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2018 DIGILAW 538 (KER)

Krishnakumar A. v. VS Hamza Musaliyar

2018-07-09

ANNIE JOHN, K.HARILAL

body2018
ORDER : K. Harilal, J. 1. Since all these revision petitions are filed challenging a common judgment, passed by the Rent Control Appellate Authority, all the revision petitions are heard together and disposed of accordingly. 2. The revision petitioners herein are the tenants in occupation of different rooms owned and possessed by the respondent/ landlord herein and the rooms were leased out to the revision petitioners, under the respective lease deeds. (The parties are referred to as tenants and landlords). According to the landlord, he bona fide needs the petition schedule rooms for starting a footwear shop for his brother's son Sri.Musthafa, who is a dependent on him. The said Musthafa, who was doing business abroad is now planning to settle down at his native place, as his business abroad is not profitable. The landlord has agreed to supervise the proposed business to be started by Musthafa in the petition schedule shop rooms. Neither the landlord nor the said Musthafa has any other buildings of their own in the same town, by name, Padinjare Angadi. The tenants are not mainly depending upon the income from the business carried on in the respective shop rooms and several other vacant buildings are available in the locality to shift their respective business from the petition schedule shop rooms. 3. The tenants in all the Rent Control Petitions resisted the claim for eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Hereinafter referred to as, 'the Act) mainly contending that the said Musthafa is not a member of the landlord's family and is not dependent on him. According to them, Musthafa and landlord are living separately and independently for many years. The dependency must be pleaded and proved in evidence; but in the instant case, there is no pleadings, disclosing the dependency of the said Musthafa on the landlord. The alleged dependent is an affluent person and he has his own buildings and landed property in the same town. So, there is no need for him to depend upon the landlord for the petition schedule building. There is no scope for the proposed business at Padinjare Angadi, as there are so many other footwear shops at Padinjare Angadi. So also, the building is having more than 30 years old and is in a dilapidated condition. So, the petition schedule shop rooms are not suitable for footwear business. There is no scope for the proposed business at Padinjare Angadi, as there are so many other footwear shops at Padinjare Angadi. So also, the building is having more than 30 years old and is in a dilapidated condition. So, the petition schedule shop rooms are not suitable for footwear business. The income derived from the business carried on in the shop rooms is the only source of their livelihood and no other buildings are available in the locality. 4. On the aforesaid pleadings, both parties in all the rent control petitions adduced evidence. The evidence consists of the oral testimony of PW1 and PW2 and RW1 to RW3, documentary evidence Exts.A1 & A2, B1 to B4 and Exts.C1 and C2 as court exhibits. On appraisal of the aforesaid evidence on record, the courts below concurrently found that the said Musthafa is a dependent on the landlord for the tenanted premises and the need projected in the rent control petition was bona fide and tenants are not entitled to get protection, under the 2nd proviso to Section 11(3) of the Act. The legality and propriety of the aforesaid findings, whereby the order of eviction has been passed by the courts below concurrently, are challenged in this revision. 5. Heard the learned counsel for the revision petitioners/ tenants and the learned counsel for the respondent/ landlord. 6. In these revision petitions, the learned counsel for the tenants mainly focused his arguments to attack the concurrent findings of the courts below that Musthafa, the son of the landlord's brother, is not a dependent on the landlord, as envisaged under Section 11(3) of the Act. More specifically, it is contended that it has come out in evidence that the said Musthafa is an affluent person, having business at UAE and assets in Naduvattom and Nadakkavu. The learned counsel for the tenants further contended that such a man, who is living in affluency will not come under the expression 'dependent', as contemplated under Section 11(3) of the Act and the said provision is not intended for family members, having other sources of income and assets. The learned counsel drew our attention to the oral evidence of PW2, the dependent, and highlighted the point that PW2 himself admitted that he does not want any help from others, as he is financially sound and he has the ability to conduct business. The learned counsel drew our attention to the oral evidence of PW2, the dependent, and highlighted the point that PW2 himself admitted that he does not want any help from others, as he is financially sound and he has the ability to conduct business. In short, according to the counsel for the tenants, the findings, whereby the courts below concurrently found that Musthafa is a dependent on the landlord, are legally unsustainable and appreciation of evidence in this respect is vitiated by perversity. 7. Per contra, the learned counsel for the landlord advanced arguments to justify the concurrent findings of the courts below that Musthafa is a dependent on the landlord, for the petition schedule shop rooms, despite his assets and wealth. According to the learned counsel for the landlord, the affluency of the dependent is not a relevant factor to be considered, while determining the status of a family member as dependent on the landlord or bona fides of his need. It is is further contended that, even if the dependent is an affluent person, having other business and assets, an order of eviction can be passed, for the need of such a dependent, if it is proved that the family member is a dependent on the landlord, for the petition schedule building, for starting the proposed business. 8. In view of the arguments at the Bar, which centered around the 'dependency', the questions that emerge for consideration are given below :- i. Whether the ownership and possession of any other buildings by the dependent would nullify his status as that of a dependent on the landlord? ii. Whether the ownership and possession of any other building by the dependent would affect the bona fides of the need projected by the landlord ? iii. Whether the first proviso to Section 11(3) is applicable to the landlord alone or whether it is equally applicable to the dependent ? iv. Whether the ownership and possession of any other suitable buildings by the dependent in the same city, village or town would create a bar under the 1st proviso and would dis-entitle the landlord from claiming eviction of his tenants under Section 11 (3) of the Act? 9. iv. Whether the ownership and possession of any other suitable buildings by the dependent in the same city, village or town would create a bar under the 1st proviso and would dis-entitle the landlord from claiming eviction of his tenants under Section 11 (3) of the Act? 9. The 1st proviso to Section 11(3) of the Act is extracted below :- Sec. 11(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him : Provided that the Rent Control shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. Question Nos.1 and 2 10. On a meticulous analysis of the principal section and the 1st proviso, we find that the need is always that of the landlord only, even if eviction is sought for the purpose of the dependent, as he is the sole beneficiary. Therefore, the need of the dependent shall be deemed to be the need of the landlord, on whom the member of the family depends. The need of the dependent cannot be distinguished differently from that of the landlord. It is to be borne in mind that the dependency does not mean the financial dependency, but it is the dependency for the tenanted building, which belongs to the landlord (Ismail v. Kesavan, 2004 (1) KLJ 579 . Since the dependency is for the building and not financial dependency on the landlord, the affluency of the dependent is neither a fact in issue nor a relevant fact and it is of no consequence at all, while considering the bona fides of the need. Even if the dependent is affluent, it would not nullify the bona fides of the need projected for the dependent or status of the family member as dependent. Question Nos.III and IV 11. Even if the dependent is affluent, it would not nullify the bona fides of the need projected for the dependent or status of the family member as dependent. Question Nos.III and IV 11. Since the dependency is for the tenanted building, the dependent's ownership and possession of other vacant and suitable buildings in the same city or town have fundamental impact on the genuineness of the dependency and the bona fides of the need projected thereon by the landlord for the dependent and it would nullify the genuineness of the dependency and bona fides of the need projected thereon by the landlord. We are of the opinion that such an enquiry is permissible to consider the genuineness of the dependency for the tenanted premises by the dependent. 12. We hold that if the dependent for whom eviction is sought for has another vacant suitable building of his own in his possession, in the same city, town or village, where the tenanted premises is situated, it would nullify his status as dependent and it cannot be held that he is a dependent on the landlord for the tenanted premises. It follows that the need projected by the landlord is not bona fide. 13. On a cursory reading of the 1st proviso, at the first blush, it may appear that such an enquiry to find out possession of other buildings of his own, of the dependent, as a negative factor, is not expressly seen in the wordings of the 1st proviso to Section 11(3) of the Act, because the 1st proviso starts with the expression “landlord” only. In other words, the expression “landlord” alone is prefixed in the beginning of the 1st proviso to Section 11(3) of the Act, to make the proviso suitable and comfortable with the principal section. On a close and meticulous reading of the principal part of the section, we find that the bona fide need always is that of the landlord only, even if eviction is sought for the purpose of the dependent. So also, we have already observed that the need of the dependent cannot be distinguished differently from that of the landlord. Therefore, alternative suitable buildings of his own in the possession of the dependent also shall be deemed to be the building in the possession of the landlord also. So also, we have already observed that the need of the dependent cannot be distinguished differently from that of the landlord. Therefore, alternative suitable buildings of his own in the possession of the dependent also shall be deemed to be the building in the possession of the landlord also. While considering the bona fides of the need under the 1st proviso, such an enquiry as to whether the dependent has another building of his own in his possession in the same city, town or village is also permissible, as it would negate the bona fides of the need. The ownership and possession of any other suitable building by the dependent in the same city or town or village would disentitle the landlord, for claiming eviction of his tenant, under Section 11(3) of the Act. Any other interpretation to the 1st proviso would defeat the protection designed by the statute to prevent unreasonable eviction by resorting to clandestine methods by the landlord. We also are of the opinion that the 1st proviso requires an objective construction with the pragmatic view to achieve the aim and object of the said provision. If the order of eviction can be granted, under Section 11(3) of the Act, to the landlord for the need of his family member, who has another suitable building in his possession in the same city, town or village, it would defeat the purpose of the 1st proviso to Section 11(3) of the Act. First proviso to Section 11(3) is applicable, not only to the landlord but also to the dependent. 14. Can the Appellate Authority be justified in finding that the pleadings are sufficient to claim an order of eviction under Section 11(3) of the Act against the tenants. We have meticulously gone through paragraphs 2 and 3 of the Rent Control Petition and we find that in the aforesaid paragraphs, the landlord has specifically stated the circumstances under which the said Musthafa, the son of his brother, became a dependent on the landlord for the petition schedule shop rooms. Moreover, it is specifically stated that Musthafa is a dependent for the petition schedule shop rooms. The landlord has no case that Musthafa has no job or any sources of income and the petition schedule shop room is required for eking out his livelihood. Moreover, it is specifically stated that Musthafa is a dependent for the petition schedule shop rooms. The landlord has no case that Musthafa has no job or any sources of income and the petition schedule shop room is required for eking out his livelihood. According to the landlord, the said Musthafa had business in UAE and now he is planning to return to his native place, as his business in UAE is not profitable. Neither the landlord nor the said Musthafa has any other buildings of their own at Padinjare Angadi and the said Musthafa is desirous of starting a footwear shop at Padinjare Angadi in the petition schedule shop rooms, after renovating them. 15. On an examination of the pleadings, we find that the dependency for the petition schedule building and the bona fides of the need are well manifested in the pleadings. Therefore, the Appellate Authority is justified in finding that the pleadings are sufficient to claim an order of eviction under Section 11(3) of the Act, for the dependent. 16. Coming to appreciation of evidence on dependency, both the landlord and the dependent were examined as PW1 and PW2. In their oral examination, they maintained their case that neither PW1 nor PW2 has any other building in the same town for starting the proposed business. It is true that it has come out in evidence that the dependent has another building at Naduvattom; but Naduvattom is a place about 10 kms. away from Padinjare Angadi. He is also having another building at Nadakkavu and Nadakkavu is about 25 Kms. away from Padinjare Angadi. In cross examination of PW2, there is no suggestion that he is not a dependent on the landlord for the petition schedule building. In the absence of any evidence to prove that either the landlord (PW1) or the dependent (PW2) has any other building of their own at Padinjare Angadi, where the petition schedule shop rooms are situated, the courts below are justified in finding that the claim for eviction under Section 11(3) is not hit by the first proviso to Section 11(3). We do not find any kind of illegality or impropriety in any of the evidence, whereby the courts below granted an order of eviction concurrently, under Section 11(3) of the Act. The courts below have appreciated the oral as well as documentary evidence in its correct perspective. We do not find any kind of illegality or impropriety in any of the evidence, whereby the courts below granted an order of eviction concurrently, under Section 11(3) of the Act. The courts below have appreciated the oral as well as documentary evidence in its correct perspective. There is no perversity in any of the findings, warranting interference under revisional jurisdiction. In the above view, these revisions are devoid of any merits and are dismissed accordingly. The learned counsel for the revision petitioners/ tenants seek some time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioners/ tenants are given six months' time to vacate the tenanted premises on the following conditions :- 1. The revision petitioners/ tenants shall pay the entire arrears of rent, if any, within a period of one month from the date of receipt of a copy of this order. 2. The revision petitioners/ tenants shall file an affidavit expressing an undertaking that they are ready and willing to vacate the tenanted premises within a period of six months' from today. 3. The affidavit shall be filed within a period of three weeks from the date of receipt of a copy of this order. In the case of failure, the time granted to vacate the premises will stand automatically cancelled and the respondent/ landlord is entitled to enforce the order