IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 RCRev..No. 224 of 2005(C) ------------------------------------- RCA.NO.25/2002 OF ADDL.RENT CONTROL APPELLATE AUTHORITY,ALAPPUZHA. RCP.40/1998 OF PRINCIPAL MUNSIFF(RENT CONTROLLER),ALAPPUZHA. .................... REVISION PETITIONER/RESPONDENT/CR. PETITIONER: -------------------------------------------------------------------------------- C.O.VENUGOPAL, VAISALI TEXTILES, BUSINESS, A.M.C. NO.140/XVII, MULLACKKAL, ALAPPUZHA. BY ADVS. MR.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENTS/APPELLANTS/PETITIONERS: ----------------------------------------------------------------- 1. R.RAJALAKSHMI, W/O.RADHAKRISHNA REDDIAR, RESIDING AT RAJAGOPALA MANDIRAM, MULLACKAL, ALAPPUZHA. 2. BEENA KRISHNA MOORTHY, W/O.V.KRISHNA MOORTHY, RESIDING AT 700 ALBERTS AVENUE, MECHANIESBERG, PA 17099, U.S.A., REPRESENTED BY HER POWER OF ATTORNEY HOLDER, P.SATHEESH, S/O.LATE PADMANABHAN, RESIDING AT MAHALEKSHMI, VELLAKKINAR, ALAPPUZHA. 3. DEENA SATHEESH, W/O.P.SATHEESH, RESIDING AT MAHALEKSHMI, VELLAKKINAR, ALAPPUZHA. R1 & R3 BY MR.T.KRISHNAN UNNI, SENIOR ADVOCATE, ADV. MR.P.I.GEORGEKUTTY, R2 BY ADV. SMT. R. REMA. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/08/2009,ALONG WITH R.C.R NO.349 OF 2005 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. C.R. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NOS: 224, 334, 335,343,349, 361, 363, 372, 570, 592 OF 2005 ----------------------------------------------------------------------------------- Dated this the 19th August, 2009. JUDGMENT SURENDRA MOHAN, J. These Rent Control Revisions are filed by the tenants challenging the common judgment dated 21.12.2004 of the Additional Rent Control Appellate Authority, Alappuzha in connected Rent Control Appeals. The Rent Control Appeals were filed by the respondents-landlords challenging the dismissal of the Rent Control Petitions filed by them against the tenants. The Rent Control Appellate Authority reversed the findings of the Rent Controller and ordered eviction of the revision petitioners under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the 'Act'. 2. The revision petitioners are all tenants in occupation of different shop rooms in a line building, in the heart of Alappuzha town. The revision petitioners have been in occupation of the shop rooms in their possession for considerably long periods of time and the rent paid by them is also nominal. They are conducting various businesses. The Rent Control petitions were tried together since RCR 224/2005 etc. 2 the landlords in respect of all the premises are same and the contentions raised by the parties are also common. 3. The line building situate in Survey No: 818/8, C1, C2, A2, D1, 1/1 and 818/9 A2 belonged to late Radhakrishna Reddiar, having acquired ownership and possession over the same as per registered partition deed No: 18/1955. The first respondent is the wife and the second and third respondents are the daughters of late Radhakrishna Reddiar. They are his sole legal heirs, on whom the property has devolved on his death. After the death of Radhakrishna Reddiar the tenants in occupation of the building attorned to the respondents and started paying rent in respect of the premises to them. Thus, the petitioners in all these revision petitions are tenants under the respondents. 4. The revision petitioners are all in occupation of separate shop rooms forming part of the same building. They are conducting various businesses of their own and paying rent at different rates to the landlords. 5. In the above circumstances, the landlords filed separate Rent Control Petitions for eviction of all the tenants alleging that they required the building for their bonafide own occupation. According to them, the existing building was old and, therefore, RCR 224/2005 etc. 3 they wanted to demolish the building and construct a spacious building in which, they wanted to start a textile shop. According to the landlords, it was necessary to demolish the building for the purpose of construction of the new building so as to provide the same with proper road access and other conveniences. It was contended by the landlords that the first respondent was having sufficient experience in running a textile shop as she was doing the business in the name and style, 'Sowbhagya Textiles'. The second respondent who is the eldest daughter is working in the IBM Computers, U.S.A. She was prepared to join the business since it was the desire of both herself and her husband to settle in India. She also has the necessary financial resources to help her mother in setting up and developing the business. The third respondent who is the youngest daughter is without any employment. Therefore, she wants to help her mother in conducting the business. Her husband who is a businessman in the textile field was prepared to give proper guidance and assistance to them in the business. Though they requested the tenants for vacant possession of the premises, they did not vacate the premises. Therefore, the Rent Control petitions were filed. 6. The Rent Control Petitions were resisted by the tenants on RCR 224/2005 etc. 4 the basis of identical contentions. According to them the need put forward was only a ruse for eviction. The object of the respondents was to let out the rooms on a higher rent. They had no need of the schedule shop rooms for starting a textile shop. They have no plan or licence to construct a building after demolishing the existing structure. It was contended that the landlords did not have the capacity or ability to construct the new building. Further the tenants contended that the first petitioner who was a widow was not capable of doing any business. The second respondent was a person who was permanently settled in America with no interest in India. She has no interest to settle in India or to start any business. According to the tenants, the third respondent's husband was conducting a leading textile business at Alappuzha in the name and style 'Swamees'. It was pointed out that eviction proceedings had not been initiated against some of the tenants. A further contention was raised that the husband of the first respondent had been conducting a textile shop in the building on the western side of the scheduled shop rooms in the name and style 'Saubhagya Textiles', which building was already in her possession. Therefore, if the landlords were desirous of starting a business, they could very well start the same in the said premises. On the RCR 224/2005 etc. 5 above contentions they prayed for dismissal of the Rent Control Petition. 6. The Rent Control Court tried all the Rent Control Petitions together. The evidence in the cases consists of the oral testimonies of P.W.1 and R.Ws 1 to 9 and Exts. A1 to A5 and B1 to B3 documents. 7. The Rent Control Court considered the contentions of the rival parties and held that the bonafide need put forward by the landlords was not proved. Hence, it was found that they were not entitled to evict the tenants from the petition schedule shop rooms. The Rent Control Court therefore dismissed all the petitions by a common order. The respondents/landlords challenged the order of the Rent Control Court before the Rent Control Appellate Authority by filing separate appeals in all the cases. All the Rent Control Appeals were heard and disposed of together by the Rent Control Appellate Authority. The Appellate Authority reversed the findings of the Rent Control Court and found that the bonafide need projected by the landlords was established to be genuine and bonafide. Therefore, the Appellate Authority set aside the common order of the Rent Control Court and ordered eviction of the tenants. It is the said common order of the Rent Control RCR 224/2005 etc. 6 Appellate Authority that is assailed by the revision petitioners before us. 8. We have heard the counsel appearing for the respective tenants as well as the landlords, in detail. We have been taken through the evidence in the cases both oral and documentary. We have also considered the contentions of the parties. 9. The only point that arises for consideration in these revisions is whether the landlords have been able to establish the bonafide need put forward by them. 10. It is contended by the counsel for the revision petitioners that though the case of the landlords is that they were proposing to demolish the existing building and to construct a new building in the property They have not obtained a proper plan and licence for such construction. In the absence of any such plan or licence, it is contended that no eviction could be granted. As rightly noted by the Appellate Authority, eviction is sought in these cases under Section 11(3) of the Act and not under Section 11(4)(iv) thereof. Therefore, the requirement of production of a plan and licence need not be insisted upon in an action under Section 11(3) of the Act. Further, it is to be noted that in the present case in fact Exts.A3 and A4 plans have been produced by the landlords. Therefore, the RCR 224/2005 etc. 7 fact that necessary plans have been prepared by the landlords cannot be disputed. The requirement of a licence or a building permit is necessary only for starting construction and can be obtained subsequently. Therefore, as rightly found by the Appellate Authority it is sufficient that the landlords obtain a building permit before they start the actual construction. It has been further found by the Appellate Authority that the landlords have the necessary financial capacity to start the business and that they have the necessary experience to conduct the same. The counsel for the revision petitioners have not been able to point out anything to assail the above findings of the Appellate Authority. Therefore, we confirm the finding of the Rent Control Appellate Authority that the landlords have been successful in establishing the need projected by them under Section 11(3) of the Act. 11. Counsel for the revision petitioners have pointed out that the landlords had not filed petitions for eviction against all the tenants in the building. It is pointed out that the two tenants, who are conducting business in the name 'Prakruthi Stores' and Bhagavathy Textiles' were not sought to be evicted. It is worth noticing that when P.W.1 was in the box, she was questioned on this aspect. Her explanation was that the said two tenants had RCR 224/2005 etc. 8 already agreed to vacate the rooms occupied by them. Therefore, no petitions for eviction were filed against them. However, it is pointed out that they could have been examined to prove the above fact or at least affidavits could have been obtained from them in proof of the said statements. As rightly found by the Appellate Authority, just because the said two tenants were not examined or their affidavits obtained, it cannot be concluded that the explanation of P.W.1 was not true. 12. Therefore the next question is whether it is necessary that a litigation should precede the recovery of possession of the tenanted premises by the landlord in all cases, as a general rule? There is no presumption that as a general rule, a litigation has to invariably precede the surrender of vacant possession of a tenanted premises to the landlord. It is common knowledge that many tenants vacate the premises occupied by them accepting and appreciating the genuineness of the need of their landlords. Especially so, in situations where the landlord and tenant maintain close and cordial relationship among themselves. It is only in cases where the tenant disputes the bonafides of the need put forth by the landlord that the Rent Control Court is called upon to consider the question of genuineness of the need and to pass orders of RCR 224/2005 etc. 9 eviction. Though it has become common place for tenants to resist the need of the landlords by protracted litigation and to continue in possession for as long as possible, especially in the case of commercial premises, such litigation cannot be held to be necessary in all cases, as a rule. 13. At the same time, we do not think that the apprehensions expressed by the tenants do not have any substance at all. The conduct of the landlords in not initiating any action for evicting the said two tenants has to be scrutinized closely with a view to ensuring that the justification put forward is genuine. It is contended that the landlords should not be permitted to pick and choose in the matter of eviction of tenants who are all occupying similar premises in the same building. We feel that the apprehensions of the tenants can be set at rest by providing appropriate safeguards to ensure that the said tenants are also got vacated while evicting the revision petitioners. 14. A contention has been put forward by the tenant in RCR 592/2005 that he is occupying a separate building located in the same property and that it was possible to reconstruct the existing building without evicting him. However, the evidence of P.W.1 and the plans Exts.A3 & A4 show that the said building is also required RCR 224/2005 etc. 10 to be demolished to accommodate the proposed construction. Therefore, the Appellate Authority has rejected the above contention. We do not find any grounds to interfere with the said finding. 15. As a last submission, counsel for the revision petitioners made an appeal for the grant of a sufficiently long period of time, a period of one year, to vacate the premises. Though we are not inclined to grant one year's time, considering their long occupation of the premises, we feel that their request can be sympathetically considered. Accordingly, we feel that the tenants could be granted time up to 28.2.2010 subject to appropriate conditions. 16. In view of the above, the Rent Control Revisions are dismissed confirming the common judgment passed by the Additional Rent Control Appellate Authority, Alappuzha, subject to the following conditions:- 1) The tenants are granted time upto 28.2.2010 to surrender vacant possession of the premises to the landlords on condition that each one of the revision petitioners shall file separate affidavits before the Rent Control Court or the Execution Court as the case may be, unconditionally undertaking to vacate the premises on or before the said date within 3 weeks of the date of receipt of a copy of this judgment. RCR 224/2005 etc. 11 2) The revision petitioners shall pay all arrears of rent due in respect of the premises to the landlords and shall continue to pay the future rent in respect of the premises regularly till they surrender vacant possession thereof. 3) The landlords shall produce the approved pla n and building permit in respect of the proposed construction before the Execution Court for perusal before the time fixed for the tenants to vacate the premises; 4) The Execution Court shall ensure that the tenants in occupation of the shop rooms from where the business of 'Prakruthi Stores' and 'Bhagavathy Textiles' are being conducted are also vacated before 28.2.2010. 5) Delivery warrants shall be issued by the execution court for compelling the eviction of these revision petitioners only after conditions 3 and 4 above are complied with. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj