Sasidharan v. Sreedharan & Co — 1992 DIGILAW 211 (KER)

Judgment :- AS.No.374/1985 arises from O.S.No.13/1977, Sub Court, Tellicherry. That was a suit for eviction with arrears of lodging charges, filed by the respondent in the appeal, who is hereinafter referred to as the plaintiff. The lower court decreed the suit. The appeal is filed by the defendant. A.S.No.376/1985 arises from O.S.No.14/1977, Sub Court, Tellicherry, which was a suit filed by the appellant, who is hereinafter referred to as the plain tiff, for eviction with arrears of lodging charges. The lower court dismissed that suit. The appeal is filed by the plaintiff. The appellant in A.S.No.376/85 and the respondent in A.S.No.374/1985 is the same institution viz. K. Sreedharan & Co., Cannanore, which institution' owns a hotel named 'Hotel Savoy' at Cannanore. The appellant in A.S.No.374/85 as well as the respondent in A.S.No.376/85 were two occupants of certain rooms in the hotel. They are hereinafter referred to as the defendants. The contention of the defendants was almost similar. The lower court disposed of both the suits by a common judgment. Therefore, these appeals are being disposed of by this common judgment. 2. The plaintiff is a registered partnership firm running Hotel Savoy at Cannanore. They purchased that hotel by registered document dated 17-10-1974. Defendants are lodgers in Hotel Savoy occupying cottage type rooms. The defendant in O.S.No.13/77 is occupying room Nos. 18 and 19 and a car shed. Defendant in O.S.No.14/ 77 is occupying room Nos. 10 and 11 and a car shed. The plaintiff introduced modern facilities in the hotel and thereafter enhanced the lodging charges per day for all types of rooms with effect from 1-6-1975. For cottage type rooms the charge was Rs. 10 per day. For the usage of car shed the rent was Rs.1/- per day. The defendants did not pay the enhanced charges. The defendant in O.S.No.13/77 kept an amount of Rs.11, 076/- as arrears of lodging charges from 1-1-1975 to 31-10-1976. Defendants-in O.S.No.14/ 77 kept an amount of Rs.9, 549/- as arrears upto 30-11-1976. Accordingly these suits were filed for eviction and for recovery of arrears of lodging charges. 3. The contention of the defendant in O.S.No.13/1977 was that he took room Nos. 18 and 19 on rent from Mythili Amma, who was the then landlady of Hotel Savoy. Hotel Savoy was the name given to a group of buildings in a big compound. Accordingly these suits were filed for eviction and for recovery of arrears of lodging charges. 3. The contention of the defendant in O.S.No.13/1977 was that he took room Nos. 18 and 19 on rent from Mythili Amma, who was the then landlady of Hotel Savoy. Hotel Savoy was the name given to a group of buildings in a big compound. It contains several independent buildings and rooms, which were separately let out on rent. Numbers were given for the buildings but they did not have any special significance. The rent of the building at the time it was taken on lease was Rs.180/- per month and Rs.12/- per month for the car shed. The defendant was also paying electric charges. He has effected-improvements in the building with the knowledge and consent of the landlady. The building was used only as a residential building. He is a tenant as defined in the Kerala Buildings (Lease & Rent Control) Act. The building is not a cottage in a hotel promises. Defendant is not a lodger. He is not liable to pay the enhanced rent. 4. The defendant in O.S.No.14/77 contended that the building described as room Nos. 10 and 11 was taken on rent by his father Babu Rao on 3-2-1949 from late Narayani Amma, who was the then landlady of Hotel Savoy. Hotel Savoy is not a hotel or lodging house. It contains several independent buildings and rooms, which were separately let out on rent. Defendant's father died in 1959 and thereafter the defendant continued as the tenant of the building. It is used as his residential house. The rent of the building was Rs.70/- per month. He was also using the garage on a rent of Rs.7.50 per month. Electric charges were also being paid by him. He has made several improvements to the building with the permission of the previous landlady. He is not liable to pay the enhanced rent. He is a tenant coming within the ambit of Kerala Buildings (Lease and Rent Control) Act. He is not liable to pay any arrears of rent. 5. Electric charges were also being paid by him. He has made several improvements to the building with the permission of the previous landlady. He is not liable to pay the enhanced rent. He is a tenant coming within the ambit of Kerala Buildings (Lease and Rent Control) Act. He is not liable to pay any arrears of rent. 5. In the nature of the contentions on either side, the only point to be decided is whether the defendants are tenants coming within the ambit of Kerala Buildings (Lease and Rent Control) Act, as contended by them or whether the rooms in question are rooms in a hotel and excluded from the definition of "building" in the said Act. Since the lower court has entered divergent findings in respect of the contentions of the defendants, the evidence in this regard in the two suits may be considered separately. 6. O.S.No.14/1977: The defendant in that suit is hereinafter referred to as Umesh. As P.W.1 the Managing Partner of the plaintiff-firm gave evidence in terms of the plaint averments. Plaintiff-firm purchased Hotel Savoy on 17-10-1974 with the idea of putting up and conducting a first class modern hotel. After the purchase, the plaintiff made thorough changes in the hotel and opened a restaurant, a bar and other facilities. Work was going on in full swing for affording further facilities to the customers of the hotel. Umesh is occupying rpom Nos. 10 and 11. Those two rooms are in one cottage. According to the defendant, he can be evicted only under the provisions of the Kerala Buildings (Lease & Rent Control) Act because he is a tenant coming within the ambit of that Act. But according to the plaintiff he is not a tenant under that Act and the rooms in question will not come within the definition of 'building' under the said Act. 7. But according to the plaintiff he is not a tenant under that Act and the rooms in question will not come within the definition of 'building' under the said Act. 7. Definition of the word 'building' in the Kerala Buildings (Lease and Rent Control) Act, 1965 hereinafter referred to as the Rent Control Act is as follows: "Section 2: In this Act, unless the context otherwise requires: (1) 'Building' means any building or but or part of a building or hut, let or to be let Separately for residential or non-residential purposes and includes (a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut; (b) any furniture supplied by the landlord for use in such building or but or part of a building or hut; (c) any fittings or machinery belonging to the landlord, affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let, 'but docs not include a room in a hotel or boarding house'." Sub-section 6 of S.2 defines the tenant as any person by whom or on whose account rent is payable for the building. Under S.11 of the Act a tenant shall not be evicted except in accordance with the provisions of this Act, notwithstanding anything to the contrary contained in any other law or contract. In the Rent Control Act there is no distinction between a lodger and a tenant. So much so, the approach of the lower court in. considering whether the defendants in the respective suits were lodgers was not really important. The relevant question to be resolved in the context of the definitions referred to above is whether the rooms occupied by the defendants come within the definition of 'building' in the Rent Control Act or whether these are rooms in a hotel or boarding house and thus excluded from the word 'building'. 8. Therefore the meaning of the words 'hotel' or 'boarding house' assumes importance. In the Kerala Rent Control Act there is no definition for these words. 8. Therefore the meaning of the words 'hotel' or 'boarding house' assumes importance. In the Kerala Rent Control Act there is no definition for these words. However, the definitions in other enactments and the interpretation placed by the Supreme Court will afford considerable guidance in understanding those words properly. Under S.5(2) of the Bombay Act (The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947), hotel or lodging house means a building or part of a building, whether lodging with or without board or other service by way of business is provided for a monetary-consideration, S.3(G) of the Mysore Act, S.2(D) of the Delhi Act, S.2(1) of the Goa/vet and S.2(cc) of the W.B. Act are the same as the Bombay Act. Out of all the Indian Rent Control Acts, only the Acts of Bombay, Mysore, Delhi, Goa and W.B. make provisions for hotel and lodging houses. On an analysis of the definition, in order to constitute a hotel or lodging house the following in gradients are essential. (i) A building or part of a building, (ii) Where lodging with or without board or other service is provided (iii) Such lodging with or without board must be provided by way of business. (iv) It must be for monetary consideration. Out of all these ingredients it would appear that the most important element is that it must be a building where lodging is provided for monetary consideration. In other words, if there is no lodging but mere boarding it will not be a hotel or a lodging house. This would clearly exclude restaurants or other hotels where simply food or other eatables are provided. Another noticeable feature is that such convenience must have been provided by way of business. An.owner of a hotel must provide such lodging regularly as a business which shows that it must be done as a commercial pursuit which involves continuity, repetition and frequency. Thus a hostel attached to a college where lodging as well as boarding are provided for monetary consideration, will not be a hotel or lodging house since such institutions are not run by way of business. But it would be different, if a private person is running a college hostel on contract basis with profit motive, who accommodates students in a building. The word 'business' connotes a mercantile pursuit or commercial adventure with an object to earn and gain profit. But it would be different, if a private person is running a college hostel on contract basis with profit motive, who accommodates students in a building. The word 'business' connotes a mercantile pursuit or commercial adventure with an object to earn and gain profit. (See Kesavan Nair v. Babu Naidu, AIR 1954 Mad. 892). In Black's Law Dictionary the meaning of the word 'Lodging house's as follows: "Lodging house.. A house where lodgings are let; houses containing furnished apartments which are let out by the week or by the month, without meals, or with limited meals.: 9. As far as the Kerala Act is concerned, the meaning of the words hotel and boardinghouse alone are important. In Associated Hotels of India v. R.N. Kapoor-AIR 1959 SC1262 the meaning of the word 'hotel was explained as follows: "S.K. Das, J. (4) in its ordinary connotation the word'hotel'means a house for entertaining strangers or travellers: a place where lodging is furnished to transient guests as well as one where both lodging and food or other amenities are furnished. In my view, S.2(b) of the Rent Control Act by using two different words distinguishes a hot el from a lodging house in some respects and indicates that the former is an establishment where not merely lodging but some other amenities are provided. Sarkar, J. (16) A lodger in an hotel is a mere licensee and not a tenant for 'there is involved in the term 'lodger' that the man must lodge in the house of another. Subba Rao, J. (28) A hotel in common parlance means a place where a proprietor makes it his business to furnish food or lodging or both to travelers or other persons. A building cannot be run as a hotel unless services necessary for the comfortable stay of lodgers and boarders are maintained. Services so maintained vary with the standard of the hotel and the class of persons to which it caters; but the amenities must have relation to the hotel business. Provisions for heating or lighting, supply of hot water, sanitary arrangements, sleeping facilities, and such others are some of the amenities a hotel offers to its constituents. But every amenity however remote and unconnected with the business of a hotel cannot be described as service in a hotel." 10. Provisions for heating or lighting, supply of hot water, sanitary arrangements, sleeping facilities, and such others are some of the amenities a hotel offers to its constituents. But every amenity however remote and unconnected with the business of a hotel cannot be described as service in a hotel." 10. From the definitions of the word 'hotel' referred to above, it is clear that the word 'hotel' has a wider meaning than a lodging house. The different meaning of the word 'hotel' are the following: (a) A house for entertaining strangers or travelers, (b) A place where lodging is furnished to transient guests, (c) A place where both lodging and food or other amenities are furnished, (d) It is a place where the proprietor of the hotel makes it his business to furnish food or lodging or both to travelers or other persons, (e) In case lodging is provided in a hotel, services necessary for the stay of the lodgers are to be maintained. Provisions for heating, lighting, supply of water, sanitary arrangements, sleeping facilities and such others are some of the amenities a hotel offers to its lodgers. An amenity unconnected with the business of a hotel cannot be described as service in a hotel. Services in a hotel may vary with the standard of the hotel and the class of persons to which it caters, (f) Lodging may be furnished to travelers or persons who are residing for a long period. 11. The word 'boarding' means providing with meals at a fixed rate. Black's Law Dictionary defines 'Boarder' as follows:. "Boarder. One that is provided with regular meal, with or without lodging." Thus a border is a person who boards with someone. For example, a boy or girl in a Boarding School. In these cases we are not concerned with that word since there is no contention that the rooms in question are rooms in a boarding house. 12. From the evidence in this case there is no doubt that Umesh is in occupation of two rooms in an institution of the plaintiff called Hotel Savoy. He is also using a car shed of the plaintiff. Such occupation is for monetary consideration even though he is disputing the right of the plaintiff to enhance the rent. Plaintiff is running Hotel Savoy by way of business. He is also using a car shed of the plaintiff. Such occupation is for monetary consideration even though he is disputing the right of the plaintiff to enhance the rent. Plaintiff is running Hotel Savoy by way of business. Even when Umesh began occupation of the cottage the previous owner was running the establishment under the name Hotel Savoy by way of business. Therefore, in this case the further question that has to be examined is whether the plaintiff's predecessor was running a hotel at the time when Umesh began occupation of the cottage. Alternatively there will be the further question that even in case plaintiffs predecessor was not running a hotel, whether the rooms in question connotes rooms in a hotel at least from 1975 when the plaintiff purchased Hotel Savoy. In that connection it may also have to be examined as to what is the relevant point of time at which it has to be examined whether life rooms are rooms in a hotel-whether at the time when the occupation of the defendant started or at the time when the petition was filed. 13. Certain sections of the Rent Control Act give some indication about the material date. For example, under S.5 of the Act, fair rent is to be fixed after taking into consideration the property tax or house tax fixed for the building at the time of letting. The fair rent can be increased only if there is some addition, improvement or alteration to the building. However, under the third proviso to S.11(3) of the Act, a landlord whose right to recover possession arises under an instrument of transfer in his favour, shall be entitled to apply to be put in possession after the expiry of one year from the date of the 'instrument, in case he bona fide needs the building for his own occupation or for the occupation of any member of his family dependant on him. It is well settled that the courts have to take in to consideration even events subsequent to the filing of the petition for making the right or remedy claimed by the party just and meaningful or legally and factually in accordance with current realities. (See P. Venkateswarlu v. Motor & general Traders -AIR 1975 SC 1409 and M. Laxmi & Co. v. A.R. Deshpande - AIR 1973 SC 171). (See P. Venkateswarlu v. Motor & general Traders -AIR 1975 SC 1409 and M. Laxmi & Co. v. A.R. Deshpande - AIR 1973 SC 171). The question as to the material date for ascertaining whether a plot is 'premises' is the date of letting or whether the date of application for fixation of standard rent under the Bombay Rents Hotel and Lodging House, Rates Control Act, 1947 came up for consideration before the Supreme Court in Msf. Subhadra v. Narsaji Chenaji Marwadi (AR1966 SC 806).t S.11 of that Act enables a competent court to fix standard rent of any premises. That Section is in Part II of the Act. S.6 Cl.(1) of the Act provides that in areas specified in Schedule I, the provisions of Part II applies to premises let for residence, education, business, trade or storage. However, in order that standard rent maybe fixed under S.11, the petitioner will have to establish that the plot of land leased was 'premises' within the meaning of S. 5(8) of that Act and that it was let for residence, education, business, trade or storage. The word 'premises' is defined in S.5(8) of that Act. Reading S.5 sub-cl. (S) with S.6(1) the Supreme Court held that it is manifest that Part II of the Act can apply in areas specified in Schedule II to lands let for residence, education, business, trade or storage and that the material date for ascertaining whether the plot is 'premises' for purposes of S.6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. Learned counsel on either side did not advert to this aspect viz. the material date for ascertaining whether the plot is 'hotel' for purposes of S.2 of the Kerala Rent Control Act, either in the lower court or before this Court. Therefore, it is not proper to take a decision on this question in this judgment. The lower court will consider as to the material date on which the plaintiff will have--to establish that the rooms are rooms in a hotel so as to exclude them from the definition of the word 'building'. 14. All the cottages in Hotel Savoy are of similar construction. They consist of two rooms and a latrine with a verandha. The lower court will consider as to the material date on which the plaintiff will have--to establish that the rooms are rooms in a hotel so as to exclude them from the definition of the word 'building'. 14. All the cottages in Hotel Savoy are of similar construction. They consist of two rooms and a latrine with a verandha. There is no kitchen or facility for cooking in the cottages including the rooms in question. This will indicate that the cottages were constructed to be let out to customers who do not want to prepare food for themselves. Therefore, even in case the occupant of a cottage prepares food in one of these rooms that may not change the character of the cottage viz. whether it is a room in a hotel or not. 15. Even before the purchase of Hotel Savoy by the plaintiff on 17-10-1974, the name of the establishment was Hotel Savoy. The previous owners were maintaining registers of the inmates. The rooms in the cottage in question were also numbered as rooms in a hotel. The plaintiff who was examined as P.W.I did not give proper evidence regarding the terms and conditions at the time of the occupation of Umesh. Ext. A13 register does not contain the name of Umesh. Although in Ext. A14 the arrears of charges due from Umesh is entered, the lower court did not accept the same since it was not proved that the register was kept in the regular course of business. Under those circumstances the lower court accepted the evidence of D.W.I and held that he is a tenant and not a lodger. There is no finding as to. Whether the rooms in question will come within the definition of the word 'building' in the Rent control Act. The attention of the parties and the court below was not specifically drawn to the real question in issue viz. whether the rooms in question are rooms in a hotel or boarding house so as to exclude them from the definition of 'building' in the Rent Control Act. Therefore, lam of the view that the suit requires fresh consideration and disposal. whether the rooms in question are rooms in a hotel or boarding house so as to exclude them from the definition of 'building' in the Rent Control Act. Therefore, lam of the view that the suit requires fresh consideration and disposal. Among other things, the court will have to consider as to the time at which the plaintiff will have to prove that the rooms in questions are rooms in a hotel - whether it is at the time of letting, whether it is at the time of purchase by the plaintiff or whether at the time of filing of the petition. The court will also have to 'consider whether the plaintiff or his predecessors were providing amenities which have relation to the hotel business, to the defendant. Since I am remanding this suit, I do not think it necessary or proper to consider the available evidence in detail. All the findings of the lower court in O.S.No.14/1977 and the judgment and decree therein are set aside. That suit is remanded to the lower court for fresh consideration and disposal. The parties are permitted to adduce fresh evidence, if so advised. The lower court will consider the suit afresh in the light of the observations and directions in this judgment giving importance to the question whether the rooms in question will come within the definition of the word 'building' in the Rent Control Act and pass a fresh decree in accordance with law. A.S.No. 376/85 is allowed as above. Parties are directed to appear before the lower court on 3-8-1992. Refund the court-fee paid on the memorandum of appeal to the appellant. 16. 0.S. No. 13/1977: The defendant in that suit is referred to for convenience as Sasidharan. In Ext. A13 accommodation register the name of Sasidhararan is entered as an occupier of one of the rooms' viz. room No.18 as on 13-6-1971. That entry is at page 7 of Ext.A.13. Sasidharan as D.W.2 admitted that he was the owner of Lakshmi Weaving Factory. In Ext.A.13 the name entered is Sasidharan, Lakshmi Weaving Factory, Cannanore. As per Ext.A13 the rent per day for room No.18 wasRs.3/-. An advance amount of Rs.100/- was shown as paid by D.W.2. That entry also appears at page 7 of Ext.A13. On 25-6-1972 there is an entry in Ext.A13 to the effect that room No.19 was occupied by Sasidharan. D.W.2 admits this. As per Ext.A13 the rent per day for room No.18 wasRs.3/-. An advance amount of Rs.100/- was shown as paid by D.W.2. That entry also appears at page 7 of Ext.A13. On 25-6-1972 there is an entry in Ext.A13 to the effect that room No.19 was occupied by Sasidharan. D.W.2 admits this. Even according to D.W.2's evidence room No.19 was occupied by him later when the occupant of that room vacated it. An advance amount of Rs.100/- was shown as paid by D.W.2 as per the entry at page 8 of Ext.A.13. There is no reason to doubt the genuineness of the entries in Ext.A13 especially in view of the circumstance that D.W.2 admitted that room No.19 was occupied by him only subsequent to his occupation of the other room. He did not send any reply to Ext.A1 and A2 notices sent by the plaintiff enhancing the lodging charges in respect of the rooms occupied by him and demanding arrears of lodging charges. He claimed benefits of a tenant for the first time in the written statement filed by him in the suit. His version that he had replied to the notices was not proved by him. D.W.2 has separate business premises and telephone in his business premises. He did not prove that the telephone bills produced by Mm were in respect of a telephone installed in the rooms in question. Under these circumstances all the ingredients in order to constitute the rooms in question as rooms in a hotel are proved in this case, although the lower court did not approach the evidence in that light. Therefore, there is no need to remand that suit for fresh consideration. The finding of the lower court is, therefore, confirmed and the appeal A.S.No.374/1985 is dismissed without costs.