Thomas Paul v. Lissa Jain and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 3RD DAY OF OCTOBER 2017/11TH ASWINA, 1939 RCRev..No. 137 of 2016 -------------------------RCA 16/2014 of THE ADDL.RENT CONTROL APPELLATE AUTHORITY-I, KOTTAYAM DATED 30-01-2016 RCP 36/2012 of ADDL.RENT CONTROL,KOTTAYAM DATED 20-02-2014 REVISION PETITIONER/IST RESPONDENT/1ST COUNTER PETITIONER ------------------------------------- THOMAS PAUL AGED 63, S/O. THOMAS, RESIDING AT KANNOTHRA HOUSE, MANGANAM KARA, VIJAYAPURAM VILLAGE, (JACKSON MEDICAL STORES, PALLATHETTU BUILDINGS, KOTTAYAM - 686001) BY ADVS.SRI.K.JAYAKUMAR (SR.) SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY SRI.JOSEPH ABRAHAM (KOTTAYAM) RESPONDENT(S)/APPELLANTS: ------------------------- ## 1. LISSA JAIN AGED 41, W/O. LATE JAIN, PALLATHETTU HOUSE, THRUNAKKARA KARA, KOTTAYAM VILLLAGE, PIN -686001. ## 2. NAMITHA SUSAN JAIN, AGED 21, D/O.LISSA JAIN, PALLATHETTU HOUSE, THRUNAKKARA KARA, KOTTAYAM VILLLAGE, PIN -686001. ## 3. NIVIA MARIAM JAIN, AGED 16, MINOR REP. BY GUARDIAN LISSA JAIN, PALLATHETTU HOUSE, THRUNAKKARA KARA, KOTTAYAM VILLLAGE, PIN -686001. ## 4. ULAHANNAN JOHN, AGED ABOUT 79, S/O. ULAHANNAN, THOTTATHIL HOUSE, NATTASSERY, PERUMBAIKADU VILLAGE, (PALLATHETTU BUILDING, ROOM NO. IX/864, KOTTAYAM-I) PIN -686006. RCRev..No. 137 of 2016 -2- ## 5. KURIAN VARKEY, AGED ABOUT 65, S/O. JOHN VARKEY, KOTTARAMPARAMBIL HOUSE, MARIATHURUTH KARA, AYAMANAM VILLAGE (PALLATHETTU BUILDING ROOM NO. IX/862, KOTTAYAM-1)PIN - 686 015. ## 6. BABU JOSEPH, AGED ABOUT 64, S/O .C.J. JOSEPH, EMPIRE LEATHER WORKS, NEAR CENTRAL JUNCTION, KOTTAYAM - 686 001. ## 7. C.J. JACOB, AGED ABOUT 66, EMPIRE LEATHER WORKS, NEAR CENTRAL JUNCTION, KOTTAYAM - 686001. ## 8. DR. KORAH JACOB, AGED ABOUT 85, S/O. T.C. KORAN, THAZHATHU PUTHENPURAYIL, THAZHATHANGADI,VELOOR VILLAGE (PALATHETTU BUILDING ROOM NO. IX/865, KOTTAYAM) PIN-686003. ## 9. M.C. JOHN, AGED ABOU 68, S/O. M.M. CHANDY, PALLATHETTU BUILDING ROOM NO. IX/870, KOTTAYAM-686001. ## 10. ZACHARIAN PHILIP, AGED 53, S/O. PHILIP, PANIATHARA HOUSE, KUMARAKOM P.O., KUMARAKOM VILLAGE, PIN-686 563. ## 11. SANTHY VIJAYAN, AGED 44, W/O. VIJAYAN, THEKKEKAVIL, (DEVI NIVAS), MANGANAM KARA, VIJAYAPURAM VILLAGE, PIN - 686018. ## 12. SHEENA JOSE, AGED 48, W/O. JOSE MATHEW, POTHALIL, VILLOONNI P.O., ARPOOKKARA VILLAGE, PIN - 686008. BY ADV. SRI.T.KRISHNANUNNI (SR.) BY ADV. SRI.K.SAJI (KODUVATH) BY ADV. SRI.P.I.GEORGEKUTTY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-102017, ALONG WITH RCR. 140/2016, RCR. 256/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.Nos.137, 140 & 256 of 2016 - - - - - - - - - - - - - - - - Dated : 3[rd] October, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Harilal, J. - 1.These Revision petitions are directed against the judgment in RCA.No.16/2014 passed by the Additional Appellate Authority, Kottayam, allowing the appeal, by reversing the order dismissing the Rent Control Petition No.36/2012 passed by the Additional Rent Control Court, Kottayam. - 2.The respondents/landlords filed the said RC(OP) seeking an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') against the revision petitioners/tenants, who are occupying different shop rooms. The parties are referred to as in the Rent Control Petition. - 3.According to the 1[st] petitioner, She is an RCR.Nos. 137, 140 & 256 of 2016 **==> picture [7 x 9] intentionally omitted <==** unemployed graduate and her husband is no more. She has to maintain her family consists of two children, who are the petitioners 2 and 3. So, she bona fide needs the petition schedule shop rooms for conducting a ready-made dress salescum-tailoring sop as an avocation for the livelihood of the entire family. She requires the entire rooms in the building, for running the said business. She has no other building which can be used for the purpose of doing the aforesaid business. The respondents are not depending on the income derived from the respective business in the tenanted premises and several other vacant buildings are available in the locality. - 4.The respondents resisted the claim for eviction under Section 11(3) of the Act contending that the need projected in the petition is a pretext for eviction only. The landlady has no genuine interest to start the business. She is in possession of other buildings to conduct the ## RCR.Nos. 137, 140 & 256 of 2016 3 proposed business. But, the respondents are solely depending on the income derived from the business in the tenanted premises and no other suitable buildings are available in the locality to shift their business. - 5.On the aforesaid pleadings, both parties adduced evidence and the Rent Control Court, after appreciating the evidence on record, dismissed the Rent Control Petition. In the appeal filed by the petitioners the Appellate Authority reversed the findings of the Rent Control Court and allowed the appeal granting an order of eviction under Section 11(3) of the Act. Thus, the legality and propriety of the divergent findings under Section 11(3) of the Act have come up in revision. - 6.Heard the learned counsel for the revision petitioners and the learned counsel for the respondents. RCR.Nos. 137, 140 & 256 of 2016 4 7.Going by the order dismissing the Rent Control Petition passed by the Rent Court Court, it is seen that the Rent Control Court found that the petitioners have not disclosed the availability of other vacant rooms in their possession. When the 1[st] petitioner/landlady was examined as PW1, at first she deposed that she had no building other than the petition schedule building and her residential building, in her possession; but during the cross-examination by CPW7, she deposed that she has a tourist home, having 20 rooms, at Gandhinagar. Thus, the Rent Control Court took a view that denial of the ownership of other building in Kottayam municipality at first and subsequent admission of the ownership of another building, to another question, made it clear that PW1 wanted to suppress the ownership of her other buildings. So no credibility can be given to the evidence of PW1 and the non-disclosure of the availability of other vacant buildings in her possession amounts to material suppression, which would negative RCR.Nos. 137, 140 & 256 of 2016 **==> picture [7 x 10] intentionally omitted <==** the bona fide need projected in the petition. - 8.But in the appeal, the Appellate Authority after considering the pleadings in the Rent Control Petition and the deposition of PW1 reversed the aforesaid finding on a finding that there was no wilful material suppression of facts. According to the Appellate Authority, the findings of the Rent Control Court was factually incorrect, in view of paragraph 8 of the chief affidavit filed by the 1[st] petitioner. - 9.We also have meticulously gone through the pleadings in the Rent Control Petition as regards the disputed views of the courts below. As rightly found by the Appellate Authority, what is stated by the 1[st] petitioner in the Rent Control Petition is that she has no other building which can be used for thepurpose of conducting the business planned by her. We are of the view that, PW1 has not pleaded that she has no other building. What she intended is that RCR.Nos. 137, 140 & 256 of 2016 **==> picture [7 x 10] intentionally omitted <==** she has no other suitable buildings in her possession, for conducting Ready-made dress sales-cum-tailoring shop in the Kottayam town and it does not amount to material suppression as found by the Rent Control Court. Further, it is revealed from paragraph 8 of the chief affidavit filed by PW1 that she herself had stated that she has another two storied building and the same is situated at Gandhinagar, 10 Kms away from the petition schedule building. Had there been an intention to suppress the ownership of her all other building, she would not have filed such chief affidavit disclosing ownership of another building at Gandhinagar. 10.While examining in cross, to a specific question as to whether she is in possession of other buildings in Kottayam municipality, she answered that she had no building other than her residential building. But, subsequently during cross-examination by CPW7, she again deposed that she has a tourist home having 20 rooms at RCR.Nos. 137, 140 & 256 of 2016 **==> picture [7 x 10] intentionally omitted <==** Gandhinagar. It is pertinent to note that the question put to her earlier was, whether she is in possession of other buildings in Kottayam municipality only. But, when CPW3 was examined, he admitted that originally the said building, which is situated in Gandhinagar near Medical College, was not in Kottayam municipality and the same became a part of Kottayam municipality recently. The first answer might have been given on the basis of her old memory that Gandhinagar is not within Kottayam Muncipality and later she herself might have remembered it and corrected in the answer to the 2[nd] question. In view of the above said possibility, it cannot be concluded that the 1[st] petitioner had wilfully made an attempt to suppress the ownership of her building in Gandhinagar. - 11.In the above context, the decision of this Court in Kunhamina v. K.T.Abubacker Haji (2016 KHC 639) assumes significance and relevancy and it fortifies the above findings. In this RCR.Nos. 137, 140 & 256 of 2016 8 ## decision, this Court held as follows : “So it is clear from the above dictum that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before Court and he had given special reasons for not occupying the same and both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non disclosure of this fact in the rent control petition and it is for the Court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bonafide need. 12.Coming to the bona fides of the need, the 1[st] petitioner herself was examined as PW1 and she has given evidence as to the bona fides of her need to start a business for the livelihood of the entire family. She is a widow having two children and it is for her to maintain the family. Further she deposed that she has previous experience in conducting textile business. After examining the veracity of the evidence tendered by PW1, the Appellate Authority held that nothing has been brought out in cross examination to discredit the evidence of PW1. So also nothing was brought out to establish that she had any other avocation for RCR.Nos. 137, 140 & 256 of 2016 **==> picture [7 x 10] intentionally omitted <==** the livelihood of her family. Since bona fide is a state of mind the 1[st] petitioner herself testified as to the bona fides of the need. But, the respondents failed to shatter her evidence by cross-examination. We do not find any material to doubt the bona fides of the needs spoken to by her in her evidence. In the above view the Appellate Authority is justified in reversing the findings of the Rent Control Court and the findings of the Appellate Authority that the need is bona fide. 13.Coming to the 1[st] proviso to Section 11(3) of the Act, it is the case of the respondents that the 1[st] petitioner/PW1 has another building having 20 rooms in her possession at Gandhinagar near Medical College. According to PW1, the said building is situated 10 Kms away from the Petition Schedule building and the same is 50 metres away from PWD road. More over, the only access to the building from the public road is an 'edavazhi' and the said building can be used RCR.Nos. 137, 140 & 256 of 2016 **==> picture [13 x 10] intentionally omitted <==** for running a lodge. CPW3 admitted in his crossexamination that the aforesaid building is situated at a distance of 7 Kms away from the petition schedule building and the said area was made part of the Kottayam municipality recently. The 1[st] petitioner has given special reasons for not occupying the 2[nd] floor of the building which is kept vacant in her possession. As a matter of fact, the ground floor of a building is more suitable and preferable than 1[st] floor for running a sales shop. In the above view, the Appellate Authority is justified in finding that the bona fides is not hit by the 1[st] proviso to Section 11(3) of the Act. 14.Next, the question is, whether there is any illegality or impropriety in the finding that the respondents are not entitled to get a protection under the 2[nd] proviso to Section 11(3) of the Act. Going by the judgment passed by the Rent Control Court, it is seen that the Rent Control Court has not considered the entitlement RCR.Nos. 137, 140 & 256 of 2016 **==> picture [12 x 9] intentionally omitted <==** of protection on a finding that the evidence under the 2[nd] proviso does not require consideration, when need was found not bona fide. But the Appellate Authority after finding that the need is bona fide, considered the question whether the tenants are entitled to get protection under Section 11(3) of the Act. Since the Appellate Authority has all the powers of the Rent Control Court, the Appellate Authority is justified in rendering the findings on 2[nd] proviso even though the Rent Control Court has omitted to consider it. 15.Then, the question is whether the findings of the Appellate Authority under the 2[nd] proviso are legally sustainable or not. According to the respondents, they are depending on the income which is being derived from the respective tenanted premises and no other vacant buildings are available in the locality to shift their business. In order to substantiate the said contention, eight witnesses were examined as RCR.Nos. 137, 140 & 256 of 2016 **==> picture [13 x 9] intentionally omitted <==** CPW1 to CPW8. Among them, CPWs 1, 2, 3, 4 and 5 were tenants, CPW6 was the accommodation controller and CPW7 and CPW8 are the Secretary of YMCA and the son of CPW3 respectively. But we find that the Appellate Authority has not considered the oral testimony of all those witnesses and the Appellate Authority has considered the oral testimony of CPW3 alone. The Appellate Authority can never be justified in omitting to consider the oral testimony of all other witnesses. - 16.Similarly in order to prove the dependency on the income from the business in the tenanted premises, the respondents have produced Ext.B11 to B25. But those documents were also not considered while appreciating the evidence under the 1[st] limb of the 2[nd] proviso. - 17.Thus, we find that the oral evidence, pertaining to the entitlement of protection under the 2[nd] proviso to Section 11(3) of the Act RCR.Nos. 137, 140 & 256 of 2016 13 is in abundance. But, the Appellate Authority had omitted to consider the aforesaid evidence. That apart, without specifically considering the deposition of each tenant separately, the Appellate Authority has considered the evidence of CPW3 alone and made it applicable to all the tenants. 18.In view of the above analysis, we find that the entire evidence available on record, under the 2[nd] proviso, requires consideration afresh by the Appellate Authority. Consequently, the finding under the 2[nd] proviso to Section 11(3) of the Act will stand set aside and the Rent Control Appeal is remanded back to the Appellate Authority for fresh consideration and disposal, on the 2[nd] proviso to Section 11(3) of the Act only. It is made clear that the findings on bona fides of the need and the 1[st] proviso to Section 11(3) of the Act will stand confirmed. The Appellate Authority shall dispose of the Appeal afresh on the basis of the findings which we have RCR.Nos. 137, 140 & 256 of 2016 **==> picture [13 x 9] intentionally omitted <==** confirmed and the findings to be rendered, after remand, within a period of two months from the date of receipt of a copy of this order. The parties shall appear before the Rent Control Appellate Authority, Kottayam on 13.11.2017. Sd/- **K.HARILAL Judge** **Sd/A.M.BABU Judge** Mrcs/4.10 //True Copy// P.S.To Judge