Vasantha Mallan v. N.S. Abubacker Siddique and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941** ## **RCRev..No.393 OF 2018** **AGAINST THE JUDGMENT IN RCA 33/2016 DATED 13-04-2018 OF DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM** **AGAINST THE ORDER IN RCP 129/2014 DATED 23-02-2016 OF III ADDITIONAL MUNSIFF & RENT CONTROL COURT, EKM** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** **VASANTHA MALLAN AGED 72 YEARS S/O NARAYANAN MALLAN, THAREPARAMBIL HOUSE, T.D. ROAD, ERNAKULAM , KOCHI 682 035** **BY ADVS. SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SMT.P.SEENA** ## **RESPONDENTS/APPELLANT & RESPONDENTS:** **1 N.S.ABOOBACKER SIDDIQUE AGED 56 YEARS S/O N.A. SAINUDDEEN, HOUSE NO. 35/412, Y.M.J. ROAD, PALARIVATTOM, KOCHI 25, ASHIYANA ASSOCIATES, OPPOSITE S.S. KALAMANDIR, T.D. ROAD, ERNAKULAM 682 035** *** 2 JAIPRAKASH AGED 62 YEARS S/O.KUNDALA SINGHAL,F-83,MAIN ROAD,** **R.C.R.No.393 of 2018** **:-2-:** **JAGATPURI,NEW DELHI-51. (DELETED) (THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER THE ORDER DATED 24/05/2019 IN IA.NO.01/2019)** **3 KALAM AGED ABOUT 55 YEARS ASHIYANA ASSOCIATES,OPP.S.S.KALAMANDIR, T.D.ROAD,ERNAKULAM,KOCHI-682035.** **R3 BY ADV. SMT.A.AMRUTHA VIDYADHARAN R3 BY ADV. SMT.F.ANCY R3 BY ADV. SMT.KALA G.NAMBIAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14-11-2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **R.C.R.No.393 of 2018** ## **:-3-:** **“C.R.”** **Dated this the 14[th] day of November, 2019** ## **O R D E R** ## **T.V.ANILKUMAR, J.** The revision petitioner is the landlord of a three storied building bearing Door No.CC/67/11307 of Kochi Corporation of which the tenanted premises form part of. The ground floor of the building was let out to respondents 1 and 2 on monthly rent for business purpose under a joint tenancy arrangement. Later, it came to the notice of the revision petitioner that second respondent stopped his business and left the tenanted premises. Still later, it came to his notice that the first respondent without the knowledge and consent of the revision petitioner sublet the tenanted premises to 3[rd] respondent violating the conditions of the lease. 2. The revision petitioner required the ## **R.C.R.No.393 of 2018** ## **:-4-:** tenanted floor of the building for his own occupation as well as of his son for conducting business in floor tiles and sanitary wares. Revision petitioner further noticed that during the currency of the tenancy, the respondents 1 and 2 used the petition scheduled building in such a manner as to destroy its value and utility materially and permanently. Alleging these facts, the landlord filed R.C.P. No.129 of 2014 before the Rent Control Court, Ernakulam, seeking eviction of respondents 1 to 3 under Sections 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, 'the Act'). 3. The Rent control court ordered eviction of respondents only under Section 11(3) of the Act and rejected grounds of eviction under Sections 11(4)(i) & 11(4)(ii) of the Act. The 1[st] respondent challenged the order of eviction in ## **R.C.R.No.393 of 2018** **:-5-:** R.C.A. No.33 of 2016 before the Rent Control Appellate Authority, Ernakulam which reversed the eviction order in R.C.P. No.129 of 2014. Challenging the order of the Appellate Authority, the landlord filed this revision. The refusal of eviction under Sections 11(4)(i) and 11(4)(ii) of the Act has become final since the landlord has not chosen to challenge the same. During the pendency of the revision petition, the 2[nd] respondent was deleted from the party array. Practically the 3[rd] respondent alone now contests the revision. 4. The revision petitioner is a retired bank employee aged 72 years. He claimed that he _bona fide_ needed petition scheduled ground floor owned by him to start a business in sanitary wares and floor tiles along with his son claimed to be his dependent. The third respondent is conducting a textile business in the tenanted premises. ## **R.C.R.No.393 of 2018** ## **:-6-:** According to the revision petitioner, he has no building or room in his possession for starting the proposed business other than the ground floor. It is contended that the tenants have independent sources of income besides their business in the scheduled premises and further there are buildings also in the locality for alternate accommodation of their business. 5. The respondents 1 and 3 denied the alleged _bona fide_ need of the revision petitioner before the courts below. According to them, he has income from pension and further his son is not a dependent on him since he too has independent income and other avocations. They claimed the protection and benefit under the provisos to Section 11(3) of the Act. According to them, their main source of livelihood is the income derived from the textile business in the scheduled premises and there are no suitable buildings for ## **R.C.R.No.393 of 2018** ## **:-7-:** shifting their business. It was specifically contended that the rest of the floors of the three storied building is in the possession of the revision petitioner where he can conveniently conduct the proposed business and there is absolutely no _bona fides_ in his plea for eviction. 6. The Rent Control Court examined the revision petitioner as PW1 and the 1[st] respondent as RW1. After appreciating the entire evidence on record, it held that the need urged by the revision petitioner was _bona fide_ and it could never be rejected as a mere ruse solely set up for eviction. It also found that respondents failed to discharge the burden of proof cast on them for claiming the benefit under second proviso to Section 11(3) of the Act. It was held that the tenants could not establish that income from the textile business was the main source of income and also that there were no buildings in the locality ## **R.C.R.No.393 of 2018** ## **:-8-:** for alternate accommodation of their business. 7. While rejecting the protection claimed by the respondents under first proviso to Section 11(3) of the Act, it held that the revision petitioner sufficiently explained the reason for not occupying the rest of the floors in the three storied building. The Rent Control Court was satisfied that the revision petitioner was occupying the first floor of the building for his residence and the construction of third floor was still incomplete. As far as the second floor was concerned, it opined that having regard to the peculiar nature of proposed business, it could not be considered to be a suitable premises. The admission alleged to have been made by RW1 in this respect was also taken note of, to a certain extent, by the Rent Control Court. 8. In appeal, the Appellate Authority concurred with the finding of the Rent Control ## **R.C.R.No.393 of 2018** ## **:-9-:** Court that the need urged by the landlord was _bona fide_ and also that the tenants failed to discharge their burden of proof with respect to protection claimed under second proviso to Section 11(3) of the Act. The Appellate Authority also agreed with the view of the Rent Control Court that the tenants could not establish that there were no suitable buildings for them to shift their business and income from the textile business which was the main source of livelihood. 9. All the same, the eviction claimed under Section 11(3) of the Act was declined by the Appellate Authority, dissenting from the finding of the Rent Control Court that the tenants were not entitled to the first proviso to Section 11(3) of the Act. According to the Appellate Authority, the respondents are entitled to the protection of first proviso to Section 11(3) of the Act, inasmuch as the landlord did not disclose in his ## **R.C.R.No.393 of 2018** ## **:-10-:** pleadings the possession of vacant floors in the three storied building and further failed to explain the reasons for non occupying those premises. The concurrent finding of fact rendered by both the courts below in regard to plea of _bona fide_ need for occupation urged by the landlord and to the plea of protection claimed by the tenants under second proviso to Section 11(3) is not capable of any interference since there is nothing to indicate that the finding is perverse or absurd in any manner. 10. The only question with which we are concerned in this revision is whether the respondents are entitled to the benefit of first proviso to Section 11(3) of the Act. 11. We heard the learned counsel appearing for the revision petitioner as well as the third respondent. 12. We notice from the impugned order of the ## **R.C.R.No.393 of 2018** ## **:-11-:** Appellate Authority that it found non disclosure of availability of the rest of the floors in the three storied building in the possession of the revision petitioner was fatal and it affected the _bona fides_ of the claim for own occupation urged by him. In coming to this finding, it relied on a decision of a Division Bench of this Court in **Bhargavi Amma P. v. K.P.Ajayakumar (2016(1) KHC** **347)** . However, it also referred to a later Division Bench decision of this Court in **Kunhamina** **K. v. V.K.T.Aboobacker Haji (2016 KHC 639) [ILR** **2016(3) Ker. 349]** which took a conflicting view that such disclosure of availability of premises with the landlord was not fatal and tender of materials in evidence explaining sufficient reasons for not occupying such premises was sufficient. The Appellate Authority, however, considered the evidence on record in order to find out whether the landlord succeeded in proving ## **R.C.R.No.393 of 2018** ## **:-12-:** special reasons for not occupying the other floors of the three storied building in his possession. It was not satisfied from the evidence on record that the second floor of the building was not suitable for the proposed business of the revision petitioner. The Authority also remarked that RW1/the 1[st] respondent never made any admission that the second floor would be inconvenient for the landlord to conduct proposed business. 13. We too have gone through the evidence and find that so far as the first floor is concerned, there is clear evidence that it is in the occupation of the revision petitioner and he is using it as his residence. Even the tenants do not dispute this. The third floor is still in an incomplete state and therefore, it cannot be used for the proposed business. This fact is also not disputed by the respondents. 14. The precise legal question that arises in ## **R.C.R.No.393 of 2018** **:-13-:** this case is whether a landlord is bound to plead under first proviso to Section 11(3) of the Act, availability of vacant building in his possession and seek to explain special reason for non occupation of such premises in a proceeding initiated for eviction of tenant under Section 11(3) of the Act. Though this question had been addressed many a time in various decisions of this Court, we were told by the counsel on either side that there is still conflict of law in this respect arising out of divergent views taken by two Division Benches of this Court reported in **Bhargavi Amma P. v. K.P. Ajayakumar [2016(1) KHC 347]** and **Kunhamina K. v. V. K. T. Aboobacker** ## **Haji[2016 KHC 639]** . 15. In **Bhargavi Amma's** case (cited supra),there was no pleading advanced by the landlord in the eviction petition to the effect that he had any vacant building of his own in his ## **R.C.R.No.393 of 2018** ## **:-14-:** possession. In the cross-examination he, however, admitted that he had been keeping two vacant rooms in his possession under lock and key. But he failed to assign any special reason for non occupation of the rooms. This Court while dismissing the eviction petition made the following observation in paragraph No.9 of the decision. “The rooms in his possession were vacant throughout. The admission that has been made by the landlord as PW 1 is clear and categoric. It is not a statement made under a mistake. This is for the reason that, he is very specific about the door numbers of the rooms that are in his possession. He has also specifically stated that they are being kept locked. Therefore, this is a case where the landlord has filed the Rent Control Petition without disclosing a very relevant fact to the Court. The non - disclosure of the said fact as already held above is a circumstance that casts doubt on the bona fides of the need that has been put forward by him.” [emphasis supplied] 16. This observation is not consistent with the law settled by the Hon'ble Apex Court as well ## **R.C.R.No.393 of 2018** ## **:-15-:** as this Court. The initial burden to prove that landlord is in possession of vacant building if any, is only upon the tenant unless the landlord himself admits any such vacant building to be in his possession. Only when the primary burden of proof in this behalf is discharged by the tenant, the burden shifts to the landlord to show otherwise or that the vacant premises are not suited to his needs. He can successfully discharge his part of the burden by adducing evidence either through his own testimony or others or in any other legal manner. Law does not require him to plead that he is in possession of any vacant building and has special reasons for its non occupation. It is upto the tenant alone to take up the contention and prove that landlord is in vacant possession of premises. These principles of law could be culled out from the Division Bench decisions of this Court reported in **Raghavan v.** **R.C.R.No.393 of 2018** ## **:-16-:** **Govindan Nambiar[1995 KHC 109],Jerry Joseph v. Selvaraj [2002 KHC 398],Kunju T. P. v. Fathima and** **Others [2014 (3) KHC 127]** and **Kunhamina K. v. V. K. T. Aboobacker Haji[2016 KHC 639].** We are of the view that the observation made in **Bhargavi Amma's** case (cited supra) that it is for the landlord to plead and disclose availability of vacant building in his possession is against the law declared by the Hon'ble Supreme Court in **M. L. Prabhakar v. Rajiv Singal[(2001)2 SCC 355]** which was relied on in the aforesaid Division Bench decisions of this Court. In paragraph No.5 of **M.L. Prabhakar's** case (cited supra), the Hon'ble Supreme Court held as here under. “It has been urged that there was suppression on the part of the landlord inasmuch as he did not disclose the premises which were available at 16/57 Gali No. 1, Joshi Road as well as the premises which are available at Basant Road, Pahar Ganj. On the other hand on behalf of the Respondent Dr. Singhvi has submitted that the only requirement is to disclose such accommodation as is suitable for residence of the landlord. Dr. Singhvi submitted that if there is no other residential accommodation which is suitable then there is no duty to disclose. Dr. Singhvi relied upon the authority in the case of ## **R.C.R.No.393 of 2018** ## **:-17-:** Ram Narain Arora v. Asha Rani and Ors. reported in 1999 (1) SCC 141, wherein it has been held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bona fide requirement. It is held that whether the landlord has any other reasonably suitable residential accommodation is a defence for the tenant. It is held that whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and non disclosure by the landlord. It was held that the landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced. In this case even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused. The parties have squarely dealt with this question. 17. Relying on the aforesaid decision, a Division Bench of this Court in **Jerry Joseph v. Selvaraj [2002 KHC 398]** laid down the law as follows. In this case from the evidence on record it is clear that even though the revision petitioner has not disclosed about the availability of the rooms belonging to his parents and their non suitability for the purpose of the trade that he intends to start in the petition schedule premises, both sides have properly understood the applicability and impact of the first proviso to S.11(3) of the Kerala Act 2/1965 and both of them have adduced evidence on this aspect of the case. It is also clear that by the non disclosure about the rooms available and belonging to the parents of the revision petitioner, absolutely no prejudice is caused to the revision petitioner and he has put ## **R.C.R.No.393 of 2018** ## **:-18-:** forward necessary contentions and adduced evidence with regard to the applicability of the first proviso to S.11(3) of the Kerala Act 2/1965 in this case. Hence in view of the fact that evidence is adduced by both sides with regard to the applicability of the first proviso to S.11(3) of the Kerala Act 2/1965 and that contention is considered by the Courts below and no prejudice is caused to the revision petitioner by non disclosure of the fact, the failure of the revision petitioner to mention that fact in the R.C.P. is immaterial and the contention of the respondent that non disclosure of the fact is fatal in this case to the respondent, is absolutely unsustainable. 18. We notice that the decision in **Bhargavi Amma's** case (cited supra) was pronounced without taking note of the decision of the Hon'ble Apex Court in **M.L. Prabhakar's** case (cited supra). In fact, after referring to **Bhargavi Amma's** case (cited supra) and relying on the aforesaid decision of the Hon'ble Apex Court, the Division Bench of this Court in **Kunhamina's** case (cited supra) made the legal position transparently clear as follows. “So it is clear from the above dictum that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before Court and he ## **R.C.R.No.393 of 2018** ## **:-19-:** had given special reasons for not occupying the same and both parties have adduced evidence on this aspect understanding the case of each other, then no prejudice will be caused to the tenant on account of the non disclosure of this fact in the rent control petition and it is for the Court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bonafide need.” 19. In view of the binding decision in **M.L. Prabhakar's** case (cited supra) of the Hon'ble Supreme Court, the conflicting observation expressed in **Bhargavi Amma's** case (cited supra) cannot survive and operate as a binding precedent. We, therefore, hold that it is not incumbent on the landlord to disclose in his pleading availability of vacant building in his possession. The non disclosure of vacant premises cannot be picked up as a reason or circumstance to doubt the _bona fides_ of the claim of the landlord put forward under Section 11(3) of the Act. 20. We make it clear that it is not obligatory ## **R.C.R.No.393 of 2018** ## **:-20-:** for the landlord to disclose in his pleadings the details of the vacant buildings available in his possession. Nor does first proviso to Section 11(3) of the Act insist the landlord to plead that the buildings available in his possession are not sufficient to meet his requirements. These are matters of evidence rather than pleading. Failure of the landlord to disclose availability of buildings in his possession and plead special reasons for not occupying them, cannot be taken as a valid and legal ground for rejecting the claim of the landlord as not _bona fide_ . What could at the most be said is that it might be a fair and reasonable conduct if the landlord disclosed in his pleadings the details of buildings in his possession and simultaneously explained the reason for non occupation of the premises for his alleged needs. This may give an opportunity to the tenant to meet early in advance the case of the landlord ## **R.C.R.No.393 of 2018** ## **:-21-:** that the buildings in his possession are not adequate enough to fulfill his needs. Once the materials placed on record adequately explain the special reason for not occupying the buildings available with the landlord and parties on both sides had sufficient opportunity of understanding their respective cases each other and also adducing evidence, there is no warrant for the tenant to complain that he was prejudiced by non disclosure of relevant matters in the pleadings of the landlord. 21. In any view of the matter, there is ample evidence in this case to show that the landlord succeeded in explaining the special reason for not occupying the remaining floors of the whole building and the non disclosure of premises in his pleadings did not affect the _bona fides_ of the need for own occupation. The impugned order of the Appellate Authority dismissing the eviction ## **R.C.R.No.393 of 2018** **:-22-:** petition is therefore liable to be reversed and eviction allowed. In the result, revision succeeds and impugned order of Rent Control Appellate Authority in R.C.A. No.33/2016 is set aside. Eviction petition in R.C.P. No.129/2014 is allowed and respondents are ordered to surrender vacant possession of the petition scheduled property to the revision petitioner. All pending interlocutory applications are closed. ## **Sd/-** **K.HARILAL** **JUDGE** **Sd/T.V.ANILKUMAR JUDGE** ami/