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2018 DIGILAW 684 (KER)

Mohanan v. M. I. Paul

2018-08-30

ANNIE JOHN, K.HARILAL

body2018
ORDER : Annie John, J. The revision petitioner herein is the landlord who filed a petition for eviction under Section 11(3) of the Kerala Building (Lease and Rent Control) Act ('the Act for short). The respondent is the tenant of the petition schedule shop room. 2. The case of the revision petitioner is as follows: The respondent is carrying on the business of selling meat, fish etc. The rate of rent of the petition schedule shop room is Rs.2800/- per month. The petitioner is having a flour mill and the same is situated 3 km south of the petition schedule shop room. He bona fide needs the petition schedule shop room for conducting the business in rice, wheat, atta flour etc. He has no other vacant rooms in his possession in the locality suitable for conducting the said business. The petition schedule shop room is situated in a three storied building and all the shop rooms in the ground floor are occupied by the tenants. The first floor of the building is a big hall and, though lying vacant, is not at all suitable for the petitioner to conduct the business. The second floor of the building is occupied by one Zakaria. The respondent is a retired employee and he is getting Rs.20,000/- by way of pension. The respondent is having other source of income, apart from the business in the petition schedule shop room. There are suitable buildings available in the locality for the respondent to shift the business. 3. The respondent/tenant has resisted the claim for eviction contending that there is no bona fide on the part of the petitioner in filing such a petition. The petitioner had earlier preferred another petition under Section 5 of the Act for fixation of rent as RCP No. 36 of 2011, which was allowed on 29.03.2014 and accordingly, the respondent is paying the enhanced rent. Therefore, the petitioner is estopped form preferring the present petition in the next year under Section 11(3) of the Act. Even though the petitioner had admitted that he is already conducting business within the same Municipal area, he has suppressed the exact location of the building. There is no vacant rooms other than the petitioner's first room in the ground floor. 4. On the side of the petitioner, he himself was examined as PW1 and Exts.A1 to A3 were marked. Even though the petitioner had admitted that he is already conducting business within the same Municipal area, he has suppressed the exact location of the building. There is no vacant rooms other than the petitioner's first room in the ground floor. 4. On the side of the petitioner, he himself was examined as PW1 and Exts.A1 to A3 were marked. On the side of the respondent, he was examined as DW1 and no documentary evidence was adduced. 5. The Rent Control Court, on appreciation of the evidence on record, dismissed the petition for eviction as per order dated 20.07.2016 in RCP No. 40 of 2015. Aggrieved by the same, the petitioner has preferred RCA No. 23 of 2016 before the Rent Control Appellate Authority-II, Alappuzha. After, re-appreciating the evidence on record, the Rent Control Appellate Authority confirmed the findings of the Rent Control Court and dismissed the appeal. Hence this revision. 6. The learned counsel for the revision petitioner has argued that the finding entered by the Rent Control Authorities that since the landlord has not pleaded in his petition that he was in possession of another room at the time of filing of the petition, the need is not bona fide, is erroneous. The Rent Control Authorities failed to appreciate the importance of the first proviso to Section 11(3) of the Act. The burden of proving that the landlord is in possession of another room and that the said room is sufficient for the landlord to start his business is on the tenant and this requirement was not substantiated by the tenant. During cross examination, the petitioner has admitted that he has rented out the west end room in January, 2016. The Rent Control Petition was filed on 19.09.2015. At the time of giving evidence, he was not in occupation of any vacant rooms in his possession. Even in the objection also, the respondent has not raised any contention that at the time of filing of the petition, the landlord was in possession of another vacant room. It is after the filing of the petition that the west end shop room in the ground floor of the plaint schedule shop room had become vacant and as the same was not convenient for doing the intended business, the room was let out in January, 2016. 7. It is after the filing of the petition that the west end shop room in the ground floor of the plaint schedule shop room had become vacant and as the same was not convenient for doing the intended business, the room was let out in January, 2016. 7. Per contra, the respondent has taken a contention that the revision petitioner/landlord is having a vacant room on the western end of the petition schedule room in the ground floor of the schedule building with the same dimension with more commercial feasible attraction, where Aryas Boutique was conducting and this fact has been deliberately suppressed by the appellant. The Rent Control Appellate Authority has considered this fact in appeal and ultimately found that the revision petitioner/landlord failed to establish the first proviso to Section 11(3) of the Act. The revision petitioner/landlord has sought for eviction of the petition schedule shop room on the ground of bona fide requirement as contemplated under Section 11(3) of the Act. It is pertinent to note that the respondent has not disputed the bona fide requirement as highlighted by the revision petitioner/landlord in the rent control petition. The only ground which was raised by the respondent was that at the time of filing of the petition, the revision petitioner/landlord was holding vacant possession of the vacant room in the west end in the ground floor of the schedule building. 8. We have gone through the petition filed by the revision petitioner/landlord wherein it is found in paragraph 4 that the revision petitioner/landlord has no other vacant room in his possession in the locality suitable for conducting the said business. The petition schedule room is comprised in a three storied building and all the shop rooms in the ground floor are occupied by the tenant. The first floor of the building is a big hall and, though lying vacant, is not at all suitable for the petitioner to conduct the business. The second floor of the building is occupied by one Zakaria. 9. So, as per the revision petitioner/landlord's averments, he is not holding any vacant rooms in the same locality suitable for conducting the said business. But the respondent has specifically stated that the revision petitioner/landlord was holding a vacant room at the time of filing of the petition. The second floor of the building is occupied by one Zakaria. 9. So, as per the revision petitioner/landlord's averments, he is not holding any vacant rooms in the same locality suitable for conducting the said business. But the respondent has specifically stated that the revision petitioner/landlord was holding a vacant room at the time of filing of the petition. In this connection, it is profitable to extract the first proviso to Section 11(3) of the Act, which reads as follows: "(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. Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly or the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the buildings for his own occupation or for the occupation by any member of his family dependent on him." 10. A perusal of the statutory provision establishes that, the landlord is entitled to an order of eviction only if he bona fide needs the building for his own occupation or for the occupation of any of the members of the family dependent on him. 11. A perusal of the statutory provision establishes that, the landlord is entitled to an order of eviction only if he bona fide needs the building for his own occupation or for the occupation of any of the members of the family dependent on him. 11. The main purpose of eviction sought for by the revision petitioner/landlord is that he bona fide requires the petition schedule shop room for conducting a retail business in rice, wheat, atta and flour. Further, he has taken a stand that he has no other vacant rooms in his possession in the locality suitable for conducting the said business. The onus of proving the bona fides of the said need is squarely on the landlord. The Rent Control Court shall grant an order of eviction only if it is satisfied by the bona fides of the need that is put forward. 12. Per contra, the respondent has contended that there is a shop room lying vacant in the possession of the landlord and therefore, he is not entitled to get eviction as sought for. The first proviso casts an additional duty on the Rent Control Court and provides that the Rent Control Court 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. 13. When a bona fide need is urged by the landlord, the main condition to be satisfied for an eviction under sub-Section (3) of Section 11 is that the need of the landlord for own occupation is bona fide. For proving the bona fides, the landlord may bring evidence of his necessity, desire and the preparations made by him for using the building for his proposed need. The circumstances would show whether the need is bona fide or not. The mere desire of the landlord is not sufficient. Here, the court below has found that the landlord bona fide requires the premises for his own occupation and therefore, the factual question regarding the bona fide requirement of the revision petitioner/landlord is proved unchallenged. At the time of argument, the counsel has not emphasized on the fact of the bona fide needs urged by the landlord and has not disputed it. At the time of argument, the counsel has not emphasized on the fact of the bona fide needs urged by the landlord and has not disputed it. The learned counsel for the respondent has pointed out that the tenant/respondent is entitled for the benefit under first proviso to Section 11(3) of the Act. 14. When the bona fide requirement is established by the landlord, then the tenant has to prove that the landlord has another building of his own in his possession in the city, town or village. 15. In Kunhamina K v. V.K.T. Aboobacker Haji [ 2016 KHC 639 ], it is held that the primary burden is on the tenant to prove that the landlord is in possession of another building, and if it is proved, then the burden shifts to the landlord to give special reasons as to why he has not chosen that building, to the satisfaction of the Court, unless the Court need not grant eviction under Section 11(3) of the Act. When the respondent establishes this fact, definitely the burden shifts to the landlord to establish that even if he is holding the vacant possession of the building in the same locality, that cannot be utilised for conducting the proposed business due to special reasons. 16. When the appellant was examined as PW1, he has given a chief affidavit, wherein it was stated that. During cross examination, he changed his version by stating that he has rented out the shop room in January, 2016 and again he has given a positive answer to the question put by the respondent that he was holding two vacant rooms in the possession. At the time of institution of the Rent Control Petition, he answered that only one vacant room was in possession and that too was on the western side of the petition schedule room. Then he added that the particular room was not suitable for conducting the proposed business and he has again admitted that he has not averred this fact in his own affidavit that though the western part of the petition schedule room was vacant, it was not suitable for conducting his business. In the chief affidavit, he has categorically stated that he was not having vacant possession of any room in his possession. In the chief affidavit, he has categorically stated that he was not having vacant possession of any room in his possession. But in the cross examination, he admitted that he was holding vacant possession of one room at the time of filing of the petition and the respondent's counsel argued that since the landlord has admitted that he was holding vacant possession of the shop room on the western side of the petition schedule shop room that is sufficient enough to discharge the burden of proving by the respondent. 17. The counsel for the landlord contended before us that the non-disclosure of the said vacant shop rooms in the Rent Control Petition was neither wilful nor deliberate. Be that as it may, the fact remains that the very relevant fact, namely that, the landlord was in possession of two vacant shop rooms of equal dimensions as the tenanted shop rooms in his possession was not disclosed in the Rent Control Petition. The said act of non-disclosure of a crucial fact cuts at the bona fides of the need that is put forward. It was incumbent on the landlord to have disclosed the fact that he was in possession of the said vacant rooms and to have put forward special reasons for not utilising them for the satisfaction of the need that has been put forward. It is pertinent to note that the above crucial fact has been elicited from him in cross-examination. It cannot be said that the fact that has been elicited is a subsequent event that would come within the meaning of the said expression. According to the respondent's counsel, the landlord has suppressed the fact that he was holding a vacant room in his possession at the time of institution of the Rent Control Petition. In the decision reported in Jerry Joseph v. Selvaraj ( 2002 KLT 129 ), it is held thus: "It is now settled that even if the landlord failed to mention in the petition for eviction about the other premises belonging to him, if materials about those alternate accommodation have been placed before the court and the matter has been adequately considered by the court without causing any prejudice to the tenant, the non-disclosure of the availability of buildings in the petition is immaterial." 18. It is true that when the landlord has admitted that he has vacant rooms in his possession, he has to establish that due to some special reasons he is unable to occupy the same. He has neither taken any pleadings in the petition nor has he cared to file a petition to amend the pleadings. 19. Now the contention on the part of the counsel for the revision petitioner/landlord is that at the time of giving evidence he was not holding any vacant possession of the shop room and therefore, the argument advanced by the learned counsel for the respondent is irrelevant. 20. The first proviso to Section 11(3) of the Act is definite that the Rent Control Court 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. 21. In the decision reported in Raghavan v. Govindan Nambiar [ 1995 (1) KLT 596 ], it is held that "S.11(3) recognizes the principle that in spite of the restrictions imposed against eviction of the tenant the genuine need of the landlord must supersede even the tenant's need. But through the three provisos to the sub-section, the legislature provided certain inbuilt safeguards for tenants against unbridled use of the ground by their landlords. The second proviso is embodied to keep even the genuine need of the landlord (to have vacant possession of the building) at bay vis-a-vis the tenant's need, if the source of livelihood of the tenant would be at peril as a consequence of eviction. The second proviso warrants consideration only after the landlord succeeds in establishing that his need is bona fide. Otherwise, Court is not required to proceed to the second proviso to all. But the first proviso is different. It embodies a wholesome principle having a perceptible bearing on the core of the ground itself as it also helps the Court to decide whether the need expressed by the landlord is bona fide." 22. Here, the admission on the side of the revision petitioner/landlord that he was holding vacant possession of the room adjacent to the petition schedule room is established. Here, the admission on the side of the revision petitioner/landlord that he was holding vacant possession of the room adjacent to the petition schedule room is established. To a question put by the respondent during cross examination of PW1, he has given a positive answer that he was having vacant rooms in his possession adjacent to the petition schedule shop room at the time of institution of the rent control proceedings. Even though the revision petitioner/landlord has given evidence to the effect that the shop room was not suitable for conducting his business, he has also admitted that the said room has been rented out in the month of January, 2016. He has not averred in the affidavit that the said vacant room is not suitable for conducting his business. 23. In Lalitha Vijayan v. Salini @ Salini teacher[ 2017(3) KHC 646 ], it is held that the revisional court is not ordinarily expected to re-appreciate the pleadings or evidence for the purpose of substituting the factual findings entered by the Fact Finding authorities, particularly when the findings are concurrent and found on evidence. 24. In Preman v. Gopi ( 2016(1) KHC 375 ), it is held that the landlord has to establish special reasons as to why the vacant rooms in the possession of the landlord were not suitable for him. In fact, the petitioner has suppressed the fact that he was having a vacant room at the time of the filing of the petition. 25. In Kunhamina's case, it is held that even if the landlord did not disclose the availability of another building in his possession, if the materials were placed before the Court and he had given special reasons for not occupying the same and both parties have adduced evidence on that aspect understanding the case of each other, then no prejudice would be caused to the tenant. It is for the Court to consider the suitability or otherwise of the building so as to deny eviction on the ground of bona fide need. In the chief affidavit also, he has not revealed the same. In the objection, the respondent has categorically stated that the petitioner is having vacant room in his possession. Further, he has not attempted to amend the pleadings by incorporating the fact that though he was holding a room in his possession, it was not suitable for conducting his business. In the chief affidavit also, he has not revealed the same. In the objection, the respondent has categorically stated that the petitioner is having vacant room in his possession. Further, he has not attempted to amend the pleadings by incorporating the fact that though he was holding a room in his possession, it was not suitable for conducting his business. So, the lower court as well as the appellate court has strictly stuck on this fact and disallowed the petition as well as the appeal preferred by the petitioner. 26. In Suseela M.K. v. P.N. Mangalam and others ( 2015(4) KLJ 400 ), the scope of Section 11(3) of the Act is discussed in detail and it is held that as per the proviso, it is imperative that the Rent Control Court should enter a satisfaction, that for special reasons in the particular case, it would be just and proper to order eviction, though the landlord has another building of his own. So, the first proviso to Section 11(3) of the Act acts as a bar in ordering eviction. Once it is established that the landlord has another building of his own in his possession in the same city, town or village that is suitable for his requirement, he would have to satisfy the Rent Control Court of the existence of special reasons to support an order of eviction. In the instant case, the tenant has brought out the fact that the landlord is having vacant possession of a room adjacent on the western side of the petition schedule shop room in the same city, town or village. So, the legal position that emerges from the evidence adduced by the tenant is that the landlord has suppressed the fact that he was holding vacant possession of the room of his own in his possession in the same city, town or village that is suitable for his requirements and he would have to satisfy the Rent Control Court of the existence of special reasons to get an order of eviction. At the time of giving evidence, PW1 has given a statement that the room in his possession is not suitable for running his business; but in the pleadings, the revision petitioner has suppressed the fact. 27. At the time of giving evidence, PW1 has given a statement that the room in his possession is not suitable for running his business; but in the pleadings, the revision petitioner has suppressed the fact. 27. In Bhargavi Amma P v. K.P. Ajayakumar [ 2016(1) KHC 347 ], it is held that the landlord not disclosing in the Rent Control Petition that he is in possession of other vacant shop rooms is nondisclosure of crucial fact that affects the bona fides of the need projected by the landlord. It was obligatory on the part of the landlord to have established special reasons for non-occupation of the said rooms and that in the absence of such special reasons, it cannot be said that the need put forward is bona fide. So definitely, the evidence adduced by the tenant that the revision petitioner is having a vacant room in his position disentitles him from claiming eviction. Hence, the first proviso to Section 11(3) of the Act would apply only if the landlord has another building of his own in the same city, town or village. It is also come out that the building which was in his possession was rented out in January, 2016. Here the revision petitioner has no case that the room in the possession of the respondent can be used for conducting his business profitably. It is gathered from the evidence that the grounds established by the revision petitioner to evict the respondent is not justified since he was having possession of one vacant room at the time of filing of the petition. The learned counsel for the revision petitioner has attempted to prove that at the time of giving evidence he was not having any vacant room in his possession. But this fact cannot be accepted because he has stated in the petition itself that he was not holding vacant possession of the building in his possesssion. But this fact has been disproved by the evidence of the respondent that the revision petitioner was having vacant possession of the room having the same plinth area and in the same dimension i.e., on the western side of the petition schedule building. Therefore, we have no hesitation to hold that the concurrent findings entered by the lower court as well as the appellate court are with well established reasons and the interference of this Court is not warranted. Therefore, we have no hesitation to hold that the concurrent findings entered by the lower court as well as the appellate court are with well established reasons and the interference of this Court is not warranted. There is no illegality, impropriety in the judgment passed by the lower court as well as appellate court so as to invoke the revisional power of this Court. For the reasons mentioned above, we dismiss the RCR.