Vanaja Sundaram v. Lissy Joseph

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940 RCRev..No. 329 of 2017 AGAINST THE JUDGMENT IN RCA 8/2016 of RENT CONTROL APPELLATE AUTHORITY,THALASSERY AGAINST THE ORDER IN RCP 13/2013 of MUNSIFF COURT, THALASSERY ## REVISION PETITIONER/RESPONDENT/PETITIONER: VANAJA SUNDARAM, W/O. LATE DR. M.A. SUNDARAM, AGED 68 YEARS, SEA SIDE, THALASSERY AMSOM DESOM, THALASSERY P.O., KANNUR. BY ADVS. SRI.JACOB SEBASTIAN SMT.ANU JACOB SRI.K.A.SIYAD SRI.K.V.WINSTON ## RESPONDENT/APPELLANT/RESPONDENT: LISSY JOSEPH, D/O. PEEDIYEKKAL JOSEPH, AGED 57 YEARS, LABORATORY TECHNICIAN, INDIAN LAB, OPPOSITE GENERAL HOSPITAL, THALASSERY, THALASSERY P.O, KANNUR. PIN-670 101. BY ADVS. SRI.V.BINOY RAM SRI.G.S.REGHUNATH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR No. 329/2017 -2- ## **ORDER** ## K. Harilal,J. The revision petitioner is the landlord and the respondent is the tenant, who occupies the tenanted premises owned by the revision petitioner. The landlord filed RCP No. 13 of 2013 before the Rent Control Court, Thalassery seeking an order of eviction under Section 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short). The Rent Control Court rejected the claim for eviction under Section 11(4)(ii) of the Act and granted an order of eviction under Sections 11(2)(b) and 11(3) of the Act. Aggrieved by the said order of eviction passed under Sections 11(2)(b) and 11(3) of the Act, the respondent/tenant preferred RCA No. 8 of 2016 before the Rent Control Appellate Authority, Thalassery. The Appellate Authority, after re-appreciating the evidence on record, reversed the order of eviction passed by the Rent Control Court under Section 11(3) of the Act and confirmed the order of eviction passed under Section 11(2)(b) of the Act only. Thus, the Rent Control Appeal was allowed in part. Aggrieved by that part of the judgment, whereby the appellate authority rejected the claim for eviction under Section 11(3) of the Act, the petitioner preferred this revision petition. Thus, the legality, propriety and regularity of the divergent findings under Section 11(3) of the Act are challenged in this revision. The averments in the petition with respect to RCR No. 329/2017 -3- the claim for eviction under Section 11(3) of the Act can be summarised as follows: 2. According to the petitioner, her son Jithesh is a well known musician in the field of Gazal and now he is working at Mumbai. He wants to start a music studio for recording music at Thalassery. The son of the petitioner intends to put up a Music Recording Studio in the petition schedule room and adjacent rooms. So, the petitioner is in _bona fide_ need of the petition schedule room for starting a Music Studio for his son, who is depending on her for the petition schedule shop room. That apart, the husband of the petitioner is laid up due to paralysis and he needs the company of his son. So, his son intends to settle at Thalassery after starting a music studio at Thalassery. There are many buildings vacant in the locality and if the respondent wants to continue her business, she can easily take another building available in the locality. 3. The respondent resisted the said claim for eviction under Section 11(3) of the Act contending that the need projected is not _bona fid_ e and it is a ruse for eviction only. It is incorrect to say that the petitioner's son Jithesh has the _bona fide_ need to start a Music Studio at Thalassery. The petitioner's son Jithesh is well settled in Mumbai and he is owning a well known Music Studio at Mumbai. So, there is no need to start a Music Studio at Thalassery. He has busily engaged at Mumbai in RCR No. 329/2017 -4- the music field and he seldom visits Thalassery. The petition schedule building is not at all suitable for starting the Recording Studio. Further, she has contended that there are several other vacant buildings in the possession and ownership of the petitioner and her husband in the same locality, and if at all the _bona fide_ need alleged in the petition is true and genuine, the same could be occupied for the Recording Studio. The petitioner is in vacant possession of spacious rooms in the second floor of the same building, where the petition schedule building is situated and the petitioner has suppressed the said fact in the Rent Control Petition. No explanation has come from the side of the petitioner as to why the vacant buildings in their possession could not be used for the alleged _bona fide_ need mentioned in the petition. With the aforesaid averments, the respondent prayed for the dismissal of the Rent Control Petition. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the need projected in the petition is _bona fide,_ the claim for eviction is not barred by the first proviso to Section 11(3) of the Act and the first respondent is not entitled to get protection under the second proviso. But, in appeal, the appellate authority reversed the aforesaid findings on _bona fide_ need as well as the first proviso and allowed the appeal. As regards the _bona fide_ need, the appellate authority reversed the findings of the Rent Control Court mainly on the ground that the non-examination RCR No. 329/2017 -5- of the dependent for whose need the petition schedule shop room is required, is fatal. 5. The question to be considered is whether the non-examination of the dependant is fatal or not. Going by the impugned judgment, it could be seen that in order to prove the _bona fides_ of the need, the petitioner herself was examined as PW1 and she has testified the _bona fides_ of the need in tune with the averments in the petition. There is no findings by the appellate authority that the evidence of PW1 is unreliable or not trustworthy. Therefore, it could be seen that the appellate authority has not doubted the evidence of PW1 and relied on the same. Going by the oral testimony of PW1, it could be seen that nothing has been brought out to discredit the need projected in her chief examination. It is to be borne in mind that according to the claim under Section 11(3) of the Act, the need is always that of the landlord even if the eviction is sought for the occupation of any member of his family who is depending on him. So, if the landlord herself was examined in evidence and the evidence of landlord is trustworthy and reliable, it could be concluded that the landlord has given evidence satisfactorily in accordance with the statutory requirement. When the evidence of the landlord herself is satisfactory, it cannot be insisted that the dependant also could have been examined in evidence. In the above view, we find that in the instant case, the non-examination of the dependant son was RCR No. 329/2017 -6- not fatal and the findings of the appellate authority is perverse. It follows that the Rent Control Court is fully justified in finding that the need is _bona fide_ on the basis of the evidence given by PW1. That apart, in _**Mustafa Haji v. Umbichi**_ [2004(2) KLT 1110], this Court held that non-examination of the dependant is not fatal to the _bona fides_ of the need as the need is always that of the landlord. 6. Secondly, the appellate authority reversed the findings of the Rent Control Court under the first proviso to Section 11(3) of the Act and found that the petitioner has other buildings of her own in her possession to start the Music Studio and thereby, the claim for eviction is barred by the first proviso to Section 11(3) of the Act. On the other hand, the findings of the Rent Control Court was that when PW1 was examined in evidence, she stood by the specific pleadings in the petition that she requires the petitions schedule shop room along with other rooms in the same building for starting the proposed Recording Studio. Besides, she has given special reasons to the effect that though she has two other residential building in SBI Colony, those buildings cannot be used for starting the Recording Studio as those buildings are residential buildings. 7. Let us examine the pleadings and the evidence with respect to the first proviso to Section 11(3) of the Act. As rightly observed by the Rent Control Court, going by paragraph 4 of the Rent Control Petition, it RCR No. 329/2017 -7- is seen that the petitioner has specifically pleaded that for starting a Musical Recording Studio, the petitions schedule building and the adjacent building owned by the petitioner are required. When she was examined, she stood by the said pleadings and deposed that adjacent rooms in the same building are also required for starting the proposed Recording studio. She has specifically stated that her son wants the petition schedule shop room and other rooms to use as office storage, dictation, Managing Director's Room, toilet, Musical Recording Studio etc. He will not be able to start the Musical Recording Studio in the petition schedule shop room alone and adjacent rooms are also required for starting the proposed Recording Studio. Further, she has clarified that her son will be able to conduct the Musical Studio if he gets other buildings also along with the petition schedule room. Therefore, the need for other vacant rooms in the same building was projected in her evidence, for starting the Recording Studio. On the other hand, going by the counter statement filed by the respondent, we find that there is no specific pleadings disclosing identity of the vacant rooms allegedly in the possession of the petitioner and the vague contention raised in the counter statement is that there are several other vacant buildings in the possession and ownership of the petitioner and her husband in the locality. We are of the view that the absence of specific pleadings pointing out the vacant rooms allegedly in the possession of the landlord RCR No. 329/2017 -8- is fatal to the tenant because the burden of proof under the first proviso is always on the tenant. The landlord is liable to give special reasons for not occupying any other vacant buildings in her possession only if the tenant succeeds in pointing out and proving the availability of vacant building in the possession of the landlord. Thus, we find that in the instant case, the pleadings in the counter statement with respect to the first proviso are not satisfactory. It is true that the respondent has stated that the petitioner is in possession of spacious rooms in the second floor of the same building and the Rent Control Petition is filed suppressing the said material facts. It is come out in evidence during her cross examination that after the filing of the Rent Control Petition, she got vacant possession of the hall in the second floor of the very same building and she let out the same to one Viswan. We are of the view that the said conduct of the petitioner, even if it is true, will not negate the _bona fides_ of the need as the said room is situated in the second floor. It is to be borne in mind that the petition schedule shop room is situated in the ground floor. It is well settled by the decision of the Supreme Court in _**Dhannalal v. Kalawatiwai**_ [2002 (6) SCC 16] that the rooms in the first or second floor cannot be equated with the rooms in the ground floor for commercial purpose. That apart, in _**Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta**_ [1999 (6) SCC 222], the Supreme Court held that even if the landlord gets vacant possession of RCR No. 329/2017 -9- any other buildings during the pendency of the Rent Control Petition, it is for the landlord to choose one among the vacant rooms for her need and the tenant cannot insist that the landlord must occupy the shop room which she got vacant during the pendency of the Rent Control Petition for her occupation. This Court again reiterated the said legal position in _**George v. Stanley**_ [2013(4) KLT SN 23 (Case No.21)]. In short, the tenant cannot dictate the terms of convenience, suitability etc. of the building for starting the proposed business. 8. In the above analysis, we find that the findings of the court below that the claim for eviction is barred by the first proviso is also perverse. In the above analysis, we set aside the findings of the appellate authority rejecting the claim for eviction under Section 11(3) of the Act and we restore the findings of the Rent Control Court under the first proviso to Section 11(3) of the Act. Consequently, the claim for eviction under Section 11(3) will stand allowed and the respondent is directed to put the landlord in possession of the petition schedule building under Section 11(3) of the Act also. This RCR is allowed as above. sd/- ## **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ RCR No. 329/2017 -10-