Thulasi Bai v. Gayathridevi (RCR No. 278 of 2015)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940** **RCRev..No. 278 of 2015** **AGAINST THE JUDGMENT IN RCA 1/2012 of THE RENT CONTROL APPELLATE AUTHORITY,MAVELIKKARA DATED 14-09-2015 THE ORDER IN RCP.NO. 11/2007 of THE RENT CONTROL COURT, KAYAMKULAM DATED 14.02.2012.** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **THULASI BAI W/O.KRISHNANKUTTY, LEKSHMI BHAVAN, MALAMEL BHAGOM MURI, KEERIKADU, KAYAMKULAM.** **BY ADVS.SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** ## **RESPONDENT/RESPONDENT:** **GAYATHRIDEVI W/O.RAMABHADRAN PILLAI, KRISHNA MANDIRAM, KAPPILMEKKU MURI, KRISHNAPURAM VILLAGE KAYAMKULAM, PRESENT ADDRESS IS CHANDRA BOOK STALL, NEAR MUNICIPAL OFFICE, KAYAMKULAM 690 502.** **R1 BY ADV. SRI.K.JAGADEESH R1 BY ADV. SMT.V.RENJU** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08.06.2018, THE COURT ON 02-07-2018 PASSED THE FOLLOWING:** ## **A.M.SHAFFIQUE & P.SOMARAJAN, JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No. 278 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of July, 2018 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## **SHAFFIQUE, J.** The landlady in R.C.P.No.11/2007 of the Rent Control Court, Kayamkulam is the revision petitioner. 2. The rent control revision petition was filed seeking eviction of the tenant on the ground of the bonafide need, arrears of rent and the tenant ceasing to occupy the building for a period more than two years. The facts would disclose that the schedule shop room was given to the tenant on 13.1.1993 for a monthly rent of Rs.1000/-. According to the petitioner, the tenant failed to pay rent since September, 2005 and that apart, the tenant has ceased to occupy the building for more than two years. The need expressed by the petitioner/landlady is that she intended to start a store for ladies cosmetic articles and business in mobile phones. Though a notice was issued to vacate the premises it was returned with the endorsement “addressee out of station.” 3. The tenant filed objection denying the averments in the petition and it is contended that the petitioner was refusing R.C.R. No. 278 of 2015 -2- to accept the rent and that she has not ceased to occupy the shop room and is conducting business in the shop room. It is contended that the bonafide need projected by the landlady is only a ruse to evict the respondent from tenanted building. It is further contended that the landlady is conducting another business in the adjacent room from which she is getting substantial income and further that she sold two shop rooms in the same building. That apart, the petitioner is not interested in carrying on any business and her attempt is only to sell the shop room. The tenant also contended that her sole livelihood is the income derived from the business and there are no other suitable buildings in the locality to shift the business. 4. Before the Rent Control court, the landlady was examined as PW1 and she relied upon Exts. A1 to A6. The respondent/tenant did not enter the box, but relied on Exts.B1 to B4. The Rent Control court dismissed the petition on all grounds. The petitioner preferred an appeal as R.C.A. No. 11/2012 before the Rent Control Appellate Authority, Mavelikara. As far as the ground relating to the arrears of rent is concerned, it was observed by the appellate authority that the entire arrears of R.C.R. No. 278 of 2015 -3- rent have been deposited before the Rent Control court and the said amount was withdrawn by the petitioner/landlady. Further, a direction has been issued for payment of Rs.44,000/- which amount is also seen to be paid. It was therefore found that the eviction of the tenant on the ground of arrears of rent does not survive. 5. With regard to claim for eviction under Section 11(4) (V) of the Kerala (Building Lease and Rent Control) Act, 1965 (for short “the Act”) alleging that the tenant/respondent ceased to occupy the shop room for the last two years, the only evidence is Ext.A5 notice stating that the addressee in not in station. However it is found that the tenant/respondent is conducting the business through her employee and since there was no other evidence, the Rent Control Appellate Authority rejected the same. 6. Coming to the bonafide need u/s 11(3) the lower Appellate Authority found that the petitioner is the Managing Partner of General Traders engaged in the business of sanitary ware and that she was conducting a business on the southern side of petition schedule shop room. Further in another RCP (Ext.B1) she had sought for eviction of the then tenant stating R.C.R. No. 278 of 2015 -4- that she wanted to start an agency for selling Crompton Greaves products and the said petition was compromised. It is also found that as per Exts.B3 and B4 it is borne out that the landlady had sold two shop rooms. Therefore the requirement is not bonafide. Thereafter the Appellate Authority proceeded to consider the contention of the petitioner/landlady and found that at best she could only seek eviction u/s 11(8) of the Act, i.e., additional accommodation. It was held that, in so far as she was conducting a business as Managing Partner in a shop room and the licence was in her name, her claim can only be for additional room to expand the business and that too in a different line of business. Therefore eviction ought to have been sought for u/s 11(8) of the Act. Thereafter it is found that since the application is not made u/s 11(8) and the tenant had no notice regarding such claim, the tenant could not adduce any evidence regarding, whether the hardship she may suffer and will outweigh the advantage of the landlady. Accordingly the appeal was also dismissed. 7. We heard learned counsel for the revision petitioner and learned counsel for the respondent. R.C.R. No. 278 of 2015 -5- 8. It is argued that a clear case of bonafide need u/s 11(3) is made out which has been erroneously overlooked by the Rent Controller as well as the Appellate Authority. Further when the Appellate Authority found that the need ought to have been under Sections 11 (3) and 11(8), it ought to have adjudicated the same, especially in the light of the full bench judgment of this Court in **Kunhammi v. Abdullakutty** (2015 (1) KLT 795 (FB). That apart, the tenant had not entered the box either to prove that her only source of livelihood is the business being carried on in the building and that there is no other building in the locality. No evidence is adduced regarding the comparative hardship that the tenant may suffer as well. The Learned counsel made a distinction between the word 'occupation' and 'possession'. It is submitted that though she was in possession of another shop room she was not in occupation of the said shop room as the business was conducted by her husband. As far as the petition schedule shop room is concerned, the need projected by the petitioner is to conduct her own business that is shop room for sale of ladies cosmetic articles and sale of mobile phones. He made reference to the judgment of this Court **Shamsudeen v.** R.C.R. No. 278 of 2015 -6- **District Court** (1997 (2) KLT 630) and **Sachidanandan v. Abdulla** (2013 (4) KLT SN 15). Under such circumstances it is argued that the appellate court as well as the court below ought to have ordered eviction. 9. On the other hand the learned counsel for respondent argued that the very fact that she was the Managing Partner of the firm which was conducting business in another shop room was suppressed by landlady. That apart she also suppressed the fact that two shop rooms were earlier got evicted and sold. Therefore there is no bonafide for the need projected by the landlady. 10. The 1[st] question to be considered is whether the need projected by the landlady is genuine or not. In the petition she sought for eviction on the ground of bonafide need. The need expressed is that she intended to start a ladies store and a store for sale mobiles. According to the respondent/tenant, landlady is conducting another business in the adjacent shop room. The fact that she is conducting business of sanitary wares in another shop room by itself indicate that their means of livelihood is from the business activity carried on by them. Documents have been R.C.R. No. 278 of 2015 -7- produced to indicate that she was the Managing Partner. In her evidence she had categorically stated that her husband is carrying on the business of sanitary wares in the said shop room. The evidence of PW1 in that regard has not been controverted. She had stated in cross examination that the shop rooms having 800 sq. ft. each is utilised for the business of sanitary items, pump set, motor set etc and the said establishment is functioning for last 23 years. When she has categorically stated that her husband is carrying on the said business activity, it cannot be said that she was in possession of said premises. Section 11(3) of the Act reads as under: (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 dependent on him : Provided that the Rent Control 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 just and proper to do so. Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly or the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. R.C.R. No. 278 of 2015 -8- Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the buildings for his own occupation or for the occupation by any member of his family dependent on him.” 11. The 1[st] proviso of Section 11(3) states that the Rent Control Court shall not give any direction to put the landlord in possession of a building even if there is proof for bonafide need if it is satisfied that the landlord has another building of his own in his possession in the same city, town or village. It is trite law that the burden of proving that the landlord has possession of another building in the same city, town or village is on the tenant. The case of the respondent is that the landlady is conducting business in sanitary items in the building in their possession. Whereas the evidence indicate that though she has ownership over the building and she is the licensee of the business, her husband is conducting the business. In the case on hand, when the landlady had come before court and deposed that she requires the building for starting her own business, it is nothing but a claim u/s 11(3). Therefore, the only question to be considered is whether the need is bonafide or not. In the evidence in chief of PW1, she has stated that she requires the R.C.R. No. 278 of 2015 -9- building for starting a ladies cosmetic and mobile phone business. She had in her evidence stated that in the shop room which is on the southern side of the petition schedule shop room, she is not conducting any business, whereas her husband Krishnankutty is conducting business in sanitary items. The business is not good and the income is not sufficient. It is in the said circumstances that she thought of starting a business in ladies cosmetic items. Though she was cross examined at length, nothing has been brought out to indicate that her need was not bonafide. 12. One of the contentions urged by the tenant/respondent was that there is suppression of material facts. We do not think that the landlady will gain anything from suppressing the fact that she was the Managing Partner of the business being conducted in the adjacent shop room. According to the landlady, the sanitary shop was conducted by her husband, though the licence was in her name. This is a usual feature among the members of the society. In an instance where the business is being conducted in the name of the wife, that by itself does not indicate that she is conducting the business and she is in possession of the said shop. Further, it is a fact known to all R.C.R. No. 278 of 2015 -10- which could not suppress at all. Therefore, we do not agree with the Appellate Authority and the Rent Controller with regard to the finding that there was suppression of material facts. The alleged suppression does not affect the merits of the case in any manner. 13. Yet another contention urged by the tenant is that, the claim at the best would arise only under section 11(8). Section 11(8) of the Act reads as under: “(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.” 14. In order to invoke Section 11(8) of the Act, landlord in occupation of a part of a building, could seek an order of eviction of the tenant occupying the whole or any portion of the remaining part of building, if he requires additional accommodation for his personal use. There is difference between the words 'occupation' and 'possession'. It is settled law that legal possession by itself does not constitute occupation. In **Simon v. Rappai** (2008 (3) KLT 121), this Court held that the possession must combine with something more to make it occupation. In **Rentnakaran v. Rosy** (2004 (3) KLT 154), this R.C.R. No. 278 of 2015 -11- Court held that unless the building is in occupation of the landlord, the landlord cannot seek for additional accommodation and it is further held that mere possession of the building is not enough. Actual occupation is necessary to make the said provision as has been held in **Nalini v. A.G. Abraham & Others** (2012 (3) KLT 32). A Full Bench of this Court in **Moidootty Haji v. Abdul Jaleel** (2007 (4) KLT 15 (FB) held that additional accommodation u/s 11(8) can either be for expansion of existing business or for new business which depends upon the choice of landlord, provided that the test of bonafide under Section 11(10) shall be satisfied. In this case the landlady has given evidence stating that her husband is in occupation of the other shop room and conducting the business. When there is nothing to discredit the evidence in that regard and she has a case that the income from the said business is not sufficient, the requirement of the petitioner/landlady can be considered u/s 11(3). 15. Yet another ground on which the authorities denied eviction is based on the fact that the petitioner/landlady had sold two buildings which she got evicted earlier. During cross examination, she has stated that she had sold a shop room in R.C.R. No. 278 of 2015 -12- March, 2004 for the purpose of her daughter's marriage. That shop room belonged to her husband. The sale was as per Ext.B3 sale deed. For the 2[nd] daughter's marriage, she required Rs.10,00,000/- and another shop room was also sold and the sale deed is marked as Ext.B4. Ext.B3 is dated 3.5.2004 and Ext.B4 is dated 2.3.2006. The rent control petition is filed on 19.12.2007. When a person requires money for conducting marriage of their daughters for which they decide to sell a few shop rooms, it will not affect their bonafide in claiming eviction of shop room in the possession of the tenant for bonafide need. 16. In the case on hand, the landlady had clearly given evidence about her intention to start a business of her own and that she has no other buildings in her occupation. Going by the evidence of PW1, her need has not been discredited in any manner. Once it is found that the petitioner/landlady has proved the bonafide need under Section 11(3) of the Act, it is for the tenant to adduce evidence and prove, if she intends to have the benefit of provisos. Other than producing some documents to disprove bonafide need, the tenant had not taken any steps to prove the ingredients of 1[st] and 2 provisos. She did not enter R.C.R. No. 278 of 2015 -13- box. Under such circumstances, we are of the view that the tenant is not entitled for the benefit of the provisos. Consequently, this revision petition is only to be allowed and we do so. The orders passed by the Rent Control court and the Rent Control Appellate Authority in R.C.P.No.11 of 2007 and R.C.A.No.1 of 2012 is hereby set aside. The Rent Control Petition is allowed. There will be a direction to the respondent/tenant to put the landlady in possession of the petition schedule premises within a period of 3 months from today. Sd/- **A.M.SHAFFIQUE, JUDGE** **sd/P.SOMARAJAN, JUDGE** kp