given time till 31[st] of March, 2018 to evict themselves from the building because they have been in continuous possession from the year 1958. He says that his clients are making every endevour to find alternative accommodation and that they would evict themselves if they are given this period of time. The learned counsel for the landlord opposes this request because the time that has been asked for, according to him, is excessive and he prays that it may be limited to three months and no more. 16. We have considered the submissions very anxiously. Since we notice that the tenants have been in possession of the building concededly from 1958, we are of the view that he must be provided some latitude in finding alternative accommodation and for such purpose we are of the firm opinion that the period of about eight to nine months would be sufficient. We are also thinking in these lines because we see the submission of Mr.Tom that his clients have made substantial investment in the business and that it would require some time to relocate the business to another premises. R.C.R. No. 151 of 2017 -:8:- 17. In a summation of all that we have said above, we are of the view that the rights of the landlord would be taken care of and equity would be preserved between the parties, if the tenants are directed to give vacant possession of the building to the landlord on or before 31[st] of March, 2018. 18. We, therefore, direct the tenants to file an appropriate affidavit before the Rent Control Court within a period of two weeks from the date of receipt of a copy of this order, stating specifically that they would vacate from the building on or before 31.3.2018. The tenants shall also affirm in the affidavit that they shall not grant possession of the building to any other person and that they shall not cause any waste or commit any act leading to reduction of utility to the building until such time as they evict themselves in terms of this order. 19. In order to maintain equity between the parties, for the period that we have given for the tenants to evict themselves, we are of the opinion that the tenants can be directed to pay 6,000/- as rent₹ from the 1[st] of June, 2017, until such time as the tenants evict themselves in terms of this order, which shall be tendered to the landlord not later than the 5[th] of every month, beginning from 5[th] of June, 2017. Needless to say, if the tenants/appellants herein do not file an affidavit within the time granted by this order or commit default in R.C.R. No. 151 of 2017 -:9:- payment of the rent as fixed by us herein, the landlord will be at liberty to seek eviction of the orders of the courts below in terms of law without any further order. This revision petition is thus disposed of. sd/- **P.N.RAVINDRAN JUDGE** sd/- **DEVAN RAMACHANDRAN JUDGE** kp