VANJA SUNDARAM v. K.M. NIRLA LAKSHMANAN and K. P. RAMESH KUMAR

## **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. 330 of 2017** **AGAINST THE ORDER/JUDGMENT IN RCA 95/2015 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),THALASSERY DATED 01-06-2017** **AGAINST THE ORDER/JUDGMENT IN RCP 12/2013 of MUNSIFF COURT, THALASSERY DATED 29-06-2015** ## **REVISION PETITIONER/1ST RESPONDENT/PETITIONER :** **VANAJA SUNDARAM, W/O. 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** ## **RESPONDENTS/APPELLANT/RESPONDENT NO.2/RESPONDENTS:** **1 K.M.NIRLA LAKSHMANAN, W/O. M. C. LAKSHMANAN, AGED 70 YEARS, 'MIDHILA', THALASSERY AMSOM, VADIKKAKAM DESOM, THALASSERY P.O, KANNUR. PIN-670 101. 2 K. P. RAMESH KUMAR, MANAGING PARTNER, M. C. LAKSHMAN COMPANY, 'NANDANAM' MC ENCLAVE, KUVAMBHAGAM P.O, THALASSERY, KANNUR. PIN-670 101.** **BY ADVS. SRI.V.BINOY RAM R2 BY SRI.G.S.REGHUNATH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev..No. 330 of 2017 2 ## **ORDER** ## **Harilal, J** The revision petitioner is the landlord and the respondent is the tenant, who is in occupation of the tenanted premises owned by the revision petitioner. Parties are referred to as in the rent control petition. The landlord filed R.C.P.No.12/2013 before the Rent Control Court, Thalassery against the tenant seeking for an order of eviction under Section 11(2)(b), 11(3) and 11(iv)(i) of the Kerala Building (Lease and Rent Control) Act, 1965 [for short, the 'Act']. The rent control court allowed the rent control petition and granted an order of eviction under all the aforesaid grounds. Feeling aggrieved, the respondents preferred an appeal as R.C.A.No.95/2015 before the Rent Control Appellate RCRev..No. 330 of 2017 3 Authority, Thalassery. After re-appreciating the evidence on record, the appellate authority reversed the order of eviction under all the aforesaid grounds. The petitioner/landlord filed this revision petition assailing the findings whereby the appellate authority rejected the claim for eviction under Section 11(3) and 11(4)(i) of the Act only. Thus the legality and propriety of the divergent findings under Section 11(3) and 11(4)(i) of the Act came up in this revision before us for consideration. 2. Coming to the divergent findings under section 11(3) of the Act, it could be seen that the Rent Control Court found that the need projected in the rent control petition is _bona fide._ But, in appeal, the Appellate Authority reversed the said finding on the following grounds: RCRev..No. 330 of 2017 4 (1) The non-examination of the dependent for whose need the building was required is fatal to the claim under section 11(3) of the Act. Is there any illegality in the findings of the Rent Control Court on the said ground? (2) The dependent is a well-known musician in the field of Gazal at Bombay and in that circumstance, such a person will not venture to settle down at a native place with a musical recording studio. 3. It is to be borne in mind that the need is always that of the landlord, even if the building is required for a member of the landlord's family, who is dependent on him. If that be so, the _bona fides_ of the need can be proved by the examination of the landlord and it cannot RCRev..No. 330 of 2017 5 be insisted that the dependent must be examined in evidence to prove the _bona fides_ of the need. This proposition is seen reiterated in _**Musthafa Haji**_ _**v. Umbichi**_ **[2004 (2) KLT 1110]** and _**Cannore Drughouse v. Cheriya Melat Abdul Azeez**_ [ **2013 KHC** **2518].** 4. It is the case of the petitioner that his son, Sri.Jithesh Sundaram is a well-known musician in the field of Gazal and he intends to start a studio for recording music at Thalassery and for that the needs the purpose, petitioner petition schedule building and two rooms on the ground floor. The need expressed by the petitioner is attacked by the respondent, on the ground RCRev..No. 330 of 2017 6 that the son of the petitioner is a well-known musician in the field of Gazal at Bombay. Therefore, he will not come to his native place at Thalassery for starting a recording studio. The appellate authority also accepted the said contention, by reversing the findings of the rent control court. 5. It stands well settled that the _bona fide_ need is a state of mind and neither the court nor the tenant could sit in judgment over the wisdom of the landlord in preferring a venture for his livelihood. Similarly, neither the court nor the tenant can dictate the terms or choice of the need. In _**Savtnagil Purushotham Ltd. v.Vimala Bhai Prabhu Lal**_ **[2005 (4) KLT 452]** the Supreme Court held that it is the privilege of the landlord to choose the nature of business and place of business. In _**Sameera and others v. M.C.Mammootty and another**_ **[2013 (4) KHC** RCRev..No. 330 of 2017 7 **826]** this Court held that the tenant cannot dictate that landlord must be satisfied by his present business. In _**Basheer v. Ramani Gopalan and others**_ **[2014 (1) KHC 436]** this Court observed that landlord himself is the best judge and tenant cannot dictate the choice or place of business. We are of the view that, even if he is a wellknown musician at Bombay, it cannot be said that he will not venture to settle down at his native place with a musical recording studio. It is purely the choice of the dependent, and the tenant cannot predict or dictate the choice of the landlord or dependent. Therefore, in the above view, we are of the view that the finding of the appellate authority, that the dependent's son would not venture to settle down at his native place with a musical recording studio, is perverse and unsustainable in view of the aforesaid decisions. More importantly, the need RCRev..No. 330 of 2017 8 was proved by examining the landlord as PW1 and nothing has been brought to discredit his evidence, according to the appellate authority also. If _bona fides_ of the need is proved by examining the landlord himself, it cannot be said that the dependent also should have been examined in evidence. 6. In the above view, we set aside the findings of the appellate authority in this respect. We find that the need projected is _bona fide._ The courts below had already concurrently found that the claim for eviction is not hit by the 1[st] proviso to Section 11(3) of the Act and the tenants are not entitled to get protection under the 2[nd] proviso. Hence, the claim for eviction under section 11(3) of the Act would stand allowed. 7. Further the petitioner averred that the petitioner is the landlord and the first respondent is the RCRev..No. 330 of 2017 9 tenant in respect of the petition schedule building. She leased out the building to the first respondent for a monthly rent of Rs.2,500/- on 01.04.2006. The terms and conditions of the lease deed were reduced into writing by way of Kachit dated 29.08.2006 executed in between the petitioner and the first respondent. But subsequently the first respondent sub leased the petition schedule shop room to the 2[nd] respondent without knowledge or consent of the petitioner. In short, the 2[nd] respondent is a sub lessee only and he has no right to occupy the petition schedule building and he was liable to be evicted under Section 11(4)(i) of the Act. 8. Going by the order passed by the rent control court, we find that the rent control court allowed the order of eviction under Section 11(4)(i) on a finding that RCRev..No. 330 of 2017 10 though the tenancy was actually created in favour of a firm by name M/s.M.C.Lakshmanan & Company as contended by the 2[nd] respondent, no evidence has been adduced by the 2[nd] respondent to prove his claim that he is also a partner of M/s.M.C.Lakshmanan & Company. Though Exts.B1 to B3 partnership deeds were produced by the 2[nd] respondent to prove his claim, they are not admissible in evidence, because they were notarized photocopies of an unregistered partnership deed only. That apart, the 2[nd] respondent did not mount the box so as to establish his claim that he is also a partner of the firm by name M/s.M.C.Lakshmanan & Company. But the 9. going by impugned judgment reversing the order of eviction granted under Section 11(4)(i) by the appellate authority, we find that the RCRev..No. 330 of 2017 11 appellate authority found that the basic pleadings in the rent control petition itself are false and the same are established by way of Exts.B1 to B3 and the admissions from the part of the PW1 herself. Going by the averments in the plaint, it could be seen that it is the specific case of the petitioner that she is the landlord and the first respondent is the tenant under the kachit dated 29.08.2006 and subsequently, the first respondent has sub leased the petition schedule building to 2[nd] respondent without knowledge or consent of the petitioner. But going by Ext.A1 lease deed, we find that the averments in the petition narrating the nature of tenancy are absolutely false. Ext.A1 shows that in fact the tenancy was created in favour of a firm by name M/s.M.C.Lakshmanan & Company and not by the name of first respondent. In RCRev..No. 330 of 2017 12 Ext.A1, it is specifically stated that the plaint schedule shop room, which belonged to the petitioner has been leased out to a firm by name M/s.M.C.Lakshmanan & Company and the lease deed was executed in favour of the first respondent as managing partner of the said firm. As rightly held by the appellate authority, the tenancy was created in favour of a firm, all the partners of that firm even if they are subsequently inducted to the partnership deed after the commencement of tenancy they are also entitled to occupy the tenant as a partner of the firm. They cannot be branded as a sub lessee. It is needless to say whether a tenancy is created in favour of a partnership firm, all the partners in the firm are entitled to hold and occupy the tenanted premises as of right. RCRev..No. 330 of 2017 **==> picture [11 x 6] intentionally omitted <==** 10. In the instant case, it is true that the 2[nd] respondent claimed that he is also a partner of M/s.M.C.Lakshmanan & Company and he was inducted to the firm by way of the reconstitution of the partnership deed after the commencement of the tenancy. He has produced notarized photocopy of an unregistered partnership deed and reconstitution deeds as Exts.B1 to B3 and he did not mount the witness box to testify his claim as a partner of the firm. We are also no of the opinion that reliance can be placed in Exts.B1 to B3, but we further find that the petitioner herself was examined as PW1. She admitted that the original tenancy was created in favour of a partnership firm by name M/s.M.C.Lakshmanan & Company and Ext.A1 lease deed was executed in favour of the said firm by the second respondent as a managing partner of the RCRev..No. 330 of 2017 14 firm only. 11. We are of the opinion that the aforesaid admission from the part of the petitioner herself would falsify the basic averments in the rent control petition that the lease was created in favour of the first respondent and first respondent is the tenant under the petitioner. It is to be borne in mind that the burden of proof is always on the landlord under Section 11(4)(i) of the Act. We find that the landlord miserably failed to discharge the initial burden of proof. Moreover her own evidence would disprove the averments in the rent control petition as regards Section 11(4)(i) of the Act. The legal validity and admissibility of Exts.B1 to B3 would come into play only, if, the petitioner discharges her initial burden of proof; but, in the instant case the RCRev..No. 330 of 2017 15 petitioner/landlord miserably failed to discharge the initial burden of proof. In the above view, the appellate authority is justified in rejecting the claim for eviction under Section 11(4)(i) of the Act. In the result, the claim for eviction under Section 11(3) of the Act would stand allowed and the respondent/tenant shall put the petitioner/landlord in possession of the tenanted building. The rejection of the claim for eviction under Section 11(4)(i) would stand confirmed. This rent control petition is allowed in part. Sd/- ## **K.HARILAL, JUDGE** **sd/-** **ANNIE JOHN, JUDGE** AMV/06/03/2019 RCRev..No. 330 of 2017 16