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2019 DIGILAW 131 (KER)

Abdul Asees v. Sahadevan, S/o. Chathan

2019-02-07

ANNIE JOHN, K.HARILAL

body2019
ORDER : Annie John, J. The revision petitioner is the tenant of the petition schedule building. The landlords/respondents filed Rent Control Petition seeking eviction of the petitioner from the petition schedule building under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 [Hereinafter referred to as, 'the Act]. The landlords sought eviction contending that they require vacant possession of the petition schedule shop rooms for the bona fide need of their son Dr. Sanal Dev to start a clinic. Dr. Sanal Dev is a specialist doctor, who is having specialised qualification and skills, which can be utilized only in a High-Tech Hospital. He is a specialist in Emergency Medicine. The landlords contended that he requires the building to start a clinic. The tenant disputed and stated that the bona fide requirement sought by the landlords is incorrect. Further, it was contended that the respondents/landlords are having several vacant rooms with them and therefore the tenant is entitled to protection under the 1st proviso to Section 11(3) of the Act. The appellant/tenant also contended that he is depending mainly on the income derived from the Super Market, which is being run by him in the petition schedule rooms and that no other rooms are available in the near proximity. 2. After hearing the arguments and evaluating the evidence, the Rent Control Court allowed the Rent Control Petition and ordered eviction of the petitioner under Section 11(3) of the Act. The Rent Control Court did not grant protection under the 1st proviso to Section 11(3) of the Act. Further, there are several other vacant rooms available with the respondents/landlords. The Rent Control Court also rejected the protection of 2nd proviso to the appellant/tenant, stating that the respondents/landlords failed to prove the requirements under the two limbs of the 2nd proviso despite the appellant/tenant producing Exts.B5 to B10 documents. 3. According to the appellant/tenant, the Rent Control Court has erred in finding that the landlords have bona fide requirement to get eviction of the appellant/tenant from the petition schedule building. The Rent Control Court ought to have noted that the need and requirement of their son to start a clinic is especially disputed. The son for whom the need is alleged ought to have been examined before the Rent Control Court and non-examination of son is fatal including the bona fide need of the landlords. The Rent Control Court ought to have noted that the need and requirement of their son to start a clinic is especially disputed. The son for whom the need is alleged ought to have been examined before the Rent Control Court and non-examination of son is fatal including the bona fide need of the landlords. In fact, the respondents/landlords have not disclosed the availability of the vacant rooms in the Rent Control Petition. The act of non-disclosure of the crucial facts cuts at the bona fides of the need projected by the respondent/landlord. Further the Rent Control Court ought to have found that the respondents/landlords have in possession of vacant rooms and they have not proved the special reason for not utilizing the vacant rooms. On these grounds as urged above, the appellant/tenant prays for setting the judgment of the Rent Control Court/IInd Additional District Judge, Kozhikode in RCA.No.136/2017 and prays for dismissal of RCP.No.20/2015 of the Rent Control Court, Perambra. 4. Now the question to be considered is whether there was any error committed by the Rent Control Court as well as the Rent Control Appellate Court. So, the interference of the revisional court is warranted in this case. In fact, the respondents have filed the Rent Control Petition before the Rent Control Court for eviction of the appellant/tenant by invoking Section 11(3) of the Act. The main ground as stated by the respondents was that they bona fidely requires the petition schedule room for the purpose of starting a clinic for their son. The appellant/tenant has taken a main contention to the effect that the petition was filed without any bona fides and the intention of the respondents was only a ruse for evicting the appellant/tenant for letting out the petition schedule shop room on a higher rent to others. 5. It was argued by the learned counsel for the appellant/tenant that the son of the landlords is a highly qualified doctor in the field of emergency medicine and such professionals are expected to accept a job in accordance with their high qualification and skill only in medical colleges and super specialty hospitals. So, according to the appellant, the bona fide requirement for starting a small clinic in the petition schedule shop rooms that too in a rural area like Perambra is not a suitable profession for a highly qualified and skilled doctor like son of the respondents/landlords. So, according to the appellant, the bona fide requirement for starting a small clinic in the petition schedule shop rooms that too in a rural area like Perambra is not a suitable profession for a highly qualified and skilled doctor like son of the respondents/landlords. According to the appellant, the qualification and experience of the son of the respondents is not specifically pleaded and proved in the evidence. 6. During evidence, PW1 (respondent) has admitted that his son is working in Malabar Medical College Hospital, Moadakkallur. But according to him, it was not a permanent job. This fact has not been challenged by the appellant. So according to the counsel for the respondents, starting of the clinic in the petition schedule shop room at the initial stage need not be doubted. Starting of clinic is an inevitable one for professional security of the son of the landlords, who is depending on the landlords for starting a clinic as his own in the petition schedule buildings. 7. Over and above, the appellant had no case that the petition schedule shop rooms is not suitable for starting a clinic as intended by the respondents/landlords. In evidence, it has come out that the petition schedule shop rooms are two in numbers and the same are situating on the ground floor itself. The appellant has no case that the petition schedule building is too small. So, the respondents could not be able to start a clinic in the petition schedule shop room. In fact the appellant is running a margin free shop in the petition schedule shop room. He is not expected to say that the petition schedule building is not suitable for starting a clinic as intended by the respondents/landlords. Accordingly, the Appellate Court as well as the Rent Control Court found that the evidence on records will lead to an inference that the petition schedule shop rooms are suitable for conducting a clinic as intended by the landlords and their son. Further, the appellant has no case that the respondents and their son are financially not sound to start a clinic. 8. Over and above, it is proved that the son of the landlords is sufficiently qualified to start an emergency clinic in the petition schedule shop room. Further, the appellant has no case that the respondents and their son are financially not sound to start a clinic. 8. Over and above, it is proved that the son of the landlords is sufficiently qualified to start an emergency clinic in the petition schedule shop room. It has come out in evidence that the respondents' son is temporarily employed in Malabar Medical College, Moadakkallur, that is not a Government institution also. Under these circumstances, it is to be presumed that the respondents' son is fully depending upon the landlords to start a clinic as his own, in the building owned by his parents and the requirement is only a bona fide need. In fact, the intention of the respondents and their son is to start an emergency clinic in their locality in order to provide better medical service to local people. Further, it is a well settled law that the respondent is the master of his requirements and he can alter, convert and renovate his buildings to start intended business or job. The main argument on the side of the appellant was that the son of the landlords was not examined in this case and non-examination of the son of the landlords is fatal to the case advanced by the landlord. 9. In this connection, we may quote a citation held in Musthafa Haji v. Umbichi ( 2004(2) KLT 1110 ). In that decision, the High Court has held that non examination of dependent son of the landlord is not fatal and the same is not a ground to doubt the genuineness of bona fide need of the landlord. So, on the strength of the ruling as cited above, there is no necessity to examine the dependent, the son of the landlord and that is not fatal to the case advanced by the landlords. Therefore, we have also held that the trial court has rightly found that the bona fide need put forward by the respondents/landlords is genuine and cannot be interfered with. 10. The next important fact is whether the appellant is entitled to get protection under the proviso to Section 11(3) of the Act. It is a well settled legal principle that the burden is always upon the appellant/tenant, who seeks protection under the ingredients for the proviso to Section 11(3) of the Act. 10. The next important fact is whether the appellant is entitled to get protection under the proviso to Section 11(3) of the Act. It is a well settled legal principle that the burden is always upon the appellant/tenant, who seeks protection under the ingredients for the proviso to Section 11(3) of the Act. As per the proviso to Section 11(3), no order of eviction can be passed against the appellant/tenant if the tenant proved that the respondent/landlord has another building in his possession in the same city, town or village or suitable for his requirement. 11. The learned counsel for the appellant has cited a ruling held in Kandaru Veettil Ramakrishnan's Son Preman v. Kadaruveettil Ramakrishnan's Son Gopi [2016 (1) KHC 371 (DB)]. This citation was produced in order to prove that when the appellant/tenant proves that the landlord has in possession of other buildings in his own, then the burden will shift upon the landlord to prove that there are special reasons that those buildings are not suitable for him. It has been further held that the landlord is having another building of his own in the same city, town or village. The expressions city, town or village have been used in general sense to indicate rural and urban areas. Therefore, it is sufficient to prove that the landlord has another building in his ownership and possession in the same village, town, city or panchayath. The expression “Panchayat” would include a Village Panchayat and the Village Panchayat would include a Village or a group of Villages. It was incumbent on the landlord to show “special reasons” as to why the buildings were not suitable for him, in the absence of which tenant is not entitled to be evicted. 12. It was the definite case of the tenant that the respondents/landlords are having several vacant rooms in their possession and the respondents/landlords could not establish specific reasons for non-occupation of the same. According to the tenant, at the time of instituting the present petition for eviction, there were many vacant rooms in the possession of the respondents/landlords. In order to substantiate the above fact, he placed his reliance on Ext.B4. Ext.B4 is the building tax assessment register. According to the tenant, at the time of instituting the present petition for eviction, there were many vacant rooms in the possession of the respondents/landlords. In order to substantiate the above fact, he placed his reliance on Ext.B4. Ext.B4 is the building tax assessment register. As per Ext.B4, serial No. 14 to 25 in page 1 and serial No.1 to 13 in page 2 and serial No.1 and 2 in page No.3 would go to show that buildings are owned by Sahadevan and his wife Sobhana. Column No.6 of the above register indicates that except serial No.19, 20, 21 and 22 in page 1 (room Nos.568, 569, 570, 571 and 921) are vacant. According to the tenant, though Ext.B4 is produced prior to the evidence of PW1, it was not properly challenged in the evidence of PW1. 13. From Ext.C1 commission report, it has been found that on the southern side of V.M. Offset printers, a room having 7.15 meter length and 3.20 meter width are seen vacant and further the Commissioner has reported that room Nos. PP 14/551, 552 are also seen as a hall. But, certain plywood’s are seen in the said room so as to make it appear that the said room is also let out to tenants. So, the appellant/tenant succeeded in proving that vacant rooms are available in the possession of the respondents/landlords in the same complex itself. According to the appellant, he has discharged the primary burden that the landlord has vacant shops in his possession. As has held in 2016 (1) KHC 375 (supra) that the burden is upon the respondents/landlords to show “special reasons” as to why they were not suitable for them as contemplated under the 1st proviso to Section 11(3) of the Act. In fact, the learned counsel for the respondents have pointed out that if respondents/landlords satisfy the court that if the vacant rooms found in the possession of the landlords are not suitable for their bona fide need, the tenant is not entitled to get benefit as provided under the first proviso. 14. It is true that the respondents/landlords have specifically pleaded in the petition and narrated in their proof affidavit that no suitable rooms are available in the possession of the landlords or their son for their bona fide need, i.e. to start a clinic. 14. It is true that the respondents/landlords have specifically pleaded in the petition and narrated in their proof affidavit that no suitable rooms are available in the possession of the landlords or their son for their bona fide need, i.e. to start a clinic. The learned counsel for the respondents/landlords has argued that, the rooms seen in the up stair of the building are not suitable for starting a clinic that is too an emergency clinic. RW1, while he was in box has deposed that Dr.Sanal Devan is having a qualification in emergency medicine that is intended for being treatment for persons used to come in an emergency situation. Further, he has admitted that such kind of clinic could be functioned only on the ground floor. As per the evidence of RW1 itself, it is proved that he has also admitted that the clinic on emergency medicine can be conducted only on the ground floor itself. Even if the respondents/landlord have got vacant rooms in the upstair portion of the same building, it is unsafe to hold that those rooms are suitable for the bona fide need rather proposed requirement of the landlords. In fact, there is no evidence to prove that the building has any lifting facility. Even at the time of the inspection, the Commissioner has not noted the lift facility attached to the petition schedule building. The respondents/landlords has explained that the building Nos.551, 552 in the ground floor was marked as 5' in the Ext.C2 sketch is already let out and those rooms are under the possession of another tenant. In the proof affidavit, PW1 has categorically stated that he is not having any shop rooms suitable for starting a clinic. As per Ext.B4, it is seen that room Nos.563, 564, 565, 551, 552, 553A, 556, 557, 558, 559, 560, 561, 562 are in the ground floor. The Commissioner has noticed that above said rooms are lying obviously by abutting with common walls and those walls are removable to convert the same into a hall for the intended clinic. It is a well settled fact that the landlord is the master of his building and he is competent to decide how to use his buildings provided the present tenants are evicted through process of the court. 15. It is a well settled fact that the landlord is the master of his building and he is competent to decide how to use his buildings provided the present tenants are evicted through process of the court. 15. It has held in Jose N.L. v. Faisal Raj and Another ( 2017(2) KHC 464 ) that “This Court in Venugopalan Nair P. (Dr.) v. Mohamedkunhi and Others, 2010 (2) KHC 249 : 2010 (1) KLT 971 : ILR 2010 (1) Ker.881 had occasion to observe that the Rent Control Court is not expected to sit in judgment over the wisdom of landlord to identify one among his various tenanted rooms for conducting the proposed business. The rule or power of pick and choose, conceded to the landlord when a landlord has several tenants, has received recognition in rent control jurisprudence. Unless it can be said that it is with an oblique motive that landlord has chosen the tenant who is sought to be evicted for action in preference to the other tenants it is not for the authorities under Statute to intervene. In other words, the landlord is the sole arbiter of his own requirement and the suitability of the building is the prerogative of the landlord”. 16. It is well settled that the landlords can choose vacant possession of the petition schedule building for giving to their son to start the clinic as intended. It is also proved that the son is fully depending upon the parents/landlords on the building for the purpose of starting the clinic that too an emergency clinic. The appellant/tenant has not given any evidence to the effect that the petition schedule shop rooms are not suitable for starting an emergency clinic. Moreover, it is true that emergency clinic shall be on the ground floor with sufficient motorable facility. 17. Here in this case, the respondents/landlords intend to start an emergency clinic for which they have to decide where the clinic is to be commenced. The landlords have given special reasons that the clinic going to be started is suitable only on the ground floor rooms. In fact, there is no meticulous pleadings to prove specific reasons for non-occupying the vacant rooms in his possession. In fact, through evidence, the respondents/landlords have succeeded in proving special reasons for non-occupying the vacant rooms possessed by them. 18. In fact, there is no meticulous pleadings to prove specific reasons for non-occupying the vacant rooms in his possession. In fact, through evidence, the respondents/landlords have succeeded in proving special reasons for non-occupying the vacant rooms possessed by them. 18. As regards the 2nd proviso to Section 11(3) of the Act, the burden is upon the tenant to prove the ingredients mentioned under Section 11(3) of the Act. If the appellant/tenant proves that he is mainly depending upon the income which derives from the petition schedule shop room, definitely he is entitled to get the benefit under the 2nd proviso to Section 11(3) of the Act. 19. In this case, it is a peculiar fact that the appellant/tenant is having similar type of business at Balussery and Thamarassery. Further, he has got 30 cents of property abutting road at Ekaroor and there are buildings also. Further, he admitted that he is having 2½ acres of agricultural land. Over and above, he is an income tax payee also. 20. The learned counsel for the respondents have pointed out that the appellant/tenant in the written statement stated that he is depending mainly on the income derived from the business carried on in the petition schedule building. But, no evidence was forthcoming to substantiate that the appellant is fully depending on the income derived from the petition schedule building. In fact, he has got agricultural land and other buildings at Ekaroor and he is carrying on business at Balussery and Thamarassery. The appellant failed to establish that he is mainly depending upon the income which derives from the petition schedule building. Further, RW1 while he was in the box has expressed ignorance about the availability of suitable vacant buildings for his requirement in the said locality. 21. According to the respondents/landlords he has given evidence to the effect that there are many suitable rooms available in the same locality to meet the requirement of the appellant/tenant. Even during cross examination, RW1 has admitted that he had not made any enquiry about the availability of suitable vacant rooms in the same locality for his requirements. He has also expressed ignorance regarding the building available nearby the locality at Perambra. In fact, it is proved by RW1 himself that he has not made any enquiry regarding the availability of suitable rooms in the locality due to meet his requirement. He has also expressed ignorance regarding the building available nearby the locality at Perambra. In fact, it is proved by RW1 himself that he has not made any enquiry regarding the availability of suitable rooms in the locality due to meet his requirement. Further, the appellant has not taken out any commission to report about suitable rooms available in the said locality to meet the requirement of the tenant. 22. Moreover, no report was obtained from the accommodation controller to prove that no suitable rooms are available in the near locality. In fact, it is established that the appellant has not discharged his burden to prove that no vacant suitable rooms are available in the locality to meet his requirement. Accordingly, the appellant/tenant failed to establish the fact that he is entitled to get benefit of the first and 2nd proviso to Section 11(3) of the Act. 23. On going through the evidence and considering the arguments on either side, we do not find any ground to interfere with the impugned order of the Rent Control Court as well as the Rent Control Appellate Authority. Hence, the finding entered into by the Rent Control Appellate Authority is ordered to be confirmed. In fact, the appellate court has given sufficient time to vacate the premises and put the landlords/respondents in vacant possession of the petition schedule building. So, there is sufficient time for the petitioner to vacate the premises as granted by the Rent Control Appellate Authority. 24. We have also a considered opinion that the finding entered into by the Rent Control Appellate Authority cannot be interfered with and it is only to be confirmed. In the result, this Rent Control Revision is dismissed.