IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 RCRev..No. 93 of 2007() ----------------------- RCA.71/2006 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.22/1998 OF RENT CONTROL COURT, KOZHIKODE-I .................... PETITIONERS/APPELLANTS/RESPONDENTS 1 TO 3 ----------------------------------------------------------- 1. C.M.MATHEW AND BROTHERS BY ITS PARTNERS C.M.MATHEW, AGED 69 YEARS, S/O.MATHEW, DOING BUSINESS AT DOOR NO.7/745, S.M.STREET, NAGARAM AMSOM AND DESOM OF KOZHZIZKODE TALUK. 2. C.M.PAUL, AGED 64 YEARS, S/O.MATHEW, DOING BUSINESS AT DOOR NO.7/745, S.M.STREET, NAGARAM AMSOM AND DESOM OF KOZHZIZKODE TALUK. 3. C.M.JOY, AGED 56 YEARS, S/O.MATHEW, DOING BUSINESS AT DOOR NO.7/745, S.M.STREET, NAGARAM AMSOM AND DESOM OF KOZHZIZKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS SR. ADV. SRI.T.P.KELU NAMBIAR RESPONDENT(S)/RESPONDENTS/PETITIONERS & 4TH RESPONDENT ------------------------------------------------------------------------- 1. B.SATHYAVATHY, AGED 60 YEARS, W/O.LATE M.S.SWAMINATHAN, RESIDING AT 28, NACHIPPAN STREET, MAHALINGAPURAM, CHENNAI-600 034. 2. M.S.ASHA, AGED 38 YEARS, D/O.LATE M.S.SWAMINATHAN, RESIDING AT 14/177, ARJUN VIHAR, DELHI CAMPUS, NEW DELHI - 110010. 3. M.S.BEENA, AGED 36 YEARS, D/O.LATE M.S.SWAMINATHAN, RESIDING AT 407, TORENTO-ONTRARIO, M-9N 256, CANADA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER AND MOTHER THE FIRST RESPONDENT B.SATHYAVATHY,W/O. M.S.SWAMINATHAN, 4. M.S.ROOPA, AGED 35 YEARS, D/O.LATE M.S.SWAMINATHAN, RESIDING AT 28 NACHIPPAN STREET, MAHALINGAPURAM,CHENNAI-600 034. 5. M.S.RAVISANKAR, AGED 30 YEARS, S/O.LATE M.S.SWAMINATHAN, RESIDING AT 28 NACHIPPAN STREET, MAHALINGAPURAM,CHENNAI-600 034. 6. T.P.ANNAMMA (DIED), W/O.LATE C.M.MATHEW, DOOR NO.7/745, S.M.STREET, NAGARAM AMSOM DESOM OF KOZHIKODE TALUK. 7. MARY SEBASTIAN, AGED 73 YEARS, W/O.LATE SEBASTIAN, 37/737, P.K.PANICKER ROAD, NEAR ENGLISH CHURCH, KACHERI AMSOM DESOM, KOZHIKODE TALUK. 8. ROSY JACOB, W/O.T.M.JACOB, AGED 71 YEARS, HOUSE NO.28/265, CHELAVANOOR AMSOM DESOM, ERNAKULAM TALUK, COCHIN-20. 9. BABY JOSE, AGED 66 YEARS, W/O.M.P.JOSEM MOYALAN HOUSE, OLLOOR AMSOM, DESOM,TRICHUR DISTRICT. ADV. SRI.K.RAMACHANDRAN FOR R2-5 & R1 SMT.R.MEERA FOR R2-5 SRI.R.K.MURALEEDHARAN FOR R7-9 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ RCR. No. 93 of 2007 ------------------------------------------- Dated this the 13th day of October, 2009 O R D E R Pius C. Kuriakose, J. A partnership firm M/s. C.M.Mathew & Brothers represented by Partner C.M.Mathew and Sri.C.M.Paul and C.M.Joy the other two Partners of that firm are the revision petitioners. They are aggrieved by the order of eviction passed by the Rent Control Court and the Appellate Authority concurrently on the ground under clause (iii) of Sub-section (4) of Section 11 of Kerala Act 2 of 1965 (Buildings Lease and Rent Control Act). The petition schedule building is building having Door No. 7/745 on S.M. Street, Calicut. The building with reference to which the order of eviction is passed is a three storied building situated on Ram Mohan Road, Calicut, not far away from the petition schedule building. The petition schedule building was let out by the original landlord Sri.M.S.Swaminathan in RCR. No. 93/07 - 2 - the year 1966 to a Partnership Firm by name C.M.Mathew & Brothers which was understood at that time to have only three partners by name C.M.Mathew, C.M. Paul and C.M. Joy. On 10-7-1995 Sri.C.M.Mathew, C.M.Paul and C.M. Joy purchased a vacant plot measuring 12 cents on Ram Mohan Road by sale deed No. 727/1 of 1995 of SRO Calicut. On 21-8-1995 Sri.C.M.Mathew assigned his two-third share in equal proportion to his children Anil Mathew and John Mathew by registered assignment deeds. On the same day Sri.C.M.Paul assigned his two-third share in the above property in equal proportion to his children Sunil Paul and Sudheer Paul by registered assignment deeds. In the same way on the next day Sri.C.M.Joy assigned his two-third share in equal proportion to his son Mathew Joy and wife Pauline by registered documents. It is on the above plot that the three storied building now stands constructed. On 3-2-1998 the landlord sent a lawyer notice to the three RCR. No. 93/07 - 3 - partners of C.M.Mathew and Brothers alleging that they had acquired possession of a three storied building on Ram Mohan Road put up by them on their own and further that the first floor of the building is let out by them to Dhanalakshmy Bank Limited and that the ground floor and the second floor are retained under their vacant possession. To the above notice a reply was sent pointing out that Smt.T.P.Annamma, mother of C.M.Mathew, C.M.Paul and C.M.Joy was also a partner in the firm and that the tenant of the petition schedule building was the partnership firm. It was contended through this notice that the building on Ram Mohan Road belong to 9 co-owners including the three partners of the firm C.M. Mathew and Brothers. It was also stated in the reply notice that the construction of the building is not over and that only the ground floor has been completed. On receiving the reply notice the rent control petition was filed stating that the building put up on Ram RCR. No. 93/07 - 4 - Mohan Road is a pucca R.C.C. building having 4000 sq. ft. each in the ground floor, first floor and second floor. It was also alleged in the RCP that the construction of a third floor is under way. 2. In the counter statement filed in the RCP by the three respondents therein, viz., C.M.Mathew, C.M.Paul and C.M.Joy it was contended that Smt.P.P.Annamma their mother is also one of the partners and that the RCP is not maintainable without her junction. It was also contended that purchase of the plot whereupon the three storied building presently stands constructed was by C.M.Mathew, C.M.Paul and C.M.Joy in their individual capacities and not as partners of the tenant firm and that the three storied building was put up by all the nine co-owners of the plot; that the building is still incomplete, particularly the ground floor; that the ground floor can be used only as a godown and that no retail business as being conducted presently in RCR. No. 93/07 - 5 - the petition schedule building can be conducted there. It was accordingly contended that the ground under clause (iii) of sub-section (4) of Section 11 is not at all attracted. In the light of the above contentions, the landlord filed an application for impleading Smt.T.P.Annamma as an additional respondent in the RCP and Smt. Annamma was accordingly impleaded as additional 4th respondent, who filed a separate counter statement contending that she is a partner of C.M.Mathew and Brothers, the firm which is the tenant of the petition schedule building and also that she has nothing whatsoever to do with the building presently put up on Ram Mohan Road. Thus the additional 4th respondent supported her sons in their defence to the eviction ground. 3.The Rent Control Court found that the tenant of the petition schedule building was the partnership firm by name C.M. Mathew and Brothers. However, it was found that RCR. No. 93/07 - 6 - Ext.B3 Partnership deed produced by the respondents cannot be considered as a genuine partnership and also that there is no legal evidence to prove that the additional 4th respondent Smt. Annamma is also a partner of C.M.Mathew & Brothers. It was also found that the assignment of the plot by respondents 1, 2 and 3 to six others was with the objective of defeating the landlord's claim in the rent control petition. It was further found that the new partnership firm by name C.M.Mamthew & Company which claimed to be in possession of the building put up on Ram Mohan Road itself was constituted during the pendency of the rent control proceedings and hence the above new firm was discarded. The Rent Control Court also repelled the contention that the building on Ram Mohan Road will not be sufficient for carrying on the business which is presently being carried on in the petition schedule building. Accordingly, order of eviction was passed. Sri.C.M.Mathew, Sri.C.M.Paul and RCR. No. 93/07 - 7 - Sri.C.M.Joy filed RCA No. 71 of 2006 and Smt.T.P. Annamma filed RCA. No. 69 of 2006 before the Rent Control Appellate Authority against the order of eviction passed by the Rent Control Court. The Appellate Authority by the common judgment which is impugned in this revision dismissed both the appeals. It was found by the Appellate Authority that the fact that the additional 4th respondent (Annamma) was also one of the partners of M/s. C.M.Mathew & Brothers is not proved. Though it was held that “there cannot be dispute that since the entrustment of the schedule room was to the partnership firm, the alternate building has also to be in the possession of partnership firm of which respondents 1 to 3 are partners”, it was found that the additional 4th respondent was inducted as a name lender to avoid the consequences of Section 11 (4) (iii). It was found that the six persons who have right in the building at Ram Mohan Road were the children and wife RCR. No. 93/07 - 8 - of the original partners and it was found that such transfer was made for the purpose of escaping the consequences of Section 11(4)(iii). It was also found that the building at Ram Mohan Road was sufficient to shift the business, which is being carried on in the petition schedule room. On the basis of the above findings the Appellate Authority dismissed both the appeals. RCR No. 93 of 2007 is filed by respondents 1 to 3 (the tenant firm and its partners) and RCR No. 218 of 2007 is filed by the legal heirs of the additional 4th respondent Smt.T.P.Annamma who are supplemental appellants 2 to 4 in the RCA. 4. We have heard the submissions of Senior Advocate Sri.T.P.Kelu Nambiar assisted by Advocate Sri.C.P.Mohammed Nias for the revision petitioners in RCR No. 93 of 2007; those of Sri.R.K.Muraleedharan, Advocate for the revision petitioners in RCR No. 218 of 2007 and those of Sri.K. Ramachandran, learned counsel for the RCR. No. 93/07 - 9 - respondents landlords in both the cases. Senior counsel Sri.T.P.Kelu Nambiar drew our attention to clause (iii) of sub-section (4) of Section 11 and submitted that on the facts which obtained in this case, unless it is proved that the partnership firm C.M.Mathew and Brothers has put up a building reasonably sufficient for that firm's requirements in the same city, town or village, eviction ground under clause (iii) of sub-section (4) of Section 11 will not stand established. He placed reliance on the judgment of the Supreme Court in Gantusa H.Baddi v. Meerabai G.Pai and others, (2000)4 SCC 586 in this regard. Referring to paragraphs 9 and 10 of the above judgment rendered in the context of Section 21(1)(p) of the Karnataka Rent Control Act, wherein also the word tenant is defined almost similarly as in the Kerala statute Mr.Nambiar would argue that it is admitted in this case that the tenant of the petition schedule building is the firm C.M.Mathew and Brothers and hence the RCR. No. 93/07 - 10 - question to be considered is whether the tenant has put up a building reasonably sufficient for its requirements. Mr. Nambiar placed reliance on the judgment of a Division Bench of this Court in Abdussalam v. Bhaskaran, 2005(3) KLT 71 also in this context. The allegations in the RCP are that the partnership firm C.M.Mathew and Brothers put up a building on Ram Mohan Road and also that the said building is reasonably sufficient for the firm's requirements. But what has been proved in this case by the evidence on record is that the land upon which the building on Ram Mohan road is put up belongs in their individual capacities to the three partners C.M.Mathew and Brothers and six others who have nothing to do with that firm. It also became evident and proved that the building is owned in common by these nine individuals. Referring to Annexure-A4 property tax assessment register produced before this Court pursuant to an order passed by us, the learned senior counsel submitted RCR. No. 93/07 - 11 - that as for possession, it is clear from Annexure -A4 that possession of the building is with the nine owners themselves. It is another partnership firm by name C.M.Mathew and Company which is in possession of portions of the three storied building on Ram Mohan Road, submitted Mr.Kelu Nambiar. Sri.R.K.Muraleedharan, counsel for the revision petitioner in RCR No. 218 of 2007 would support the submissions of Mr.Kelu Nambiar on all the substantive legal arguments addressed by him. He would add, that his clients, the revision petitioners being legal heirs of Smt.T.P. Annamma are also tenants of the petition schedule building who are depending for their livelihood on the income derived from the business carried on in that building. 5. Sri.K.Ramachandran, learned counsel for the landlord would resist all the submissions of Sri.Kelu Nambiar and Mr.Muraleedharan. He would take us extensively through the judgment of the Rent Control Appellate RCR. No. 93/07 - 12 - Authority and submit that the reasoning of the learned Appellate Authority is very sound and there is no warrant at all for interfering with the same. The legislative intentment underlying clause (iii) of sub-section (4) of Section 11 of Act 2 of 1965, according to him, is that a tenant who is in possession of other premises sufficient for its requirements should not be allowed the luxury of having the building which is subject matter of the RCP also under his possession. The tenant in this case is more landlord like than the landlord. It is a massive three storied building which is put up by them on the Ram Mohan Road. Unlike companies and other corporate bodies, partnership firm is only a compendious way of naming more than one person carrying on business for making profit. Firm does not have any legal personality distinct from that of the individuals which constitute the same. But when it is shown that the building on the Ram Mohan Road is put up by the partners RCR. No. 93/07 - 13 - of C.M.Mathew and Brothers at least as co-owners unless they prove that any one of the other co-owners is in possession exclusively by any arrangement between the co- owners it has to be taken that they (the partners of C.M.Mathew and Brothers) are in possession. In this regard Mr.Ramachandran relied on the judgment of a Division Bench of this court in Moosa v. Lakshmanan, 2004(2) KLT 438 to which one among us, Pius C.Kuriakose, J. was also party. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the pleadings in this case as well as the order passed by the Rent Control Court and the judgment of the Appellate Authority. We have made a survey of the evidence to the extent the same is necessary for deciding whether the judgment of the Appellate Authority is vitiated by any illegality, impropriety or irregularity warranting correction RCR. No. 93/07 - 14 - within the contours of the revisional jurisdiction under section 20 of Act 2 of 1965. 7. We are unable to agree with the senior counsel Mr.T.P.Kelu Nambiar when he argues that eviction ground under clause (iii) of sub-section 4 of Section 11 will stand established only if it is proved that the partnership firm by name C.M.Mathew and Brothers put up the three storied building on Ram Mohan Road. According to us, in order that eviction ground under clause (iii) of sub-section (4) of Section 11 is established against a tenant what is required is either that the tenant has already in his possession a building or that the tenant subsequently acquires possession of a building or that the tenant puts up a building – in all the above instances the building should be reasonably sufficient for the tenant's requirements in the same city, town or village. As for the present case, the instances which may be relevant are instances 2 and 3 above, i.e., subsequent RCR. No. 93/07 - 15 - acquisition of possession or putting up of a building. Even if the tenant himself or somebody else is in possession of the building put up by the tenant, the tenant will entail the liability for eviction under section 11(4) (iii). Acquisition of possession by tenant of a building put up by the tenant or a building put up by somebody else as lessee or under some other arrangement will also visit the tenant with liability for eviction. In the instant case, the Appellate Authority has pointed out several circumstances which lends support to the landlord's allegation that the new building of Ram Mohan Road was put up by C.M.Mathew, C.M.Paul and C.M.Joy, the admitted partners of C.M.Mathew and Brothers, such as acquisition of the plot first, assignment of fractional interest in the plot to their own kith and kin, the admitted construction of the building by the partners of C.M.Mathew and Brothers also, are some of them. Strong reliance is placed by Mr.Nambiar on Annexure – A4 property tax RCR. No. 93/07 - 16 - assessment register pertaining to the building put up on Ram Mohan Road. We don't think that Annexure – A4 relates to the assessment of the newly put up building on Ram Mohan Road for the first time. Annexure – A4 at any rate, does not disclose the names of the persons in possession. In fact, Annexure – A4 mentions names of nine persons including the three partners Sri.C.M.Mathew and Brothers as the owners of the building and appears to suggest that the owners themselves are in possession of the building. This cannot be correct since admittedly Dhanalakshmy Bank is in possession of the first floor of the three storied building. There is evidence in this case to hold that the construction of the ground and the first floors were completed before 3-2-1998 when Ext. A5 lawyer notice was sent on behalf of the landlord to the tenants. Question as to who constructed the building and who leased out the first floor of the building to Dhanalakshmy Bank are all of RCR. No. 93/07 - 17 - importance in this case for deciding whether the partners of C.M.Mathew and Brothers, the defacto tenants of the petition schedule building are liable to be evicted on the ground under clause (iii) of sub-section (4) of Section 11. We feel that the authorities below ought to hold further enquiry and get correct answers to the above questions. 8. The above discussions lead the revision petition to the following result: The judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioners on the ground under clause (iii) of sub-section (4) of Section 11 is set aside. That authority is directed to hold further enquiry into the question as to whether the revision petitioners- C.M.Mathew & Brothers, Partnership Firm or its Partners C.M.Mathew, C.M.Paul and C.M. Joy came to have possession of the three storied building which is subject matter of Annexure-A4 property tax assessment register, at RCR. No. 93/07 - 18 - any point of time. In holding the above enquiry the Appellate Authority should have regard to the following and other relevant questions: (a) In whose favour did the local authority issue building permit and approved plan for the construction of the above building? (b) Who carried out the construction of the building by investing funds? (c) In whose favour did the local authority assess the building initially to property tax? (d) Who all are the persons presently in possession of the various portions of the three storied building? When and how each of them came to have possession? The Appellate Authority will permit both sides to adduce evidence for substantiating their rival positions regarding the crucial questions as to who constructed the RCR. No. 93/07 - 19 - building and as to who came to have possession of the building immediately upon construction. The nature of evidence to be permitted should be mostly documentary. If it becomes absolutely necessary, the Appellate Authority can permit adduction of oral evidence also. Revised judgment will be passed by the Appellate Authority in the appeal within a maximum period of four months from the date of receipt of records. The parties will enter appearance before the Rent Control Appellate Authority on 31st October, 2009. Transmit the lower court records forthwith to the Appellate Authority. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-