IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE 16TH DAY OF DECEMBER 2011/25TH AGRAHAYANA 1933 RCR.No. 264 of 2011 ( ) ----------------------- RCA.185/2005 of IIIrd ADDL.DISTRICT COURT, KOZHIKODE RCP.82/2004 of ADDL.MUNSIFF COURT-I, KOZHIKODE REVISION PETITIONER(S)/RESPONDENTS 1 TO 5 PETITIONERS: ------------------------------------------------------ 1. P.V.CHANDRAN,AGED 71 YEARS, S/O.LATE P.V.SAMI,KERALA KALA,VALAYANAD AMSOM AND DESOM OF KOZHIKODE TALUK. 2. P.V.GANGADHARAN,AGED 68 YEARS, S/O.LATE P.V.SAMI,KERALA KALA,VALAYANAD AMSOM AND DESOM OF KOZHIKODE TALUK. 3. T.K.KUMARI KAMALAM,AGED 65 YEARS, D/O.P.V.SAMI,KERALA KALA,VALAYANAD AMSOM AND DESOM OF KOZHIKODE TALUK. 4. P.V.HEMALATHA,AGED 64 YEARS, W/O.P.V.CHANDRAN,KERALA KALA,VALAYANAD AMSOM AND DESOM OF KOZHIKODE TALUK. 5. P.V.SHERIN,AGED 58 YEARS, W/O.P.V.GANGADHARAN,KERALA KALA,VALAYANAD AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.P.N.SREENIVASAN SRI.PRASANTH M.P RESPONDENT(S)/APPELLANT & RESPONDENTS 6 TO 9/RESPONDENTS: ------------------------------------------------------- 1. JAYAKRISHNAN,AGED 56 YEARS, S/O.KAMPURATH GOPALAN,KRISHNA VIHAR CHAKKORATHUKULAM,KACHERI AMSOM AND DESOM, WEST HILL KOZHIKODE-673005. 2. PRADEEP,AGED 55 YEARS,S/O.KAMPURATH GOPALAN,KRISHNA VIHAR,CHAKKORATHUKULAM KACHERI, AMSOM AND DESOM,WEST HILL KOZHIKODE-673005. 3. PRABHAVATHI,AGED 53 YEARS, D/O.KAMPURATH GOPALAN,KRISHNA VIHAR CHAKKORATHUKULAM,KACHERI AMSOM AND DESOM, WEST HILL KOZHIKODE-673005. 4. GEETHA,AGED 51 YEARS,D/O.KAMPURATH GOPALAN,KRISHNA VIHAR,CHAKKORATHUKULAM KACHERI AMSOM AND DESOM,WEST HILL KOZHIKODE-673005. 5. VIJAYARANI,AGED 49 YEARS,D/O.KAMPURATH GOPALAN,KRISHNA VIHAR,CHAKKORATHUKULAM KACHERIAMSOM AND DESOM,WEST HILL, KOZHIKODE-673005. R1 & R2 BY SRI.V.T.RAGHUNATH R1& R2 BY SMT.C.V.RAJALAKSHMI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ........................................................... R.C.R.NO.264 OF 2011 ........................................................... Dated this the 16th day of December, 2011. O R D E R Harilal, J. The revision petitioners/landlords have come up in revision challenging the judgment passed in R.C.A.No.185/2005 of the Rent Control Appellate Authority, Kozhikode, declining eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act on the ground that the bonafide need alleged in the petition is not genuine and it is doubtful. The revision petitioners/landlords are now carrying on a dealership of Hyundai Motor Cars under the name and style of “KTC Automobiles” in a show room adjacent to the petition schedule shop room. The service station and other connected office buildings are situated on the western side of the petition schedule shop room. The respondents/tenants are carrying on the business of making sign boards, name plates etc in the petition schedule shop room. 2. The need projected in the rent control petition is that the space available for “KTC Automobiles” is not sufficient R.C.R.NO.264 OF 2011 : 2 : and adequate to run the dealership business. The partners of “KTC Automobiles” are also desirous of expanding the business of partnership. In addition to that, the Hyundai company prescribed additional show room and facilities to get dealership of new vehicles. It is also averred that the revision petitioners/landlords are not in possession of any vacant rooms in the same city. The respondents/tenants are not depending for their livelihood on the income derived from the business carrying on in the shop rooms and other suitable shop rooms are available in the locality to shift their existing business. 3. The respondents/tenants filed a counter statement denying the averments in the petition. It is contended that the need projected in the petition is not bonafide and it is only a pretext for eviction. The averments that the room occupied for the dealership business is not at all sufficient and adequate and that the company prescribed additional show rooms etc are not correct. The averment that the petitioners/landlords have no buildings in their possession adjacent to the petition schedule shop room is not correct as R.C.R.NO.264 OF 2011 : 3 : the petitioners/landlords are in possession of shop rooms on the other side of the road where the petition schedule shop room situates. The space already in the possession of the petitioners is enough to conduct dealership business mentioned in the petition. The respondents and their family are depending entirely for the livelihood on the income getting from the business carrying on in the petition schedule shop room. No other suitable buildings are available in the locality to shift the existing business. 4. The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A5 on the side of the revision petitioners/landlords and RW1 and Exts.B1 to B4 on the side of the respondents/tenants. After considering the evidence on record, the rent control court allowed the eviction under Section 11(2)(b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. But the appellate authority allowed the appeal on the finding that the need projected by the landlords is not genuine as well as doubtful and confirmed the eviction under Section 11(2) (b) of the Kerala Buildings (Lease and Rent Control) Act. R.C.R.NO.264 OF 2011 : 4 : 5. Sri.Bindu Sasthamangalam, the learned counsel for the petitioners/landlords, submits that though the rent controller has considered the bonafide need projected in the petition, in view of the evidence on record, in its correct perspective, the appellate authority went wrong in finding that the non production of the documentary evidence in the nature of letters and other correspondence issued by the company requiring additional shop room facility is fatal to the bonafide need alleged in the petition. Further, the learned counsel invited our attention to the pleadings and contended that the petition schedule shop room is mainly required for expansion of the existing business as the space now available is inadequate. The partners are also desirous of expanding the business. The counsel further submits that the pleadings regarding insistence of the company requiring additional show room facility is made as an additional requirement in addition to the expansion of the existing business. 6. Per contra, Sri. V.T. Raghunath, the learned counsel for the respondents/tenants submits that in view of the R.C.R.NO.264 OF 2011 : 5 : pleadings, the non production of the evidence to substantiate the fact that the company has prescribed new shop room facility for getting dealership of new vehicles is fatal and the finding of the court below is justifiable at all points. Further he contended that the non joinder of the mother of the tenants is also fatal to the maintainability of the petition. 7. We have given our anxious consideration to the submissions made by the counsel for the petitioners and the respondents at the bar. The only question to be considered in this revision is whether the finding of the court below is vitiated by irregularity, illegality and impropriety. The court below found that bonafide need projected in the petition is not genuine in view of the non production of the sufficient materials to show that the company directed the landlords to make additional space and show room for getting dealership of new vehicles. In view of the above finding, we have gone through the relevant pleadings in the petition. On going by the paragraph 6 of the petition, it could be seen that the petitioners specifically pleaded that the space now available in the buildings occupied by the R.C.R.NO.264 OF 2011 : 6 : dealership business is not at all sufficient or adequate to run the existing dealership. Further it is pleaded that apart from that, in order to provide dealership of new vehicles, the company prescribes additional show room facility and the same requires additional space. It is further pleaded that the partners are also desirous of expanding the business of the partnership. Thus it could be seen that three reasons are projected for their additional requirement and the averments that the company prescribes additional show room facility for giving dealership of new cars and the same requires additional space is one among the three reasons for additional accommodation. 8. On going by the evidence given by PW1, it could be seen that the main reason from which the need arose is the inadequacy of the space now available to run existing dealership. PW1 would say that 20 cars only can be displayed in the existing show room. It is also stated that the entire existing area of land is 1,500 sq.feet only. It is also stated that the partners are desirous of expanding the business. On the other side, RW1 in his evidence has stated that he R.C.R.NO.264 OF 2011 : 7 : could not say whether there was a scarcity of space in the existing dealership business and he could not say whether there is any need for expansion. It is true, because the expansion of the business is a desire which arises out from the mind of the person who carrying on business alone, on the basis of his past experience and future expectation in that business. Therefore tenants are incapable and incompetent to say anything about scope of expansion of landlord's business. 9. Here, the requirement of additional show room facility for getting dealership of new vehicles and the company's insistence for the same is pleaded as an additional fact to support the inadequacy of the existing show room, and nothing more than that. Besides RW1 stated that the landlords have never sought for enhancement of rent or to evict him. Therefore, we are of the opinion that the non production of the documentary evidence to prove insistence of the company, requiring additional show room is not fatal and the same is not sufficient to doubt the genuineness of the need, in the light R.C.R.NO.264 OF 2011 : 8 : of the totality of the pleadings, evidence and entire circumstances of the case. The appellate authority passed over into silence all other pleadings, evidence and focused on the non production of documentary evidence alone to prove company's insistence for additional show room and this mode of appreciation of evidence amounts to a segment wise, truncated adjudication insulting the plea of bonafide need from the rest of the circumstance. More over the appellate authority went wrong by substituting its own wisdom by finding that company introduces new model car in place of old one and existing show room can be utilised for the same. There is no evidence on record to doubt the genuineness of the need projected and we find that the need projected is real, genuine and bonafide. There is irregularity and illegality in the finding of the appellate authority on the question of bonafide need and we set aside those findings. But the learned rent controller rightly considered the bonafide need under Section 11(3) in its correct perspective and we are inclined to restore the said findings. 9. The next question to be considered is whether the R.C.R.NO.264 OF 2011 : 9 : bonafide need is hit by the first proviso to Section 11(3) and whether the tenants/respondents are entitled to get protection under second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. Both the courts below concurrently found that the respondents/tenants are not entitled to get protection under the first and second provisos to Section 11(3) of the Act. The respondents/tenants have not challenged the above finding in revision and thereby attained finality. The rent control petition was filed under Section 11(2)(b) also and both the courts below concurrently granted eviction under Section 11(2)(b), but that finding also has not been challenged in revision and thereby attained finality. Therefore, there is no need to reconsider the above findings which stand unchallenged. 10. Another point raised by the counsel for the respondents is that the mother of the tenants is not impleaded even though she is a necessary party. But, the counsel admitted that the tenancy which devolved upon the legal heirs of the original tenant is a joint tenancy only and the legal representative who is in possession of the building is R.C.R.NO.264 OF 2011 : 10 : impleaded and contested in the suit. Moreover, it could be seen that non joinder of parties is not raised in the objection filed by the tenant. Therefore, we find that the non joinder of the mother of the tenants is not fatal to the maintainability of the petition. 11. In the result, the impugned judgment passed by the appellate authority to the extent of declining eviction under Section 11(3) is set aside and this revision will stand allowed. The learned counsel for the respondents/tenants sought for maximum period for vacating the petition schedule building. Considering the nature of the business and the financial situation of the tenants, we grant one year's time for vacating the premises. The tenants shall vacate the premises on or before 31.12.2012 on condition that the respondents/tenants shall file an affidavit before the court below within a period of one month from the date of receipt of a copy of this judgment with an undertaking that they will surrender the petition schedule room within the time stipulated above. It shall also be undertaken that they will R.C.R.NO.264 OF 2011 : 11 : pay occupational charges with effect from 1.1.2012 at the rate of `400/- per month. PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl