Wilson v. Treesa Antony and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE &** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933** **RCRev..No. 27 of 2011()** **-----------------------** **RCA.79/2007 of DISTRICT COURT, THRISSUR (RENT CONTROL APPELLATE AUTHORITY.) RCP.55/2004 of PRL.MUNSIFF COURT,THRISSUR (RENT CONTROL COURT, THRISSUR.** **....................** **REVISION PETITIONER (RESPONDENT IN THE APPELLANT COURT AND ---------------------------------- PETITIONER IN THE RENT CONTROL COURT).** **WILSON, S/O. PULIKKOTTIL KURIAPPAN, RESIDING NEAR M.G.ROAD, CHIRAKKAL DESOM, THRISSUR VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.S.VINOD BHAT** **RESPONDENT(S): (APPELLANTS 2 TO 6 IN THE APPELLATE COURT)** **---------------------------------------------------------------------------------------------------** **1. TREESA ANTONY, W/O. VALIYAVEETTIL LATE ANTONY, KURIACHIRA DESOM, OLLUR VILLAGE, OLLUR.P.O THRISSUR TALUK-680306.** **2. SHINY PRATHYASH, W/O. PRATHYASH, PALLISSERY HOUSE, GANDHIGRAM ROAD, KURIACHIRA.P.O. THRISSUR-6, PIN-680006.** **3. SHIJY JOY, W/O. T.K. JOY, THAZHATHA HOUSE, REGENCY GARDEN, KTTANELLUR, THRISSUR-14, PIN-680014.** **4. SHAJU.V.ANTONY, S/O.VALIYAVEETTIL LATE ANTONY, UNITY ROAD, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR TALUK. KURIACHIRA.P.O. PIN-680006.** **5. SONY V. ANTONY, S/O. VALIYAVEETTIL LATE ANTONY, UNIT ROAD, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR TALUK, KURIACHIRA.P.O. PIN-680006.** **R1 TO R5 BY ADV. SRI.M.K.DILEEP KUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------R.C.R.No.27 of 2011 ---------------------------------------------------Dated this the 9th day of June, 2011** ## **Order** ## **Balakrishnan, J.** The landlord has filed this revision petition under Section 20 of the Act 2/1965. He claimed eviction of the petition schedule building under Section 11(3) of the Act. It was allowed by the Rent Control Court but was reversed by the learned Appellate Authority. The landlord sought eviction on the ground of bonafide need to start business in edible and non-edible oils in the petition schedule building. He contends that he has got sufficient experience and capacity to start the said business and he bonafide needs the petition schedule building. It was also contended that the petition schedule room is very much suitable for running the business as aforesaid. The claim was resisted by the respondent/tenant contending that the need projected by him is only a pretext for eviction and the landlord is having another room in his possession which is more convenient and more spacious than the petition schedule room, lying adjacent to the RCR 27/11 2 petition schedule room. The tenant also claimed protection under the 2[nd] proviso to S.11(3) contending that he is mainly depending on the income derived from petition schedule building for his livelihood and that there are no other suitable vacant buildings available in that locality to shift his business. 2. The evidence on the side of the landlord consisted of his oral testimony as PW1 and Exts.A1 to A7. On behalf of the tenant RW1 was examined and Exts.B1 to B5 were marked. After analysing the evidence adduced by both the sides the Rent Control Court found that the need projected by the landlord is bonafide and that the respondent is not entitled to the protection under the 2[nd] proviso to S.11(3) and thus an order of eviction was passed by the trial court. 3. The learned Appellate Authority on a reappraisal of the evidence found that in spite of the fact that in the reply notice sent it was stated by the tenant that the landlord is in possession of another vacant room in his possession nothing was stated by the landlord in the petition with regard to the possession of the vacant shop room and no special reason was also offered by the landlord and thus reversed the order passed RCR 27/11 3 by the Rent Control Court. 4. Sri. S.Vinod Bhat, learned counsel appearing for the landlord/petitioner would submit that the landlord in fact requires a room of about 400 sq.ft for starting the oil business and that the petition schedule room having an area of about 250 sq.ft. and the just adjoining room together are required for the landlord for the conduct of the proposed oil business. The adjoining room was originally in the possession of another tenant who later vacated the same. It is further argued by the learned counsel that the learned Appellate Authority failed to peruse the affidavit which was filed by the landlord in which it was specially stated why the petition schedule room was sought to be evicted. It was also specially stated in the said affidavit that the landlord was in possession of the adjoining room and that room alone is not sufficient to start the proposed oil business. Since such an affidavit was filed long prior to the starting of the trial the learned Appellate Authority should have found that the landlord has explained why the adjoining room alone is not suitable for the proposed business and why the petition schedule room also is sought to be evicted. RCR 27/11 4 5. Sri.Vinod Bhat would submit that since the need projected by the landlord was specific and definite that it was to start business in edible and non edible oil it should have been found that the adjoining room which was vacated by the former tenant is not sufficient to meet the requirements of the landlord. The fact that when a Commission petition was filed by the respondents a detailed affidavit was filed by the landlord stating therein that the adjoining room is not so spacious to start the oil business and that if only the petition schedule room also is got vacated, both rooms can be made use of by the landlord to start the proposed business more conveniently was lost sight of by the learned Appellate Authority. The total area of the two rooms would be only about 400 sq.ft. The nature of the proposed business would certainly require much area for conducting the business conveniently. Learned counsel would further submit that the tenant cannot dictate the landlord that he should confine his requirements and occupy a tiny and congested room only to see that his tenant enjoys a larger area putting the landlord in trouble. 6. Respondents vehemently contended that inspite of the RCR 27/11 5 fact that in the reply notice it was specifically stated that the landlord has in his possession a vacant room very adjacent to the petition schedule room, nothing was stated in the petition whether the landlord was in possession of the adjoining room and why it was not used by the landlord for his requirement. Hence according to the respondent the non mentioning of these details is fatal to the claim put forward by the landlord and on that score itself the claim for eviction should be spurned down. 7. Sri.Vinod Bhat would submit that since an affidavit was filed by the landlord stating therein that the adjacent vacant room was in his possession, explaining why it was not being occupied no prejudice whatsoever was caused to the respondent. Since meticulous pleadings is not required in a rent control petition, it would be sufficient if the party before going to the trial is made known what is the case he has to meet. Sri.Vinod Bhat submits that so far as this case is concerned even though it was not specially stated in the RCP that he was in possession of the adjoining room or why he did not occupy the same it was stated in the petition that the petition schedule room is suitable for conducting the oil business. There was no case for the RCR 27/11 6 respondent that the oil business as proposed by the landlord can be conveniently conducted in the adjoining very small vacant room. Since the affidavit was filed when the tenant filed a Commission application, at least from that day onwards, the tenant could come to know what the case of the landlord is and as such there can be no complaint of prejudice having been caused to the tenant. 8. In this connection the decision of the Hon'ble Supreme Court in **Bhagwati Prasad v. Chandramaul(AIR 1966 SC 735)** has been relied upon by the learned counsel for the landlord. Relying on the decision of **Trojan and Co. v. Rm. N.N. Nagappa Chettiar(AIR 1953 SC 235)** it was argued by defence counsel that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. But considering the fact situation obtained in that case - **Bhagwati Prasad's** case- (AIR 1966 SC 735), the apex court held: “But considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of RCR 27/11 7 form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial and did they lead evidence about it? If it appears that the parties did RCR 27/11 8 not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter.” 9. In this connection learned counsel for the revision petitioner points out the counter affidavit to I.A.No.7126/05 filed by the landlord on 28.11.2005. That was an application filed by the respondent to issue a commission to note that the landlord is in possession of the adjacent room which was formerly held by M/s.Parameswara Iyer & Bros. lying as vacant. In the counter affidavit it was stated by the landlord that the room lying immediate to the east which was formerly held by M/s.Parameswara Iyer & Bros. was lying vacant and was in the direct possession of the landlord. In the counter affidavit, it was further stated that for conducting the wholesale and retail oil business, he needs the petition schedule room as well as the room immediately lying to the east, referred to in I.A.No.7126/05, for conducting the oil business conveniently and profitably. It was further stated in the counter affidavit that a notice was sent to M/s.Parameswara Iyer & Bros. to vacate that RCR 27/11 9 room and pursuant to the notice it was vacated by Parameswara Iyer & Bros. and since then he has been in possession of the same. It was further stated in the very same counter affidavit that for conducting oil business, a total area of 400 sq. feet is required and only if he gets possession of the petition schedule room and adjacent room referred to above, his need would be accomplished. It is true that this pleading could have been incorporated in the R.C.P. itself. But the learned counsel for the petitioner would submit that lapses on the part of the landlord while drafting the R.C.P. was cured subsequently, i.e., when the counter affidavit was filed on 28.11.2005. It was specifically mentioned in the R.C.P. that the area covered by the petition schedule room is only 250 sq. feet. According to the petitioner, the area occupied by M/s.Parameswara Iyer & Bros. is only 150 sq. feet. The tenant cannot dictate that the landlord should curtail his need only to accommodate his tenant to conduct the business conveniently. 10. It is further pointed out by the learned counsel for the petitioner that the enquiry in the R.C.P. was started only in September, 2007. Chief affidavit was filed by the petitioner on RCR 27/11 10 25.9.2007, about two years after the filing of the counter affidavit. Therefore, no prejudice whatsoever could be caused to the respondent. It was not a case where this affidavit was thrust into court only at the time of enquiry in the R.C.P. Accepting the counter affidavit, the commission was not issued by the trial court. Therefore, the tenant was aware of the plea raised by the landlord with regard to the existence of the room adjacent to the petition schedule room which was originally held by M/s.Parameswara Iyer & Bros. That being the factual position, there can be little doubt that the respondent knew very well what the case of the landlord was. The respondent went to trial fully understanding the case of the landlord as detailed in the counter affidavit dated 28.11.2005 referred to above. The evidence was also given by P.W.1 in tune with the counter affidavit referred to above. It was testified by him that he had experience in conducting oil business. 11. There is yet another aspect in this case. The petition schedule room is situated on the side of the M.G.Road, Thrissur which is a commercially important locality. It was stated by the petitioner that if he gets possession of the petition schedule RCR 27/11 11 room also, the total frontage would be about 30 feet and that there would be sufficient space for parking the vehicles there which would be an advantageous factor for the conduct of his oil business. It was further stated that the petition schedule room has got two shutters and since the other room is very adjacent to the petition schedule room, both rooms can be conveniently used. The fact that the petitioner was having 20 years experience in conducting oil business was not denied by the respondent. Therefore, it is argued by the learned counsel for the petitioner that there is sufficient evidence regarding the special reason also that the petition schedule room is a spacious room abutting the M.G.Road and and if this room is also obtained, the total frontage and parking space would be increased. When evidence regarding the same is so cogent and convincing and in conformity with the statement subsequently introduced by the landlord through the counter affidavit filed about two years prior to the starting of the enquiry in the R.C.P., it would be unreasonable to hold that there was no sufficient foundation for the case of the landlord nor can it be stated that any prejudice was caused to the tenant. It is not a case where RCR 27/11 12 the respondent was taken by surprise by projecting a totally new case which was never in the contemplation of the parties. It is also pertinent to note that accepting the counter affidavit filed by the landlord the commission application was closed evidently because the tenants were satisfied with the counter affidavit filed and also because they could realise what the case of the landlord was. 12. The authorities under the Rent Control Act are not expected to analyse the pleadings meticulously. According to the revision petitioner, the pleadings raised by the landlord are sufficient enough to grant an order of eviction under Section 11 (3). It is trite law that Rent Control Proceedings being summary in nature, a liberal and realistic approach and not a pedantic approach should be made while construing the pleadings. A meticulous analysis of pleading which may lead to failure of justice is not expected to be adopted. Learned counsel for the revision petitioner would submit that the respondents had actually understood as to what the case of the landlord was. At any rate, when the counter affidavit to the commission application was filed by the revision petitioner, he understood RCR 27/11 13 the case of the landlord and as such it can be unhesitatingly found that no prejudice was occasioned to the tenant on account of insufficiency of pleadings in the Rent Control Petition filed by the landlord. 13. It was held by the apex court in **Ram Narain Arora v. Asha Rani** [(1991) 1 SCC 141] 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 was further held that whether the other accommodation is more suitable than the suit premises would not solely depend upon pleadings and nondisclosure by the landlord. It was further held that the landlord was 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. This decision was followed by the apex court in **M.L.Prabhakar v. Rajiv Singal** [(2001) 2 SCC 355]. That was a case where the landlord did not mention in his petition about the other two premises, but, the materials in respect of the other two premises were placed before the court and thus it was RCR 27/11 14 held that no prejudice was caused. Relying on these decisions, it was held by this court in **Jerry Joseph v. Selvaraj** (2002(2) KLT 129): “It is now settled that even if the landlord failed to mention in the petition for eviction about the other premises belonging to him, if materials about those alternate accommodation have been placed before the court and the matter has been adequately considered by the court without causing any prejudice to the tenant, the non-disclosure of the availability of buildings in the petition is immaterial.” 14. In **Fathima Beevi v. Stella John** (I.L.R. 2006(2) Ker. 97) also it was held that in summary proceedings, like a petition under the Rent Control Act, there should be no insistence for meticulous pleadings. Therefore, requirements of detailed pleadings are not envisaged but the grounds which are relevant alone need be stated. The facts of the case in **Jerry Joseph** (2002(2) KLT 129) cited supra, are almost identical to the facts of this case. There, from the evidence on record, it was clear that even though the landlord did not disclose about the RCR 27/11 15 availability of the rooms belonging to his parents and the unsuitability of the rooms for the purpose of the trade he intended to start , it was found that both sides properly understood the applicability and impact of the first proviso to Section 11(3) and both of them adduced evidence on that aspect and that by the non-disclosure of the rooms available, no prejudice was caused to the tenant. Here also, the learned counsel for the revision petitioner would submit that the nondisclosure of the room which was formerly held by M/s.Parameswara Iyer & Bros. is not fatal especially because even in the counter affidavit referred to earlier, filed about 22 months prior to the starting of the enquiry in the R.C.P., it was mentioned in detail that the landlord requires the petition schedule room as well as the other room to accomplish his need. It was based upon that plea, evidence was adduced by both sides and it was accepted by the learned Rent Controller. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself-whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere and honest. The RCR 27/11 16 tenant cannot contend that the landlord should confine his need with the space available in the adjacent room which was originally held by M/s.Parameswara Iyer & Bros. Adequacy of space is a matter to be considered by the landlord. The court is not expected to make a roving enquiry to find whether the landlord can conduct the proposed business in the small room adjoining the petition schedule building. The tenant cannot dictate terms to the landlord that he should be satisfied with the space available in the adjoining room. In view of the fact that the tenant was made known as to the actual space required for the landlord to conduct the business and that both rooms are required to accomplish his need, it cannot be said that the tenant was prejudiced in any way because of non-mention of the existence of the adjoining room. In the facts and the circumstances of the case, it cannot be said that the need projected by the landlord is a mere desire or wish. On the other hand, it can be definitely found that there is an element of need to occupy the tenanted premises and the adjoining room for the conduct of his oil business. It was in respect of that case, both sides adduced evidence. Looking at the conspectus of factors, it RCR 27/11 17 can be discerned that the need projected by the landlord was to start business in edible and non-edible oil and for that purpose he needed a space measuring about 400 sq. feet and that was the need stated in Ext.B2 notice also which was sent to M/s.Parameswara Iyer & Bros. Learned counsel for the landlord would submit that since M/s.Parameswara Iyer & Bros. felt the need to be genuine, they vacated the premises. The further fact that the premises vacated by M/s.Parameswara Iyer and Bros. is still retained with the landlord without having been let out would stultify the plea raised by the tenant that the need projected by the landlord is only a pretext for eviction. The decision in **Janatha Drugs v. Maithri Construction** (2007(4) KLT 625) has to be distinguished on facts. That was a case where the landlord instead of occupying the room which was got vacated chose to let it out for higher rent. That was not a special reason as envisaged under the first proviso to Section 11(3). Here the adjoining room was got evicted projecting the very same need and is still lying in the possession of the landlord. As has been pointed out earlier, the fact that the petition schedule building is abutting M.G.Road and if the respondent is evicted from that RCR 27/11 18 room, the petitioner would get more parking space also is a special reason, if at all it is required for getting an order of eviction under Section 11(3). In view of what is stated above, we have no hesitation to hold that the need projected by the landlord is bonafide and that his claim is not hit by the first proviso to Section 11(3) of the Act. 15. Though the tenant claimed protection under the second proviso to Section 11(3), he did not produce acceptable evidence to prove that he was mainly depending upon the income derived from the business conducted by him. The burden is on the tenant to prove both the limbs of the second proviso to Section 11(3) of the Act. It was also found that there were vacant shop rooms available in the nearby locality especially in the shopping complex for getting it on rent. Thus, the finding on that point entered by the Rent Control Court is only to be confirmed. 16. In the result, the Revision is allowed, granting an order of eviction in favour of the revision petitioner under Section 11 (3) of the Act. However, the respondents are granted six months time from today to put the landlord in possession of the petition schedule building subject to the following conditions: RCR 27/11 19 The respondents shall file an affidavit within one month from today before the execution court or the Rent Control Court, as the case may be, undertaking to surrender vacant possession of the building to the landlord within six months from today and undertaking further that arrears of rent, if any, due as on date will be discharged within one month and continue to pay the occupation charges at the contract rate. We make it clear that the respondents will get the benefit of time granted as above only if they file the affidavit on time and honours the undertaking therein. ## **PIUS C.KURIAKOSE, JUDGE.** ## **N.K.BALAKRISHNAN, JUDGE.** ul/srd RCR 27/11 20 RCR 27/11 21