Pathummakutty and Others vs Alikkal Suhara and Others

P.N. Ravindran, J.—1. The petitioners herein are the legal heirs of the respondent/tenant in R.C.P. No. 4 of 2010 on the file of the Rent Control Court, Perinthalmanna, a petition filed by respondents 1 to 3/landlords praying for an order of eviction under section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as "the Act" for short. They had in the rent control petition averred that the petition schedule building originally belonged to Sainudheen, husband of the first respondent and father of respondents 2 and 3, that he was running a textile shop under the name and style ''Varnam Textiles'' in one of the three rooms in the ground floor of the building of which the petition schedule rooms are a part, that he passed away on 5.10.2005, that after Sainudheen''s death, the textile business was stopped and a business under the name and style ''Apsara Hardwares'' was started. In the rent control petition, the tenanted premises was described in the A schedule and the room in the possession of the landlord wherein they were conducting a business under the name and style ''Apsara Hardwares'' was described in the B schedule.

The landlords had in the rent control petition averred that their business is prospering and that they need the petition schedule shop rooms to expand their business. They had in the rent control petition averred that though there are three rooms in the first floor of the building, the said rooms have been let out to tenants. They had also contended that the said rooms are not suitable for the expansion of their business, the reason being that the rooms are situate in the first floor of the building. They had further averred that the petition schedule rooms are situate adjacent to the B schedule room wherein they are conducting a hardware business. Upon receipt of notice, the tenant entered appearance and filed a counter statement wherein the tenant denied and disputed the need put forward by the landlords. He contended that the rooms in the upstairs portion of the building are lying vacant. He has also contended that the first petitioner in the rent control petition is not conducting a business under the name and style ''Apsara Hardwares''.

Before the rent control court, the first petitioner was examined as PW1 and the Secretary of the Angadipuram Grama Panchayat was examined as PW2. The landlords also produced and marked Exts.A1 to A5. The tenant examined himself as DW1 and produced and marked Exts.B1 to B3. On application filed by the tenant, an Advocate Commissioner was appointed to inspect the petition schedule building. The report submitted by him after his inspection was marked as Ext. C1 and the report and sketch submitted by her after another round of inspection pursuant to the objections raised by the landlords were marked as Ext. C2 and C2(a) respectively.

After considering the rival contentions, the rent control court held that it has come out in evidence that two rooms in the upstairs portion are lying vacant, but the landlords had pleaded that those rooms are in the possession of tenants and as the landlords have not come to court with clean hands it cannot be said that the need for additional accommodation is bonafide. The rent control petition was accordingly dismissed. Challenging that order, the landlords filed R.C.A. No. 16 of 2012 on the file of the Rent Control Appellate Authority, Manjeri. While the said appeal was pending, the tenant passed away and thereupon, the petitioners herein, his legal heirs, were impleaded as supplemental respondents 2 to 12 in R.C.A. No. 16 of 2012. By judgment delivered on 21.1.2015, the appellate authority reversed the finding entered by the rent control court, held that the need is bonafide and passed an order of eviction as prayed for. The legal heirs of the tenant have, aggrieved thereby, filed this revision petition.

We heard Sri. Rajesh R. Kormath, learned counsel appearing for the petitioners and Sri. M.A. Abdul Hakhim, learned counsel appearing for the respondents. Sri. Rajesh R. Kormath, learned counsel appearing for the petitioners contended that the landlords had in the petition for eviction averred that rooms in the upstairs portion are in the possession of the tenants, that it has come out in evidence that atleast two rooms in the upstairs portion are lying vacant, but the first petitioner/landlord had when examined as PW1 stated that rooms are occupied by the tenants and that having regard to the evidence on record, the rent control court was perfectly right in holding that the landlord has not come to court with clean hands. The learned counsel contended that in such circumstances, the appellate authority erred in holding that the need put forward is bonafide. The learned counsel also submitted that the petitioners before the rent control court have not proved the case set out by them in the petition for eviction that they own the business run under the name and style ''Apsara Hardwares'', that the Advocate Commissioner is not competent to say that the licence for the said business stands in the name of the first petitioner before the rent control court, that it is only in this court that the landlords have chosen to produce documents purporting to be the licences issued in the name of the first petitioner before the rent control court along with I.A. No. 168 of 2016 for the purpose of proving the statement in the rent control petition that the landlords are running a business under the name and style ''Apsara Hardwares'' and that in the event of the said documents being received into evidence, the tenants may be granted an opportunity to contest the said evidence and also to lead evidence to show that the business is not being run by the landlords as claimed by them. Learned counsel contended that as the landlords had suppressed the fact that the rooms in the upstairs portion of the building are lying vacant and as the need put forward can be satisfied by making use of the rooms in the upstairs portion, the order of eviction passed by the rent control court is liable to be set aside.

Per contra, Sri. M.A. Abdul Hakhim, learned counsel appearing for the respondents submitted that the landlords had in the petition for eviction stated in categorical terms that the rooms in the upstairs portion have been let out to tenants and that they are also not suitable for the expansion of their business. Inviting our attention to the observations made by the Advocate Commissioner in Exts.C1 and C2 reports, the learned counsel submitted that it is evident from the report submitted by the Advocate Commissioner that the rooms in the upstairs portion have been let out to tenants and that it cannot be said that the landlords had made a false claim in the rent control petition that rooms in the upstairs portion have been let out to tenants. The learned counsel submitted that in such circumstances, as the rooms in the upstairs portion are not suitable for the expansion of the business which the landlords are conducting in the ground floor of the building, the rent control appellate authority was perfectly right in passing an order of eviction. As regards the contention of the tenants that the landlords have not proved that they are running a business in hardwares in the B schedule room, learned counsel contended that the tenants have not denied the averment in the rent control petition that the landlords are conducting a business in the B schedule room under the name and style ''Apsara Hardwares'', that the only contention raised in the counter statement was that the tenants have not seen the landlords doing business therein, that even in the affidavit filed in lieu of chief examination the case put forward by DW1 is that he has not seen the first petitioner in the rent control petition doing business and therefore, as the averment in the rent control petition has not been denied, the tenant cannot be heard to contend that the landlords should have adduced evidence to prove that they are in fact conducting a business in the B schedule room. Inviting our attention to Ext. C2 report submitted by the Advocate Commissioner, learned counsel contended that the Advocate Commissioner has referred to the fact that a licence in the name of PW1 has been displayed in the B schedule premises and therefore, the inference is irresistible that the landlords themselves are doing business in the B schedule room. Learned counsel also submitted that in the objections to Ext. C1 report the landlords had stated that the telephone of one of their relations was shifted to the B schedule room at their request and that having regard to the relationship between the subscriber of the telephone and the landlords, it cannot be said that such shifting would show that the business is being done by the subscriber of the telephone and not by the landlords.

We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The landlords had in the petition for eviction categorically stated that the rooms in the upstairs portion are not suitable for expanding the business being run by them in the ground floor of the building. They had also averred that A schedule rooms are situate adjacent to the B schedule room and that it will be more convenient for them for expanding their business. They had also stated that the rooms in the upstairs portion are in the possession of the tenants. The tenant did not deny the said averment. All that he stated was that the rooms in the upstairs portion are "now" lying vacant. The Advocate Commissioner has after inspecting A and B schedule buildings reported that atleast two of the rooms had been let out to tenants. She has also reported that one of the rooms which was found to be lying vacant on the date of the first inspection was later let out to another person. It is thus evident from the materials on record that the statement made by the landlords that the rooms in the upstairs portion have been let out to tenants was not an incorrect or untrue statement. In any case there is nothing to show that as on the date of the institution of the rent control petition, the rooms in the upstairs portion were lying vacant. Even if the rooms in the upstairs portion were lying vacant as the need is to expand the business being run in the B schedule room which is situate in the ground floor of the building and the A schedule shop rooms are situate adjacent to the B schedule shop room and the landlords had stated in categorical terms that it will be convenient for them to expand their business if they get vacant possession of the A schedule shop rooms, it would constitute special reasons as contemplated in the first proviso to section 11(3) of the Act. The rent control appellate authority has, after analysing the pleadings and the evidence on record, held that in a petition for eviction under section 11(8) of the Act, the first proviso to section 11 (3) of the Act can have no application. As rightly noticed by the appellate authority the availability of other rooms can be taken into account only for the purpose of deciding whether the need put forward is bonafide. The need put forward in the instant case is to expand the business being run in the ground floor of the building namely in the B schedule room by expanding the business to A schedule rooms as well. A and B schedule shop rooms are situate adjacent to each other. The rooms in the upstairs portion cannot be made use of for expanding the business in hardware being conducted in the ground floor of the building. In such circumstances, we find no merit or force in the contention of the learned counsel for the tenants that the landlords had suppressed the fact that they are in possession of the rooms in the upstairs portion of the building. Consequently the principles laid down by this court in Bhargavi Amma v. Ajayakumar [, 2016 (1) KLT SN 73] can have no application. Having regard to the nature of the business - business in hardware, the landlords can conveniently run the business only in the ground floor. We therefore find no good grounds to interfere with the finding entered by the rent control appellate authority that the need put forward is bonafide.

The rent control appellate authority has also considered the comparative hardship that may be caused to the tenants by granting an order of eviction and the advantage to the landlords and held that the hardship to the tenants does not outweigh the advantage to the landlords. It was held that the mere fact that shifting of business would cause hardship is not a reason to hold that it will outweigh the advantage to the landlords. It has also come out in evidence that it is not the first respondent, who was examined as DW1, who is doing business in the petition schedule building. The licences to run the businesses stand in the name of the son of DW1 and in the name of his daughter-in-law. Both the businesses thus stand in the name of someone other than the tenant. DW1 had also deposed that two of his sons and son-in-law are employed abroad and that he is being looked after by them. It has also come out in evidence that other buildings are available in the locality. The Advocate Commissioner has in Ext. C2 report stated that there are vacant rooms available in the building belonging to Iqbal and in the building belonging to Malabar Devaswom Board. It is evident from the testimony tendered by DW1 that he has not made any independent enquiry in that regard. The burden of proving the non-availability of other suitable buildings is on the tenant. In such circumstances, we are in agreement with the rent control appellate authority that the hardship which may be caused to the tenants will not outweigh the advantage to the landlords.

For the reasons stated above, we hold that there is no merit in the instant revision petition. If fails and is accordingly dismissed. However having regard to the fact that the legal heirs of the tenant are doing business in the petition schedule building, we deem it appropriate to grant them six months'' time from today to surrender vacant possession of the building subject to the following conditions:

"i. The petitioners/tenants shall on or before 18.5.2016 file an undertaking in the form of an affidavit in the rent control court, undertaking to surrender vacant possession of the petition schedule shop room to the respondents/landlords on the expiry of the said period of six months.

ii. The tenants shall deposit or pay to the landlords the arrears of rent if any on or before 18.5.2016 and undertake in the affidavit to be filed that they will continue to pay rent at the contract rate till the date of surrender.

iii. The tenants shall also undertake that they will not induct third parties into possession of the petition schedule building or commit acts of waste therein.

iv. In the event of failure on the part of the petitioners/tenants to file an affidavit within the time limit stipulated above, it will be open to the landlords to forthwith execute the order of eviction."