IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 RCRev..No. 29 of 2011(E) ----------------------- RCA.95/2008 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.154/2006 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANT/2ND RESPONDENT ---------------------------------------------------------------- THERESA ALEX, D/O.MANI ALEXANDER, AGED 44 YEARS, G-59 (CC 40/5344 G), CRYSTAL COMMERCIAL COMPLEX, NEAR HIGH COURT JUNCTION, BANERJI ROAD, ERNAKULAM, KOCHI - 31. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENTS : RESPONDENTS/PETITIONERS & RESPONDENTS NOS.1 & 2 -------------------------------------------------------------- M/S.SOUTHERN FISHERIES CORPORATION, CRYSTAL PALACE COMPLEX, BANERJEE ROAD, ERNAKULAM, KOCHI - 35, A PARTNERSHIP FIRM, REP. BY ITS PARTNERS: 1.DR.E.T.KURIAKOSE, S/O.THOMAS, AGED 83 YEARS, RESIDING AT NETRA BHAVAN, KARAKKATTU ROAD, ERNAKULAM - 682 016. 2. DR.THOMAS KURIAKOSE, S/O.E.T.KURIAKOSE, AGED 50 YEARS, RESIDING AT DO. DO. 3. M.P.UDAYAKUMAR, S/O.C.ACHUTHA KURUP, AGE NOT KNOWN, PROPRIETOR, SILCON A/C COACHES, G-60, 40/5344 A2, CRYSTAL COMMERCIAL COMPLEX, BANERJI ROAD, KOCHI - 31. 4. SAJAN JOSEPH, S/O.V.M.IYPE, AGED 54, G-59, (CC 40/5344 G), CRYSTAL COMMERCIAL COMPLEX, NEAR HIGH COURT JUNCTION, BANERJEE ROAD, ERNAKULAM, KOCHI - 31. ADV. SRI.K.C.CHARLES FOR CAVEATOR SRI.K.C.CHARLES FOR R1 &2 SRI.M.POLY MATHAI FOR R1 &2 SRI.VIMAL K.CHARLES FOR R1 &2 SRI.E.N.HARI FOR R1 &2 SRI.P.CHELLAPPAN FOR R1 &2 SMT.A.T.RENJU FOR R1 &2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/11/2011, ALONG WITH RCR NO.38 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** R.C.R No.29 & 38 of 2011 ***************************** Dated this the 14th day of November, 2011 ORDER BASANT, J. Tenant is the revision petitioner. She assails the impugned common order of eviction directing surrender of possession of 2 adjacent rooms under Section 11(3) of the Kerala Buildings (Lease and Rent Control Act, 1965 (`the Act' hereafter). 2. The landlord, a partnership firm, by name “Southern Fisheries Corporation” represented by 2 partners staked the claim for eviction, inter alia, under Section 11(3) of the Act. For our purpose in this revision petition, it is unnecessary to refer to the claims staked under Section 11(4) (i), 11(4)(ii) and 11(2), which were all disallowed by the Rent Control Court. The landlord, a partnership firm represented by two of its partners, claimed that they were in bonafide need of the petition schedule building for the purpose of starting a business - sale of optical instruments, spectacles, lenses and frames etc. The partners, who filed the petition for eviction, are a father and son duo. The first one, the father, was aged 79 years when the petition was filed in 2006. His son, the second partner who filed the petition, R.C.R No.29 & 38 of 2011 2 was aged 46 years. It was contended that the partnership was in bona fide need of two shop rooms of the ground floor of a larger building for the purpose of undertaking the said business activity. 3. The tenant resisted the claim for eviction. We repeat that we are referring only to the claim under Section 11(3) of the Act. The alleged bona fide need was disputed. The protection of the second proviso to Section 11(3) was also claimed by the tenant. 4. The parties went to trial on these contentions. PWs 1 to 3 were examined and Exts.A1 to A10 were marked on the side of the landlords. On the side of the tenants, RWs 1 to 4 were examined and Exts.B1 to B7 were marked. C1 and C2 court exhibits were also marked. 5. The rent control court came to the conclusion that the landlord partnership has succeeded in establishing the claim for eviction under Section 11(3) of the Act and had failed to establish its claim for eviction under Section 11(4)(i), 11(4)(ii) and 11(2) of the Act. The tenant was not entitled to the protection of the second proviso to Section 11(3), it was held. The claim of the tenant for protection under Section 11(9) was R.C.R No.29 & 38 of 2011 3 also turned down by the rent control court. 6. In appeal, the appellate authority found that the order of eviction passed under Section 11(3) does not warrant interference. Accordingly the appellate court proceeded to pass the impugned judgment upholding the claim for eviction under Section 11(3). 7. Arguments have been advanced before us by the learned counsel for the revision petitioner/tenant and the respondent/landlord. Though various contentions have been urged, decision in the revision petition would revolve around the question as to whether the alleged bona fide need has been established by the landlord. It is true that two courts concurrently have come to the conclusion that the landlord has established his bona fide need. 8. The tenant assails the impugned concurrent order of eviction under Section 11(3) of the Act on the following grounds: i) Court below erred in coming to the conclusion that the alleged need of the landlord is bonafide to satisfy the requirements of Section 11(3) of the Act; ii) The subsequent events must impress this Court that the alleged need is not bonafide. R.C.R No.29 & 38 of 2011 4 9. It is unnecessary to refer specifically to precedents. The burden is entirely on the landlords to establish that their claim is bonafide. The concept of bona fides brings with it a train of allied connected concepts. The claim must be honest, genuine, true, fair and sincere. It is for the landlord to satisfy the authorities by placing all relevant circumstances that the claim for eviction staked by him under Section 11(3) satisfies the fundamental requirement of bonafides. The claim of the landlords will have to be appreciated fairly and reasonably without any unjustified doubt, suspicion or distrust. But at the same time it will have to be zealously ensured that what is projected is not a mere possible requirement, a possible claim or a possible desire of the landlords. Authorities must be satisfied that the claim in addition to all the above requirements is also bona fide and a bona fide need is clearly established. 10. In the instant case, the evidence reveals beyond the shadow of doubt that the first partner, who represented the firm is of advanced age and he cannot himself run the proposed business. He runs an eye hospital. It is evident from the materials on record that he has entrusted the same with others to run the same. In short, his position in life is such that he will R.C.R No.29 & 38 of 2011 5 not be able to run the business himself and that is clearly evident from the totality of inputs available. He was not examined as a witness. No better material is placed to really test the bonafides of the 1st partner when it is asserted that the building is required for the own occupation of the landlord. 11. Coming to the second partner who represented the firm, we do note that he was examined as PW1. Both the father and the son are ophthalmologists. The 2nd petitioner is not available at Kochi, the place where the building is situated. He is employed as a medical officer at distant Velloor in the neighbouring State of Tamil Nadu. There is no case at all that he proposes to run the business by himself at Kochi. His wife and children are also settled at Velloor, it is evident. The theory advanced is that the second partner/son would find it convenient to come from Vellore, where he is employed, to Kochi to run the proposed business. 12. The claim staked for eviction through the second partner/PW1 does not also commend itself for ready acceptance. Evidently realising this situation, while PW1 was being examined, a version was advanced, which version significantly does not find a place in the petition for eviction filed before the R.C.R No.29 & 38 of 2011 6 rent control court, that there is a sister of PW1, who will be able to run the proposed business in the premises. We repeat that this assertion is significantly absent in the petition. This assertion is not supported by the evidence of the said sister. For obscure reasons she has not chosen to come before the rent control court and tender evidence. Even though it is asserted that she is also a partner of the firm, partnership deed is not produced. We repeat that it is not explained why such a partner, for whose bonafide need particularly the claim is made, is not examined as a witness. We do of course note that the need projected was not that of such sister alone, the need projected was that of the firm. There is nothing to show that she is a partner of the firm. Why such alleged fact that she was a partner and that there is a need for her and that she will act to satisfy the need of the firm of running the business is not asserted in the petition is significantly not explained. To put it in a nutshell, that such sister of PW1 is a partner is not mentioned in the claim petition. That she will be available to run the business is also significantly not averred. PW1 advanced such a version in the box. But his version is not supported by the evidence of such sister. We find no reason as to why such sister R.C.R No.29 & 38 of 2011 7 is not examined. 13. The learned counsel for the petitioner/tenant submits that the non examination of the sister is not innocent or innocuous. It is contended that the sister's service has been pressed into service to claim eviction of other tenants from the very same building. If she were examined, she would definitely have had to answer a lot of questions as to how and in what manner she will be able to run all these business together and about her competence and qualification to run all such business on behalf of the firm. 14. It is true that the need asserted by a landlord should not be viewed with undeserved suspicion and distrust by the authorities under the Act. But it is equally trite that empty assertions made on behalf of the landlord cannot be swallowed by a prudent mind. The standard of a prudent person has to be imported by the authorities under the Rent Control Act when they put the alleged need to the acid test as to whether the need is bona fide or not. Put to such test, we cannot omit to state that the alleged need does not pass muster in the facts and circumstances of this case. 15. The partnership deed is not produced. The R.C.R No.29 & 38 of 2011 8 partnership is stated to be “M/s.Southern Fisheries Corporation”. What is the constitution of the firm? What is the type of business that the partnership engages itself in and are permitted by the deed of partnership to undertake? How many partners are there in partnership? Is the said sister of PW1 in fact a partner? What is the total turn over of the partnership and why are the accounts of the partnership not produced? We need only say that to these very elementary and fundamental questions, satisfactory answers are not forthcoming. 16. A landlord cannot expect the authorities under the Rent Control Act meekly to swallow his version about the alleged need. The alleged need and the claim made in support of the alleged need must satisfy the test of bona fides to the satisfaction of the authorities. Notwithstanding the fact that two authorities have concurrently found that the alleged need is bona fide, we are unable to render the imprimatur of concurrence and approval to such conclusion reached by the authorities. Inherently the claim staked by the two partners who claimed to be partners is found to be not satisfactory. The claim that there are other partners who are willing to shoulder the responsibilities to run the business to satisfy the alleged bona R.C.R No.29 & 38 of 2011 9 fide needs of the petitioner/landlord/partner is not established. We conclude by the statement that the test of bona fides is not satisfactorily answered by the alleged need of the landlord. 17. We are satisfied that limited is the jurisdiction under Section 20 of the Act. But where the conscience of the court is not satisfied that the finding regarding the alleged need is legal, regular and proper, the revisional authorities cannot hesitate to invoke the revisional powers under Section 20 of the Act to interfere with the impugned orders of eviction even if it be concurrent. 18. Since the basic need urged does not pass the test of bona fides, we are not proceeding further to consider whether the challenge against bona fides raised with the help of several collateral circumstances also support the assertion of the landlord and whether the bona fides of the alleged need and claim are affected by those circumstances. We need only mention that the learned counsel for the tenant has strained to take us through the rejected claims under Section 11(4)(i), 11(4) (ii) and 11(2) as also the alleged admissions made in Ext.B7 to contend that the landlord has not approached the Court with clean hands thereby exposing the want of bona fides in the R.C.R No.29 & 38 of 2011 10 alleged need and the claim based on such alleged need. 19. It is prayed that subsequent circumstances may also be looked into. Annexures A and B are produced. They suggest that the landlord had obtained vacant possession of other rooms on the upper floor of the same building. The first proviso to Section 11(3) is pressed into service. We find no merit in that contention. The alleged need for which such eviction has been secured will certainly have to be satisfied and if not the landlord would certainly expose himself to the risk of the tenant being re inducted under Section 11(12). Such a premises cannot be said to be available to satisfy the present need to satisfy which this claim under Section 11(3) is made. 20. The subsequent circumstance that another building on the ground floor of the very same larger building is in the vacant possession of the landlord and such vacant possession has been obtained under an order of eviction under Section 11(4)(v) is pressed into service. This again is done to highlight the fact that the subsequent event also attracts the play of the first proviso to Section 11(3). The said room, it is contended, is much smaller in extent and the alleged need for which eviction of the tenant is claimed from the twin premises, can never be satisfied with such R.C.R No.29 & 38 of 2011 11 other building which has come into the possession of the landlord. We find merit in the contention that this subsequent circumstance does not completely efface, nullify or eclipse the alleged bona fide need urged by the landlord. In these circumstances, the subsequent circumstances pressed into service would not have helped the tenant if we were satisfied about the bona fides of the need pressed into service to justify the present claim under Section 11(3) of the Act. 21. We are satisfied, in these circumstances, that these rent control revision petitions deserve to be allowed. 22. In the result: a) These petitions are allowed; b) The impugned common order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control Act, 1965 is set aside; c) The parties shall suffer their respective cost in these petitions. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) rtr/