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2025 DIGILAW 636 (KER)

THANKAMANI D/o RAMANKUTTY MOOTHAN v. G. SETHUMADHAVAN ((died))

2025-03-18

A.MUHAMED MUSTAQUE, P.KRISHNA KUMAR

body2025
ORDER : (P. Krishna Kumar, J.) In this revision petition, the tenant challenges the findings of the Rent Control Appellate Authority that the respondent-landlord is entitled to get vacant possession of the petition-scheduled building as per Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (‘the Act’, for short). By the impugned order, the Appellate Authority set aside the order of dismissal of the eviction petition by the Rent Control Court. 2. One G.Sethumadhavan, the father of the respondents, rented out the tenanted premises to the petitioner for a monthly rent for conducting a Printing press. Alleging that the petitioner defaulted payment of rent from June 2012 onwards, late G.Sethumadhavan filed the eviction petition with a further contention that his son Ganesan (respondent No.2) and his grandson Nikhil, who are his dependents, have the experience and expertise to run a Cotton Textile business and thus he bonafide required the vacant possession of the petition-scheduled building for starting such a business therein by Ganesan and Nikhil. It was further pleaded that he had no other vacant building in his possession to start the proposed business. Sethumadhavan passed away while the matter was pending and then the present respondents were impleaded as supplemental petitioners. 3. The petitioner did not dispute the landlord- tenant relationship. But he resisted the eviction petition by contending that G.Sethumadhavan had bequeathed the petition-scheduled building to the third respondent and not to the second respondent Ganesan, which would indicate that the need put forward by him was only a ruse for eviction, as otherwise, he would have bequeathed the said building to Ganesan and Nikhil. The petitioner further contended that he is wholly depending on the income derived from the business run in the scheduled building for his livelihood and there are no suitable vacant buildings in the nearby locality to shift his business. 4. Accepting the contentions of the petitioner herein, the Rent Control Court dismissed the eviction petition by holding that, had Sethumadhavan bonafide intended to facilitate Ganesan and Nikhil to start a business of textiles in the scheduled shop room, he would have bequeathed the said portion of his assets to them, instead of earmarking it to the third respondent. 4. Accepting the contentions of the petitioner herein, the Rent Control Court dismissed the eviction petition by holding that, had Sethumadhavan bonafide intended to facilitate Ganesan and Nikhil to start a business of textiles in the scheduled shop room, he would have bequeathed the said portion of his assets to them, instead of earmarking it to the third respondent. The Rent Control Court further found that the respondents suppressed the deed of Will presumably for the reason that had it been produced, it would have disproved the claim that the landlords have no other vacant buildings. 5. The Rent Control Appellate Authority reversed the said finding after an elaborate discussion of factual and legal aspects, by holding that the need projected by the original landlord still subsists despite his death and the same is genuine. 6. Heard the learned counsel appearing for the petitioner and the respondents. 7. We perused the trial court records. After considering the records before us, we are of the considered opinion that there is no reason to interfere with the findings arrived at by the Appellate Authority. The contention that if the landlord had any bonafide in setting up a claim that he required the scheduled building for accommodating his son Ganesan and grandson Nikhil, he would have bequeathed the petition-scheduled building to them, seems to be fallacious. The purpose for bequeathing a property to one is entirely different from permitting another to run a business in it. The former is done with an intention to give that property perpetually to the legatee and the latter is for ensuring that another person can eke his livelihood out of the same for the time being. There can be an oral understanding between the donor, legatee and the other person to whom the donor initially intended to deliver the vacant possession of the building. Such an arrangement may be in the best interest of the donee and the other person depending upon the skill of one among them to run the proposed business. These are all matters to be left to the best judgment of the landlord. Of course, the tenant could have questioned the bonafide of the landlord or his successor who carries forward the litigation after his demise, by raising such questions which are necessary for testifying the veracity of those aspects during the trial. These are all matters to be left to the best judgment of the landlord. Of course, the tenant could have questioned the bonafide of the landlord or his successor who carries forward the litigation after his demise, by raising such questions which are necessary for testifying the veracity of those aspects during the trial. If he is able to elicit any materials indicating that the original landlord or his successors acted without bonafide, he can indeed maintain the above contentions. 8. In the present case, the person who had given evidence before the court on behalf of the respondents is the one in whose favour the petition-scheduled building was bequeathed by the late Sethumadhavan. He categorically asserted before the court that he had an oral arrangement with his father that the scheduled building should be given to Ganesan and Nikhil for the purpose of conducting the proposed business once its vacant possession is obtained. The third respondent, when deposed as PW1 before the court, further sworn in that he also desired to provide the tenanted premises to them, as they have no other building which is suitable to start the textile business. Interestingly, no questions touching the above matter were put to this witness during cross-examination. Hence, the above contentions raised by the tenant are far-fetched and liable to be rejected. 9. During the cross-examination, PW1 stated that certain other shop rooms were given to Ganesan as per the Will. But he categorically explained that those rooms are not sufficient to start a textile business as they are not in the main area of the market or a place easily accessible to the public. Based on this, it is contended by the tenant that unless the Will is produced before the court, the tenant would be deprived of the opportunity to prove that Ganesan has another vacant building which is sufficient for his business. The tenant is now kept in the dark regarding the shop room admittedly given to Ganesan as per the Will, it is contended. 10. We cannot uphold this argument as well. The late Sethumadhavan had clearly pleaded in the petition that there are no other vacant buildings in his possession to start the proposed business. The tenant is now kept in the dark regarding the shop room admittedly given to Ganesan as per the Will, it is contended. 10. We cannot uphold this argument as well. The late Sethumadhavan had clearly pleaded in the petition that there are no other vacant buildings in his possession to start the proposed business. If the petitioner herein has a case that the said statement is false and there are materials to attract the first proviso to Section 11(3) of the Act, he could have brought on record the details of such buildings in the possession of Sethumadhavan or his successors-in- interest. What Sethumadhavan could bequeath to Ganesan should be only the buildings that Sethumadhavan owned, and nothing else. Hence the petitioner very well had sufficient opportunity to establish any such factual aspects which are necessary to attract the first proviso to Section 11(3), even without inspecting the Will. 11. It is true that the respondents did not produce the Will even when the petitioner filed a petition for its production. On 17.02.2021, the interlocutory application filed by the tenant (I.A.422/2021) was posted to 22.02.2021, when the landlords submitted that they would produce the Will. But the case records do not show that the Court later issued any order after that date. The question of raising adverse inference arises only in a case where the court directed the parties to produce the document and yet they abstained from it. No such inference can be drawn merely for the reason that a petition for its production was filed. 12. The learned counsel appearing for the petitioner challenged the finding of the Appellate Authority that the tenant could have taken out a commission to ascertain the sufficiency of the shop room allotted to Ganesan in the Will, on the ground that the tenant could have made such an exercise only when the Will is produced. We cannot agree. If Ganesan has been occupying a vacant building in that locality, it is a physical aspect that could have been proved by the petitioner even if the Will is not produced. Anyway, it appears that the petitioner did not pursue the petition for production of the Will after it was posted on 22.02.2021 and hence, his contention, as stated above, cannot be entertained at present. 13. Anyway, it appears that the petitioner did not pursue the petition for production of the Will after it was posted on 22.02.2021 and hence, his contention, as stated above, cannot be entertained at present. 13. It is a well-settled law that if eviction is sought for the occupation of any dependent of the original landlord, the death of the landlord would not bring to an end the bonafide need [ Ashok Kumar v. Ved Prakash & Others ( AIR 2010 SC 330 ), Shantilal Thakordas & Others v. Chimanlal Maganlal Telwala [ (1976) 4 SCC 417 ]]. Through a well-considered order, the Appellate Authority found that the landlords bonafide required vacant possession of the petition-scheduled building for their own occupation, and on the other hand, the tenant failed to prove the existence of any circumstances for invoking the first proviso to Section 11(3). All the above aspects completely justify the findings of the Appellate Authority that the landlords bona fide require the vacant possession of the tenanted premises. We also agree with the finding of the Appellate Authority that the tenant is not entitled to get the protection of the second proviso to Section 11(3). In view of the above discussion, we find no reason to interfere with the eviction order passed by the Rent Control Appellate Authority. 14. In the result, the revision petition is dismissed. However, the petitioner is permitted to continue their occupation in the petition-scheduled building for a further period of six months on the following conditions: (i) The petitioner shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that she will surrender vacant possession of the petition-scheduled shop room to the respondents-landlords within six months from the date of this order and that, she shall not induct third parties into possession of the petition-scheduled shop room. (ii) The petitioner shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within one month from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; (iii) Needless to say, failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition-scheduled shop room will stand cancelled automatically, and the landlords will be at liberty to proceed with the execution of the order of eviction.