M. Balakrishnan and Others vs Dr. M. Jayasankaran <BR> Dr. M. Jayasankaran Vs M. Balakrishnan

Pius C. Kuriakose, J.—R.C.R No. 28/2009 is filed by the landlord, who is a medical practitioner. R.C.R No. 256/2008 is filed by the tenant. Going by the schedule attached to the R.C.P, the door number of the building, which is sought to be evicted is Door No. 19/1944 only. The evidence before the Rent Control Court conceded of the oral evidence of PW1 the landlord, PW2 the dependent daughter, Exts.A1 & A2, BW1 tenant, Exts.B1 to B9 and Ext.C1 Commissioner''s report and Ext.C2 plan submitted by the Commissioner.

Along with the R.C.P, a separate statement, as envisaged by Section 27 of the Act (statement of particulars) is also filed. Going by that statement also, the door number of the building which is sought to be evicted is 1944 only. Sub section (3) of Section 11, bonafide need for own occupation is the ground on which the tenant is sought to be evicted by the landlord. The need projected by the landlord, who is a medical practitioner, is that the petition schedule premises is required bonafide for accommodating his daughter so that, she can conduct a medical store therein. The bonafides of the need was disputed by the tenant in his statement of objections. Even though the identity of the building where from he has sought to be evicted, was not specifically disputed, he contended through his statement of objections that apart from Door No. 1944, he possess Door No. 1943 as well as the upstair of the entire building. However, he contended that the entire building is presently being enjoyed by him as one unit, though the portions thereof were let out on him at different points of time separately. He also contended that he is entitled to the protection of the second proviso to sub section (3) of Section 11.

The Rent Control Court after evaluating the evidence came to the conclusion that the need projected by the landlord is not bonafide one. The Rent Control Court went on further to conclude that the tenant is entitled for the protection of the second proviso to sub-section (3) of Section 11. In fact, the Rent Control Court found that the tenant satisfies both the ingredients of the second proviso to sub section (3) of Section 11. On the basis of the above finding, the R.C.P was dismissed completely by the Rent Control Court.

The landlord preferred R.C.A No. 6/2007. The learned Appellate Authority by the judgment, which is impugned in these revisions, has allowed the above R.C.A in part. The learned Appellate Authority found that the need projected by the landlord in respect of Door No. 1944 of division No. 19 (one of the two rooms in the ground floor portion of the larger building) is a bonafide one. Interestingly, the learned Appellate Authority concurred with the finding of the learned Rent Control Court that the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11. Ultimately, the learned Appellate Authority has ordered eviction in respect of Door No. 19/1944 and permitted the tenant to retain the possession of the remaining portions of the larger building.

The grievance of the landlord voiced through the R.C.R No. 28/2009 is that the learned Rent Control Appellate Authority did not find that the need projected by the landlord which is in respect of entire building is a bonafide one and did not allow eviction u/s 11(3) in respect of the whole building. In that revision, the finding in favour of the tenant in the context of the second proviso to sub section (3) of Section 11 is challenged. In the revision filed by the tenant, the challenge is against the order of eviction passed in respect of Door No. 1944/19 notwithstanding the finding that the tenant is entitled for the protection of the second proviso.

We have heard the submissions of Smt. Sumathi Dandapani, learned senior counsel for the revision petitioner in R.C.R No. 28/2009 and Shri P.A. Harish, Learned Counsel for the revision petitioner tenant in R.C.R No. 256/2008. The submission of Mr. Harish was that the learned Rent Control Appellate Authority having found that the tenant is entitled for the protection of second proviso to sub section (3) of Section 11 is not justified in ordering eviction in respect of Door No. 1944/19, which accounts for the main chunk of the whole building. He submitted that without that portion of the building, the tenant will not be able to continue the business, which is presently continuing in the entire building. According to him, as it is found that the tenant is entitled for the protection of the second proviso to sub section 3 of Section 11, the learned Appellate authority was bound to confirm the order of the Rent Control Court declining the eviction altogether.

Mr. Harish further submitted that this is a case where the R.C.P is liable to be rejected in view of the first proviso to sub section (3) of Section 11. He submitted that it has come out in evidence that the landlord is conducting a clinic in a double storied building. There is evidence to hold that the first floor portion of the clinic building is vacant. According to him, in the manner in which the need has been projected by the landlord, wherein the landlord says that as a medical practitioner, he can give regular guidance to his daughter for conducting medical shop business. Ideally, the daughter can be accommodated in the portion of the clinic building. The daughter can be accommodated in the ground floor, if first floor of the clinic building is not suitable for medical store business, and the clinic portion can be shifted to the first floor and the portion falling vacant on account of the said shifting, can be given to the daughter.

Smt. Sumathi Dandapani, learned senior counsel would assail to the finding of the learned Appellate Authority which are against the landlord. According to Smt. Sumathi Dandapani, though it is true that only Door No. 1944/19 is mentioned in the R.C.P as well as in the statement filed u/s 27, no prejudice has been caused to the tenant due to the non mentioning of Door No. 1943. The tenant has clearly understood the petition for eviction as one seeking eviction of the entire premises occupied by the tenant. The learned Appellate Authority having found that the landlord''s need to accommodate is daughter is a bonafide need, should have found further that such a need exists in respect of the entire building and not in respect of Door No. 1944 alone.

Smt. Sumathi Dandapani, learned senior counsel would draw our attention to the judgment of the Full Bench of this Court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 FB) and that of the Supreme Court in Kunhamma v. Akkali Purushothaman (2007 (3) KLT 599 (SC)). According to Smt. Sumathi Dandapani, the learned Appellate Authority''s finding that the tenant is entitled for the protection of the second proviso, is a finding entered in total disregard to the principles of law laid down by this Court and the Supreme Court. She highlighted that in this case, where the tenant claims that he is depending for his livelihood on the income that he derives from the industry, which he carries on the petition schedule premises, the tenant has not adduced any evidence to show that what exactly is the income that he derives. The documents produced by the tenant pertain to the conduct of his business which is not in dispute. What is crucial is whether, the tenant is depending for his livelihood mainly on the income derived from that business.

Smt. Sumathi Dandapani also submitted that during the pendency of this R.C.R, the tenant passed away and tenant''s interest in the tenancy devolved upon his legal heirs. It has come out in evidence that the two sons of the tenant are continuing their own business in other places situated not far away from the petition schedule building. As the legal heirs have become statutory tenants, now it is clear that they are having other sources of income also. this Court may notice the subsequent event and vacate the finding that the tenants are entitled for the second proviso to sub section (3) of Section 11. The finding of the Rent Control appellate Authority regarding bonafides may be extended to Door No. 1943 also, as the need projected pertained to Door No. 1943 also.

We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully gone through the order passed by the Rent Control Court and the impugned judgment of the Rent Control Appellate Authority. The findings entered by the learned Rent Control Court regarding the bonafides of the need projected was thoroughly unsatisfactory. That was rightly interfered with by the learned Rent Control Appellate Authority. At the same time, we find that the learned Appellate Authority dealt with the case, as if, the need u/s 11(3) had been projected by the landlord only in respect of Door No. 1944. A careful scrutiny of the R.C.P, particularly its schedule, will reveal that the landlord sought eviction of the whole building consisting of Door No. 1944, 1943 and the upstair portion. At the same time, it appears to us, notwithstanding the absence of specific pleadings to that effect from the part of the tenant, that some confusion, if not, legal prejudice has been occasioned to the tenant on account of the landlord not stating the Door No. 1943 also in the schedule of the R.C.P. We feel that in the interest of the landlord himself, for avoidance of unnecessary obstructions and objections during the execution stage, it is better that Door No. 1943 is also incorporated in the schedule portion.

As the bonafides of the need projected by the landlord in respect of Door No. 1943, has been concurrently declined by the Rent Control Court and the Rent Control Appellate Authority, we feel that the issue as to the bonafides of the need projected is which is in respect of the whole building (1943, 1944 and upstair portion) should be reconsidered by one of the fact finding authorities. The R.C.P was instituted way back in 2004. We are of the view that further delay should be avoided to the extent possible and the decision can be relegated to the learned Appellate Authority.

Now, we come to the correctness of the finding entered, which was again concurrently by the Rent Control Court Court and the Appellate Authority that the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11. We find considerable force in the submission of Smt. Sumathi Dandapani, learned senior counsel, that such a finding has been entered by the two statutory fact finding authorities without being mindful of the principles laid down by the Full Bench of this Court in Francis v. Sreedevi Varassiar ( cited supra) and by the Supreme Court in Kunhamma v. Akkali Purushothaman''s case (cited supra).

It is trite by these and other decisions that the burden to show that the tenants satisfies both the ingredients of the second provisos is on the tenant itself. As for the first ingredient of the second proviso, we feel that the tenant should have adduced evidence and shown that the business which he conducts in the petition schedule premises fetches him income sufficient for sustaining himself and his family. As already stated the subsequent event of the original tenant and passing away and the tenancy devolving upon his children will have a bearing on the liability of the present tenants, the legal heirs to be evicted. It will be necessary for the present tenants whoever they are, to prove that they satisfy both the ingredients of the second proviso to sub section (3) of Section 11. We notice that in this Court, a few persons have been impleaded as the legal heirs of the deceased tenant Shri Balakrishnan. The above impleading was allowed accepting the case that succession to the estate of late Balakrishnan was testamentary.

Smt. Sumathi Dandapani now submitted before us that the genuineness of the above will is disputed by the landlord and also by some of the legal heirs of Shri Balakrishnan. We, therefore, leave it open to the Rent Control Appellate Authority to implead the necessary persons as the legal heirs of the deceased original tenant Shri Balakrishnan. We are not at all impressed by the argument of Mr. Harish that first proviso to sub section (3) of Section 11operates against the landlord. Even if any portion in the building which is used as a clinic of the landlord is available, the landlord has special reasons as to why he is insisting on getting the eviction of the petition schedule premises.

The result of the above discussion is, therefore, as follows:

Both the R.C. Rs are allowed by way of order of remand. The judgment of the Rent Control Appellate Authority is set aside. R.C.A is remanded to the Rent Control Appellate Authority, Kozhikode. The learned Appellate Authority is directed to favourably consider the application if any, which may be filed by the landlord for amending the schedule portion of the R.C.P as well as the statement of particulars filed u/s 27, so as to incorporate Door No. 1943, 1944, as well as the upstair portion in the schedule to the Rent Control Petition. It is open to the landlord who is the appellant before the Rent Control Appellate Authority to file application for impleading the legal heirs of the deceased tenant Shri Balakrishnan as additional respondents in the R.C.P. The Rent Control appellate Authority will take fresh decision as to the bonafides of the claim of the landlord to obtain eviction of the entire building (1943, 1944 and the upstair portion). The learned Appellate Authority will also take a fresh decision as to the eligibility of the present tenants to the protection of the second proviso to sub section (3) of Section 11. The learned Appellate Authority will permit both sides to adduce further evidence, if they are so desirous of. It is found finally that the R.C.P is not liable to be rejected by virtue to the first proviso of sub section (3) of Section 11.

We notice yet another aspect of the matter. The building is situated in an important locality of the Kozhikode City Corporation. The monthly rent of Rs. 140/- which is being paid to the landlord in our view is very low. We refix the rent payable by the present tenants at the rate of Rs. 1,000/- with effect from 01/04/2012 till fair rent of the building is fixed regularly u/s 5. The tenants shall pay rent with effect from 01/04/2012 at Rs. 1,000/- per mensem. Parties will enter appearance before the Rent Control Appellate Authority on 12/04/2012. Transmit the lower court records forthwith to the learned Rent Control Appellate Authority. The learned Appellate Authority will expedite matters and will pass a revised judgment, after completing enquiry, within three months of the Court reopening after mid summer recess. If application for impleadment is filed by the landlord on or before 12/04/2012, the learned Appellate authority should entertain those application as one filed on time. It is needless to mention that the identity of the persons who have become tenants upon the demise of the original tenant will be decided by the learned Appellate Authority on the basis of the evidence adduced by both sides.