Research › Search › Judgment

Kerala High Court · body

2003 DIGILAW 28 (KER)

Ambika Mammen v. Varghese

2003-01-16

A.LEKSHMIKUTTY, S.SANKARASUBBAN

body2003
Judgment :- 1. This Civil Revision Petition is filed by the landlady against the judgment in R.C.A. No.80 of 2001 on the files of the Rent Control Appellate Authority, Ernakulam. The case of the petitioner is as follows: 2. The petition schedule building was rented out to the respondent-tenant in 1967. The tenant is conducting a business there. Petition was filed under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). According to the petitioner, she is now residing at Madras. But her native place is Ernakulam. She is closely associated with the business of rubber and rubber products. She is a partner of a business called "Rubber Mach Industries". This Firm is engaged in assembling and servicing of machines used for manufacture of rubber equipments. This work has great scope for development if a Branch of the Firm is established in Kerala, which is the major producer of rubber. 3. The petitioner is a Director of a Company by name "Devon Machines Private Limited", Madras. It is a leading Company in India, engaged in the manufacture of tyre presses, moulds and other connected machineries for the use of major tyre manufactures in India. Its products are also exported. The petitioner and the members of her family hold 40% of its share capital. The holders of the remaining shares are her relations. If the services of this Company are extended to Kerala, it will be highly advantageous for the Company and its share holders, and it will advance the development of rubber based industry in Kerala. There are other similar concerns also, in which the petitioner is Director and it will be advantageous to extend their activities in Kerala. 4. The aforesaid purpose can be achieved, if the petitioner could open an office at Ernakulam. The petitioner can do so only if she gets vacant possession of the petition schedule building. It is located on the side of the Mahatma Gandhi Road, Ernakulam. As such it is ideally suited for establishing and office for accommodating the aforesaid activities. Hence, the petitioner, in all good faith, is in need of getting vacant possession of the petition schedule building. 5. The respondent filed a counter statement denying the need set up by the petitioner. As such it is ideally suited for establishing and office for accommodating the aforesaid activities. Hence, the petitioner, in all good faith, is in need of getting vacant possession of the petition schedule building. 5. The respondent filed a counter statement denying the need set up by the petitioner. The building was constructed in the year 1966 and portion of the said building which forms the subject matter of the petition was rented out to the respondent in early 1967 for the purpose of running a printing press. The rent was enhanced every three years and the present rent is Rs.875 per month. Though the period of the lease was not specified, the understanding between the parties was that the respondent could continue his business there so long as he wanted it subject to one condition that there should be a periodical enhancement of rent at the end of every three years. The petitioner is married to a big industrialist named K.M. Maman, who is the Vice Chairman and Managing Director of MRF Limited which has got units at two places in Madras, Kottayam, Pondicherry, Medackal in Andhra Pradesh and another at Goa. This Company had a phenominal growth in the course of the last 20 years and has occupied practically number one position in the manufacture and production of tyre and tubes used for trucks, trailors and other automobiles. As the wife of the Chief Executive of the Company, shares of different Companies have been taken in the name of the petitioner for administrative convenience as well as for tax purposes. The petitioner's family house with House No. 46/91,'Lavanya' is situated on the Samajam Road, a few meters west of Lourde Hospital. The petitioner does not require the building for her own occupation. 6. Thus, because of denial, the matter went for evidence. In evidence, on behalf of the petitioner, Exts.A1 to A9 were marked and on behalf of the respondents Exts.B1 to B6 were marked. Three witnesses including the petitioner as PW.1 were examined on the side of the petitioner. On the side of the respondent three witnesses including the respondent as RW.1 were examined. The Rent Control Court found that the need was established and held that the respondent is not entitled to the benefit of the proviso. Thus, eviction was ordered under S.11(3) of the Act. On the side of the respondent three witnesses including the respondent as RW.1 were examined. The Rent Control Court found that the need was established and held that the respondent is not entitled to the benefit of the proviso. Thus, eviction was ordered under S.11(3) of the Act. Against the above order, an appeal was filed before the Appellate Court. The Appellate Court has come to the conclusion that the bona fide need set up is not correct and hence dismissed the petition. It is against that the present revision is filed. 7. We heard learned counsel for the petitioner Sri. K.C. John (Sr.) and Sri. R.D. Shenoy for the respondent. 8. Sri John submitted that the order of the lower Appellate Court is not correct. He also submitted that the lower Appellate Court had made great stress on the pleadings and decided the case inspite of the pleadings made by the petitioner regarding bona fide need. The finding of the lower Appellate Court is against the evidence and actual facts. Learned counsel for the respondent Sri. Shenoy contended that the petitioner was not able to establish the need and it is not clear as to what is the business the petitioner is going to start. Hence, according to the respondent, the lower court was correct in dismissing the petition. 9. We went through the records. We find that the bona fide need was found against by the Appellate Authority on the basis of lack of pleadings and the Appellate Court was of the view that the petitioner has not proved the present need for the building. In Para.23 of the judgment, the Appellate Authority held that the landlady does not have a precise or specific need. She herself is confused about her alleged need and after quoting the pleading and also the reply notice, in Para.25, the Appellate Authority held that a careful and inclusive reading and understanding of Para.3, 4 and 5 suggest and indicate that the need is of the petitioner to open an office at Ernakulam is brought out. It is crystal clear from the averments in Para.3, 4 and 5 that the petitioner wants the petition schedule building to open an office of the petitioner at Ernakulam. Whether it is the need of the Company or not is not clear. It is crystal clear from the averments in Para.3, 4 and 5 that the petitioner wants the petition schedule building to open an office of the petitioner at Ernakulam. Whether it is the need of the Company or not is not clear. In Para.27, the Appellate Authority stated thus: "In these circumstances, I take the view that the alleged need of M/s. Devon Machineries Private Limited or other similar concerns in which the petitioner is a Director, cannot be reckoned as a sufficient and satisfactory bona fide need which would entitle the petitioner to claim eviction of the tenant under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act". In Para.30, the Appellate Authority stated that the question is whether partners of M/s. Rubber Mach Industries have agreed upon at any time to open an office at Ernakulam in the petition schedule building. In Para.32, the Appellate Authority held thus: "Suffice it to say that the alleged need and the claim do not inspire confidence in me and I am not persuaded to hold that the alleged need and claim are bona fide as insisted by Ss.11(3) and 11(10)". With regard to the building available to the petitioner, the Court found in favour of the petitioner. So far as the proviso is concerned, it held against the respondent. According to us, the entire approach made by the Appellate Authority is not correct. 10. Let us now verify what is stated in the pleadings in Para.3 and 4 of the petition. The need alleged is regarding the need of the petitioner. The petitioner is engaged in business and industrial activities of rubber and rubber products. She is taking part in the management of concerns engaged in the manufacture and marketing of rubber products, which are of great use in several industries. At present, here activities in this field are virtually only in Madras. She wants to develop and expand these activities to other places also, particularly to Ernakulam, since she belongs to Ernakulam and most of her relations are in Ernakulam. In Para.4, she gives the details of business activities engaged by her in Madras. One is the firm by name Rubber Mach Industries in which the petitioner is a partner. The Firm is engaged in assembling and servicing of machines used for manufacture of rubber equipments. In Para.4, she gives the details of business activities engaged by her in Madras. One is the firm by name Rubber Mach Industries in which the petitioner is a partner. The Firm is engaged in assembling and servicing of machines used for manufacture of rubber equipments. The petitioner is a Director of a Company by name Devon Machineries Private Limited, Madras. The petitioner and the members of her family hold 40% of its share capital. In Para.S, it is stated that the aforesaid purpose can be achieved if the petitioner could open an office at Ernakulam. Evidence has been given in tune with the above pleadings. 11. Generally, the landlord has stated that she wants the room in which the tenant conducts business for her own business. Now the business that is contemplated is the business regarding machineries, which are used in rubber and rubber products. She is having such an industry at Madras. One such industry is called Rubber Mach Industries in which she is a partner and the other is Devon Machines Private Limited in which she is a Director and the petitioner and the members of her family hold 40% of its share capital. The Appellate Authority took the view that merely because the petitioner is a shareholder in the Company or because she is having 40% of its share, the bona fide need is not proved. According to us, this finding is not correct and against the legal decisions. 12. In the decision reported in Govinda Pai v. Sarvothama Rao (1981 KLT 330) Subramonian Poti, J (as he then was), held as follows: "The idea of exclusive occupation is not necessarily indicated by the term "for his own occupation" in S.11(3). Even when a person carries on business as a partner of a firm he occupies the business premises along with his partners. The one exception to this could be a case where he does not have any hand in the conduct of the business, though he is a partner. A dormant or sleeping partner does not actively associate himself with the conduct of the business though he may contribute capital and share in the profits or losses. Such a person may not be occupying the premises where the business is carried on by the firm. A dormant or sleeping partner does not actively associate himself with the conduct of the business though he may contribute capital and share in the profits or losses. Such a person may not be occupying the premises where the business is carried on by the firm. But in other cases where partners are actively associated with and are concerned in the conduct of the business they occupy the business premises for the purpose of the firm's business and such occupation is of all those who carry on such business. Therefore within the meaning of the term "for his own occupation", occupation by a partner of a firm other than a dormant or sleeping partner would be comprehended". So far as the pleadings are concerned, it has been held in Mrs. Rena Drego v. Lalchand Soni (AIR 1998 SC 1990) as follows: "The other ground highlighted by the learned single judge for upsetting the decree of eviction is that the landlady did not specify the plinth area of the space which is presently in their occupation. There is no legal requirement that the person who claims eviction on the ground under S.13(1)(g) of the Act shall specify the area in his possession. However, if the High Court thought it necessary to know the exact plinth area in the possession of the appellant, she could have been asked to spell it out. It was not done and instead learned single judge has blamed her in the following terms: "Even at this stage, no attempt has been made by filing an affidavit to show what is the area of the flat presently occupied by the landlady". In the decision reported in Rajamma v. Leela (1991 (2) KLT 862) a Division Bench of this Court held as follows: "It cannot be denied that issuance of a notice, except in a case covered by S.11(2) of the Act is not mandatory for eviction under S.11(3) of the Act. The Court has to consider the claim in the light of the evidence and circumstances to find whether the plea is bona fide or not, which is a question of fact. In our view in considering the plea of the landlord a realistic and not a pedantic approach is what is called for. The Court has to consider the claim in the light of the evidence and circumstances to find whether the plea is bona fide or not, which is a question of fact. In our view in considering the plea of the landlord a realistic and not a pedantic approach is what is called for. Even in the matter of construing the pleadings a liberal approach is necessary, as otherwise there would be the risk of justice becoming a casuality". 13. Ext.A1 is a notice sent by the petitioner. In Para.3, it is stated thus: "You know my client is engaged in certain industrial and business activities making use of and dealing in rubber. She is conducting such an industry under the name Rubber Mach Industries, in Madras. It is engaged in fabrication and finishing of rubber machines, finishing of tyre moulds and thread rings etc. She wants to establish a branch of that industry at Ernakulam to service rubber-based industries in Kerala to supply rubber machineries to such industries etc.". To this notice, the tenant replied by Ext.A2. The claim made in Ext.A1 is not regarding Devon Machines Private Limited. According to us, there is no confusion in the pleadings or evidence in this case. Here is a case where the landlady is engaged in business at Madras. Her business is regarding the rubber and rubber products. She is a partner of the Firm, "Rubber Mach Industries" and she is a Director of the Firm Devon Machines Private Limited. According to her, if a branch of the Firm is opened at Ernakulam, it will be great advantageous for the development of the industry. This has been stated by her in her evidence. Ext.A8 is the project report, which shows that the bona fides of the claim made by the landlady. What we understand from the judgment of the Appellate Authority is that there is nothing from the Company or from the Firm to show that a branch is going to be opened at Ernakulam. According to us, as stated in certain decisions of the Supreme Court, the question of making arrangement for starting a business in a rented building can raise only after the owner gets possession of the building. This is because in order to start an office or industry, licence should be obtained and the licence can be obtained only for the building in possession. This is because in order to start an office or industry, licence should be obtained and the licence can be obtained only for the building in possession. We agree with the Rent Control Court that the alleged bona fide need has been proved. So long as the contention that alternate buildings are available in the locality, both the Rent Control Court and the Appellate Court found against the tenant and we accept the finding. The contention regarding the second proviso cannot also be upheld in favour of the tenant. 14. In the above view of the matter, we reverse the judgment of the Appellate Authority and restore the order of the Rent Control Court. The tenant is given three months to hand over vacant possession to the landlady. Civil Revision Petition is allowed.