Vijayan v. K. Sree Kumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 29TH DAY OF SEPTEMBER 2011/7TH ASWINA 1933 RCR.No. 225 of 2011 ( ) ======================= RCA.43/2008 of RENT CONTROL APPELLATE AUTHORITY ,KOLLAM RCP.2/2003 of MUN-MAGI COURT, PARAVOOR REVISION PETITIONER(S)/PETITIONER/RESPONDENT/PETITIONER ======================================================= 1 VIJAYAN, S/O.LATE SUKUMARAN, S.L.BHAVANAM THAZHAM CHERRY MEENADU VILLAGE KOLLAM. BY ADV.SRI.DEVAN RAMACHANDRAN SRI.AJITH KRISHNAN SRI.K.M.ANEESH RESPONDENT(S)/APPELLANT/RESPONDENT ================================== 1 K.SREE KUMAR, S/O.KUTTAN PILLAI, SREERANGAM VEEDU THATTAMALA CHERRY VADAKKEVILA VILLAGE KOLLAM PROPRIETOR AT ASWATHY MEDICALS MAIN ROAD CHATHANNOOR - 689001. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29-09-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------RCR NO. 225 OF 2011** ## **------------------------** Dated this the 29th day of November, 2011 ## **O R D E R** Pius C.Kuriakose, J. The landlord is the revision petitioner. He challenges in this revision, the judgment of the Rent Control Appellate Authority by which the learned Appellate Authority reversed the order of the Rent Control Court under which the Rent Control Court had found that the landlord was entitled for an order of eviction under Section 11(3). 2. The case of the original landlord - one Mr. Sukumaran (father of the revision petitioner) was that he needs the building so that his daughter by name Sugatha, who has completed her studies in Pharmacist's course and is presently without any avocation, can occupy the building for starting a medical shop of her own. According to him, neither he nor Sugatha were having any other building of their own in their possession at Chathannur town where the petition schedule building is situated. RCR No. 225 /2011 2 Smt.Sugatha had been conducting a medical shop in the petition schedule shop room till 1992. But she had to discontinue that business due to her ill-health which she suffered on account of her pregnancy and post-delivery and kidney related problems. It was at that juncture that the tenant approached the landlord requesting that the shop room be let out to him for the conduct of the very same business. The tenant was willing to purchase the stock of medicines also. Now Smt.Sugatha is in a position to restart the business and the tenant was requested to surrender the room so that Sugatha can be restart the business. Since the tenant is not willing to surrender the petition schedule building, the rent control petition was instituted invoking the ground under Section 11 (3). 3. The bona fides of the need projected by the original landlord was disputed by the tenant. According to him, Smt.Sugatha , who was previously conducting the medical shop in the petition schedule building, had sold the entire medicines and other furniture items, fan, refrigerator, etc to the tenant for a total amount of Rs.1,77,315/-. Smt.Sugatha had taken decision to shift permanently from Chathanoor and to set up RCR No. 225 /2011 3 residence along with her husband in her husband's house in Thiruvananthapuram District. It is impossible for Sugatha to conduct business at Chathanoor while residing in her husband's house at Thiruvananthapuram. Sugatha's husband has a handsome income from a lucrative profession. Smt.Sugatha is looking after the property of her husband at Thiruvananthapuram and she has no intention to come back to Chathanoor to settle down at Chathanoor along with her father. The landlord has vacant possession of other rooms. He is allowing other persons to occupy those rooms temporarily on short term licence basis. Those rooms are more spacious and suitable for conduct of the medical shop. The rent control petition is liable to be rejected by virtue of the first proviso to sub section (3) of Section 11. Another room having door number 11/141 belonging to the landlord is let out to one Sivaprasad. Mr.Sivaprasad is willing to vacate that room as he has already constructed another building of his own. The room in the possession of Sivaprasad has double the space of the petition schedule building and if the need is bona fide, Smt.Sugatha can be accommodated in that room . It was then contended that the tenant has paid an advance of RCR No. 225 /2011 4 Rs.50,000/- to the landlord at the time of letting and subsequently a further amount of Rs.50,000/- in two instalments of Rs.25,000/- each. The landlord demanded further advances and it is unwillingness of the tenant to oblige those demands that provoked the landlord to file the present rent control petition. The tenant is entitled for the protection of the second proviso to sub section (3) of Section 11. The original landlord died during the pendency of the rent control petition and the revision petitioner (the son of the landlord) was impleaded as additional 2nd petitioner . Upon his impleadment, he filed subsequent pleadings reiterating his sister's (Smt.Sugatha) need which had been projected in the rent control petition. According to the additional pleadings, the revision petitioner had become absolute owner of the building. His married sister Sugahta is depending on him for the purpose of conducting medical shop in the petition schedule building. To the additional pleadings raised by the revision petitioner, additional statement of objections was filed by the tenant. It was contended that sister Sugatha is not a family member of the revision petitioner and that she is not dependent on the revision petitioner. The other contentions RCR No. 225 /2011 5 raised by the tenant in the original statement of objections were reiterated. It was specifically contended that Smt.Sugatha is permanently residing at Varkala in Thiruvananthapuram. She has her own shop and business at Attingal . Her husband is a Gulf returnee and also a business man. She has two sons of whom one is an engineer and the other a college student. Her family is completely independent from that of the brother who has his own family consisting of wife and two children. 4. The evidence at trial by the Rent Control Court consisted of Exts.A1 to A10, Exts.B1 to B1(o)., Exts.C1 to C4(a). Oral evidence on the side of the landlord consisted of evidence of PW1- the revision petitioner, PW2- the sister Sugatha, PWs 3 and 4 -two other witnesses and on the side of the tenant, the same consisted of evidence of DW1-the tenant himself and that of two witnesses as DWs2 and 3. On evaluating the evidence, the Rent Control Court came to the conclusion that the need projected by the land lord is bona fide. It was also concluded by that court that the tenant was unsuccessful in showing that he is entitled for the benefit of the second proviso to sub section (3) of Section 11. Accordingly, the Rent control Court ordered RCR No. 225 /2011 6 eviction on the ground under Section 11 (3). 5. The tenant preferred RCA No.43/2008 against the order of the Rent Control Court before the Rent Control Appellate Authority, Kollam. The learned Appellate Authority under the impugned judgment has reversed the findings of the Rent Control Court regarding the bona fides of the need. It was held that the need projected under Section 11 (3) is not a bona fide one. That authority also found that though at the time of institution of the Rent Control Petition no other buildings were available with the landlord, subsequently rooms belonging to the landlord fell vacant. According to the Rent Control Appellate Authority, as the landlord has not shown any special reason as to why he is insisting on getting possession of the petition schedule building itself, the need of the landlord is hit by the first proviso to sub section (3) of Section 11. The learned Appellate Authority would reverse the finding of the Rent Control Court in the context of the second proviso also. According to the Rent control Appellate Authority, the evidence adduced by RW1, the Deputy Tahsildar (who was examined as a substitute for the Accommodation Controller) and Ext.X2 vacancy register kept by the RCR No. 225 /2011 7 Accommodation Controller will show that other suitable buildings are available in the locality. As regards the first limb of the second proviso, the learned Appellate Authority found that the oral evidence of the tenant is inspiring. According to the Appellate Authority, as there was no evidence to show that the tenant was having any other source of income, it has to be found inevitably that the tenant is depending solely on the income derived from the business carried on by him in the petition schedule room. Thus, reversing the order of the Rent Control Court, the Appellate Authority would dismiss the Rent Control Appeal. 6. In this revision under Section 20, the revision petitioner (the additional petitioner in the rent control petition) has raised various grounds assailing the judgment of the Appellate Authority. Sri.Devan Ramachandran learned counsel for the revision petitioner and Sri.G.Rammohan learned counsel for the respondents addressed strenuous submissions before us based on the various grounds raised. 7. Mr.Devan Ramachandran argued that the judgment of the Rent Control Appellate Authority is the result of a RCR No. 225 /2011 8 thoroughly erroneous appreciation of the pleadings and the evidence by the learned Appellate Authority. Mr.Devan submitted that the Appellate Authority has found, that the need of PW2-Smt.Sugatha for conducing the medical shop in the petition schedule building at Chathanoor is not bona fide, mainly on the reason that Smt.Sugatha is conducting a medical shop at Attingal, a town in Thiruvananthapuram District. But, according to him, convincing evidence has been adduced by PW2 to the effect that medical shop at Attingal , which is known as Varkala Medical Shop, belongs not to her or her husband. Varkala medical shop belongs to the petitioner's husband's brother. It is in evidence that Sugatha has worked in other medical shops in the locality on the strength of Pharmacist licence which she has in her name. According to Mr.Devan very inspiring evidence has been adduced by Smt.Sugatha and no serious dent could be made to that evidence by the cross examiner. The learned Appellate Authority has found that the first proviso to section 11 (3) is applicable in the present case on the basis that a building, which was not under the vacant possession of the landlord at the time when the RCP was instituted, (the building having door RCR No. 225 /2011 9 number. 308) is in the landlords' possession now. It is in evidence that the said building is a much bigger one and could be let out to some other tenants by PW1 Sugatha's brother. More significantly the petition schedule building, which is ideal for conduct of medical shop, itself was identified by the father, the original petitioner in the rent control petition, for the conduct of same business by Smt.Sugatha, a Pharmacist. At any rate, there is special reason for insisting on getting possession of this building, so submitted the learned counsel. The findings entered by the Rent Control Court that the tenant is not entitled for the protection of the second proviso to sub section (3) of Section 11 is a correct finding based on the evidence on record. The above finding is unassailable in view of the judgment of the Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) and Kunhamma v. Akkali Purushothaman (2007 (3) KLT SC) . To the argument of Mr.Rammohan that a married sister, who has a financially sound husband to look after her, cannot be a dependent of her brother, Mr.Devan would place strong reliance on the judgment of a Division Bench of this court in Prathapan v. Rama Warrier (2004 (2) KLT 559) which has taken RCR No. 225 /2011 10 the view that in the context of the Rent Control Law and in the societal set up which exists in our State, father, mother and children- married or unmarried all would constitute members of the family. Whether or not a person is a member of the family will have to be decided mainly on the basis of the intimacy of the family relations and family bonds. In the instant case Smt.Sugatha was the direct sister of PW1, the present landlord. To support his argument in the context of the second proviso to sub section (3) of Section 11 , Mr.Devan relied on the judgment of a Division Bench of this court in Satheesan v. Abdul Rahiman (2003 (3) KLT 1119) . To support the argument that the first proviso to sub section (3) of Section 11 cannot have any application, Mr.Devan relied on the judgment of the supreme Court in Valsan v. Furtal (2004 (3) KLT 1046) . 8. All the submissions of Mr.Devan Ramachandran were very strongly opposed by Sri.G.Rammohan learned counsel for the respondent/tenant. Mr.Rammohan submitted that it was the father of the revision petitioner Sri.Sukumaran who instituted the rent control petition projecting the need to accommodate his dependent daughter. Thus it is based on the dependency of the RCR No. 225 /2011 11 needy daughter on the father that the rent control petition is instituted. The father had executed a settlement deed reserving life estate for himself and the entire remainder interest in favour of his son(PW1). The father passed away and PW1 came on record as the second petitioner in the rent control petition. Even if the daughter was dependent on her father, the said dependency cannot survive the father after the father passed away. The dependency if at all has to be on PW1, her brother. The rent control petition was not amended for incorporating the pleadings regarding such dependency. Thus the vital aspect of the matter as to whether the rent control petition continues to be maintainable once Sri.Sukumaran, the father, passed away was never decided correctly. Even though the tenant has not preferred any separate appeal or revision, the tenant is entitled to adjudicate the issue applying the principles of order 41 Rule 22 CPC. According to Mr.Rammohan, the finding of the Rent Control Court that the tenant is entitled to the benefit of the second proviso was correctly entered by the Rent Control Court in favour of the tenant. The tenant's version in the chief examination was that he derives a total turnover of Rs.60,000/- RCR No. 225 /2011 12 per month from the medical shop business and the net profit is Rs.5000/- per mensum. This version was not challenged in cross examination. In the absence of any challenge in cross examination, there is no obligation for the tenant to produce documents for proving his version in evidence. Mr.Rammohan submitted that the Rent Control Court is not correct in its view that evidence was insufficient to hold that other buildings are not available in the locality. Apart from the oral evidence of the tenant and the Secretary of the Vypari Vyvasayi Ecopana Samithi examined as RW2, there were vacancy register and the oral evidence of the Accommodation Controller RW1. Mr.Rammohan relied on the judgment of a Division Bench of this court in Abdulla Haji K.C. v. Thekkeveettil Krishnan (2010 (4) KHC) 776) to drive home the proposition that in the absence of evidence to the effect that the tenant has some source of income for living other than the business carried on in the petition schedule building, the first limb of the second proviso has to be found in favour of the tenant. For expounding the argument that the tenant is entitled to raise the plea that there is no sufficient pleadings regarding the dependency, though the tenant had not RCR No. 225 /2011 13 preferred any appeal or revision, Mr.Rammohan placed strong reliance on the judgment of this court in Sadasivan Chettiar v. Rajendran (2005 (1) KLT 653) . For the same proposition, Mr.Rammohan relied on the judgment of the Supreme Court in Nazeer Ahmed v.State Bank of Mysore (2007 (2) KLT 369(SC). In support of his argument that the subsequent event of the original petitioner passing away has resulted in extingushment of the need originally projected, Mr.Rammohan relied on the judgment of the Supreme Court in Sheshambal v. Chelur Corporation Chelur Building and others (2010 3 Suprme Court Cases 470). Strong reliance was placed by Mr.Rammohan on the judgment of the Supreme Court in Koyilerian Janaki v. Rent Controller and others (2000(9) Supreme Court Cases 406) in support of his argument that specific pleadings are necessary regarding the dependency. 9. We have given our anxious consideration to the rival submissions addressed at the Bar. We have kept in mind the ratio emerging from the various judicial precedents cited at the Bar. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority very carefully. The RCR No. 225 /2011 14 question, which arises before us, is whether there is warrant for interference with the judgment of the Appellate Authority. We are not impressed by the argument of Sri. Rammohan that the rent control petition became not maintainable in law once the original petitioner Sukumaran passed away as there was no sufficient pleading to the effect that Smt.Sugatha (Sukumaran's daughter) was dependent on her brother, the revision petitioner-Vijayan. The building in question belonged absolutely to Sri.Sukumaran during his life time. Mr.Vijayan, the revision petitioner, became the owner only by virtue of the settlement deed executed by Sri.Sukumaran under which Sukumaran retained life estate over the building for himself reserving the remainder interest in favour Mr.Vijayan, the revision petitioner. It is not disputed by anybody that there existed a landlordtenant relationship between late Sukumaran and the respondent so long as Sukumaran was alive. The maintainability of the rent control petition on the ground of non joinder of necessary party was never raised by the respondent. A reading of the pleadings will show that the need projected by Sri.Sukumaran is the need to accommodate his married daughter Smt.Sugatha RCR No. 225 /2011 15 who was previously conducting medical shop business in the petition schedule building. Requisite pleadings have been raised in the Rent Control Petition to the effect that Smt.Sugatha is dependent on her father, the then owner of the petition schedule building for the purpose of conducting medical shop. Subsequent to the demise of Sri.Sukumaran , the revision petitioner Sri.Vijayan was impleaded as additional petitioner in the rent control petition and he has raised additional pleadings. In the additional pleadings, he has very clearly stated that Smt.Sugatha is his own sister and that she is depending on him for the purpose of getting the petition schedule room for the conduct of medical shop. He has clearly detailed pleadings as to why the petition schedule room itself is necessary and he has also pleaded that the petition schedule room is the only building available for meeting Smt.Sugatha's requirements. When additional pleadings were raised and the parties went for trial by the additional pleadings also, it is idle for the respondent to contend that the original pleadings themselves should have been got amended. 10. It would appear as if the submission of Mr.Rammohan RCR No. 225 /2011 16 that the respondent is entitled to challenge the findings of the Appellate Authority, which are against the respondent, even without filing a memorndum of cross objections is correct, but it should be noticed that the finding which is challenged is a finding that Sugatha, the sister of the revision petitioner , is dependent of the revision petitioner for the purpose of sub section (3) of Section 11. As far as this finding is concerned, the same has been concurrently entered in favour of the revision petitioner by the Rent Control Court as well as the Appellate Authority. The same is a finding based on evidence on record. According to us, there is no warrant for interference with that finding within the contours of this court's revisional jurisdiction under Section 20. The family for the purpose of Section 11(3) does not mean the immediate family consisting of father, mother and children alone. The finding that Smt.Sugatha, who is none other than the direct sister of the revision petitioner is a member of the revision petitioner's family and is depending on the revision petition for getting the petition schedule building wherein she was previously conducting the medical shop for conduct of the same business is by all means a correct finding. We notice that the fraternal RCR No. 225 /2011 17 bonds in the family of the revision petitioner and Smt.Sugatha was very strong and intimate. 11. It is mainly on the reason that Smt.Sugatha is conducting a medical shop at Attingal in Thiruvananthapuram District that the learned Appellate Authority reversed the finding of the Rent Control Court that the need projected by the landlord under Section 11 (3) is bona fide. According to us, the evidence given by PWs 1 and 2, the revision petitioner and Smt.Sugatha respectively, was quite inspiring and there is no infirmity in the appreciation of that evidence by the Rent Control Court. It is consistent version of Smt.Sugatha that the medical shop at Attingal which is known as Varkala Medical Shop belongs to her husband's brother. It also come out in evidence that on the strength of pharmacist's licence Sugatha has in her name, she has worked in other medical shops also. No documentary evidence has been brought on record by the respondent to show that Varkala Medical Shop belongs to Smt.Sugatha or her husband. According to us, even if it is true that Sugatha has all freedom in her brother-in-law's medical shop at Attingal, then also her need to restart her own medical shop in her home town RCR No. 225 /2011 18 Chathannor will have to be accepted as an honest one. Bona fide need does not mean a need without which one cannot pull on. Bona fide need means only a reasonable need involving an element of necessity. According to us, the need of Smt.Sugatha to restart her own medical shop on the strength of her own pharmacist licence in the building which once belonged to her father and presently belongs to her affectionate brother, situated in her home town, is bona fide. 12.Now we have to examine the correctness of the finding of the Appellate Authority that the respondent/tenant is eligible for the protection of the second proviso to sub section (3) Section 11. According to us, having regard to the principles laid down by a Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) and Kunhamma v. Akkali Purushothaman (2007 (3) KLT SC) , the burden is on the tenant to prove that he is entitled for the protection of the second proviso to sub section (3) of Section 11. The Rent Control Court's view that the tenant was unsuccessful in proving that he is eligible for the protection of the second proviso to sub section (3) of Section 11 is a correct finding , which was not liable to be RCR No. 225 /2011 19 interfered with by the Appellate Authority. The learned Appellate Authority's opinion is that there was no clear evidence to show that apart from the business which the tenant is conducting in the petition schedule building, he is having other source of income and therefore there was no necessity for the tenant to produce the accounts for proving that he is deriving net income of Rs.5,000/- per month from the medical shop business. According to us, the learned Appellate Authority lost sight of the crucial point that what was required to be considered was whether the tenant's claim that he is depending mainly for sustaining himself on the income that he derives from the business carried on in the petition schedule building is correct. Therefore what was the exact income the tenant was deriving from the medical shop business and whether the said income was sufficient enough to sustain himself and his family was the crucial question which should have been considered by the Appellate Authority. The correctness of the tenant's version that he was getting a net profit of Rs.5,000/- per mensem was very much challenged in cross examination. The Rule is best evidence and qualitatively documentary evidence is better than RCR No. 225 /2011 20 oral evidence. It is a fairly large scale medical shop business which is being conducted by the tenant. Non production of the accounts is fatal in the present case as the accounts and other documentary evidence could have better proved the tenant's claim that he was depending mainly for his livelihood on the income derived from the medical shop business. 13. The two limbs of the second proviso to sub section (3) of Section 11 are conjunctive and once it is shown that the tenant does not satisfy one of the limbs, he becomes disentitled to the protection of the second proviso. Coming to the second limb also, we are of the view that on the basis of the oral evidence adduced by the tenant and the suggestions from the side of the tenant in the cross examination of the landlord's witnesses, it is clear that other buildings were available on lease. The suitability of the other buildings is an aspect to be proved by the tenant. As rightly noticed by the Rent Control Court, no serious effort was taken by the tenant to prove the unsuitability of the other buildings available in the locality for shifting his medical shop business. In fact the evidence shows that the tenant does not conduct any serious enquiry regarding the availability of RCR No. 225 /2011 21 other buildings. There was no warrant for interfering with the finding of the Rent Control Court that the tenant did not satisfy the second limb of the second proviso to sub section (3) of Section 11. 14. We shall now consider the question as to whether the first proviso to sub section(3) of Section 11 will operate against the landlord. According to us, the very fact that Smt.Sugatha was conducting the medical shop business previously in the petition schedule building and that even, according to the tenant, the schedule building is best suited for conducting the said business, is a special reason justifying the insistence on getting eviction of the petition schedule building. In short, we find that there was absolutely no warrant for interfering with the well considered order of the Rent control Court. On going through the order of the Rent Control Court, we find that the case,- pleadings and evidence has thoroughly discussed and appreciated by that court and that the law, statutory as well as settled by judicial precedents has been kept in mind and applied correctly. 15. The revision petition should succeed and we allow the RCR No. 225 /2011 22 same. The judgment of the Appellate Authority is set aside and the order of the Rent Control Court is restored. 16. However, considering the fervent appeal of Mr.Rammohan that the tenant/respondent had granted time till 31/12/2012, we feel that the tenant can be granted one year's time i.e. time till 30/9/2012 subject to the following conditions; i). The tenant shall pay occupational charges with effect from 1/10/2011 at the rate of Rs.2,000/- per month. ii). The landlord should be permitted to withdraw all the amounts deposited by the tenant before the courts below towards the rent immediately. iii). The tenant shall file an affidavit on or before 16/1/2012 undertaking that he will peacefully surrender of the petition schedule building to the revision petitioner/landlord on or before 30/9/2012 and undertaking further that RCR No. 225 /2011 23 arrears of rent due, if any, will be discharged within a period of six weeks from today and that occupational charges will be paid at the rate of Rs.2,000/- per month with effect from 1/10/2011. We make it clear that the tenant/respondent will get benefit of time allowed as above only if he files the affidavit and honours the undertakings therein. ## **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM, JUDGE.** dpk RCR No. 225 /2011 24