IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 CRP.No. 234 OF 1997(F) ---------------------- RCA.174/1994 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.264/1993 OF ADDL.MUNSIFF COURT, KANNUR REVN. PETITIONER/RESPODENT/RESPONDENT: P.M. NARAYANAN, S/O. CHANDAMAN, AGED 74 YEARS, P. CHANDAMAN & SONS, BELLARD ROAD, KANUR-1. (DIED) ADDITIONAL REV. PETITIONERS: 2. P.M. SUKUMARAN, S/O. CHANDAMAN, P. CHANDAMAN & SONS, BELLARD ROAD, KANNUR-1. 3. O.K. VASANTHA SUKUMARA, W/O. SUKUMARAN, P. CHANDAMAN & SONS, BELLARD ROAD, KANNUR -1. (ADDITIONAL REVISION PETITIONERS 2 & 3 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED REVISION PETITIONER P.M. NARAYANAN AS PER ORDER DATED 15.2.1999 IN CMP NO. 614/1999.) BY ADV. SRI.T.A.RAMADASAN SRI.A.K.ALEX RESPONDENT/APPELLANT/PETITIONER: PUTHIYA KUTTIMAPPILAKATH SHALIMA, D/O. EBRAHIM, AGED 21 YEARS, AYSHABAD, NEAR KANNUR NURSING HOME, TALAP, KANNUR-2. BY ADV. SRI.A.MOHAMED MUSTAQUE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = C.R. P. NO. 234 OF 1997 = = = = = = = = = = = = = = DATED THIS, THE 4TH DAY OF SEPTEMBER, 2008. O R D E R Raman, J. This revision arises out of an order passed by the appellate authority under the Kerala Buildings (Lease & Rent Control) Act, ordering eviction under Section 11(2)(b), 11(3) and 11(4)(iii) of the above said Act. On the question which arose for consideration as to whether the legal representatives of the original tenant are entitled to protection under Section 11(17) of the Act, a Division Bench of this Court referred the same to the Full Bench for consideration. Accordingly, the Full Bench, after consideration of the question, by its order dated 31.1.2003, answered the reference that the protection under Section 11(17) of the Act is to be reckoned as a personal privilege of protection available to the tenant actually in continuous occupation from the relevant date ie., 1.4.1940 and not to his successors. After answering the above reference, the Full Bench proceeded to consider the other issues arising in the case and in so doing, affirmed the finding of the appellate authority and dismissed the revision. Aggrieved thereby, petitioners herein took up the matter in appeal before CRP 234/1997 :2: the apex court as Civil Appeal 1817/2004. The apex court, by judgment dated 21.2.2008, set aside that part of the order dated 31.1.2003 of the Full Bench dismissing the revision petition filed by the petitioners herein; however, without expressing any opinion with regard to the finding on the issue referred by the Division Bench to the Full Bench. The Apex court held that the Full Bench could have only answered the reference and remanded the matter to Division Bench for deciding the other issues arising in the revision petition on merits. Accordingly, it was ordered that the revision petition shall stand revived on the other issues and directed to be placed the same before a Division Bench, for disposal in accordance with law. Thus, the decision of the Full Bench on the question as to whether the benefit of Section 11(17) of the Act is available to the parties herein has become final as far as this Court is concerned. However, since the Full Bench proceeded to decide the matter on merits, considering the other issues, the apex court held that the matter ought to have been sent back to the Division Bench for consideration rather than the Full Bench itself deciding the same as the reference was only on the question regarding the applicability of Section 11(17) of the Act. It was in these circumstances, that the matter has come up for consideration before us. 2. The rent control petition was filed by the respondent herein CRP 234/1997 :3: (landlady) seeking eviction of the tenanted premises. The first petitioner herein was the sole respondent in the rent control petition. It was urged in the rent control petition that the petition schedule building originally belonged to one Sivakumar Shantilal Kanji Kanaiya who assigned his jenm right over the same to the respondent herein as per document dated 6.3.1991 and the building thus belonged to her. The petition schedule building was taken on lease by the first petitioner herein for a monthly rent of Rs.100/- as per the rent deed executed on 3.2.1982. After the respondent herein obtained assignment of right in the building from the original owner, due intimation was given to the revision petitioner about the transfer of ownership of the building in her favour, apart from payment of rent, the first petitioner was also liable to pay property tax payable to the Municipality. The rent was paid only up to March, 1991 and thereafter, he willfully kept the same in arrears in violation of the terms of the agreement. It is also urged that the respondent/landlady needs the building bona fide for occupation of her husband Dr. Mustafa Mohamed who decided to set up a clinic cum medical shop in the petition schedule premises which is eminently fit for the said purpose. It is further urged that the landlady's husband is dependent on her and neither she nor her husband owns any building in their possession and according to her, the first petitioner herein CRP 234/1997 :4: has got another building in the same locality which is reasonably sufficient and adequate for his requirement. In spite of notice, no vacant possession was given and hence the rent control petition was filed. It is also averred that there is no merit or substance in the allegations raised in the reply notice sent by the tenant that the tenancy commenced in 1919 and the tenancy is in favour of the firm and bona fide need is false etc. According to the landlady, the tenancy commenced only in 1982 and the coolichit (Rent deed) was executed by the revision petitioner in his personal capacity and not for the firm. The further contentions in the reply notice are also denied. 3. In the counter statement filed by the revision petitioner/tenant, the allegations made in the rent control petition was denied. The relevant portion of the preamble to the rent deed was extracted and contended that the same is only a renewal done. It is admitted that the plaint schedule property was taken on lease by one Chandaman, the father of the tenant/respondent as per a registered document who started a cloth shop therein under the name and style 'Chandaman and Sons'. In 1941 Chandaman died, his children continued the business and in 1951 they entered into a partnership under the same name and style. The partners of the firm were, P.M. Narayana, P.M. Sukumaran and P.M. Govindan and CRP 234/1997 :5: after the death of P.M. Govindan, his son Reghuthaman was inducted as a partner. The managing partner of the firm is P.M. Narayanan, who executed a renewed rent deed in the name of Shantilal Kanji Kanaiya, son of Kanji Shivji in his capacity as managing partner of the firm and the legal heirs of Chandaman who formed themselves into a partnership are the tenants of the building. The present petition filed as if P.M. Narayanan is the tenant of the firm has no merit and the tenancy commenced from 1919 onwards in the hands of the original tenant Chandaman and on his death his legal heirs continued the same and hence they are entitled to the protection of Section 11(17) of the Act. It is admitted that rent is in arrears and they expressed their willingness to pay the same. It is alleged that the landlady has other buildings of her own for the needs of her husband and the petition schedule building is ill-suited for the purpose of running a clinic. The allegation that the tenant has acquired another building in the locality is denied. Building No. CC 940 was also one obtained by Chandaman in the year 1934 from Kanji Shivji in which an Umbrella shop by name "P.M. Govindan & Brothers" is conducting. Hence Section 11(4)(iii) of the Act is not applicable. It is alleged that the tenant was carrying on his business in petition schedule premises for several decades and there are no convenient premises available in the locality. They prayed that the rent control petition CRP 234/1997 :6: be dismissed. 4. The evidence in the case consists of the oral testimony of PWs 1 and 2 and Exts.A1 to A4 on the side of the rent control petitioner and Exts.B1 to B41 besides the oral testimony of RW1, examined on the side of the respondent. After considering the evidence on record, the Rent Control Court found that there is no arrears of rent in respect of the petition schedule building, that the rent control petitioner is not entitled to get vacant possession of the petition schedule building under Section 11 (2) (a) (b) of the Act and that the claim put forth by the petitioner is not bona fide and hence the eviction sought under Section 11(3) was also declined. It was also held that the allegation that the petitioner is having a building in her possession is admitted when examined as PW.1 and hence even if bona fide need is proved, no eviction can be ordered, that since the tenant is conducting a textile shop in the tenanted premises and in the absence of any evidence to show that they are having any other source of income for their livelihood, they are entitled to the benefit of the second proviso and that there is no suitable building available in the locality for the tenant to carry on the trade. Thus, the benefit of both the limbs of the second proviso was found in favour of the tenant. Turning to the ground under Section 11(4) (iii) of the Act, it was found that it is the admitted case of the CRP 234/1997 :7: respondent/tenant that they are having a building adjacent to the petition schedule building which they took on lease wherein an umbrella shop was started in the name and style "P.M. Govindan & Brothers", which is a sister concern of " P. Chandaman & Sons", but the other building was not subsequently acquired and hence Section 11(4)(iii) is not attracted. 5. The Appellate Authority re-appreciated the evidence on record and found that some of the finding of the Rent Control Court is perverse. After referring to the pleadings and after referring to the evidence on record, it proceeded to answer the formulated questions for consideration. Ext.A1 is a kychit dated 3.2.1982 executed by the respondent in the Rent Control Petition in favour of the predecessor in interest of the landlady, based on which the present claim has been put forward. It was the specific contention of the landlady that the building originally belonged to Sivakumar Shantilal Kanji Kanaiya who assigned the jenm right in respect of the same in her favour as per document dated 6.3.1991 and intimation in this regard was also given to the tenant as per Ext. B1 to which he replied as per Ext. B2. The respondent/tenant contended that Ext.A1 is only a renewal deed executed by him for and on behalf of P. Chandaman & Sons and he was only a managing partner of the firm. His case is that the building was taken on lease by his father Chandaman on a rent of Rs. 12/- for the CRP 234/1997 :8: purpose of conducting textile business, that in 1941 Chandaman died, that thereafter the business was continued by his children and in 1951 they entered into a partnership arrangement under the name and style "P. Chandaman and Sons", that P.M. Narayanan, P.M. Sukumaran and P.M. Govindan were the three partners of the said firm, and that when P.M. Govindan died, his son Raghoothaman was inducted as a partner. The contention that rent is in arrears from 1991 onwards is admitted but it was contended that rent was paid by Money Order to the present landlady who received the same till 9.4.1991; but thereafter it was returned. Ext.A1 was executed in favour of the predecessor in interest of the present landlady and it was found that it is only a renewal of the existing tenancy enhancing the rate of rent to Rs. 100/- per month, that Ext. B3 receipt also evidences receipt of rent for and on behalf of "P. Chandaman & Sons" on 9.4.1991 and hence there was no justification for refusal of the rent thereafter, that subsequent to Ext.A3 notice, rent at the rate of Rs. 100/- was in arrears and hence there is arrears of rent and the claim for eviction under Section 11(2) (b) is to be sustained. Turning to the bona fide need alleged under Section 11(3) it was found that the landlady actually wanted the building for her husband Dr. Mustafa Mohammed who was examined as PW.2 who wanted to set up a clinic-cum-medical shop who was depending on her and that CRP 234/1997 :9: there was no other building available either with the landlady or with her husband. The landlady gave evidence as PW.1 in support of her plea and PW.2 her husband was also examined to corroborate the testimony of PW.1. It was found in evidence that PW.2 completed his house surgency in March, 1993 and he joined Ashirvad hospital during May, 1994, that he was fetching only a salary of Rs. 3,000/-, that he had no other building available in his possession and the petition schedule building is suitable for conducting a clinic. The fact that PW.2 joined the hospital was found to be only as a temporary measure and the intention to start practice of his own was found bona fide and hence the bona fide need as alleged was found in favour of the landlady. Turning to the proviso to Section 11(3) it was found that the allegation was only that the landlady was having another building; but absolutely no evidence is adduced to substantiate the same except some suggestions made by RW.1. and therefore, in the absence of any concurrent evidence, it was found that the first proviso to Section 11(3) cannot be pressed into service by the tenant to deny the eviction sought for. As regards the second proviso is concerned, it was found that the firm was the tenant duly approved and not the respondent, as arrayed in his individual capacity. But being a managing partner, he represents the firm which was carrying on the business under the name and style "P. CRP 234/1997 :10: Chandaman & Sons". In the adjacent room also, the selfsame partners were conducting business and the testimony of RW1 in this regard is that one account is being maintained for both the establishments for the purpose of income tax and that both the business are conducted by the same partners. Therefore, on the admitted facts, when the other business is also conducted by the same firm, the burden is on the tenant to show that the main source of income earned by the firm is the one derived from the business that is conducted in the petition schedule premises, to avail the benefit of the first limb of the second proviso. In the absence of any positive evidence it was found that the first limb of the proviso was not proved by the tenant to claim any benefit thereunder. It also held that the insufficiency of the other building is not proved by the tenant and so the tenant is not entitled to retain the scheduled premises simultaneously with the other building and thus liable to be evicted under Section 11(4)(iii) of the Act as well. Accordingly, reversing the order passed by the Rent Control Court, the Appellate Authority ordered eviction against which the present revision is filed. 6. We have heard both sides. Learned counsel for the revision petitioner limited his submission to the following points: CRP 234/1997 :11: (i) The alleged dependency for the building on the landlady by the husband is not pleaded or proved and hence the eviction under Section 11 (3) ought to have been rejected. (ii) The other building referred to as possessed by the tenant is wrong since the other building is possessed of another firm constituted by the legal heirs of late Chandaman and an umbrella business is in existence even at the time of the commencement of the tenancy of the present building in question and hence not a subsequent acquisition. 7. We may now consider the points thus urged. We have gone through the pleadings in the Rent Control Petition. In para 4, it is specifically pleaded as follows: "Further, the petitioner needs the building bona fide for occupation of her husband Dr. Mustafa Mohamed. He intends and has decided to set up a Clinic cum Medical Shop in the petition schedule building which is eminently fit for the same. Dr. Mustafa Mohamed is dependent on the petitioner. Neither the petitioner nor her husband has any building in their possession. The need of Sri. Mustafa Mohamed is genuine and bona fide and urgent. The petitioner is at present temporarily attending for treating patients at the up stair portion of the building provided by the Medical shop R.K. Medical, Edakkad." 8. PW1 is the father of the landlady. He has deposed that the building is needed by the husband of the landlady who is a doctor by CRP 234/1997 :12: profession. It is for starting a clinic for him that the need has arisen. Thus the father - in - law says that his son-in-law needs the building for starting a clinic. PW.2 is the husband of the landlady for whom the building is needed. He says that he is an M.B.B.S. Doctor. He has been working in other hospitals and at the time of examination he was working in Asirwad Hospital on a temporary basis. he has an idea to start a clinic of his own and for that purpose the tenanted premises is very much needed and suited for the purpose. 9. Therefore, the contention that dependency is not pleaded is clearly wrong. The need for the building for starting a clinic by PW.2 is spoken to by PW.2 himself besides the father of the landlady PW.1. May be that the very sentence in the pleading that the landlady's husband is dependent on her for the building as such is not stated in the evidence of PWs 1 and 2; but the evidence as a whole read in the context, leaves no room to doubt that the husband is really dependent on the land lady (his wife) for the building to start a clinic. There is no case for the tenant that PW.2 the husband of the landlady has any other building owned or possessed by him and suited for running a clinic and no evidence is also adduced. In these circumstances, we are of the opinion that the need for the building by the husband of the landlady for starting a clinic is not only pleaded but also CRP 234/1997 :13: proved and the finding by the two authorities below is not at all perverse. No reason is made out to upset such a concurrent finding of fact. 10. The learned counsel placing reliance on the decision in Janki Vashdeo v. Indusind Bank (2005(2) KLT 265 (SC) contended that the landlady herself has not mounted the box to speak of the dependency or the need for the building. We have gone through the above decision of the apex court. In that case, the question arose for consideration was as to whether the word 'act' to perform as authorised by the principal as per a power of attorney clothes with him the power to depose in evidence for and on behalf of the principal and it was held that the word 'act' cannot include any such power and the person having knowledge of a fact by himself is to depose before the court and can not authorise somebody to depose such fact as that somebody is not and cannot speak from his knowledge. But here the very person for whom the building is needed namely, PW.2 is examined. PW.1 is the father of the landlady who was also examined. Thus, both of them are persons having direct knowledge of what they depose. Hence the above ruling on facts has no application. 11. Thus, we find the landlady has established the bona fide need as pleaded. The tenant is held by both the courts below as not entitled to the benefit of the second proviso as he has not discharged his burden of proving CRP 234/1997 :14: the same and the above findings were not seriously disputed or successfully challenged before us. We therefore confirm the order of eviction passed under Section 11(3) of the Act. 12. As regards the ground urged under Section 11(4) (iii) of the Act, it is the case of the landlady that the tenant has acquired another building in the same locality, which is reasonably sufficient and adequate for his requirement. In the counter statement filed by the tenant, it is averred that the tenancy in respect of the building commenced in 1919 as per a registered lease deed, and the tenant was one Chandaman who started a business under the name and style "Chandaman & Sons". It was run as a family business and after the death of Chandaman, his legal heirs conducted the business after forming a partnership by his three sons. After the death of one of the sons, his son was inducted and thus the business continued in tenancy without interruption. Of course, there was a renewed lease deed executed subsequently by the revision petitioner herein as the managing partner of the firm, enhancing the rent. In para 8 of the counter statement, it is denied that the tenant has acquired any other building in the locality sufficient or adequate for his purpose and the building to which reference is made is Building No. C.C. 940 which was also one obtained by Chandaman in 1934 from Kanji Shivji, where an umbrella business is conducted in the CRP 234/1997 :15: name and style "P.M. Govindan and Brothers", which is also a partnership business. Therefore, Section 11(4) (iii) is not attracted. According to the tenant, both are adjacent rooms and the nature of business conducted is different. But there is no dispute that the partners are the same. According to them, the business being different and the mere possession of the other building by the same partners for yet another business will not attract Section 11(4)(iii) of the Act. In this connection, the appellate authority entered a finding that the tenant has not discharged his burden to establish that the other building is not sufficient for his requirement when it is shown that the tenant is in possession of another building as well. It was also held that the tenant had in his possession a building, reasonably sufficient for his requirement and relying on the evidence of RW.1 it was held that the other building was acquired in 1934 indicating that it is a subsequent acquisition. The rent deed of the year 1934 is not produced; but the fact remains that the firm is in occupation though the business is run under a different name. The Rent Control Court, on the other hand, found that the other room was acquired in the very same locality, after the commencement of the tenancy in respect of the tenanted premises in question. It was also found that the partners of both the business are one and the same and that they are conducting the business for several decades and in that view of the matter, CRP 234/1997 :16: it was held that it cannot be characterized as a new business acquired by the respondent and therefore, negatived the contention of the landlady and