IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 RCRev..No. 99 of 2008() ----------------------- RCA.80/2003 of DISTRICT COURT, THRISSUR RCP.16/2000 of MUNSIFF COURT, KODUNGALLUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------- TITUS, S/O.THOUNDASSERY ANTONY, KODUNGALLUR DESOM, LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.S.BHARATHAN RESPONDENT/ RESPONDENT/PETITIONER: ----------------------------------- NAZEER, S/O.LATE MOHAMMED YOUSUF, PADIYATH-PLUTHENKATTIL, VEMBALLUR DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 9/04/2008, THE COURT ON 21/5/2008 PASSED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.99 of 2008 ======================== Dated this the 21st day of May, 2008. ORDER Ravindran,J. The tenant in R.C.P.No.16 of 2000 on the file of the Rent Control Court, Kodungallur is the petitioner. The respondent/land lord, instituted R.C.P.No.16 of 2000 under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act" for short, to evict the petitioner from the petition schedule shop room. R.C.P.No.16 of 2000 was tried and disposed of along with R.C.P.No.17 of 2000 instituted by the respondent/land lord in respect of yet another shop room. By a common order passed on 31.7.2003, the Rent Control Petitions were allowed. The petitioner/tenant filed R.C.A.No.80 of 2003 and the tenant in R.C.P.No.17 of 2000 filed R.C.A.No.87 of 2003 in the Court of the Rent Control Appellate Authority, Thrissur. By a common judgment delivered on 6.2.2008, both the appeals were dismissed confirming the order passed by the Rent Control Court. This revision petition is filed under Section 20 of the Act by the tenant in R.C.P.No.16 of 2000. 2. The respondent/land lord, a Dental Surgeon by profession, instituted the Rent Control Petitions with a view to RCR 99/08 -: 2 :- shift the Dental Clinic he was running in a rented building at Sreenarayanapuram to his own premises in Kodungallur. The petitioner/tenant is in occupation of a room in the ground floor of the building and the tenant in R.C.P.No.17 of 2000 is in occupation of the up stair room. The petitioner/tenant is running a jewellery and the tenant in R.C.P.No.17 of 2000 is running a photo studio. The land lord contended that he is presently running a Dental Clinic at Sreenarayanapuram in a rented building owned by a Society and that he bonafide needs the tenanted premises for shifting his Dental Clinic. The land lord further alleged that suitable buildings are available in the locality to which the tenants can shift their businesses. The petitioner/tenant resisted the Rent Control Petition contending inter alia that the bonafide need alleged is not true, that the intention of the land lord is to let out the room for higher rent after evicting him, that there are 20 Dental Clinics and 7 multi- speciality hospitals functioning in Kodungallur Municipal area, that a Dental Clinic in the petition schedule shop room will not therefore be profitable, that he is depending solely for his livelihood on the income derived from the jewellery business run by him in the petition schedule shop room, that no other suitable accommodation is available in the locality to which he can shift his jewellery business, that the land lord is in possession of several other rooms in the same building, that the land lord also owns several other buildings of his own in Kodungallur town, that the land lord's brother is running a jewellery shop in a rented RCR 99/08 -: 3 :- building under the name and style "P.V. Jewellery" and that the land lord's intention is to shift the said jewellery to the petition schedule shop room after evicting him. 3. In the Rent Control Court, the land lord was examined as PW1 and Exts.A1 to A7 were marked on his side. The Advocate Commissioner appointed by the Rent Control Court was examined as PW2. The petitioner herein was examined as CPW1 and the power of attorney of the tenant in R.C.P.No.17 of 2000 was examined as CPW2. Exts.B1 to B11 were marked on the side of the tenants. The reports and plan submitted by the Advocate Commissioner were marked as Exts.C1, C1(a) and C2. The Rent Control Court, on an analysis of the evidence oral and documentary, held that the need put forward by the land lord is bonafide. The contention of the tenants that as the land lord has started a Dental Clinic at Sreenarayanapuram in rented premises after issuing Exts.A6 and A7 notices calling upon them to vacate the petition schedule shop rooms, the need is wiped out, was overruled on the ground that the need of the land lord is to start a Dental Clinic in his own building at Kodungallur. The contention of the tenant that there is no scope for a Dental Clinic at Kodungallur town was also overruled holding that the tenant cannot dictate to the land lord as to the place where he has to start his clinic and that it is for the land lord to decide where he should set up his clinic. The Rent Control Court also relied on the testimony tendered by PW1 that it will be more profitable to run a Dental Clinic in his own premises in Kodungallur town. As RCR 99/08 -: 4 :- regards the plea of the tenants that the land lord is in possession of other buildings in Kodungallur town, the Rent Control Court held that the tenants have failed to prove that the land lord is in possession of any other vacant building. As regards the claim of the tenants that they are entitled to the protection of the second proviso to Section 11(3) of the Act, the Rent Control Court held, relying on Exts.C1 and C2 reports that there were vacant rooms available in the locality and therefore, the tenant is not entitled to the benefit of the second limb of the second proviso to Section 11(3) of the Act. As regards the claim of the petitioner/tenant that he is depending for his livelihood mainly on the income derived from the business carried on by him in the petition schedule shop room, the Rent Control Court took note of the fact that he is an insurance agent having other sources of income and therefore is not depending for his livelihood mainly on the income derived from the jewellery business run by him in the petition schedule shop room. The Rent Control Court also took note of the fact that the tenant had not produced the accounts relating to his business. Before the Appellate Authority, on application filed by the petitioner/tenant, the Advocate Commissioner appointed by the Rent Control Court was deputed to ascertain whether the respondent/land lord had obtained possession of another building of his own in Kodungallur town. The reports submitted by the Advocate Commissioner were marked as Exts.C3 and C4. Relying on Exts.C3 and C4 reports the tenants contended that the land lord has obtained vacant RCR 99/08 -: 5 :- possession of another room and therefore in the absence of special reasons eviction cannot be ordered in view of the first proviso to Section 11(3) of the Act. The petitioner/tenant also contended that as the petition schedule shop room is situated on the ground floor of the building and the petition schedule shop room in R.C.P.No.17 of 2000 is situated above it, access cannot be had to the up stair room except by cutting open the RCC ceiling of the ground floor room and that the owners of the remaining portions of the building will not permit it as it would weaken the remaining portion of the building The Appellate Authority overruled the contentions raised by the tenants and dismissed the appeals. 4. We heard Sri.K.S.Bharathan, the learned counsel appearing for the petitioner/tenant. The learned counsel for the petitioner mainly raised two contentions. The first contention was that the premises in the two Rent Control Petitions are situated in two different stories of a building and cannot be put together for use as a Dental Clinic as stated by the land lord and therefore, the need is not bonafide. The second contention was that as the land lord has not pleaded or proved special reasons, he is not entitled to an order of eviction in view of the first proviso to Section 11(3) of the Act. The learned counsel for the petitioner also contended that the petition schedule shop room in R.C.P.No.17 of 2000 is situated directly above the petition schedule shop room in R.C.P. No.16 of 2000 from which this revision petition arises and therefore as the land lord owns only RCR 99/08 -: 6 :- two rooms, he cannot have the access to the up stair portion for the use of his Dental Clinic other wise than by cutting open the RCC slab of the ceiling of the ground floor room. The very same contention was raised before the Appellate Authority and the Appellate Authority rejected it holding that a portion of the RCC slab of the ceiling of the ground floor room can be cut open using modern and sophisticated machinery without weakening the remaining structure. The Appellate Authority also held that the land lord has adduced evidence to show that he intends to start a laboratory attached to the clinic in the up stair room which has a separate access. As regards the second contention that while the Rent Control Petitions were pending the land lord had obtained vacant possession of other rooms, the Appellate Authority held that the crucial point of time to ascertain whether the land lord is disabled from seeking eviction by reason of the first proviso to Section 11(3) of the Act, is the date of institution of the Rent Control Petition. The Appellate Authority held that if the land lord comes into possession of some other room after the Rent Control Petition is instituted, he cannot be denied eviction under the first proviso to Section 11(3) of the Act on the ground that he has not pleaded or proved special reasons. The Appellate Authority also held that the tenant has not proved that the land lord was in possession of any other room which was reasonably sufficient for his purpose at the time the Rent Control Petitions were instituted. 5. Assailing the said findings and relying on Ext.C3 report submitted by the Advocate Commissioner at the appellate stage, RCR 99/08 -: 7 :- Sri.K.S.Bharathan, the learned counsel for the petitioner contended that the land lord who has come into possession of a vacant building situated close to the petition schedule shop room is not entitled to evict the tenants. The learned counsel for the petitioner contended that the land lord can establish his Dental Clinic in the said premises. It was submitted that the Advocate Commissioner has in Ext.C3 report stated that the tenant who was running an institute under the name and style "Indian Institute of Engineering" in Nazeer Hall had vacated the premises. The learned counsel for the petitioner contended relying on the decision of this Court in Varkey v. Raman Pillai - 1981 K.L.T. 213 that subsequent events can be taken note of by the appellate/revisional authorities to mould the relief based on the availability of an alternate building. The learned counsel for the petitioner also relied on the decision of this Court in Mymoon K.S. and others v. The Dunlop India Ltd. - ILR 2007 (2) Kerala 258 to contend that the land lord was bound to explain to the court as to why the Dental Clinic cannot be set up in the room vacated by the institute. 6. We have considered the submissions made at the Bar. It is not in dispute that the land lord is a qualified Dental Surgeon. It is also not in dispute that the land lord is running a Dental Clinic in rented premises at Sreenarayanapuram. The Rent Control Petitions were filed seeking eviction of the petitioner RCR 99/08 -: 8 :- and another tenant in order to enable the land lord to start a Dental Clinic in his own premises in Kodungallur town. The finding of the Rent Control Court as affirmed by the Appellate Authority that the need put forward by the land lord, a qualified Dental Surgeon, is bonafide and genuine, is in our opinion beyond challenge. The tenants cannot contend that it would not be a wise move on the part of the land lord to shift the Dental Clinic to Kodungallur or that the land lord should continue to run his Dental Clinic in rented premises. In our considered opinion, there is no error or illegality in the finding of the Rent Control Court as confirmed by the Appellate Authority that the need put forward by the land lord in the instant case is bonafide. We uphold the said finding. 7. We shall now deal with the contention of the tenant that the land lord cannot use the two rooms without cutting open the RCC slab of the ceiling of the tenanted premises in R.C.P.No.16 of 2000 so as to use the up stair room, which is the subject matter of R.C.P. No.17 of 2000. The land lord had sought eviction of the tenanted premises to start his own Dental Clinic. Though the land lord had deposed that he would have a laboratory in the up stair room, it does not necessarily imply that there is no separate access to the up stair room or that access can be had only from the room in the ground floor. The up stair portion is in occupation of the tenant in R.C.P.No.17 of 2000, who is admittedly running a photo studio therein. The tenant in R.C.P.No.17 of 2000 has his own access to the up stair room in RCR 99/08 -: 9 :- his possession. The land lord can, if he wants, have the laboratory attached to his Dental Clinic in the up stair room and continue to use the access presently available to the tenant in R.C.P.No.17 of 2000. In our opinion, the tenant of the ground floor room is not entitled to contend that the up stair room can be used as a laboratory only by cutting open the ceiling of the ground floor room. The said contention has been raised forgetting the fact that the tenant in R.C.P.No.17 of 2000 is using the said room to run a photo studio and has independent access to it. We accordingly overrule the said contention. 8. We shall now deal with the question whether the land lord is disabled by the first proviso to Section 11(3) of the Act from seeking eviction of the petitioner/tenant. In Venkateswarlu v. Motor and General Traders - A.I.R. 1975 S.C. 1409, the Apex Court held that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding and that it is only in cases where the subsequent event has a fundamental impact on the right to relief or the manner of moulding it, that it can be taken note of with a view to promote substantial justice. In Pratap Rai Tanwani and another v. Uttam Chand and another - (2004) 8 S.C.C. 490, the Apex Court held that the bonafide requirement of the land lord has to be seen on the date of the petition and that subsequent events intervening due to protraction of the litigation will not be relevant. It was held that the normal rule is that the rights and obligations of the parties are to be determined on the RCR 99/08 -: 10 :- date of the petition and that subsequent events can be taken into consideration for moulding reliefs provided such events have an impact on the rights and obligations of the parties. The Apex Court further held that it is a stark reality that the longer the life of the litigation, the more would be the number of developments sprouting up during the long interregnum and therefore the courts have to follow a pragmatic approach in the matter. The Apex Court also held that the crucial date should be taken as the date on which the petition for eviction was filed unless the subsequent event has materially changed the ground of relief. In Gaya Prasad v. Pradeep Srivastava - (2001) 2 SCC 604, the Apex Court held that the land lord should not be penalised for the slowness of the legal system and that the crucial date for deciding the bonafides of the requirement of the land lord is the date of his application for eviction. The Apex Court further held that relief cannot be denied to the land lord when the litigation reaches the final stage, unless the subsequent events overshadow the genuineness of the need and are of such a nature and of such a dimension that the need propounded by the petitioning party would be completely eclipsed by such subsequent events. A Division Bench of this Court in Kochappan Pillai v. Chellappan - 1976 K.L.T. 1 with reference to the second proviso to Section 11(3) of the Act held as follows: "The landlord is not expected to file application in anticipation of change of circumstances in his favour by the time the application is disposed of. As RCR 99/08 -: 11 :- the conditions mentioned in S.11(3) have to exist on the date of the application to make the provisions of S.11(3) applicable, to resist such an application based on the provisions of the second proviso which is a part of S. 11(3) the facts referred to in that proviso must also exist on that date. Consequently the point of time material for determining availability of other suitable building is the date of the application under S.11(3) and not the date of the order for eviction." 9. In the instant case, the Rent Control Petition was instituted in the year 2000. It was disposed of by the Rent Control Court by order passed on 31.7.2003. The room occupied by the Indian Institute of Engineering in Nazeer Hall was not vacant then. It was only while the appeal was pending before the Appellate Authority that on 6.3.2007 the Advocate Commissioner inspected Nazeer Hall and reported that it is lying vacant. The appeal before the Appellate Authority was filed in the year 2003. The tenant occupying Nazeer Hall, shifted to its own premises some time during the year 2007. The land lord could not therefore have pleaded that though one of his tenants had vacated a room and moved to his own premises it is not suitable for his purpose. The need of the land lord was put forward in the year 1999 and the Rent Control Petition was filed in the year 2000. The land lord is a qualified Dental Surgeon, who is running his clinic in a rented building. Nazeer Hall was not available to RCR 99/08 -: 12 :- him was during the year 1999-2000. Going by the commission report evidenced by Ext.C3, it is not possible to start a Dental Clinic in Nazeer Hall. The Commissioner has categorically reported that Nazeer Hall is in a dilapidated state and its floors and roof are damaged. In Govindan Nambiar v. Raghavan - 1998(2) K.L.T. 786, the Apex Court did not approve of the view taken by this Court that the draw backs in the premises which became available to the land lord during the pendency of the proceedings for eviction can be remedied and the said premises used for the purpose for which eviction was sought. The Apex Court held that unsuitability of the building by itself would be a special reason within the meaning of the first proviso to Section 11(3) of the Act. The Apex Court also held that the requirement of law is that the building which has become vacant should be of such a character, which would meet the requirements of the land lord and not that the building which fell vacant could meet his requirements after reconstruction/renovation. 10. In the case on hand, the Advocate Commissioner has in Ext.C3 report stated that Nazeer Hall is in a dilapidated state and its flooring and roof are damaged and that it is not possible to run a Dental Clinic therein. The Appellate Authority has accepted the said finding and overruled the contention of the tenant that he is entitled to the protection of the first proviso to Section 11 (3) of the Act. In our view, the land lord, a Dental Surgeon who intends to shift his clinic to his own premises, cannot be forced to incur additional expenditure to start his Dental Clinic in the RCR 99/08 -: 13 :- premises that fell vacant during the pendency of the appeal. As noticed by the Apex Court, the unsuitability of the premises that fell vacant would be a special reason within the meaning of the first proviso to Section 11(3) of the Act. As held by the Apex Court, the requirement of law is that the building which has become vacant should be of such a character which would meet the requirements of the land lord and not that the building which fell vacant could meet his requirements after reconstruction/renovation. Applying the principles laid down by the Apex Court in Govindan Nambiar v. Raghavan (supra) in the light of Ext.C3 report we hold that the unsuitability of Nazeer Hall for starting a Dental Clinic is a "special reason" within the meaning of the first proviso to Section 11(3) of the Act. Accordingly we overrule the said contention as well. 11. We shall now consider whether the petitioner/tenant is entitled to the benefit of the second proviso to Section 11(3) of the Act. The Rent Control Court and the Appellate Authority have concurrently held that the petitioner/tenant has not proved that he is depending for his livelihood mainly on the income derived from the business carried on by him in the petition schedule shop room. The petitioner is admittedly an agent of the New India Insurance Company. The accounts of the business are also not forthcoming. The petitioner cannot therefore claim that he is depending for his livelihood mainly on the income derived from the business carried on by him in the petition schedule shop room. We agree with the findings and conclusions of the Rent RCR 99/08 -: 14 :- Control Court and the Appellate Authority in that regard. The findings and conclusions of the authorities below are not perverse and are supported by the evidence on record. As regards the availability of alternate buildings, the Advocate Commissioner has in Ext.C1 report dated 29.5.2000 pointed out the availability of 5 vacant rooms in the ground floor and 8 rooms and a hall in the second floor of City Centre Complex. Three years later, in Ext.C2 report dated 21.3.2003, the Advocate Commissioner has reported that though the rooms in City Centre Complex are no longer available, rooms are available in Royal Spot Shopping Complex at Chandapura, Kodungallur, in V.V. Building and in the building owned by Eramangalath Siddique. The tenant has not adduced any evidence to establish that the said buildings are not available or that they are not reasonably sufficient for him to carry on his business. We agree with the finding of the Rent Control Court and the Appellate Authority that the tenant is therefore not entitled to the protection of the second limb of the second proviso to Section 11(3) of the Act as well. 12. In the result, we hold that no grounds have been made out warranting interference with the order passed by the Rent Control Court and the judgment of the Appellate Authority. The revision petition accordingly fails and it is dismissed in limine. 11. The learned counsel for the petitioner had during the course of arguments submitted that in the event of the revision petition being dismissed, the petitioner may be granted six months time to vacate the premises. We have considered the RCR 99/08 -: 15 :- said request as well.