VIJAYAN S/O LATE P. BHASKARAN NAIR; SIVAN S/O LATE P. BHASKARAN NAIR; GEETHA D/O LATE P. BHASKARAN NAIR; SHOBHA D/O LATE P. BHASKARAN NAIR v. SUDHA DEVADAS W/O DEVADAS; LATHA RAJKUMAR W/O RAJKUMAR; SHYLA RAMAKRISHNAN W/O LATE RAMAKRISHNAN; ASWIN RAMAKRISHNAN S/O LATE RAMAKRISHNAN; SAROJINI RAMAKRISHNAN D/O LATE RAMAKRISHNAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 RCRev..No. 88 of 2008() ----------------------RCA.182/2006 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.103/2001 OF RENT CONTROL COURT, KOZHIKODE-II .................... REVISION PETITIONERS: APPELLANTS/RESPONDENTS 1. VIJAYAN, S/O.LATE P.BHASKARAN NAIR 2. SIVAN, S/O.LATE P.BHASKARAN NAIR 3. GEETHA, D/O.LATE P.BHASKARAN NAIR 4. SHOBHA, D/O.LATE P.BHASKARAN NAIR (ALL ARE CONDUCTING BUSINESS AT DOOR NO.17/14 VIJAYA AUTOMOBILES, ASOKA HOSPITAL COMPOUND BANK ROAD, CALICUT-1, KASABA AMSOM AND KARIAKUNNU DESOM, KOZHIKODE TALUK) - BY ADV. SRI.K.P.BALASUBRAMANYAN RESPONDENT(S): RESPONDENTS/PETITIONERS 1. SUDHA DEVADAS, W/O.DEVADAS 2. LATHA RAJKUMAR, W/O.RAJKUMAR 3. SHYLA RAMAKRISHNAN,W/O.LATE RAMAKRISHNAN 4. ASWIN RAMAKRISHNAN,S/O.LATE RAMAKRISHNAN 5. SAROJINI RAMAKRISHNAN - D/O.LATE RAMAKRISHNAN (ALL ARE RESIDING AT CITADEL BANK ROAD - CALICUT-1, KASABA AMSOM AND KARIAKUNNU DESOM KOZHIKODE TALUK) - ADV. SRI.C.P.MOHAMMED NIAS FOR R1TO5 - SMT.P.K.SHAKKEELA FOR R1TO5 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON THE SAME DAY PASSED THE ## ORDER OF IA. 832 OF 2008 DISMISSED. 22-12-2010 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- N.K.BALAKRISHNAN, JUDGE. (TRUE COPY) PS TO JUDGE. ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ----------------------------------------------RCR. No. 88 of 2008 ----------------------------------------------Dated this the 22nd day of December, 2010 ## **O R D E R** ## **Pius C.Kuriakose, J.** Under challenge in this revision filed by the tenants under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming an order of eviction passed by the Rent Control Court under sub section (8) of Section 11. The parties are referred to as the landlords and tenants. 2. Eviction was sought under Section 11 (2)(b) also and the same was granted concurrently by the two authorities. It is conceded by both sides that it will suffice if this court grants reasonable time to the tenants for getting that order formally vacated by invoking provisions of Section 11(2)(c). Hence, we are concerned in this revision only with the correctness of the order of eviction passed under Section 11(8). RCR.88/08 -2- 3. The case of the landlords in the context of Section 11(8), as pleaded, was that the landlords are running a hospital under the name and style “ Ashoka Hospital”, which is an unit of Dr.Raman Memorial Medical Centre. The petition schedule shop room is a part of a building with row of shop rooms and the petition schedule shop room form part of the hospital complex. The landlords are in possession of rooms having door numbers 17/11 and 17/12 and they need the petition schedule room as well as the other rooms having door numbers 17/13 and 17/15 for the purpose of staring a Physiotherapy Unit in Asoka Hospital. It was further averred that there was no Physiotherapy Unit in Asoka hospital and due to increase in the number of patients and other medical facilities, the present space occupied by the hospital is not sufficient to run the hospital properly. It is also averred that the hospital is mainly dealing with orthopaedic cases and that RCR.88/08 -3- a Physiotherapy Unit is essential . It is further averred that for want of a Physiotherapy Unit several patients, who require Physiotherapy treatment are being sent to other hospital, where there are such units, resulting in loss to the hospital and inconvenience to patients. Hence, the claim is that the landlords need the petition schedule rooms by way of additional accommodation for Asoka Hospital after making necessary alterations. It is also averred that steps have been taken for evicting the other tenants and the petitioners for the same purpose. 4. The claim was stoutly disputed by the tenants. They contended that the petition schedule rooms do not form part of the hospital building or the hospital complex. According to them, the petition schedule room faces towards Waynad road and adjacent to the shop rooms there are three shop rooms on the northern side and one room on the southern side and in upstair portion there is a RCR.88/08 -4- hall. All these rooms, according to the tenants, are used for conducting various business and they do not form part of the hospital building. The tenants would deny the averments in the petition regarding the need and necessity of the landlords to have a Physiotherapy Unit in view of the increasing number of orthopaedic cases. Though it was the ground under Section 11(8) that was invoked, the tenants have contended that there is no bona fides for the claim as the landlords are in possession of several other vacant buildings and as the tenants are depending solely on the income derived from the business and the tenants have no other income for sustenance. The tenants have also contended that the hardship, which will be occasioned to the tenants by the order of eviction to be passed will outweigh the advantages which the landlords may gain by getting the order of eviction. 5. The Rent Control Court conducted enquiry and in RCR.88/08 -5- the enquiry the evidence consisted of the oral evidence of PW1, the first revision petitioner, and Exts.A1 to A4(b) and Exts.B1 to B9 apart from Ext.C1 & C3 reports and Exts. C2 & C4 plans submitted by the commissioner. On appreciating the evidence, the learned Rent Control Court would come to the conclusion that the need for additional accommodation projected by the landlords was bona fide. According to that Court, which relied on Exts C1 and C3 commission reports and C2 & C4 plans , eviction ground under sub section (8) of Section 11 stood established as the petition schedule room is part of a larger building, another part of which was occupied by the landlords as quarters for staff of their hospital. After holding that the need for additional accommodation is bona fide, the Rent Control Court would consider the question of comparative advantages and hardships, as envisaged by the proviso to sub-section (10) of Section 11 and conclude that the RCR.88/08 -6- advantages ,which the landlords will gain, will outweigh the hardships which may be suffered by the tenants due to the order of eviction. Accordingly, the order of eviction was passed under sub section (8) of section 11. 6. The tenants preferred an appeal to the Rent Control Appellate Authority. The learned Appellate Authority would make a reappraisal of the evidence and pleadings and would concur with all the findings of the Rent Control Court. Accordingly, the appeal was dismissed by the judgment which is impugned in this revision. 7. In this revision, the tenants have raised various grounds including the prominent ground that order of eviction under section 11 (8) could not have been legally passed in this case as the landlords were not in occupation of any portion of a larger building consisting of the petition schedule premises. Sri.K.P.Balasubramaniyan, learned counsel for the revision petitioners, addressed very RCR.88/08 -7- strenuous arguments before us on the basis of all the grounds raised in the RCR memorandum. But, the learned counsel would give more thrust in his submissions to his argument that the order of eviction presently passed under section 11(8) is not sustainable as no portion of the larger building, a room of which the petition schedule building is, is occupied by the landlords. Drawing our attention to the pleadings raised by the landlords, learned counsel submitted that the specific pleading of the landlords is that the petition schedule room is a part of a building with a row of five shop rooms in the ground floor and a hall in the first floor. There is no pleadings or claim that the landlords are in occupation of any other rooms in the ground floor or any portion of the hall in the first floor. The plea is only to the effect that this double storied building containing the petition schedule room is part of the hospital complex, and that the landlords are in occupation of other RCR.88/08 -8- parts of the hospital complex. Placing strong reliance on the judgment of the Supreme Court in Gangaram v. N.Shankar Reddy (1998 (4) Supreme Court Cases 648), Mr.Balasubramaniyan submitted that when the Supreme Court has ruled that adjoining buildings bearing two door numbers separated by a wall owned by the same landlords have to be treated as two buildings, the landlords claim that the double storied building, part of which is the petition schedule building, situated in a portion of the hospital complex cannot be accepted as a claim under sub section (8) of section 11. The statute defines only building which can include a part of a building. But the statute does not define several buildings situated in one campus as one large building. Referring to the judgment of this Court in Abraham Roy v. Philip (2009 (2) KLT SN 29 (C.N.34)authored by one among us(PCK(J), Mr.Balasubramaniyan submitted that in order that sub RCR.88/08 -9- section (8) of section 11 applies it is absolutely necessary that the tenanted building should be part of a larger building and other parts or part of the same larger building must be in the actual occupation of the landlords. In the instant case, going by the evidence available on record, the landlords are not in occupation of any part of the larger building about which the landlords have raised pleadings in the rent control petition. The learned counsel submitted that it was the report of the Advocate Commissioner Ext.C3, which was relied on by the statutory authorities, to conclude that the landlords are in occupation of a portion of the larger building as their staff quarters. Drawing our attention to Ext.C1& C3 report and Ext.C2 and C4 plans submitted by the commissioner, learned counsel would argue that even those reports will not show that the building, which accommodates staff quarters, is part of a larger building taking in the petition schedule room also. RCR.88/08 -10- 8. All the submissions of Mr.Balasubramaniyan were very stiffly resisted by Sri.C.P.Mohammed Nias. The learned counsel reminded us of the contours of our jurisdiction under section 20 and submitted that in the present case, where the statutory fact finding authorities have concluded concurrently on the basis of the materials on record before them that the ground under sub section (8) of section 11 stands established, we will not be justified in making a reappraisal of the pleadings and the evidence and in substituting those conclusions by our own conclusions. Mr.Nias would place reliance on the two commission reports and the plans submitted by the commissioner. According to him, there is no room for any controversy that the petition schedule room as well as the building portion where the staff quarters is presently accommodated are portions of a large “L” shaped old building. RCR.88/08 -11- 9. On noticing that the essential controversy in the case is as to whether the petition schedule building is part of a larger building and further whether the landlords are in occupation of any part of that larger building, we suggested to both sides to make available for our perusal recently taken photographs of the building in question. Such a suggestion was made by us as we thought that despite the detailed commission reports and the plans, there was still room for confusion. Accordingly, both sides placed before us the photographs. The landlords produced as many as 8 photographs against I.A. No.3100/2010. The revision petitioners placed before us four photographs. We have marked the photographs produced by the landlords as Exts. A5 series and the photographs produced by the tenants as Ext.B10 series. A careful perusal of Ext.A5 series and Ext.B10 series will show that, the petition schedule room as well as the building portion reported by the RCR.88/08 -12- advocate commissioner to be occupied by the landlords, form parts of an old “L” shaped tiled structure. The learned counsel for the revision petitioners would take strong exception to our placing reliance on Ext.A5 series and Ext.B10 series of photographs. According to the learned counsel the case projected before this court by the landlords, that the petition schedule room is part of the “L” shaped building and that the landlords are in occupation of a part of that “L” shaped building is a case which the tenants were never called upon to defend. Accepting that case, without giving opportunity to the tenants to defend that case, will result in serious prejudice to the tenants. The learned counsel asserted that in the absence of proper pleadings, the landlords should not be permitted to rely on the photographs and the situation which apparently emerges from the photographs. Going by the pleaded case, the petition schedule building is one room in a building RCR.88/08 **==> picture [21 x 9] intentionally omitted <==** consisting of a row of five rooms in the ground floor and a hall in the first floor only. 10. Mr.Nias would submit that in rent control proceedings, the court is expected to record only the gist of the evidence that is adduced by the parties and to take a decision in accordance with law an the principles of equity justice and good conscience. In the instant case there is evidence to show that the need of Asoka Hospital to have a Physiotherapy Unit is a bona fide one and it is appreciating the materials on record including Ext.C1, C3 and Exts.C2 & C4 the commissioner reports and plans that the rent control court and the Appellate Authority, which is final fact finding authority under the statutory scheme, concluded that the eviction ground under section 11(8) is made out. 11. We have very anxiously considered the rival submissions addressed at the Bar. The question which arises for consideration by us is whether there is any RCR.88/08 -14- warrant for invocation of the revisional jurisdiction under Section 20 for interfering with the decision concurrently taken by the statutory authorities to order eviction under sub-section (8) of Section 11. 12. It is trite by various decisions of this Court that the standards of proof required for establishing bonafides in a claim under sub-section (8) of Section 11 are not so rigorous as the standards expected of in a claim under subsection (3) of Section 11. As for the present case, it has been concurrently found by the two statutory authorities appreciating the evidence given by PW-1 that Exts. C-1 to C-4 commission reports and plans that the need projected in the rent control petition that the petition schedule rooms as well as the adjacent rooms are required for the purpose of starting a physiotherapy unit for Ashoka Hospital conducted by the landlords is eminently a bona fide one. It was not even challenged seriously in evidence that Ashoka Hospital RCR.88/08 -15- is a well run hospital within the area of Kozhikode Corporation and that the building presently occupied by the hospital was not adequate to run the hospital properly and also that there was no physiotherapy unit at present in the above hospital and further that number of patients in the hospital has been increasing. The version of PW-1 that for want of a physiotherapy unit, patients requiring physiotherapy treatment are being sent to other hospitals resulting in loss to the hospital and inconvenience to the patients was not seriously challenged. In his arguments also Mr. Balasubramaniyan did not seriously challenge the finding regarding bona fides of the need for additional accommodation. Incidentally, he even submitted that perhaps the case of the landlords would have been stronger had it been under Section 11(3). Challenge on the eviction order concurrently passed under Section 11(8) was mainly on the reason that going by the pleadings in the rent control RCR.88/08 -16- petition the larger building consisting of the petition schedule rooms has only four rooms in the ground floor and a hall in the upstair portion and that the landlords are not in occupation of any portion of the above double storied building so as to attract sub-section (8) of Section 11. In other words, the argument was that statutory prerequisite of the landlord occupying a part of the larger building is not satisfied, even if the need projected to have a physiotherapy unit for Ashoka Hospital is a genuine one eviction order cannot be passed under sub-section (8) of Section 11. True, it is pleaded in the RCP that the petition schedule rooms are two rooms in the ground floor of a double storied building situated as part of the hospital complex. But the statutory authorities on analysing the evidence which consisted not only of the oral evidence but also of Exts. C-1 to C-4 commission reports and plans came to the conclusion that the petition schedule rooms were part of a larger RCR.88/08 -17- building, another part of which was occupied by the landlords as quarters for the staff of their hospital. Normally in a revision under Section 20, when factual findings are entered by the statutory authorities concurrently on appreciating evidence, this court in revision does not venture upon a reappraisal of the evidence for the purpose of substituting fresh conclusions on facts. In this case, in deference to the very persuasive submissions of Mr. Balasubramaniyan we went through C-1 and C-3 commission reports and C-2 and C-4 plans and found that there is some room for some confusion that the petition schedule rooms and building portion used by the hospital as staff quarters form portions of a larger building belonging to the landlords and situated in the Ashoka Hospital Campus. It was in this context that we directed production of the photographs and the landlords facilitated production of Ext. A5 series of photographs and the tenants facilitated RCR.88/08 -18- production of Ext.B10 series of photographs. A careful perusal of Ext.A5 series and B10 series shows that the petition schedule rooms as well as a building portion reported by Advocate Commissioner in his reports to be occupied by landlords form part of an old 'L' shaped tiled structure. After perusing the photographs produced by both sides we enquired of Mr. Balasubramaniyan whether it is necessary to issue a commission for making things clearer. The response to the suggestion of the learned counsel was not very enthusiastic. The learned counsel would submit that the facts discernible from Exts. A5 series and B10 series is different from the case pleaded in the RCP. The learned counsel would insist that the RCP be remanded with directions to amend the pleadings and for a fresh decision. 13. We are not inclined to accede to the request of the learned counsel for more reasons than one. Firstly, the fact that the petition schedule rooms form part of an old 'L' RCR.88/08 -19- shaped building as reported by the commissioner and as discernible from Exts.A5 series and B10 series was well known to the tenants who have been in possession of the schedule rooms all along. In their pleadings, the landlords referred to only the vertical limb of the 'L' shaped building. The tenants know that the rooms they occupied form part of an old tiled building which had a horizontal limb also. No prejudice whatsoever has been occasioned to the tenants due to the deficiency or inaccuracy in the pleadings of the landlords. Another question which arose in the RCP was whether the need for additional accommodation was a bona fide one and further whether the RCP was liable to be rejected by the operation of the proviso to sub-section (10) of Section 11. As already found, the bona fides of the need for additional accommodation was not seriously challenged. What was challenged was only the maintainability of the petition under sub-section (8) of section 11 in the context of RCR.88/08 -20- the plea raised by the landlord regarding the physical nature of the building. As for the applicability of the proviso to sub-section (10) of section 11, the evidence on record abundantly establishes that the advantages which the landlords may gain will far outweigh the hardship if any, which the tenants may sustain due to the order of eviction. It was found by the Appellate Authority on the evidence that the tenant is in possession of a big room in a building situated just opposite to the petition schedule rooms. It was admitted that the tenant's father is the owner of that building and that two rooms in that building were lying vacant. As rightly found by the Appellate Authority, despite his claim that he is conducting business in the petition schedule rooms, no documentary evidence has been produced by the tenant to show that he is actually conducting any business in the petition schedule room. It has come out in evidence that the tenant is conducting RCR.88/08 -21- business by name Vijaya Automobiles in the above building belonging to his father and that the above building has four floors. It is also come out in evidence that upon demise of the tenant's father he came to have co-ownership also over the above building. The statutory authorities have analised the evidence and come to the right conclusion that the tenant has failed in showing that any hardship will be sustained by him if he is evicted. Thus the finding concurrently entered by the statutory authorities that the proviso to sub-section (1) of Section 11 is to be decided in favour of the landlord is unsustainable. 14. Meticulous adherence to rules of pleadings is not to be insisted upon in proceedings under the Rent Control Act which are of a summary nature. Rule 11 sub-rule (8) of the Kerala (Buildings Lease and Rent Control) Rules shows that the authorities under the Rent Control Act are expected to take decision in accordance with principles of equity, justice RCR.88/08 -22- and good conscience also. It is clear to our mind that it will be most inequitable to remand the present RCP already 10 years old on the ground of defect in pleadings, as we are sure that no prejudice has been caused to the revision petitioner due to such defect. We don't find any illegality, irregularity or impropriety as contemplated by Section 20 of Act 2 of 1965 justifying interference with the orders of eviction concurrently passed. 15. The Result of the above discussion is therefore as follows; The RCR is dismissed. The Execution Court is directed to keep in abeyance proceedings for delivery till 30/9/2011 subject to the following conditions; 1) The revision petitioners/tenants file affidavits before the Execution Court or the Rent Control Court as the case may be, on or before 15-3-2011 undertaking to discharge arrears of rent, if any, within one month and undertaking RCR.88/08 -23- further to pay occupational charges at the current rent rate as and when the same falls due till the date of actual surrender. 2) The revision petitioners will get benefit of time granted above only if they file affidavits on time and honour all the undertakings in the affidavits without fail. ## **(PIUS C.KURIAKOSE, JUDGE)** **(N.K. BALAKRISHNAN, JUDGE)** dpk/ksv/-