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2017 DIGILAW 629 (KER)

MARIYAM (DIED) v. P. R. MOHANAN

2017-03-31

K.HARILAL, RAJA VIJAYARAGHAVAN V.

body2017
ORDER : 1. Under challenge in this Revision Petition filed under Section 20 of the Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act" for short) is the judgment dated 19.7.2012 in R.C.A. Nos. 60 of 2011 and 61 of 2011 of the Rent Control Appellate Authority, Ernakulam. By the aforesaid judgment, the Appellate Authority has confirmed the order of the III Additional Munsiff and Rent Controller, Ernakulam rejecting the petition filed by the petitioners seeking eviction filed under section 11(2)(b) and 11(3) of the Act. 2. The parties shall be referred to as landlords and tenant or as they figured in the Rent Control Petition, if the context so requires. 3. According to the landlady, an octogenarian by name Mariam, the property and the building of which the petition schedule buildings were a part, stood in the name of her husband, Late K.V. Chacko. After his death in the year 2004, life interest over the said property and building devolved on her. The tenants are occupying premises having identical area and lying adjacent to each other by paying a rent of Rs. 800/- per mensem. They have committed default in paying the rent. After the death of her husband, she has no income of her own. She has three grandchildren; Dipu Varghese, Dinu Varghese and Sijo Jose, who are qualified and competent. Sijo Jose, in particular, has acquired competence in Hotel Management. The petition schedule shop rooms along with the adjacent shop room are required for her three grandchildren for the purpose of commencing a hotel business. The shop room is located in a commercially important locality. Her request to vacate the premises went unheeded. The tenants are not entitled to the benefit of the proviso to sub-section (3) to Section 11 of the Act. Though a notice was issued demanding vacant possession, the same did not evoke any response from the respondent. 4. In the course of proceedings, the legal representatives of late K.V. Chacko got themselves impleaded as additional petitioners 2 to 6. Additional petitioners 2 to 4 are the sons of late K.V. Chacko and additional petitioners 5 and 6 are the wife and minor child respectively of late K.C. Antony, son of K.V. Chacko. In the course of proceedings, the landlady expired. 5. The tenants filed separate objections raising more or less similar contentions. 6. Additional petitioners 2 to 4 are the sons of late K.V. Chacko and additional petitioners 5 and 6 are the wife and minor child respectively of late K.C. Antony, son of K.V. Chacko. In the course of proceedings, the landlady expired. 5. The tenants filed separate objections raising more or less similar contentions. 6. According to the tenant in R.C.P. No 51 of 2005, he had regularly paid rent to Joseph, the son of the landlord, and denied that the rent was in arrears. He denied that the landlady was in bad financial shape and challenged the capability and competence of the dependents to commence the hotel business. He denied that the grandchildren of original landlady were depending on the additional petitioners for the shop rooms for commencing the business. 7. The tenant in R.C.P. No. 52 of 2005 contended that the petition lacked bona-fides. He also denied that the rent was in arrears. He refuted the contention of the landlords that the dependents were desirous of commencing a hotel business and strongly challenged their competence and capability. According to the tenant, he was depending on the income derived from the shop room for his livelihood and there are no vacant shop rooms in the locality for his use. He contended that the additional petitioners are financially in a good position and the so called dependents are having other avocations in life. It was pointed out that the landlords had filed a petition seeking eviction of another tenant occupying in an adjacent shop room and the said petition was dismissed after taking evidence. 8. Both the petitions were tried jointly. The landlords let in oral as well as documentary evidence to prove their case. The additional 2nd petitioner entered the box and gave evidence as PW-1. Sijo Jose was examined as PW2 and the wife of late K.C. Antony was examined as PW 3. Annexures-A1 to A19 were marked on their side. The wife of the tenant in R.C.P. No. 52 of 2005 gave evidence as RW1 and the tenant in R.C.P. No. 52 of 2005 was examined as RW3. A property broker was examined as RW2. Exts.B1, B2 and B3(a) to (f) were marked on their side. 9. Annexures-A1 to A19 were marked on their side. The wife of the tenant in R.C.P. No. 52 of 2005 gave evidence as RW1 and the tenant in R.C.P. No. 52 of 2005 was examined as RW3. A property broker was examined as RW2. Exts.B1, B2 and B3(a) to (f) were marked on their side. 9. The Rent Control Court, on an evaluation of the oral as well as the documentary evidence, found that there was no evidence to show that the rent was in arrears and hence the prayer under section 11(2)(b) was rejected. It was brought out in evidence that the portion on the back side of the petition schedule shop rooms had become vacant during the pendency of the proceedings and it was rented out by the landlords to another tenant for the purpose of running a hotel. According to the Rent Control Court, this fact would adversely affect the bona fides of the landlords. Holding so, the petition was dismissed. 10. The said order was taken up in appeal by the landlords. The Appellate Authority concurred with the findings of the Rent Control Court and dismissed the Appeal. The above concurrent verdicts of the courts below are challenged in these Revision Petitions. 11. We have heard the submissions of Sri. A. Balagopalan, the learned counsel appearing for the petitioners and Sri. T.B. Thankappan, the learned counsel appearing for the respondent in R.C.R. No. 309 of 2012 and Sri. Sadchith P. Kurup, the learned counsel appearing for the respondent in R.C.R. No. 305 of 2012. We have also gone through the orders passed by the courts below. 12. The learned counsel appearing for the petitioners contended that the area on the rear side of the shop rooms was not suitable for putting it to the use for which eviction was sought. It was nothing but a makeshift extension on the back side of the petition schedule shop room. Its roof was covered by tin sheets. Referring to the report of the Advocate Commissioner, the learned counsel sought to impress upon us the unsuitability of the space in the back side - location wise and feature wise - for the purpose of the business to which it was intended to be put by the dependants. Its roof was covered by tin sheets. Referring to the report of the Advocate Commissioner, the learned counsel sought to impress upon us the unsuitability of the space in the back side - location wise and feature wise - for the purpose of the business to which it was intended to be put by the dependants. It was further argued that much emphasis was given to certain minor discrepancies in the evidence of PW1, who is a daily wage worker, to non-suit the landlords. According to the learned counsel, the courts below have misread the evidence which warrants interference by this Court in revision. 13. Sri T.B. Thankappan, the learned Counsel appearing for the respondent in R.C.R. No. 309 of 2012 would refute the submissions and would contend that the Courts below had evaluated the evidence in a meticulous manner and had come to the conclusion that the need of the landlords was not bona fide. Having rented out the shop room which became vacant during the pendency of the petition, the landlords have exhibited in no unmistakable terms their lack of bona fides. There is no reason warranting interference according to the learned Counsel. 14. Sri Sadchith P. Kurup, the learned Counsel appearing for the respondent in R.C.R. No. 305 of 2012, would contend that PW1 had stated in his evidence that 5 rooms were required for commencing the hotel business. Two of the rooms were admittedly occupied by other tenants against whom no petition seeking eviction had been filed. This would evidence the lack of bona fides according to the learned Counsel. It was further argued that the shop room on the back side which was being run as "Cheerans Hotel" could have been occupied by the landlords when it became vacant, if they had a genuine need to secure an accommodation for their hotel business. It was assertively argued that the very act of leasing out the said shop room for running a hotel was held to be fatal by both the fact finding courts and the said view cannot be said to be perverse or erroneous. It is further argued that the sons of the additional 2nd petitioner were working abroad and earning handsomely and they would by no stretch of imagination come down to India to commence a hotel business. 15. We have considered the submissions advanced and have gone through the materials on record. It is further argued that the sons of the additional 2nd petitioner were working abroad and earning handsomely and they would by no stretch of imagination come down to India to commence a hotel business. 15. We have considered the submissions advanced and have gone through the materials on record. 16. We find that the appellate authority was convinced that the dependents are in genuine need of the petition schedule building for the purpose of their business. However, the bona fides of the landlords was doubted by the Courts below for the reason that they had leased out the area on the back side of the shop rooms for the purpose of running an identical business. We also find that the courts below gave much emphasis to the evidence tendered by PW1, when he stated that all the five rooms of which they have title are required for the purpose of commencing the hotel business. Apparently this statement given by PW-1 in his evidence militates with the pleadings in the petition and also the Commission Report. The parties have contested the matter with full awareness that the three shop rooms in the building lying adjacent to each other are the ones that was required for the hotel business. 17. We have gone through the Commission Report. We find that the three shop rooms which are sought to be evicted are situated adjacent to each other on the ground floor of a two storied building. There is a room on the first floor which is being run as a studio. There is a small area on the back side of the petition schedule shop rooms where "Cheerans Hotel" is being conducted by a person by name Pramod for a rent of Rs. 3000/- per mensem. It is evident from the report that "Cheerans Hotel" is conducting its business from a single room which has been separated into a kitchen and a dining room by using wooden boards. The roof of space on the back side is made up of tin sheets. It is clearly a makeshift arrangement. The access to that portion is through a pocket road. 18. It is the admitted case of the parties that "Cheerans Hotel" has no direct access to the Pandit Karuppan Road. On the other hand, the petition schedule shop rooms are having direct access to the busy road. It is clearly a makeshift arrangement. The access to that portion is through a pocket road. 18. It is the admitted case of the parties that "Cheerans Hotel" has no direct access to the Pandit Karuppan Road. On the other hand, the petition schedule shop rooms are having direct access to the busy road. Thevara Market is situated towards the north-western side just on the opposite side of the road. There cannot be any doubt that location wise and feature wise, the petition schedule shop rooms are much superior to the space on the rear side. When the need projected by the young men was to commence a hotel business from a pucca building having direct access to the public road, it would be quite unconscionable to ask them to adjust themselves and to commence the hotel business from the dingy area on the rear. It is the sole prerogative of the landlords to choose the shop room of their choice and the tenants cannot aspire to dictate terms to them. 19. It has come out in evidence that PW-2 has completed Professional Cookery Course Certificate from Chavara Institute of Management Studies. He has also produced an experience certificate from Seven Seas hotel at Irinjalakkuda. The Appellate Court on the basis of evidence have also held that the mere fact that Dipu Varghese and Dinu Varghese are working abroad is no reason to suspect the genuineness of their claim. 20. There cannot be any doubt that restaurants and hotels are rated on the basis of the ambiance, quality of food, the service they offer, cleanliness, location etc. We find considerable merit in the submission advanced on behalf of the landlords that the Rent Control Court as well as the Appellate authority were not justified in finding fault with the landlords in not commencing the business from a premise which was not of their choice. The young men are not expected to set up a new business using their hard earned money under a tin roof with no reasonable chance of success. It is obvious that the petitioners will not be able to commence a hotel of the same level of sophistication as they desire if the hotel is set up in the portion of the building where Cheerans Hotel is being conducted. The customers who frequent Cheerans Hotel may not be the customers who are targeted by the petitioners. It is obvious that the petitioners will not be able to commence a hotel of the same level of sophistication as they desire if the hotel is set up in the portion of the building where Cheerans Hotel is being conducted. The customers who frequent Cheerans Hotel may not be the customers who are targeted by the petitioners. The courts below have proceeded on the basis that notwithstanding the location and nature of the premises, the petitioners could have easily started the business as and when the area was vacated. The power to pick and choose, conceded to the landlord when a landlord has several tenants has received recognition in rent control jurisprudence. The landlord is the sole arbiter of his own requirement and the suitability of the building is the prerogative of the landlord. 21. In the instant case, the landlords had made the choice and had approached the Court seeking vacant possession. The mere fact that an unsuitable premises became available subsequently is no reason to reject the prayer unless it is evident that the landlords need is wholly satisfied which is essentially a question of fact. As held by this Court in Valsan vs. Furtal, 2004 (3) KLT 1046 , the landlord can rent out the premises which came into his possession during the pendency of the rent control proceedings for a better rent. No duty is cast on the landlord to keep the premises idle, and discontinue the rent control proceedings. Landlord can always proceed with the rent control proceedings having taken a decision to proceed against particular tenant. It does not appear to us that this aspect of the matter was considered by the courts below in its proper perspective. 22. Furthermore , it appears that the landlords had filed an affidavit of the tenant on the rear side of the building before the appellate authority where he had undertaken that he would vacate the premises as and when directed. This affidavit was not considered. It also appears that the landlords had no opportunity to convince the courts below as regards the unsuitability of the premise on the back. Since no endeavour was made by the courts below to ascertain the suitability of the premises which was leased out to the tenant, we are of the view that an opportunity has to be given to both the parties to dilate on the said issue. 23. Since no endeavour was made by the courts below to ascertain the suitability of the premises which was leased out to the tenant, we are of the view that an opportunity has to be given to both the parties to dilate on the said issue. 23. Thus, after having bestowed our anxious consideration to the materials, we are convinced that the matter is to be remitted back to the Rent Control Court for fresh consideration as to the suitability of the alternative premises for putting it to the use of the dependents. We find that such a course is necessary to secure the ends of justice as between the parties to the litigation and on the totality of the facts and circumstances in this case. 24. We, therefore, set aside the order of the Rent Control Court as well as the Appellate Authority and remit the matter back to the Rent Control Court for consideration of the question of bona fides set up by the landlords and also as to regarding the suitability of the buildings in their possession for the need of the dependents. The parties shall be permitted to adduce further evidence even by summoning witnesses. No further probe need be conducted in so far as the 2nd proviso to Section 11(3) is concerned. Tenant shall continue to pay the agreed rent. The Rent Control Court shall endeavour to dispose of the matter expeditiously, at any rate, within a period of six months from the date of production of a copy of the order. The Registry is directed to send back the entire records, of the Trial Court as well as the Appellate Authority to expedite the process. The parties shall mark their appearance before the III Additional Munsiff and Rent Controller, Ernakulam on 10.4.2017.