Varghese v. Sasidharan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939 ---------------------- AGAINST THE JUDGMENT IN RCA 205/2011 of ADDITIONAL DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY,IRINJALAKUDA AGAINST THE ORDER IN RCP 1/2008 of RENT CONTROL COURT,IRINJALAKUDA REVISION PETITIONER(S)/APPELLANT/RESPONDENT -------------------------------------------- VARGHESE, S/O. THEKKUDAN DEVASSY, MAPRANAM, MADAYIKONAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV.SRI.K.S.BHARATHAN RESPONDENT(S)/RESPONDENTS/LEGAL REPRESENTATIVES OF THE DECEASED PETITIONER : ------------------------------------------ ## 1. SASIDHARAN (DIED), S/O. CHANKARAMKATTIL MANI, GANDHIGRAM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ## 2. VRINDHA SASIDHARAN, W/O. SASIDHARAN, GANDHIGRAM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ## 3. NISHANTH, S/O. SASIDHARAN, GANDHIGRAM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ## 4. NISHA (DIED), D/O. SASIDHARAN, GANDHIGRAM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ## 5. NISHAL, S/O. SASIDHARAN, GANDHIGRAM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 6. BINOY CHANDRAN, - S/O. MANAKUNNATH CHANDRAN, AZAD ROAD, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 7. PARVATHY,D/O. BINOY CHANDRAN, MANAKUNNATH HOUSE, AZAD ROAD, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 8. GOURI,D/O. BINOY CHANDRAN, MANAKUNNATH HOUSE, AZAD ROAD, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. R1 BY ADV. SRI.V.M..KRISHNAKUMAR (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON - 06-03-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** ## **==========================** ## **R.C.R.No.63 OF 2018** ## **==========================** Dated this the 6[th] day of March, 2018 ## **ORDER** _Ravikumar, J._ This revision petition is directed against the judgment dated 14.9.2017 passed by the Rent Control Appellate Authority, Irinjalakuda confirming the order in R.C.P.No.1 of 2008 passed by the Rent Control Court, Irinjalakuda on a petition filed under section 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Rent Control and Lease) Act, 1965 (for brevity 'the Act'). The Rent Control Court had ordered eviction of the revision petitioner tenant under sections 11(3) and 11(4)(iii) of the Act, but declined the prayer for ejectment under section 11(2)(b) of the Act. 2. We have heard the learned counsel for the revision petitioner. 3. The main contention of the revision petitioner is that the appellate authority had failed to consider an important aspect which **R.C.R.No.63/2018** 2 would eclipse the bona fide need projected by the respondent in the rent control petition. According to him, after filing the rent control petition, in the building whereon himself and the respondent-landlord conduct their respective businesses, the respondent-landlord started construction of three additional rooms and it is a matter which would eclipse the bona fide need. Though the said aspect was brought to the notice of the Rent Control Court, it was not properly considered. The said contention was raised before the appellate authority as well and the appellate authority too had failed to consider that aspect in proper manner, it is submitted. It is in such circumstances that the petitioner attributes perverseness and illegality in the decisions of the Rent Control Court as also the appellate authority. 4. Upon hearing the learned counsel for the revision petitioner and perusing the averments in the revision petition, we are of the view that the main question to be considered in this revision petition is whether construction of additional rooms subsequent to the filing of the RCP would eclipse the bona fide need projected by the landlord in **R.C.R.No.63/2018** 3 the RCP. In the contextual situation, it is relevant to refer to the decision of a Division Bench of this Court in **Dasan v. Janardhanan** **[2009 (2) KLT 726]** . This Court held that the subsequent acquisition of possession of a building by the landlord would not make it obligatory to plead special reasons by raising additional pleadings. In the case on hand, admittedly, the respondent landlord is conducting ayurveda pharmacy in the building in question. His son-in-law is also doing business in the very same building. The bona fide need projected is for starting a textile business for his two sons namely Nishant and Nishal. A perusal of the impugned order passed by the Rent Control Court as also the judgment of the appellate authority confirming the same would reveal that the aforesaid aspect was actually considered by both the authorities. The Rent Control Court considered the said contention of the revision petitioner in detail, as can be seen from paragraph 27 of its order. The said paragraph would reveal that the respondent herein who is the landlord had amended the petition to bring in averments to the effect that the northern most room **R.C.R.No.63/2018** 4 held by his son-in-law was extended towards east and south and another room was constructed by him on the southern side facing east. Those two rooms are used for the business in paints of his son-in-law and the other room on the southern side facing east is used as a godown for the business in paints. That apart, it is averred that those rooms got no road frontage and they are not suitable for the proposed business. Exts.C1 to C2 reports and the rough plans appended thereto got relevance in this context. It is reported by the Advocate Commissioner as per Ext.C1 that the construction of rooms towards east and south were in completed stage and the third room was under construction. Paragraph 28 therein would reveal that going by those reports, out of the three rooms constructed subsequently two are actually extensions of the existing room on the northern side where business in painting is conducted and the third room is being used as a godown for the paint business. The appellate authority affirmed the said findings and conclusions based on the evidence on record. Those findings on facts which are concurrent cannot be interfered with **R.C.R.No.63/2018** 5 except in certain permissible grounds going by the settled position of law. In fact, a perusal of the grounds raised in the revision petition would reveal that the contents of the report and their appreciation and ultimate conclusions based thereon, are also not disputed. In fact, no grievance was raised regarding such aspects. Even otherwise, we are also of the view that the aforesaid aspect viz., construction of the said shoprooms would not and could not in any way eclipse the bona fide need projected by the landlord in the RCP due to the aforesaid circumstances. It is also to be noted that the bona fide need projected by the respondent-landlord is that the room occupied by the petitioner is required for textile business for his sons viz., Nishant and Nishal. When once the aforesaid conclusions regarding subsequent constructions are upheld, there is no reason to hold that bona fide need had extinguished. In such circumstances, we do not find any reason to interfere with the said finding of the Rent Control Court which got confirmance by the judgment of the appellate authority. 5. As regards the question whether the revision petitioner had **R.C.R.No.63/2018** 6 succeeded in establishing that he is entitled to get the benefit of protection from being evicted available either under the first proviso or second proviso, the evidence on record would reveal that he had failed to establish the required ingredients to get protection under any of those provisions. The revision petitioner-tenant had raised a contention that there is practically no business in the room occupied by the landlord and therefore, he could start the proposed textile business there. Admittedly, the landlord is conducting an Ayurvedic business there. How can the revision petitioner be heard to say the proposed textile business could be started thereon after stopping the Ayurvedic business. The tenant got no business to advice the landlord as to what business he should conduct and where he should conduct it. Essentially, the choice should be that of the landlord and the tenant cannot dictate such terms. No ground has been made out by the revision petitioner warranting interference with the order of eviction under section 11(3) of the Act. 6. The learned counsel further submitted that the concurrent **R.C.R.No.63/2018** 7 finding of the Rent Control Court as also the appellate authority under section 11(4)(iii) is liable to be interfered with. Section 11(4)(iii) reads thus:- 11(4)(iii). if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or" 7. It is to be noted that an Advocate Commisison was taken out in the RCP and the Commissioner had filed Ext.C2 report to the effect that the revision petitioner could conduct business which is being conducted in the petition schedule shoproom in the building which is in his possession and situates near Vettukunnathukavu temple. Going by the report, the said building got three rooms. This position is not in dispute. The report would further reveal that out of the three rooms, cement sacks were stored only in one of the rooms. It is in such circumstances that the courts below arrived at the conclusion that the landlord is also entitled to get benefit under section 11(4)(iii) as the petitioner tenant is in possession of a building which is reasonably **R.C.R.No.63/2018** 8 sufficient for his requirement to continue his business which he has been conducting in the shoproom in question. It is also to be noted that when the fact that he was in possession of a building was brought out by the landlord, essentially, it is for the tenant to show that it is not reasonably sufficient for his requirement. No evidence in that regard was adduced by the tenant. In such circumstances, we do not find any reason to interfere with the said finding under section 11(4)(iii) as well. In such circumstances, this revision petition is liable to fail. 8. When we are about to dismiss the revision petition, the learned counsel for the petitioner submitted that some reasonable time may be granted to the petitioner to give vacant possession of the room in question. We have heard the learned counsel for the respondent in that regard. We are of the view that six months time from today can be granted in that regard. Accordingly, it is granted. The revision petitioner tenant shall file an affidavit carrying an undertaking that he would give vacant possession of the petition schedule shoproom to the respondent landlord on the expiry of the aforesaid period. This shall **R.C.R.No.63/2018** 9 be done within a period of ten days from the date of receipt of a copy of this order. Needless to say that arrears of rent, if any, shall be paid by the tenant. So also, he shall continue to pay the rent during such continuance at the admitted rate. Subject to the above, this revision petition is dismissed. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH (JUDGE)** **spc/** **R.C.R.No.63/2018** 10 ## **C.T. RAVIKUMAR, J.** ## **JUDGMENT** **R.C.R.No.63/2018** 11 **September, 2010**