IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 RCRev..No. 222 OF 2008() (R.C.A 27/2001 OF THE RENT CONTROL APPELLATE AUTHORITY, KOLLAM) (RC (OP) 27/1997 OF THE RENT CONTROL COURT, KOLLAM) APPELLANT SUBRAMANIYAN PILLAI, MANAGER, M/S. K.V. MANAGARAM AND COMPANY, CHAAMAKKADA, HOSPITAL ROAD, KOLLAM. BY ADV. SRI.E.K.NANDAKUMAR RESPONDENTS/RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 10: 1. M. SHAMSAR JIHAN, D/O.MOHAMMED KUNJU, HONEY DEW, T.C, 3/349, MUTTADA, TRIVANDRUM. 2. M. RAJEES JIHAN, D/O. MOHAMMED KUNJU, HONEY DEW, T.C 3/349, MUTTADA, TRIVANDRUM. (IST AND 2ND RESPNDENTS ARE REP. BY THEIR P/A HOLDER S. UMAIBA BEEVI, W/O. MUHAMMED KUNJU, HONEY DEW, TC 3/349, MUTTADA, TRIVANDRUM. 3. JAWAHAR KHAJA BEEDI MERCHANT, HOSPITAL ROAD, CHAMAKKADA, KOLLAM. 4. GEORGE ABRAHAM, S/O.P.V. ABRAHAM, PATHERIL VEEDU, THEVALLY, KOLLAM. 5. BEENA, D/O.P.V. ABRAHAM, PATHERIL VEEDU, THEVALLY, KOLLAM. 6. ISSAC, S/O. P.V. ABRAHAM, PATHERIL VEEDU, THEVALLY, KOLLAM. 7. SHERRU K. MATHEW, ROYA COFFEE WORKS, CHAMAKKADA, KOLLAM. RCR 222/2008 2 8. ROYA COFEE WORKS, REPRESENTED BY ITS MANAGING PARTNER, SHIBU K. MATHEW, KAKKUZHIYIL HOUSE, MUTTAMBALAM, DEVALOKAM, KOTTAYAM. 9. SUHARA BEEVI, W/O. YOUNUS KUNJU, NOUSHAD MANZIL, THIKKADAVOOR, MURANTHAL. 10. R.K HARDWARES, REPRESENTED BY ITS PARTNER, R. RADHAKRISHNAN, S/O. RAMAKRISHNA PILLAI, PADMA BHAVAN, KOTTAKKAKOM, KOLLAM. 11. P.A. PHILIP, PHILIP MUSIC, CHAMAKKADA, KOLLAM, RESIDING AT SRUTHI QUARTERS, CHERUMOODU, VELLIMON. 12. PRABHAKARAN, MANAGER, KHADI CO-OPERATIVE SOCIETY, HOSPITAL ROAD, KOLLAM, RESIDING AT ASHOK BHAVAN, PALAKKAL MURI, THEVALAKKARA VILLAGE. R1 & 2 BY ADVS. M/S. R.D.SHENOY (SR.), RAJA VIJAYARAGHAVAN, M.T. SURESH KUMAR & R. RANJITH. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25/11/2008, ALONG WITH R.C.R. 223/2008 AND OTHER CONNECTED CASES, THE COURT ON 19.12.2008, PASSED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = R.C.R. NOS. 222, 223, 224 & 238 OF 2008 = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 19TH DAY OF DECEMBER, 2008. O R D E R Raman, J. All these revision petitions are filed by the tenants occupying different shop rooms in a common structure belonging to the petitioners in the Rent Control Petition and thus, all the four revisions arises out of the same R.C.O.P. (27/1997) on the file of the Rent Control Court, Kollam. The Rent Control Court ordered eviction against which four appeals were preferred and by a common order, all the appeals were dismissed. Since there are four tenants, four revisions are filed before this Court. Thus, the subject matter of all the four revisions are the same and hence we heard all the four revisions together and dispose of by this common judgment. 2. As already stated, all these revisions arise from R.C.P. 27/1997. R.C.R. 222/2008 is filed by one Subramaniyan Pillai, who is the 11th respondent therein. R.C.R. 223/2008 is filed by George Abraham, who is the second counter petitioner in the above said case. The Revision petitioner in R.C.R. 224/2008 is the first counter petitioner and the 8th RCR. NOS. 222, 223, 224 & 238/2008 :2: counter petitioner in the above said Rent Control Petition is the revision petitioner in R.C.R. 238/2008. 3. Respondents 2 to 4 and 7 to 9 alone appealed against the order of eviction and only four of them have chosen to file revisions. The remaining parties have thus given up their claim and the order of eviction as against them has become final. 4. Respondents 1 and 2 as landlords filed the rent control petition seeking eviction under Section 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act on the material allegations as follows: They are sisters and represented by their mother and Power of Attorney Holder by virtue of the Power of Attorney dated 11.12.1979 and 17.3.1980 respectively. An extent of 21 cents of property with shop rooms bearing Nos. 8060 to 8070 (Re-survey No. 34/2, Block No. 180 measures 18,400 cents) of Kollam belonged to Umaiban Beevi, out of which northern 101/2 cents including shop room bearing Nos. 2552 to 1555 (new No. MC. 2008 to 2011) and the go down attached thereto was gifted to the first petitioner by virtue of gift deed No. 188/76 dated 27.1.1976 of SRO, Kollam, which are shown as plaint schedule items 1 to 4. The southern 101/2 cents with building bearing Nos. 1556 to 1561 (New No. MC. 2012 to 2015) and two go downs bearing Nos. 2017 and 2018 was gifted to the second petitioner by virtue of the same gift deed, which are plaint B RCR. NOS. 222, 223, 224 & 238/2008 :3: schedule items 1 to 6. Petitioners are the absolute owners and landlords of the building. Petition A schedule Item No.1 bearing No. 2008 was leased out to the first counter petitioner on 4.3.1991 (petitioner in R.C.R. 224/2008) for conducting business in 'Khaja Beedi'. Plaint A schedule item No.2 bearing No. 2009 and the godown bearing No. MC 2016 were leased out to P.V. Abraham on 4.3.1981 based on which a rent deed was executed and after his demise the tenancy right devolved upon counter petitioners 2 to 4 (Second counter petitioner is the revision petitioner in RCR 223/2008. Counter petitioners 3 and 4 are arrayed as Respondents 8 and 9 therein.) B schedule item No.1 bearing No. 2012 and the petition B schedule item No.6 go-down bearing No. 2018 was taken on lease by 8th counter petitioner (R.K. Hardwares, petitioner in RCR 238/2008) from the 2nd petitioner on 27.2.1981 on a monthly rent of Rs.250/-. Petition B schedule item No.4 bearing No. 2015 was taken on lease, as per a rent deed executed in favour of the second petitioner, by the 11th counter petitioner, which is a partnership firm represented by its managing partner Subramaniyan Pillai, who has filed RCR 222/2008. Petition schedule shop rooms and go-downs form part of a row of building facing the road on the eastern side and property on the southern side. They situate just on the western side of Hospital Chamakkada road in a most important business centre in Kollam town. There are other rows building on RCR. NOS. 222, 223, 224 & 238/2008 :4: the same and opposite sides of the road including modern multi-storeyed building adjacent to the petition schedule building. Petition schedule building is an old, out fashioned, and structurally unsound building having tiled roofs with laterate walls. The income derived from the same are too meagre when compared to the capital value of the property and in these circumstances, the landladies jointly decided to demolish the petition schedule building and to put up a multi-storeyed commercial building in its place which will be more profitable to them and also advantageous to the counter petitioners. For the said purpose, they jointly obtained approved plan, licence and permit from concerned authorities and the counter petitioners would be provided with more or less identical accommodation in the building to be put up after reconstruction. According to the petitioners, they have the ability and capacity to effect reconstruction of the building and they agreed to complete the construction by twelve months. The approved plan was shown to the counter petitioners and they were satisfied with the bonafides and agreed to surrender vacant possession of the petition schedule premises; but they have been protracting the final settlement in one pretext or other. Since they are in bona fide need of the petition schedule building for reconstruction, they issued notice to the counter petitioners/tenants demanding vacant possession and since they did not accede to the same, they filed the rent control original petition RCR. NOS. 222, 223, 224 & 238/2008 :5: seeking their eviction. 5. The first counter petitioner in the R.C.O.P. who is the revision petitioner in R.C.R. 224/2008, in his objection, mainly contended that the petition is not maintainable, that he is conducting beedi business in petition A schedule Item No.1 from 1968 onwards, after paying rent regularly, that the building is put up with laterate stones and cement and having tiled roof, that the building situates not in an important locality or business centre as alleged, that several rooms in the multi - storeyed shopping complex situates in Chinnakkada remain vacant, that petition schedule building situates two kilometres away from Chinnakkada, that the petition schedule shop room requires no reconstruction, that he had made certain repairs to the building, that the same is strong, that the northern wall of petition schedule item No.1 forms lateral support of the neighbouring shop owner and hence it is not possible to demolish the same alone, that there is no scope for reconstruction, that there is no sufficient space to reconstruct the building after leaving road margins and open space on other sides, that the petitioners have no bonafide in getting vacant possession of the petition schedule premises, that first petitioner is not residing in Kerala and she is settled in North India as her husband is a Government servant therein, that they have no ability to reconstruct the building, that there is no possibility of putting the reconstructed building for a RCR. NOS. 222, 223, 224 & 238/2008 :6: more profitable use, that there was no agreement to surrender vacant possession of the building as alleged, that the counter petitioners are depending upon the income derived from the business that is being conducted in the petition schedule premises for their livelihood, that if they are evicted, they will be put to untold hardship and loss of their business and that the petition is bereft of bonafide and is liable to be dismissed. 6. Counter petitioners 2,3,4,7,8 and 9 (Counter petitioners 2 and 8 are the revision petitioners in R.C.R. 223 and 238 of 2008 respectively) in their joint objection interalia contended among other things that the petition is not maintainable, that the second counter petitioner has been paying rent on behalf of the other counter petitioners and the rent was periodically enhanced to Rs. 525/- per month, that the petitioners refused to accept the rent for January, 1997, that when there was an attempt to evict them forcefully, a civil suit was filed, which is pending, that Ramakrishna Pillai - the father of the 8th counter petitioner took the petition B schedule item No.1 and 6 in 1970 on a monthly rent of Rs. 225/- from the prior landlord for conducting business in building materials and after his demise, it devolved upon his legal representatives and 8th counter petitioner has been conducting the business on their behalf. They jointly disputed the age of the building and contended that the building is stable and strong, that most of the building in and around of the petition schedule RCR. NOS. 222, 223, 224 & 238/2008 :7: building are also of the same nature, that the building requires no reconstruction as alleged, that the petitioners have no intention to reconstruct the building, that their only intention is to let out the shop rooms to strangers for pakidi and on enhanced rate of rent, that the existing building is befitting to the social surrounding and it does not require any reconstruction, that petitioners have no ability to re-construct the building, the contention that they have approved plan is not true, that they have no idea to reconstruct the building nor to provide identical accommodation to the tenants, that the counter petitioners were offered to provide accommodation in the underground portion, but they demanded shop rooms in the ground floor itself to carry on their business to which the petitioners did not accede, that the petitioners have other properties in the locality and town, that the counter petitioners are solely depending on the income from the business in the petition schedule building and they have no other building for their accommodation and besides they will cause undue hardship if they are evicted, that the petition is devoid of merit and the same is to be dismissed. 7. The 11th counter petitioner, who is the revision petitioner in RCR 222/2008 filed a separate objection, contending that the R.C.O.P. is not maintainable, that the shop rooms and godown did not form part of a row of building, that there are 11 tenants occupying various shop rooms in different RCR. NOS. 222, 223, 224 & 238/2008 :8: buildings and hence the petition framed as such is not maintainable, that the power of attorney has no manner of right to institute the petition on behalf of the landladies, that the petition has been filed against the provisions of the Building (Lease & Rent Control) Act and Rules, that petition B schedule item No.4 was taken on rent by the partnership firm in March, 1981, that he admits the landlord-tenant relationship between himself and the petitioners, that the building is not in an important business locality as alleged, that the allegation that there are multi storeyed buildings near the petition schedule property is denied, that the building is not 100 years of old as alleged and it has strong roof and side walls and it needs no reconstruction, that the averment that petitioners are getting only meager income by way of rent from the petition schedule premises is wrong, that their intention is to build up a multi-storeyed building, that the petitioners did not partition the property or did they produce consent deed relating to the building and and the nature and location of the shares in the proposed building, that they did not obtain plan and licence for reconstruction, that they did not provide identical accommodation to the tenants in the building, that no other suitable building available for them to shift their business, that they have invested more than 30 lakhs in the business which is their main source of income, that they would be put to untold hardship and loss in case their business place is shifted, that the petition is a pretext for RCR. NOS. 222, 223, 224 & 238/2008 :9: eviction and that the petitioner's intention is to dispose of the property on higher price. 8. In the additional objection filed by the 11th counter petitioner, it is contended that Subramanian Pillai is not the Managing Partner of K.V. Mankaran and Company, he is only a manager of the company, partners to the firm are necessary parties to the petition, the petition is filed under Order Order XXX of the Code of Civil Procedure, that the managing partner Velayudha Pillai is no more, that the petitioners were aware of this fact and that the petition is bad for non joiner of necessary parties. 9. The evidence in the case consists of the oral testimony of PWs 1 and 2 and Exts.A1 to A25 on the side of the petitioners and Ext. B1 and the oral testimony of CPW.1 to CPW 3 on the side of the counter petitioners. Court Exhibits C1 and C2 were also marked. 10. The Rent Control court raised an issue regarding the maintainability of the petition and it was held that the petition is maintainable. It was also found that the landlord-tenant relationship and the rate of rent are admitted and that petition A schedule items 1 to 4 and B schedule 1 to 6 were let out to counter petitioners 1 to 11 and others for conducting various business. It was also found that the managing partner of the 11th counter petitioner M/s. K.V. Mangaram & Company has accepted notice after convincing that it has RCR. NOS. 222, 223, 224 & 238/2008 :10: been issued to the Company and thereafter he filed objection on behalf of the Company and the partners authorized him to contest the proceedings on their behalf and that he has been paying rent on behalf of the firm to the petitioners. 11. Since the objection was filed by CPW.3 representing the firm, it was held that even without other partners in the party array, the firm has been properly represented and the petition is well maintainable. It was further held that the contention regarding non joinder of necessary parties as raised by the other counter petitioners was not explained further to support their contention, that counter petitioners 2 to 4 are holding tenancy as joint tenants and there is substantial representation and therefore, the allegation of non joinder of necessary parties to be rejected. Though the 11th counter petitioner contended that the power of attorney holder has no authority to sign the petition, the court below did not accept the same and after referring to Section 11 (16) of the BRC Act, it was held that the said provision empowers the agent to apply for eviction with the written consent of the landlord, that Ext.A1 is the power of attorney executed by the second petitioner and that Ext.A2 is the power of attorney executed by the first petitioner, authorising PW.1 to let out the petition schedule premises, to receive rent from the tenants, conduct legal proceedings, apply for eviction etc. Thus Exts.A1 and A2 were held valid authorisation as provided under the Act and following the dictum laid down in Aravind v. RCR. NOS. 222, 223, 224 & 238/2008 :11: Raghavan (2000(1) KLJ 242) it was held that the power of attorney is well authorised to file application for eviction as per the clause contained in the power of attorney and so the petition was held maintainable. 12. Nextly, it was contended that the petition schedule building consisting of many shop rooms and different structures and a single petition for eviction on the ground of re-construction is bad for mis-joinder of cause of action. It was found that only the 11th counter petitioner has set up such a contention. The first counter petitioner, on the other hand, contended that petition A schedule item No.1 is part of a single building having eleven rooms. The Commissioner appointed by the court visited the premises, filed a report Ext.C1 and a mahazar Ext.C2 which reveal that the entire shop rooms form part of a single structure facing the road on the eastern side. The Commissioner was examined as PW.3 who deposed that all the building are under the same roof having tiled and asbestos sheet roofing, the eves of which are joined with the sheets. Cross examination of CPWs 1 to 3 brought that the shop rooms and the godowns are having common wall over which they situate. It was held that Ext.A11 series would reveal the intention of the petitioners to demolish the entire structure to which the petition schedule form part and to effect reconstruction. Ext.A11 series are the approved plan in respect of the proposed building and Exts.A12 and A13 are the building permit and the extension order RCR. NOS. 222, 223, 224 & 238/2008 :12: and therefore, the petition for eviction on the ground of reconstruction of the entire building is not bad for misjoinder. 13. The Rent Control Court, after analysing the entire evidence in the matter held that the petitioners are in bona fide need of the petition schedule building for reconstruction and hence entitled for an order of eviction. In the result, the petition was allowed on the ground of bona fide requirement to reconstruct the building. 14. Challenging the said order of eviction, R.C.A. 25/2001 was filed by Counter petitioners 2, 3, 4, 7, 8 and 9. The Manager of the 11th respondent filed R.C.A. 27/2001. The Appellate Authority disposed of both these appeals by a common judgment dated 5.8.2008, concurring the findings of the Rent Control Court and dismissing the appeals. The appeal filed by the first counter petitioner as RCA 33/2001 also ended with the same fate. 15. The 1st and 5th appellant in R.C.A. 25/2001 filed separate revision as R.C.R. 223/2008 and R.C.R. 238/2008 respectively before us and the appellant in R.C.A. 27/2001 has filed R.C.R. 222/2008. The revision petitioner in R.C.R. 224/2001 is the appellant in R.C.A. 33/2001. 16. We may notice that even though RCA 25 & 27/2001 and R.C.A. 33/2001 were disposed of by two separate judgments by the same Appellate Authority, the points considered and decided are the same. It is against those RCR. NOS. 222, 223, 224 & 238/2008 :13: orders, that the present revisions are filed and various contentions are raised in the course of arguments. 17. We have heard the learned Senior counsel Sri. Govind K. Bharathan, appearing on behalf of the revision petitioner in R.C.R. 238/2008, Sri. A.M. Shaffique, Senior counsel appearing on behalf of the petitioners in R.C.R. 222/2008, learned counsel Sri. P.B. Suresh Kumar, appearing on behalf of the petitioners in R.C.R. Nos. 223 and 224/2008 and Senior counsel Sri. R.D. Shenoy appearing on behalf of the respondents in the above revision petitions. 18. The learned counsel Sri. P.B. Suresh Kumar, appearing on behalf of the petitioner in R.C.R. 224/2008 contended that the requirement of the landlord to reconstruct the building is not bona fide and the proposal to reconstruct the building is a ruse for eviction. Bona fide being a state of mind, the same can be proved only by examining the person who procured it by that sense and so the best evidence is that of the person who needs the building to be reconstructed. Reliance is placed on the decision of this Court in Shaji v. Reghunandanan (1999(3) KLT SN 82), Ratheesh Kumar v. Jithendra Kumar ( (2005(2)KLT 669) and Joseph Mathew v. Jose Thomas (2005 (4) KLT 764). In so far as the landlord has not come to the box for giving any such evidence, an adverse inference has to be drawn against the case set up by her. He seeks support on the decision of the Apex Court in Vidhyadhar v. RCR. NOS. 222, 223, 224 & 238/2008 :14: Manikrao (1999(3) SCC 573). It is also contended that instead of the landlord, the Power of Attorney holder gave evidence as PW.2 and challenging the bonafides of the landlord, suggestions were also made in the cross examination of PW.2. The non examination of the landlord in the absence of any satisfactory explanation, is according to him, fatal to the very plea raised regarding bonafides. Learned Senior Counsel M/s. Govind K. Bharathan and A.M. Shaffique appearing for the petitioners in the connected revision petition, in support of the contention so raised, points out that as per the provisions contained in Section 11(4) of the Act besides the condition of the building the landlord should further show that he bonafide requires the building to be reconstructed. That such bona fides cannot be proved otherwise than by examining himself (by the landlord) and at least swears by oath that he bonafide requires the building to be reconstructed so that the testimony can be tested in the cross examination and the evidence assessed by the court. Per contra, Sri. R.D. Shenoy, Senior counsel appearing on behalf of the respondents landladies would contended that the landladies have proved that the building is in a dilapidated condition besides produced the approved plan for the proposed new building and also proved their ability to put up the new building as proposed and hence the bona fide requirement for reconstruction is beyond any scope for doubt. According to him, the Power of Attorney holder examined as RCR. NOS. 222, 223, 224 & 238/2008 :15: PW.2 is none other than the mother of the landladies to whom the building belonged and gifted to her daughters in equal proportion. 19. Before we advert to the rival contentions, we may now refer to Section 11(4)(iv) and the factors to be proved for securing an order of eviction thereunder. As per Section 11(4)(iv), landlord can apply for an order of eviction 'if the building is in such a condition that it needs reconstruction and if the landlord requires bonafide to reconstruct the same and if he satisfies the court that he has the plan and licence if any required and ability to rebuild and the proposal of reconstruction is not made as a pretext for eviction".