VELARAMBATH HANSA v. VELARAMBATH NANDAKUMAR (R.C.R. Nos.432 of 2010 and 134 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933** **RCRev..No. 432 of 2010()** **------------------------------** **RCA.3/2008 of ADDL. DISTRICT COURT, KOZHIKODE-III RCP.13/2003 of PRL. MUNSIFF COURT,KOZHIKODE-II** **....................** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT** **--------------------------------------------------------------** **VELARAMBATH HANSA,AGED 62 YEARS, D/O.VELARAMBATH SADANANDAN VAIDYAR, PARAYANCHERRY AMSOM,KOOTTOOLI DESOM.** **BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED** ## **RESPONDENT(S):APPELLANT/PETITIONER** **--------------------------------------------------** **VELARAMBATH NANDAKUMAR,AGED 52 YEARS, S/O.VELARAMBATH SADANANADAN VAIDYAR, VALAYANAD AMSOM DESOM,KOZHIKODE TALUK-673001.** **BY ADVS. SRI.P.K.SAJEEV SRI.V.SREENATH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/07/2011, ALONG WITH RCR NO.134 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **ORDER ON I.A. NO.3247/2010** ## **IN** ## **R.C.R. NO.432/2010** ## **DISMISSED** **01/07/2011 SD/- PIUS C. KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE.** **==> picture [19 x 7] intentionally omitted <==** **----- Start of picture text -----**<br> svs<br>**----- End of picture text -----**<br> ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------------R.C.R Nos.432 OF 2010 & 134 OF 2011 ---------------------------------------------------Dated this the 1[st] day of July, 2011** ## **O R D E R** ## BALAKRISHNAN, J. R.C.R.No.432 of 2010 is the revision filed by the tenant/respondent in R.C.P No.13 of 2003. The petitioner in R.C.R No.134 of 2011 is the landlord in the aforesaid R.C.P. The landlord who is the brother sought eviction of his sister, the tenant under Section 11(3), 11(4)(ii) and 11(4)(iii) of the Rent Control Act 2 of 1965. The landlord contended that he has no job or any other avocation and so he bona fide needs petition schedule building for conducting business in Ayurvedic medicines and he has got experience in conducting the said business. He is not in possession of any other building in that locality for conducting the said business. The tenant is having in her possession another building reasonably sufficient for her requirements. 2. The tenant has used the petition schedule building in such a manner as to reduce its value and utility materially and permanently, removing the walls and constructing new walls, she put up new doors, changed the floors and also constructed **R.C.R Nos.432/10 & 134 /11** 2 another shed in the land appurtenant to the petition schedule building. 3. The tenant resisted the petition disputing the need alleged by the landlord. The business in Ayurvedic Medicines was conducted in the petition schedule building even during the life time of her father and she is mainly depending on the income from the petition schedule building for her livelihood. There are no other vacant buildings available in the locality for shifting her business. The allegation that she is in possession of another building reasonably sufficient for her requirements is also denied. The allegation that she has made alterations and additions to the building and has demolished walls etc. are denied. A few hearths were put up because the licence conditions require the putting up of such hearths for the manufacturer of Ayurvedic Medicines. 4. Before the Rent Control Court the landlord was examined as PW1 and Exts. A1 to A5 were marked. The Commissioners report and plans were marked as Exts.C1 to C4. The tenant was examined on commission as RW1 and Exts.B1 and B2 were marked. The learned Rent Controller after conducting enquiry in 3 **R.C.R Nos.432/10 & 134 /11** the matter, dismissed the Rent Control Petition. The learned Appellate Authority confirmed the order of the Rent Controller, rejecting the claim under Section 11(3) and 11(4)(iii) of the Act, but allowed the appeal to the extent of granting an order of eviction under Section 11(4) (ii). The tenant has challenged that order of eviction. While the landlord has challenged the order rejecting the claim under Section 11(3) and 11(4) (iii) of the Act. ## 5. Heard both sides in detail. 6. There is no satisfactory evidence to hold that the respondent/tenant has in her possession a building reasonably sufficient for conducting the business in Ayurvedic medicines, so as to enable the landlord to get an order of eviction under Section 11(4)(iii) of the Act. The finding to that effect is concurrent. The learned counsel for the landlord has also not argued much on that point. Hence, we confirm the negative order confirmed by the learned Appellate Authority, so far as, it relates to the claim under Section 11(4) (iii). 7. Specific allegations were made by the landlord in the **R.C.R Nos.432/10 & 134 /11** 4 petition filed by him that the respondent has used the building in such a manner as to destroy or reduce its value or utility materially and permanently. Exts.C1 and C2 are the commission reports and rough sketch. The inspection was conducted by the Commissioner in the presence of the tenant. No objection was filed by the tenant against Ext.C1 report. The Advocate Commissioner has narrated the details of the alterations and additions made by the tenant. Admittedly, no consent of the landlord was obtained by the tenant for making such alterations or additions. It is important to note that at the time of inspection the Commissioner could see 6 masons and their helpers carrying on alteration work in the petition schedule building. Construction materials including 15 packets of cement, hollow bricks, country bricks and sand were seen kept near the petition schedule building for effecting further alterations and additions. It is also not disputed that the landlord had filed a suit against the tenant to restrain her from making such alterations and additions. Tenant also filed a suit against the landlord alleging that landlord was attempting to forcibly evict her and So the landlord should be restrained from doing so. The fact that the Advocate Commissioner could see the labourers engaged in making **R.C.R Nos.432/10 & 134 /11** 5 constructions, alterations etc, would certainly go a long way against the case pleaded by the tenant that no such work was carried out by her. The Commissioner could see that some alterations and additions were already done prior to his inspection. The wall on the north western portion of the building was completely demolished and reconstructed. Floor of the building was also demolished and concreted. Besides, the Commissioner could see six new hearths almost constructed. Pipes for emission of smokes were also put up. At another place a portion of verandha was converted into a room. The Commissioner could also see windows having been removed. After removing the back door of the building a new bath room was constructed by the tenant with new closet and wash basin. A door which was in existence opening towards west was removed and that portion was closed with bricks. A door situated on the northern side of the western room was shifted to the southern side. Entry from that room towards west was closed. It is stated that the entry towards the western shed is possible only through front portion of the building. After removing floor tiles, the flooring was done with read oxide. The windows on the front portion were removed and closed. There are the works **R.C.R Nos.432/10 & 134 /11** 6 admittedly caused to be done by the tenant. It is important to note that the tenant filed no objection to the report of the Commissioner. The report speaks volumes as to the impudent act of the tenant in almost reconstructing the building. The only contention advanced by the tenant is that the licence granted by the concerned authority for the conduct of the business for Ayurvedic medicines stipulated certain modifications and provision for hearths and emission pipes. Even if, any such stipulation was made by the concerned authorities, that does not clothe the tenant with the power to effect such alterations, almost in the nature of a reconstruction of a building against the interest of the landlord. 8. The learned counsel for the landlord would submit that in the land appurtenant to the main building a shed was unauthorisedly constructed by the tenant. Since the definition of “building” includes the land appurtenent to such building let out to the tenant, any unauthorised construction in that appurtenant land would also invite the mischief of Section 11(4) (ii), the learned counsel for the landlord submits. **R.C.R Nos.432/10 & 134 /11** 7 9. Sri. A.Balagopalan learned counsel for the tenant would submit that the application I.A.No.545 of 2010 filed by the landlord to amend the petition was dismissed by the Appellate Authority. According to the learned counsel, the schedule to the rent control petition as it stands now does not include the land upon which the construction of the shed as aforesaid was made by the tenant and as such the landlord cannot contend that the construction of the shed in that land should also be treated as a ground for getting an order of eviction under Section 11(4) (ii) of the Act. 10. Large scale demolition of the walls, removal of windows, doors, and putting up of new walls etc. as have been detailed earlier were noticed by the Commissioner. That would according to the landlord, prove to the hilt that the tenant used the building in such a manner as to destroy or reduce its value and utility materially and permanently. Value and utility of disputed building for the purpose of Section 11(4)(ii) have to be considered through the perspective of the landlord. Though alterations made by the tenant may be advantages in the tenant's perspective, it may be destructive or disadvantageous in the perspective of the **R.C.R Nos.432/10 & 134 /11** 8 landlord. Since the building belongs to the landlord, it is for him to decide how the building should be, whether it should be altered, modified or remodelled. The tenant cannot usurp the right of the landlord to effect such alterations or modifications in the manner he wishes and against the wish of the landlord. The learned counsel for the landlord would submit that the business in Auyurvedic Medicines was conducted in the petition schedule building even earlier and so the contention that in order to get the drug licence such alterations were made cannot in any way come to the rescue of the tenant. 11. To counter the argument Sri.A.Balagopalan the learned counsel for the tenant has relied upon the Supreme Court decision in **Raghunadhan v. Varghese (2005(4) KLT 147)** where it was held that the purpose of letting, the terms of the contract and nature of interference with the structure by the tenant are all maters relevant. The facts dealt with there in are entirely different. In that case the door was removed and it was bricked up and the level of the floor was lowered and rolling shutter was fixed. It was done to provide more security to the tenanted premises, as it was essential for the conduct of the **R.C.R Nos.432/10 & 134 /11** 9 business in Jewelery. Here the facts are entirely different. As such the decision in Raghunadhan's case cannot help the tenant in this case to avert an order of eviction under Section 11(4)(ii). We find no illegality, irregularity or impropriety in the order of eviction passed by under Section 11(4) (ii). Hence R.C.R No. 432 of 2010 must find its inevitable sequel. 12. The landlord contends that he has no job or avocation at present and he intends to start business in Ayurvedic Medicines in the petition schedule building. The Rent Control Court and the Appellate Authority did not favour with the landlord. The Appellate authority would find that there is difference in the need projected by the landlord. That finding has been seriously assailed by Sri.V.Sreenadh, the learned counsel for the landlord. The business proposed to be conducted by PW1 in Aurvedic medicines. Without making/manufacturing the same, the landlord cannot sell the same in the shop. It is also pertinent to note that the parties who are the brother and sister understood the case that the brother landlord also wants to conduct business in Ayurvedic medicine as was done by his father Sadanandan Vydier, which is the business now conducted by the **R.C.R Nos.432/10 & 134 /11** 10 tenant who is the daughter of Sadanandan Vydier. She is aware of the fact that in order to conduct the business in Ayurvedic Medicines, it has to be made/manufactured. It was for that purpose, the tenant herself says that hearths are to be put up and other conditions are to be fulfilled in order to get drug licence. It is also trite that such meticulous pleadings cannot be insisted upon in a proceeding for eviction under the Rent Control Act. There is sufficient pleading in the petition from which it can be well discerned that the need is to conduct business in Ayurvedic medicines which includes the preparation and manufacture of the same. 13. The other objection raised by the tenant is that the landlord has not so far obtained licence. It is inconceivable how the landlord can obtain licence for conducting the business before getting vacant premises. The landlord contends that he intends to appoint a qualified Aurvedic Physician for the conduct of the business in the petition schedule building. The tenant then contends that so far no doctor has been appointed and so the need is not bonafide. It is incomprehensible how the tenant can dictate the landlord that even before getting vacant possession of **R.C.R Nos.432/10 & 134 /11** 11 the building he should appoint a Doctor for that purpose. The learned counsel would submit that unreasonable objections were raised by the tenant to negative the plea of bonafide need set up by the landlord. We have scanned the evidence. It is seen that the courts below have taken an erroneous approach to jettison a justifiable claim under Section 11(3) of the Act. We find the need urged by the landlord is sincere, honest, and genuine and is not irrational nor is it prompted by oblique motives. Hence, we find that the need projected by the landlord is bona fide. The finding to the contrary entered by the courts below are set aside. 14. The courts below came to the conclusion that the tenant is entitled to the protection under the Second proviso to section 11(3) of the Act. It is a concurrent finding. But the learned counsel for the landlord would submit that the courts below were simply persuaded to accept the unsupported oral vibration of the tenant regarding the income derived from the petition schedule building and also as to the non availability of a suitable vacant building in that locality. According to the tenant, she is conducting business in Ayurvedic medicine. It must certainly have registers and accounts showing the income derived by conduct **R.C.R Nos.432/10 & 134 /11** 12 of the said business. That was not produced. When the best evidence was withheld by the tenant, how can the court act upon the oral assertion of the tenant especially when it is trite law that burden is on the tenant to prove both the limbs of the Second proviso. Similarly, though it was stated that there are no suitable vacant buildings just like the petition schedule building available in that locality, no commission was taken out. The tenant cannot insist that building exactly identical to the tenanted building should be available and that it should be available for a rent which is now being paid in respect of the tenanted building. The burden with regard to the second proviso was also not discharged by the tenant. The approach made by the two courts below on this point, is also seen to be grossly erroneous and unsustainable. However, we are inclined to grant an opportunity to the tenant to adduce further evidence with regard to the protection claimed by her under the second proviso to Section 11(3). 15. In the result, R.C.R. No.432 of 2010 is dismissed. R.C.R No.134 of 2011 is allowed in part as stated below:- The dismissal of the claim under Section 11(4)(iii) is **R.C.R Nos.432/10 & 134 /11** 13 confirmed. The need alleged by the landlord under Section 11(3) is found to be bana fide. The question Whether the tenant/respondent is entitled to the protection under the Second proviso is left to be decided by Rent Control Court afresh and for that matter alone the R.C.P is remanded to the Rent Control Court. The order passed by the Appellate Authority in I.A No.540 /2000 is set aside. That petition shall also be considered afresh by the Rent Control Court. The records including the petition I.A No.545of 2010 shall be re- transmitted to the Rent Control Court forthwith. 16. It is submitted by the learned counsel Sri.A.Balagopalan that the revision petitioner/tenant in R.C.R **.** No.432/2010 is suffering from series ailments and so she may require at least 1½ years to find out an alternate building so as to shift her business and so that much time may be granted. Though his request is opposed by the learned counsel of landlord, considering all the circumstances we are inclined to grant time to the tenant/revision petitioner till 30.6.12 but on the following conditions. 14 **R.C.R Nos.432/10 & 134 /11** The revision petitioner/tenant shall file affidavit within one month from today undertaking to surrender peaceful possession of the petition schedule building on or before 30.6.2012; and further she would discharge the entire arrears of rent within one month from to day and would also pay charges for use and occupation of the petition schedule building at the rate of Rs.500/- per month with effect from 1.8.2011 till the date of actual surrender. 17. Before ordering delivery the Execution Court will explore the possibility of a settlement between the landlord and tenant and in order to explore that possibility, the landlord can file the Execution Petition even before the expiry of the period stipulated as above but delivery (if the matter is not settled) shall be ordered only after 30.6.2012. ## **PIUS C. KURIAKOSE, JUDGE** ## **N.K.BALAKRISHNAN, JUDGE** mns