T.K. Bhaskar Nambi v. Puthiyottil Suresh Babu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 RCRev..No. 176 of 2010 ------------------------------RCA.3/2007 of I ADDL.DISTRICT COURT, KOZHIKODE RCP.17/2006 of MUNSIFF COURT, QUILANDY .................... ## REVISION PETITIONER/RESPONDENT/RESPONDENT: T.K.BHASKARAN NAMBI, AGED 55 YEARS, S/O.NAMBI, GOLDSMITH, V/720, NEAR ULLIYERI PANCHAYATH BUS STAND, ULLIYERI, KOYILANDI. BY ADV. SRI.VARGHESE C.KURIAKOSE ## RESPONDENT/APPELLANT/PETITIONER: PUTHIYOTTIL SURESH BABU, AGED 34 YEARS, S/O.KANNAN, ULLIYERI AMSOM DESOM OF KOYILANDY TALUK REP. BY HIS POWER OF ATTORNEY HOLDER AND WIFE NITHA. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.RESMI NANDANAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15/12/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - RCR.No. 176 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of December, 2010 Order ## Basheer, J: A short but interesting question has cropped up for consideration in this case. 2. Can the claim for eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act 1965 be turned down on the ground that the need projected by the landlord in the pleadings is not only for his own occupation but that of his spouse as well? In other words, the question is whether a landlord can project a “joint need” of his own and that of his spouse in the eviction petition under Section 11(3) of the Act. 3. Before we deal with the above question it will be appropriate to refer to the facts of the case briefly. 4. Respondent herein (the landlord for short) sought eviction contending, inter alia, that revision petitioner-tenant had kept the rent in arrears and that the building was needed by him to start a business in ready made garments for children. The claim was resisted by the tenant contending that the need RCR 176/10 2 projected by the landlord was not at all bona fide and that there was no intention to start any business in ready made garments as claimed by him. It was further contended that the only intention of the landlord was to get the tenant evicted from the building in order to let it out on a higher rent. The other contention was that the landlord was having several other buildings of his own in his possession, if at all he wanted to start such a business. Lastly, it was contended that no other suitable building was available in the locality to shift his business and that the income that he derived from the business was his only source of livelihood. 5. The wife of the landlord was examined before the Rent Control Court as PW1 The tenant got himself examined as RW1. Exts.A1 to A3 were marked on the side of the landlord and Exts.B1 to B4 were marked on the side of the tenant. 6. The Rent Control Court after considering the oral and documentary evidence available on record held that the need projected by the landlord was not bona fide, though it was found that the tenant was not entitled to get protection of either the RCR 176/10 3 first or second proviso. As regards the claim for eviction under Section 11(2)(b) of the Act, it was held by the Rent Control Court that the tenant had not kept any rent in arrears as alleged. The landlord also did not press for any orders since the arrears were deposited by the tenant during the pendency of the proceedings. 7. The above order was challenged by the landlord before the Rent Control Appellate Authority under Section 18 of the Act which, by its impugned order, reversed the finding and held that the claim of the landlord was bona fide. The finding of the Rent Control Court that the tenant was not entitled to get protection of the two provisos under Section 11(3) of the Act was affirmed. The said order of the appellate authority is impugned in this revision petition. 8. Sri.Varghese Kuriakose, learned counsel for the petitioner, submits that the appellate authority has failed to construe the provisions contained in section 11(3) of the Act in their proper perspective. According to the learned counsel, section 11(3) contemplates only bona fide need of the landlord RCR 176/10 4 for his own occupation or for the occupation of any member of his family dependent on him. He contends that a claim for eviction by a landlord under section 11(3) of the Act cannot be entertained or countenanced if it is uncertain or contingent depending upon certain needs that may occur in future. It can be understood if the landlord seeks eviction for his own occupation and that too for the purpose of starting a business or venture of his own. Similarly a landlord can seek eviction of the tenant if the building is required for any member of his family who is dependent on him. His contention is that the pleading must be unambiguous when it comes to bona fide need for own occupation. There cannot be any room for uncertainty under any circumstances. This contention is raised by the learned counsel in view of the pleadings raised by the landlord in the eviction petition. 9. The gist of the pleadings in the petition, as regards bona fide need, can be summarised thus: 10. The landlord stated that “he had been working abroad till one year prior to the institution of the eviction RCR 176/10 5 proceedings. But he had to come back to India since he lost his employment. He was not hopeful of getting any employment in his village. His wife and two children aged 4½ years and 2 years respectively are dependent on him. His wife is unemployed. She has no other source of income. He intends to start a business in ready made garments for children jointly with his wife to earn a livelihood. His wife is prepared to join his business and if necessary she is also prepared to do it on her own. She has enough confidence and determination to manage the business even in his absence.” 11. Sri. Varghese Kuriakose contends that the above pleading will undoubtedly show that the landlord was expecting that he may have to leave the country or keep away from the business that he proposed to start in the petition schedule building. According to the learned counsel, the pleading as regards the need for bona fide own occupation not being specific, the appellate authority ought to have dismissed the eviction petition. He further points out that a joint need was never in the contemplation of the Legislature when sub section RCR 176/10 6 (3) of section 11 was incorporated in the Act. 12. Section 11(3) reads thus: “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 dependent on him”. (emphasis supplied). 13. The above statutory provision enables a landlord to seek eviction of the tenant from the building for his own occupation or for the occupation by any member of his family dependent on him. The thrust of the argument of the learned counsel for the tenant is that the landlord cannot get the tenant evicted if his need is not definite, specific and forthright. 14. There can be no room for any ambiguity or uncertainty, since the valuable statutory right of the tenant tenant will be at stake. 15. It is true that on a strict construction of the provisions contained in Sub Section 3 of Section 11, it may appear that a “joint claim” (as the tenant would call it) for RCR 176/10 7 eviction is not contemplated under the Act. The conjunction employed in the latter part of the sub section is 'or' and not 'and'. In grammatical parlance, a conjunction (eg: and, or, but, as, for, if, etc. is used “to join parts of sentences which, usually but not always, contain their own verbs”. Co-ordinating conjunctions (and, or, but) join two equal clauses, phrases or words. Subordinating conjunctions join a subordinating clause to a main clause. The co-ordinating conjunction used in the above statutory provision does not, in our view, envisage a situation where a landlord on getting vacant possession will be precluded from conducting business in the building either on his own or in partnership with others. 16. Undoubtedly a landlord can seek eviction of the tenant from the building for his own occupation or by any one of his dependents. This does not mean that the landlord cannot join hands with anyone of his dependents to start the venture. He is the master of his own affairs and he can decide how to manage the show. The expression “his own occupation” does not mean that the landlord should be physically present at his business RCR 176/10 8 premises twenty four hours a day and seven days a week. 17. We have already extracted the relevant pleadings from the eviction petition, in the earlier part of this order. The landlord had made it abundantly clear that he intended to start a business in the petition scheduled building. He further stated that his wife, who is a dependent on him, also was prepared to help him in the business. He went on to state further that she was prepared to manage the business on her own, if the situation so warranted. Thus, in our view, the landlord had specifically pleaded that he himself wanted to start the business and in case he could not continue to do so at any point of time, his wife would carry on. We do not find any incongruity or inconsistency, leave alone any uncertainty in the pleading. In this context, it has to be reiterated that in the matter of pleading a pedantic approach shall never be made. In any view of the matter, the contentions raised by the learned counsel for the petitioner are totally misconceived. It is held that the landlord had established his bonafide need for occupation of the tenanted premise by him. The finding entered by the Appellate Authority in this regard is RCR 176/10 9 therefore affirmed. 18. We have already indicated earlier that the Rent Control Court had found that the petitioner/tenant had failed to establish that he was entirely dependent on the income that he was allegedly receiving from the business that he had been conducting in the tenanted premises. Similarly, the Rent Control Court also found that the tenant had failed to establish that no other suitable building was available in the locality to shift his business. In other words, the Rent Control Court held that the petitioner/tenant is not entitled to get the protection of the first and second proviso to Section 11(3) of the Act. The above finding has been affirmed by the Appellate Authority after a reappraisal of the evidence available on record. In that view of the matter, we do not deem it necessary to refer to or deal with the entire evidence on this aspect, though we have carefully perused the entire materials available on record. In our view, the concurrent finding entered by the courts below as regards the first and second proviso is eminently justified in the facts and circumstances of the case. The authorities below were justified, RCR 176/10 10 in our view, in arriving at the above conclusion. 19. Lastly, learned counsel for the appellant contended that the oral testimony of the wife of the landlord, who was examined in the case as PW1, ought not to have been relied on by the authorities below while deciding the case. It is true that landlord's wife gave evidence in the case on the strength of a Power of Attorney executed in her favour. In Joseph Mathew v. Jose Thomas (2005 (4) KLT 764 (SC), the Supreme Court had occasion to consider the question whether the case projected by the landlord through his Power of Attorney holder - son could have been accepted by the Rent Control Authorities. The landlord had sought eviction contenting that he needed the tenanted premise for his own occupation to start a business. But he did not get himself examined before the court. His son was examined on the strength of a Power of Attorney. Their Lordships held, relying on its earlier decision of the apex court in Janki Vashdeo Bhajwani and another v. Indusind Bank Ltd. And Ors. (2005) 2 SCC 217), that a Power of Attorney holder cannot be allowed to appear as a witness on behalf of the landlord. RCR 176/10 11 20. It may at once be noticed that in the case on hand the specific pleading of the respondent/landlord, as has been noticed already, is that he along with his wife intends to start a business. Therefore, in our view, the decision in Joseph Mathew (supra) will not come to the aid of the petitioner. Further, our view is reinforced by another decision of apex court in Ramkubai (Smt.) deceased by Lrs. And Ors. V. Hajrimal Dhokalchand Chandak and Ors. (1999) 6 SCC 540. In this case, the landlady sought eviction on the plea that she wanted vacant possession of the building in order to enable her son to start a business of his own. The son was examined in the case on the strength of Power of Attorney executed by his mother. The apex court held that the son was competent to give evidence on behalf of his mother who sought eviction on his behalf, since he was a dependent on her. In that view of the matter, the contention raised by the petitioner that the evidence of PW1, the wife of the landlord, cannot be relied on for any purpose is also repelled. 21. The other contention raised by the learned counsel for the petitioner is that the need projected by the landlord in RCR 176/10 12 the eviction petition had ceased to exist shortly after institution of the eviction proceedings, since admittedly the landlord had left the country on getting a job abroad. Sri.Hareesh, learned counsel for the respondent/landlord, concedes that the landlord had to leave the country, since he obtained a reasonably good employment in Saudi Arabia, where he had been working for sometime earlier. He points out that the landlord had to come back to India when he lost his job. He had sought eviction since for about one year he had to remain in village without any employment. Even now the job is not secure, in the sense that there is every possibility of being terminated any time. Still further, the landlord had specifically pleaded that his wife did not have any other employment and that she was dependent on her husband. Learned counsel submits that the landlord had not suppressed any material fact from the court. On the contrary, the pleading was quite clear and unambiguous as far as the bona fide need is concerned. 22. It may be true that the landlord had left the country three months after the institution of the eviction petition. But as RCR 176/10 13 has been noticed already, the need projected in the eviction petition was not that of the landlord alone. But it was that of his wife as well, in a sense. The petitioner/tenant did not have a case that the wife of the landlord is not a dependent on him. In that view of the matter, it cannot be said that the claim for eviction on the ground of bonafide need has extinguished. 23. Learned counsel for the tenant has invited our attention to the decision in Sheshambal (dead) through LRs. V. Chelur Corporation Chelur Building and Others (2010) 3 SCC 470 in this context. In our view, this decision will not come to the aid of the petitioner. In this case, the landlord and his wife sought eviction on the ground that they required the tenanted premises for their bonafide personal occupation. During the pendency of the eviction proceedings, the landlady died. However, the eviction proceedings were continued by the legal heirs of the landlady. It was noticed by the apex court that the need projected or the requirement pleaded by the original petitioners was their own personal requirement and not the requirement of the members of the family whether dependent or RCR 176/10 14 otherwise. Therefore, their lordships held that on the death of the petitioners in the eviction petition their right to seek eviction on the ground of personal requirement became extinct and no order could be passed on the basis of the above need projected in the eviction petition. We need not repeat what we have already noticed in the earlier part of this order. The order of eviction passed by the appellate authority cannot be faulted at all. Therefore, the revision petition is liable to be dismissed. 24. At this stage, learned counsel for the petitioner makes an impassioned plea to grant atleast one year's time to vacate the premises. He points out that the tenant is conducting a small business in gold smithy. However, learned counsel for the respondent/landlord vehemently opposes the above plea and submits that large number of other suitable buildings are available in the locality, one of which can be taken on rent by the petitioner to continue his business. 25. Having regard to the peculiar facts and circumstances of the case and having heard learned counsel on both sides, we are of the view that petitioner can be granted RCR 176/10 15 some reasonable time. He shall give vacant possession of the building to the landlord on or before September 15, 2011. Petitioner shall deposit the entire arrears of rent, if any, and shall continue to pay the future rent every month till vacating the premises. He shall file an affidavit of undertaking in the above terms before the Rent Control Court within two weeks from the date of receipt of a copy of this order. A.K. Basheer Judge. P.Q. Barkath Ali Judge. An/jes.