Jayanandan vs Mani and Others

K. Ramakrishnan, J.—1. The second respondent in R.C.P. No. 49 of 2006 is the revision petitioner in R.C.R. No. 10 of 2016 while respondents 1, 3 to 5 in the same case are the revision petitioners in R.C.R. No. 59 of 2016. Respondents 1 to 4 herein as petitioners/landlords filed R.C.P. No. 49 of 2006 on the file of the Rent Control Court, Palakkad seeking eviction of the petition schedule rooms namely door Nos. 11/10(9) and 11/10(10) in a building complex by name Balakrishna Complex by the side of G.B. Road in Palakkad town which is in the possession of the respondents on the ground of arrears of rent, bonafide need and causing damage to the building which affected the utility permanently and materially under sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter called ''the Act'' for short.

The allegation in the petition was that these two rooms were let out to the father of the respondents in the lower court on a monthly rent of Rs. 1,000/- and Rs. 1,200/- respectively as fixed by this court in C.R.P. No. 559 of 1998 from 23.8.1990. The building was got evicted on the ground of reconstruction earlier by filing R.C.P. No. 41 of 1982 and later since there was some dispute between the landlords and the original tenant namely Sukumaran, on the basis of the application filed by him as I.A. No. 3001 of 1989, the rent control court directed the landlords to give these petition schedule rooms to him. As per the order in R.C.P. No. 110 of 1990, the fair rent of the building was fixed as Rs. 600 and Rs. 400 respectively and thereafter in revision filed against that order, this court has refixed the amount as Rs. 1,000/- and Rs. 1,200/- respectively with effect from 1.7.1997.

After the death of the original tenant Sukumaran, the respondents in the court below were in the possession of the buildings as tenants. The rent from 23.8.1990 was in arrears. They have willfully kept the rent in arrears. Though notice was issued on 29.7.2004, they did not pay the amount. The first petitioner is running a business for the last eight years in the name and style ''Anupama Jewellery and Watches'' at G.B. Road and the second petitioner is running a business for the last six years in the name and style ''Sreeraj Jewellery'' at T.B. Road. Both the petitioners were doing their business in tenanted premises. They wanted to expand their business and they are not able to expand the business with the available space in their building. So they require the petition schedule rooms bonafide for the purpose of doing business in gold and silver ornaments and watches.

The respondents have demolished the wall between two rooms and thereby impaired the value and utility of the building permanently and materially and they are not eking out their livelihood from the income derived from the business. There are other buildings available in the locality. Since the tenants have not vacated the premises, the landlords filed the above application for eviction under sections 11(2)(b), 11(3), 11(4)(ii) and 11(4)(iii) of the Act.

The second respondent in the court below entered appearance and filed counter statement. It is admitted that the petition schedule rooms are part of Balakrishna Complex and the partition deed mentioned is only a sham document prepared for the purpose of this application. The allegation that their predecessor-in-interest, Sukumaran was put in occupation of the building as per the orders in R.C.P. No. 41 of 1982 is not correct. In fact he was in possession of the building since 1961. Thereafter the landlords filed R.C.P. No. 41 of 1982 for eviction of tenants on the ground of reconstruction and eviction order was passed and the tenants surrendered the building and after reconstruction, they did not provide rooms in the building to the tenants. So the predecessor of the respondents filed I.A. No. 2001 of 1989 before the Rent Control Court in R.C.P. No. 41 of 1982 and the rent control court directed the landlords to provide the petition schedule rooms to him. Accordingly these two rooms were put in possession of late Sukumaran. Thereafter since the rent was not agreeable between the parties, an application has been filed for fixation of the fair rent and it was ultimately fixed by this court in C.R.P. No. 559 of 1998. Though an application has been filed for review of the rent fixed, that was pending. Further the Apex Court had stayed the fixation of fair rent proceedings. So they are not entitled to get the rent on the basis of the fair rent fixed by this court. They have remitted Rs. 13,000/- being the admitted arrears for the period from May 1996 to February 2007 and they also remitted Rs. 26,064/- towards building tax of Palakkad Municipality. They were insisting for enhancement of rent for which they were not amenable and that prompt them to file this application for eviction. They also contended that the bonafide need alleged is not genuine and that has been raised only as a ruse for evicting the tenants from the building. They are very well in the possession of other rooms and if they want, they can occupy those rooms as well in their possession. They are also having room in the Market road in their possession which can be used for this purpose. In order to avoid enjoyment of the property they have constructed a staircase in front of the petition schedule building. So the respondents have to file O.S. No. 63 of 1993 before the Munsiff Court for mandatory injunction directing the landlords to remove the staircase put up in front of the building. The allegation that these two rooms were separated by a wall and the wall was removed by the respondents is not correct. Though it was having two rooms with two numbers, it was treated as one single room and it was allotted to their predecessor and they were in possession of the same on that basis. So the allegation that the wall was removed and thereby value and utility of the building has been permanently and materially affected is not correct. They are not in possession of any other building and as such, the landlords are not entitled to get eviction. They also contended that they are eking out their livelihood from the income derived from the business conducted in the petition schedule rooms and they prayed for dismissal of the application.

Respondents 1, 3 to 5 filed counter adopting the contentions of the first respondent.

In order to prove the case of the landlords, petitioners 1 and 2 were examined as PWs. 1 and 2 and Exts.A1 to A12 were marked on their side. In order to prove the case of the respondents, the second respondent was examined as RW1 and Exts.B1 to B10 were marked on their side. Ext. C1 series were also marked. The site plan of the commercial complex at G.B. Road, Palakkad in F.S. 2972/1B was also marked as third party exhibit.

After considering the evidence on record, the rent control court found that the petitioner is entitled to get eviction under sections 11(2)(b) and 11(3) of the Act but disallowed the order of eviction under sections 11(4)(ii) and 11(4)(iii) of the Act. Aggrieved by the dismissal of the application under sections 11(4)(ii) and 11(4)(iii) of the Act, the landlords filed R.C.A. No. 43 of 2009, the second respondent filed R.C.A. No. 38 of 2009 and other respondents filed R.C.A. No. 42 of 2009. In the appeal, Exts.B11 and B12 were marked on the side of the tenants. Those appeals were jointly disposed of by the rent control appellate authority, allowing the appeals filed by the tenants in part, rejecting the order of eviction under section 11(2)(b) of the Act but confirming the order of eviction passed under section 11(3) of the Act and the appeal filed by the landlords was dismissed. Aggrieved by the same, the above revisions have been filed by the tenants/respondents in the trial court.

Heard Sri. T. Krishnanunni, learned Senior Counsel appearing for the revision petitioner in R.C.R. No. 10 of 2016, Sri. Jacob Sebastian, learned counsel appearing for the revision petitioners in R.C.R. No. 59 of 2016 and Sri. Sajan Varghese, learned counsel appearing for the landlords in both the cases. For the purpose of convenience, the status of the parties is referred to as the landlords and the tenants.

The learned counsel appearing for the tenants submitted that the court below had not properly appreciated the evidence. Though the landlords have a case that they want to augment their income and start another business in the petition schedule rooms, the rent control court had proceeded on the basis that they wanted to shift the existing business from the tenanted premises to the petition schedule rooms and as such the appreciation is not proper and the yardstick for consideration will be different in these aspects which has not been properly appreciated. Further the conduct of the landlords from the beginning will go to show that they are making one way or the other in filing applications to evict the revision petitioners and they want to drive them out of the building. Further the evidence will go to show that the landlords are constructing another building, where they can easily occupy and conduct the business. The court below has not properly appreciated the evidence regarding the availability of other buildings in the possession of the landlords in order to attract the bar under the first proviso to section 11(3) of the Act. Further the court below has not properly appreciated the evidence regarding the second proviso protection to the tenants as well. So according to them, the finding of the court below on the question of bonafide need is perverse and liable to be interfered by this court.

On the other hand, learned counsel appearing for the landlords submitted that both the courts have concurrently found on fact that the need alleged by the landlords is bonafide and they are not in possession of any other building and even the building in their possession is not suitable for this purpose and evidence has been adduced on that aspect and even the tenants were not willing to go to that building for conducting their business. According to the learned counsel, the courts below were perfectly justified in ordering eviction under section 11(3) of the Act and the same is not liable to be interfered with.

The fact that the landlords are the owners of the petition schedule building and it was originally let out to the predecessor-in-interest of the present tenants namely their father Sukumaran and there were some litigations between them regarding reconstruction of the building and allotment of the building after reconstruction, etc., and on the basis of the orders of the rent control court, the buildings now in the possession of the respondents were given to their predecessor and after his death, they are in possession of the building as legal heirs of said Sukumaran and these facts are not in dispute. The claim of the landlords in the rent control petition was that they are conducting business in two independent tenanted premises in the name and style ''Anupama Jewellery'' and ''Sreeraj Jewellery'' and they want to augment their income and expand their business for which they bonafide require the petition schedule building. They also stated that they want to do business in gold and silver ornaments and watches and the present building in which they are now conducting business were not sufficient for expanding their business. The bonafide need alleged was denied by the respondents.

It is true that the rent control court had on the basis of the evidence adduced, allowed eviction under section 11(3) of the Act holding that the need alleged is bonafide but on the misconception that the landlords want to shift their existing business from the tenanted premises to the petition schedule building. But the evidence as well as the pleadings in the proceedings will go to show that the landlords had put forward the claim of bonafide need to expand their business and not to shift their existing business in the petition schedule building. Further, the appellate court on re-appreciation of the evidence came to the conclusion that the need alleged by the landlords is bonafide as they want to expand their business and for that purpose they require the petition schedule building bonafide and they are not in possession of any suitable building for this purpose. So the mis-appreciation of fact by the rent control court has been set at right by the appellate authority and rightly came to the conclusion that it is not for shifting the existing business but they want to start a new business in the petition schedule building as part of expansion of their existing business, which is being conducted in two separate tenanted premises.

It has also come out in evidence that the landlords are in possession of a building in the old market road. But they have categorically stated that it is not sufficient for their purpose and it is not safe to keep valuable articles there. The commissioner''s report will also go to show that in order to make that building in a habitable condition, they will have to incur huge expenses of more than Rs. 3 lakhs. Further when a suggestion was given to the tenants whether they are prepared to shift their business to that building, they have stated that it is not suitable for their purpose. So that will go to show that the building said to be in the possession of the landlords is not suitable for their purpose so as to attract the bar under the first proviso to section 11(3) of the Act.

Learned counsel for the revision petitioners relied on the dictum laid down in the decision reported in Bhargavi Amma P. v. K.P. Ajayakumar (, 2016 (1) KHC 347) for the proposition that there is an obligation on the part of the landlords to establish special reasons for non-occupation of the said rooms. In the absence of such special reasons it cannot be said that the need put forward by them is bonafide and also for the proposition that their non-disclosure of this fact in the petition itself will cut at the bonafides of the need projected by the landlords. In the petition itself they have stated that they are not in possession of any other suitable building for this purpose. Once they have pleaded in the petition that there is no suitable building in their possession, then the burden is on the tenants to prove that they are in possession of other suitable buildings and only if this is established by the tenants, then it is for the landlords to give special reasons for not occupying the same. It is true that at the time of evidence it was pointed out that they got another room in market road but it has come out in evidence that at the time when the application was filed, it was in the possession of the tenants and it was later fell vacant. There is no evidence on record to show that even at the time when the application was filed, they were in possession of any vacant building make it obligatory on the part of the landlords to plead that fact in the petition. Further even if it was established that they are in possession of another building subsequently came into possession, they were given special reasons for not occupying the same as well and the evidence of the tenants will go to show that they are not interested in going to that room as it is not in a habitable condition, so the courts below were perfectly justified in holding that the availability of building in old market road is not sufficient to attract the bar under the first proviso to section 11(3) of the Act as it was not suitable for the purpose for which they want the petition schedule rooms.

It was also brought out in evidence that the third petitioner herein was constructing a building in the same town. According to the tenants, they can accommodate the present business in any of the rooms in that complex. But the evidence adduced along with the third party document will go to show that the building permit that has been granted to the third petitioner in the lower court has been cancelled. So it cannot be said that the building has been constructed and that the rooms are available for occupation. So under the circumstances, both the courts below were perfectly justified in coming to the conclusion that the landlords are not in possession of any other suitable building which can be used for this purpose so as to attract the bar under the first proviso to section 11(3) of the Act.

Further in view of the fact that there are other buildings available in the locality and there is no evidence adduced on the side of the tenants to prove that they are solely and mainly depending on the income derived from the business conducted in the petition schedule building, the courts below were perfectly justified in coming to the conclusion that the tenants are not entitled to get the second proviso protection and rightly ordered eviction under section 11(3) of the Act and the concurrent findings of the courts below on this aspect do not call for any interference invoking the power under section 20 of the Act.

Before we dispose of the revision petitions, the learned counsel appearing for the revision petitioners submitted that they want one year time to vacate the premises and it was strongly opposed by the learned counsel appearing for the landlords. The rent control proceedings started in the year 2006. The landlords could not get the possession of the building even after 9 years of filing of the rent control petition. However considering the circumstances, we feel that six months time from today can be granted to the revision petitioners to shift their business. So the revision petitioners are granted six months time from today to surrender vacant possession of the building on condition that they shall file an undertaking in the form of an affidavit before the rent control court that they will surrender vacant possession of the premises unconditionally without any objection after the expiry of the time provided by this court and on further condition that they will deposit the arrears of rent, if any, and also continue to pay the rent at the rate agreed between the parties till they vacate the premises. They shall further undertake that they will not induct strangers in the petition schedule building or alienate or sublet the building or commit any acts of waste therein. The undertaking as directed above shall be filed within a period of three weeks from today. If the undertaking is not filed within that time, then the revision petitioners are not entitled to the benefit of extension of time to surrender the building as granted by this court.

With the above direction and observation, these revision petitions are dismissed.