(2013) 304 KLR 428

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

WEDNESDAY, THE 27TH DAY OF MARCH 2013/6TH CHAITHRA 1935

RCRev..No. 343 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN RCA.9/2010 of RENT CONTROL APPELLATE AUTHORITY/ADDL. DISTRICT & SESSIONS COURT, VADAKARA DATED 11-11-2011 AGAINST THE ORDER/JUDGMENT IN RCP.32/2007 of MUNSIFF COURT, NADAPURAM DATED 30-11-2009

REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANTS NO.2 AND 3 IN RCA/RESPONDENTS NO.4 :

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1. P.P. BASHEER HAJI S/O.KUNHABDULLA, RUMANA MANZIL, NEELECHUKUNNU VATAYAM AMSOM, DESOM, PO.VATTOLI PIN-673 507, VATAKARA TALUK.

2. K.P.RAFEEQ S/O.AMMED, THOROKANDY, NEAR CHANGARAMKULAM UP.SCHOOL, KAYAKKODI AMSOM, DESOM PIN-673 507 VATAKARA TALUK, VATAKARA.

BY ADVS.SRI.A.MOHAMED MUSTAQUE SRI.U.P.BALAKRISHNAN

RESPONDENT(S):

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1. KAMMANA MEETHAL SATHYAN S/O.KUNHAMMAD, VADAKKE CHERIYAMKOOL, KUNNUMMAL AMSOM VATTOLI DESOM, VATAKARA TALUK, PIN-673 507.

2. MANI, AGED 51 YEARS W/O.C.V.MOIDU MASTER, KULATHAM KUZHIYIL, SWASTHAM C.V.HOUSE, ANEX KUTTYADI AMSOM, VATAYAM DESOM VATAKARA TALUK, PIN-673 508.

3. FIROZ S/O.C.V.MOIDU MASTER, BUSINESS, C.V.HOUSE ANEX KUTTYADI AMSOM, VATAYAM DESOM, VATAKARA TALUK PIN-673 508.

4. FAREEDA, AGED 32 YEARS DO.C.V.MOIDU MASTER, SWASTHAM, C.V.HOUSE ANEX KUTTYADI AMSOM, VATAYAM DESOM, VATAKARA TALUK PIN-673 508.

5. KAMMANA MEETHAL SATHYAN S/O.NARAYANAN, KAPPUMMAL, MARUTHYONKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 508.

6. T.K.ABDUL SALAM S/O.AHAMMAD, KUTTIYIL PARAMBATH MOKERI AMSOM DESOM VATAKARA TALUK-673 507. 7. MRA MAJEED S/O.ASBULLA, MANNIL RAYAROTH, PERINGATHUR AMSOM DESOM, TELLICHERRY TALUK, KANNUR DISTRICT-676 675.

R5 BY ADV. SRI.K.P.SUDHEER R5 BY ADV. SRI.ARUN MATHEW VADAKKAN

THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.

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R.C.R. No. 343 of 2012

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DATED THIS THE 27th DAY OF MARCH, 2013

Head Note:-

Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11 & 20 - Agreement between the parties - direction to pay security amount to the tenants - Even though the requirement is only that payment should be made before the tenants actually vacates the building, eviction cannot be ordered by making it conditional on the return of the security deposit by the landlord to the tenants in the absence of any enabling provision to do so.

O R D E R

Ramachandran Nair, J.

This revision petition is filed by the petitioners who are the tenants, along with respondents 1, 3, 5 and 7 to 9 in R.C.P. No.32/2007 on the file of the Rent Controller/Munsiff, Nadapuram. The fifth respondent herein is the landlord. The concurrent orders passed by the two authorities, viz. the Rent Control Court as well as the Appellate Authority are under challenge herein. The tenants are doing the business in bakery and fast food service.

2. We heard Shri A. Mohammed Mustaque, learned counsel for the petitioners and Shri K.P. Sudheer, learned counsel for the fifth respondent landlord.

3. The landlord sought eviction on the ground under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'), viz. bonafide need. The need set up is on behalf of P.W.1, the son of the landlord who is a dependent of his father, to start a furniture business. It is the case of the landlord that he bonafide requires the building for starting a furniture business for his son. The landlord is working in Gulf countries for more than ten years and he is intending to come back to India within two years. They belong to carpenter family who have sufficient know how in carpentry work. Accordingly, he will be able to assist his son in conducting the furniture business.

4. The tenants contested the matter on various grounds. It was pointed out that the bonafide need alleged is not genuine. It is also pleaded that the landlord is having the up stair portion of the building which will satisfy their demands. For renovating and furnishing the building, the tenants have spent more than Rs.28 lakhs and they will be put to real hardship in the mater. The details regarding various previous litigations have also been pointed out. It is also alleged that the landlord's attempt is to evict the tenants for more reasons than one.

5. Evidence was let in by both sides and the Rent Control Court elaborately considered the matter.

6. P.W.1 is the son of the landlord and Exts.A1 to A4 have been marked apart from Exts.C1 to C3(a). The respondents have examined R.Ws.1 and 2 and Exts.B1 to B5 have been marked.

7. Learned counsel for the petitioners, Shri Muhammed Mustque submitted that even though the findings have been rendered concurrently, one of the important aspects which has come out in the case is that the landlord has not offered himself for examination before the Court which has denied the opportunity to the tenants to cross examine him on the bonafide need pleaded. It is submitted by the learned counsel by relying upon the decision of the Apex Court in Vidhyadhar v. Manik Rao Baba Rao {(1999) 3 SCC 583} and that of this Court in Ratheesh Kumar v. Jithendra Kumar (2005 (2) KLT 669) that on the special facts of the case the landlord ought to have been examined. It is therefore submitted that the said lacuna being there, the order of eviction cannot be supported. The learned counsel further submitted that Ext.B2 proceedings will show that the tenants have made a security deposit of Rs.7.5 lakhs which is admitted by the landlord in those proceedings and therefore even if eviction is ordered, a direction will have to be given to the landlord to pay the said amount and it should be made conditional that the tenants need vacate the building only if the landlord pays the said amount.

8. The above contentions have been opposed by the learned counsel for the respondents, Shri K.P. Sudheer. He also relied upon various decisions of this Court, viz. Bhaskaran v. Unni (1984 KHC 399), Devayani v. Pulickaparambil Hamsa Haji (1997 KHC 278) and Lakshmi v. Labban Kunju Ameer Hamsa (2005 (3) KLT 627) to contend for the position that it is not the requirement of the law that the landlord himself should give evidence and the evidence adduced, viz. by examining P.W.1 will be sufficient.

9. The argument of the learned counsel for the petitioners with regard to the non examination of the landlord, is projected in the light of the plea by the tenants in their objections that there were some previous disputes with the landlord. In para 4 of the proof affidavit the said details have been stated. It is stated that the landlord had filed R.C.P.No.2/2005 just after completion of one year from the date of taking possession of the premises. There was a dispute regarding disconnection of water supply to the building for which a complaint was filed before the Circle Inspector of Police, Kuttiadi and the landlord was summoned there and was warned also. Thereafter, the landlord filed R.C.P.No.2/2005 which also was closed and Ext.B1 is the order passed therein which has been marked in evidence in support of the above plea. It is therefore submitted that even though the requirement of the son, if at all can be found in favour by the court, the burden is on the landlord to prove further that the claim itself is bonafide, especially in the light of the provisions under Section 11(10) of the Act that the court will have to be satisfied whether the claim itself is bonafide.

10. The said contention is answered by Shri K.P. Sudheer learned counsel for the landlord, by pointing out that this aspect has been considered elaborately by the Rent Control Court and it was found that except by producing Exts.B1 and B2, no other details in support of the said contention have been produced in evidence. Shri Sudheer further submitted that Exts.B1 and B2 cannot have any adverse impact on the proceedings initiated by the landlord. As far as Ext.B2 proceedings are concerned, eviction sought for was under Section 11(4)(ii) of the Act which is totally different from Section 11(3) and the ground alleged was that there were alterations to the building which has reduced the value and utility of the building materially and permanently, which was found against. As far as Ext.B1 is concerned, it is pointed out that even though eviction was sought under Section 11(3) of the Act for the purpose of the bonafide need of the brother of the landlord, since he obtained a job in Gulf countries, the landlord did not proceed with the matter. It is therefore submitted that the same cannot have any impact on the bonafide need pleaded herein, if on an appreciation of evidence the Court is of opinion that the requirement of the son of the landlord is a genuine one.

11. We have considered the rival submissions. Even though Exts.B1 and B2 have been produced in evidence, we are of the view that those cannot have any impact on the bonafide need pleaded since in Ext.B1 the need set up is totally different, viz the requirement of the brother of the landlord. The landlord's son has been studying for a course, viz. Craftsman (Civil) in Salafi College at Meppayyur. They are having the avocation of carpentry. Their requirement is to start a furniture show room, after getting the building. The experience of the father in the line is also proposed to be utilised to start the said business. These aspects have been spoken to in evidence by P.W.1. There is no evidence to show that P.W.1 is having any other source of income or he is having any other business also. Therefore, in the absence of any evidence to show that he is having any separate business or other source of income, we will not be justified in holding that the need projected is totally unsupportable. Therefore, the bonafide need shown is not at all affected by Exts.B1 and B2 orders. This is so, especially in the light of Section 15 of the Act whereby a contention regarding resjudicata can only be maintained only if the same issue was considered and rejected in any former proceeding. The learned counsel for the petitioners explained that he is not relying upon Section 15 as according to him, the steps taken by the landlord immediately after purchase of the building and after the expiry of the statutory period will cast a doubt on the bonafide need.

12. As far as the above aspect is concerned, the discussion of the evidence by the Rent Control Court will show that various factors have been considered therein. Of course, one of the points raised before the Rent Control Court was that the upstair portion could be profitably used by the landlord. But the said contention has not been pursued here. The Rent Control Court, on an assessment of the evidence, found in para 23 that it will not be convenient for the landlord to conduct business in the upstair portion since the furniture items will have to be transported up and down through the staircase which appears to be of a normal measurement and ordinary size which fact was admitted by R.W.1 also in evidence. We are not going into the details of the same, as we are not called upon to test the veracity of the said finding in these proceedings.

13. Even though it is submitted that the background and other circumstances previous to the litigation required the examination of landlord himself, we find that the principles stated in Ratheesh Kumar's case (2005 (2) KLT 669) may not apply herein since this Court, therein, was considering a case where the landlord approached the court through a power of attorney holder and with regard to the bonafide requirement of the landlord, this Court was of the view that the evidence tendered by the power of attorney holder is not sufficient. The circumstances herein are totally different and herein the dependent for whose benefit the building is sought to be evicted, has entered the box and has given evidence also.

14. In Bhaskaran's case (1984 KHC 399) relied upon by the learned counsel for the respondents, this Court took the view that the landlord need not give evidence directly in person in every case. Devayani's case (1997 KHC 278) is another instance where this Court was of the view that whether bonafide need is established on the basis of the evidence of the dependent of the landlord is a matter for the court to consider. Therein, the objection was that the dependent was not examined and this Court said that the matter will have to be considered in the light of the evidence adduced by the parties.

15. Lakshmi's case (2005 (3) KLT 627) is one where the landlord or the son for whose benefit the eviction was sought, were not examined in the court. This was adversely commented upon by this court.

16. Learned counsel for the respondents also relied upon the decision of a Division Bench of this Court in Abraham Roy v. Philip (2009 (2) KLT 29 (C. No.34) wherein this Court was of the view that previous litigation between the parties and strained relationship between parties even before the Rent Control Petition was instituted need not be of much relevance while deciding whether need projected is genuine.

17. An overall view of the evidence alone is thus required. After analysing the evidence adduced, the Rent Control Court found that the need projected is bonafide. As we have already noticed, the landlord belongs to carpenters' family and therefore the bonafide need put forth, that also to enable the son to establish a furniture business was found to be genuine and in revisional jurisdiction there cannot be a reappraisal of the whole evidence. The appellate authority has also considered the matter in somewhat detail in paragraphs 12 and 13. After referring to Exts.B1 and B2 and after analysing the decision of this Court in Abraham Roy's case (2009 (2) KLT SN 29), the Appellate Authority also rejected the contention that the strained relationship between the parties has resulted in filing the eviction petition. It was found that the landlord has clearly established the bonafide need pleaded.

18. With regard to the requirements of the proviso to Section 11(3) of the Act, the finding is against the tenants. The first one is regarding the question whether the tenants are depending on the income derived from the business, mainly for their livelihood. Regarding the said aspect also it has come out in evidence that the business in the petition schedule building, viz. under the name "M.R.A. Bakery" finds a place in different locations. There is no worthwhile evidence that the only source of income is from the said business. The first petitioner herein alone is now involved in it. Regarding the availability of other buildings also, evidence is there which was accepted by both the authorities. Therefore, we find no reason to interfere with the said finding of fact also.

19. Even though learned counsel for the petitioners submitted that this Court in these proceedings, can direct the landlord to pay an amount of Rs.7.5 lakhs since the same is admitted to have been received by him as evident from Ext.B2, we find from the proceedings before this Court that even though the said issue was mediated, there is no agreement between the parties. It is explained by the learned counsel for the respondents that even though the said amount was received by the landlord, the tenants will have to meet the expenses for the the immediate repairs required for the building, as according to him, the structure has been damaged by the tenants. This is stoutly opposed by the learned counsel for the petitioners by pointing out that more than Rs.25 lakhs have been spent for putting up some additional structures required for conducting bakery and fast food business. Since there is serious dispute between the parties on this aspect, the question is whether this Court will be justified in issuing a direction to pay the amount to the tenants, as strongly pleaded by the learned counsel for the petitioners. Even though learned counsel for the petitioners submitted that this Court has ample power to do so, we do not find, from a reading of the provisions of the Act, that eviction can be ordered by making it conditional on the return of the security deposit by the landlord to the tenants. Even though learned counsel Shri Muhammed Mustaque submitted that the requirement of the petitioners is only that payment should be made before the tenants actually vacates the building, we cannot agree to the said submission in the absence of any enabling provision to do so. Therefore, we leave open the remedy of the parties to agitate the same in appropriate proceedings. While confirming the findings of the authorities below, we reject the contentions of the learned counsel for the petitioners on merits and dismiss the revision petition.

20. Learned counsel for the petitioners then sought for one year time to vacate the premises which is opposed by the learned counsel for the respondents by pointing out that the Rent Control Petition is of the year 2007 and he has no objection in granting a reasonable time, since one year time is totally unreasonable. Having regard to the fact that the tenants are running a bakery business along with fast food counter, we grant time upto 31.12.2013 to vacate the premises. The same will be subject to the following conditions:

a) If any arrears of rent are there, the same will be paid or deposited within a period of one month from today;

b) The tenants will continue to pay at the same monthly rate to the fifth respondent for use and occupation of the building till vacant peaceful possession is granted within the time stipulated above; and

c) An affidavit will be filed before the execution court undertaking to vacate the premises and hand over peaceful possession within the time granted by this Court, which will be filed on or before 12.4.2013.

The revision petition is dismissed. No costs.

(T.R.RAMACHANDRAN NAIR, JUDGE)

(A.V. RAMAKRISHNA PILLAI, JUDGE)

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