IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 RCRev..No. 251 of 2008() ------------------------ RCA.36/2006 of RENT CONTROL APPELLATE AUTHORITY ( DISTRICT COURT), KOTTAYAM RCOP.4/2005 of RENT CONTROL COURT (MUNSIFF COURT), VAIKOM .................... REV.PETITIONER/APPELLANT/CR. PETITIONER -------------------- ABRAHAM ROY, S/O.ABRAHAM AGED 41 YEARS, RESIDING AT PULIMCHUVATTIL HOUSE, VALLASSERI KARA, KADUTHURUTHY VILLAGE, VAIKOM, KOTTAYAM. BY ADV. SRI.P.K.MURALEEDHARAN SRI.SUNU P.JOHN RESPONDENT(S)/RESPONDENTS/PETITIONERS: --------------- 1. PHILIP @ PAPPACHAN, S/O.CHACKO AGED ABOUT 66 YEARS, RESIDING AT.MANALEL HOUSE, PUZIKOL KARA, KADUTHURUTHY VILLAGE, VAIKOM, KOTTAYAM. 2. THOMAS, S/O.CHACKO, AGED ABOUT 60 YEARS RESIDING AT.MANALEL HOUSE PUZHIKOL KARA, KADUTHURUTHY VILLAGE, VAIKOM, KOTTAYAM. 3. JOY, S/O.CHACKO AGED ABOUT 48 YEARS, RESIDING ATMANALEL HOUSE, PUZIKOL KARA, KADUTHURUTHY VILLAGE, VAIKOM, KOTTAYAM. ADV. SRI.BECHU KURIAN THOMAS FOR R1-3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -- - - - - - - - - - - - - - - - - - - - - R.C.R .No. 251 OF 2008 - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2009 O R D E R Pius.C.Kuriakose, J. The defeated tenant is the revision petitioner. Though the landlord had invoked the grounds under sections 11(2) (b), 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control )Act 1965, in this revision petition we are concerned only with the grounds of eviction under sub-sections (3) and (8) of Section 11. The building which is subject matter of the rent control petition (hereinafter referred to as the schedule building) is the staircase room in a larger commercial building belonging to the landlord. The above larger building both at the time of letting in favour of the revision petitioner and at the time of filing of the rent control petition against him was having only a single floor. But at the time of commencement of trial in the rent control proceedings, two more floors were being constructed above the existing ground floor. RCR. N0. 251/08 -2- 2. The need projected by the landlord in the context of the grounds under sub-sections (3) and (8) of section 11 was that the landlord is constructing the first and second floors of the building having a plinth area of 12,000 Sq.ft. The schedule building which is a staircase room, let out to the revision petitioner for conduct of on-line lottery business was bona fide required for facilitating completion of the construction of the first and second floors of the building and also for ingress and egress of the tenants and others to the upper floors. It was also urged that there is need for storing the articles to be taken over to the upstairs. It was stated that the intention of the landlord is to start a lodging business in the first floor and to use the second floor as an auditorium to be given for rent for holding wedding parties and like functions. Further it was urged that a reception- cum-office room is essential for the smooth functioning of the lodge and that the petition schedule building can be utilised for that purpose also. In short, it was urged that the RCR. N0. 251/08 -3- petition schedule building is needed for convenient enjoyment and occupation of the upstair portions of the building presently under construction. Though grounds under clause 5 of Sub section 4 of Section 11 was not invoked, it was alleged that the tenant is not carrying on on- line lottery business to conduct which he had taken the building on lease. Anticipating contention of the tenant in the context of the second proviso to Section 11(3), it was stated in the rent control petition that other buildings are available in the locality for the tenant to commence business. 3. Rent control petition was resisted by the tenant raising various contentions. Interalia it was contended that the need and the requirement projected in the rent control petition was not bonafide and was only a ruse for evicting the tenant at any cost. It was suggested in the objections that if the north-eastern portion of the staircase room having extent of 100 sq.ft. is separated and enclosed and RCR. N0. 251/08 -4- separate iron shutters are installed, the same will be convenient for the peaceful conduct of business and security of the properties kept in the room taken by the tenant and will be equally convenient for the ingress and egress to the first and second floors which were under construction. The landlord's case that he wanted to start a lodge and Auditorium in the second floor was stiffly disputed. Landlord's case that a portion of the tenanted building is to be utilised for constructing common toilet was also denied contending that there are spacious toilets already existing in property belonging to the landlord adjacent to the petition schedule building. It was alleged that the landlord had been making attempts to evict the tenant forcibly and that it is only on getting orders from higher authorities that the tenant was able to carry on business in the premises. It was also contended that the tenant is entitled to the protection of the second proviso to sub section (3) and the first proviso to sub-section (10) of RCR. N0. 251/08 -5- Section 11. It was pointed out that the tenant had to move the civil court and obtain an order of injunction restraining the landlord from forcibly evicting him. 4. The evidence before the rent control court consisted of Exts.A1 to A6, B1 to B4 and Ext.C1 Commissioner's report and the oral testimonies of PWs. 1 to 3 and CPWs. 1 to 3. The rent control court on an evaluation of the evidence would conclude that the landlord was successful in establishing that grounds existed for passing orders of eviction under sub-section (3) and sub-section (8) of Section 11. It was held that the tenant was not successful in establishing either of the two ingredients of the second proviso to sub-section (3) of Section 11. It was found that the advantages which will enure to the landlord by getting eviction will outweigh the hardships which may be caused to the tenant. 5. The rent control appellate authority considering the appeal preferred by the revision petitioner/tenant would RCR. N0. 251/08 -6- re-appreciate the evidence thoroughly. That authority would find that there was no reason for interfering with the findings of the rent control court. However, accepting a submission made on behalf of the tenant during the hearing that the petition can be maintained only under sub-section (8) of Section 11, that authority would confirm the order of eviction only under Sub Section 8 of Section 11. 6. We have heard the submissions of Sri.P.K.Muraleedharan, learned counsel for the revision petitioner and those of Sri.Bechu Kurian Thomas, learned counsel for the respondent. Sri.Muraleedharan would address us very strenuously and extensively. We were taken by Sri.Muraleedharan through the orders passed by the rent control court and the appellate authority and also to salient portions of the evidence which was recorded by the rent control court. Learned counsel would highlight the following circumstances and submit that these circumstances will indicate that the claim of the landlord is RCR. N0. 251/08 -7- not bonafide. 1) The landlord had been attempting to evict the tenant forcibly other than through due process of law. 2) The relationship between the landlord and the tenant had become strained considerably even before the rent control petition was instituted. 3) The landlord had projected too many purposes for user of the building after eviction such as providing access to the first and second floor, storage of materials, reception- cum-office room and providing for toilet. 7. Invocation of sub-section (8) of Section 11 at a time when the landlord was not in actual occupation of even a portion of the building and at a time when even the construction of the first and second floors is not completed was not at all warranted, according to the learned counsel. RCR. N0. 251/08 -8- Sri.Muraleedharan would submit that the petitioner tenant is in impecunious circumstances and that in case he is evicted his life will be rendered miserable. He submitted that this is an ideal case where this court can order ( if it comes to that ) partial eviction by directing the landlord to install two separate rolling shutters for the staircase portion of the building and remainder portion so that the staircase portion can be made exclusive for the landlord and the occupants of the first and second floor and the tenant can be allowed to occupy the remaining portion so that he can carry on his small time business of selling paper lotteries. Sri.Muraleedharan would assail the findings of the rent control court and the appellate authority in the context of second proviso to Section 11(3). He submitted that the oral evidence given by his party in this context is quite convincing and supported by the evidence of CPW1, the District Lottery Officer. No evidence was brought on record by the landlord to show that the tenant was having any RCR. N0. 251/08 -9- other source of income. He submitted that the Commissioner's report was to the effect that the only building which was admittedly remaining vacant in the locality is the building belonging to the brother of the landlord. The building of the brother of the landlord will never be available to the tenant especially in the light of the strained relationship between the landlord and the tenant. 8. Sri.Bechu Kurain Thomas, learned counsel for the respondent/landlord was able to meet the submissions of Sri.Muraleedharan. When we drew his attention to the situation that on the pleadings and on admitted facts, the petition for eviction can lie only under Sub Section 3 of Section 11 and not under sub-section (8) of Section 11, learned counsel would submit that findings have been concurrently entered by the courts below in the context of sub-section (3) of Section 11 also and that it was only because the tenant's counsel submitted before the appellate authority that the petition lies under sub-section (8) of RCR. N0. 251/08 -10- Section 11 and not under sub-section (3) of Section 11, that the learned appellate authority confined its order to sub section 8 of Section 11. Sri.Bechu Kurain submitted that it was in evidence that the revision petitioner/tenant is a substantial man having other sources of income. He was owning a rubber factory and he along with his wife is doing Mushroom cultivation. He submitted that the income derived by the revision petitioner from the business which he claims to be carrying on the petition schedule building by the very nature of that business can be proved by documents. No document has been produced by the tenant to prove the income. He submitted that the tenant was unsuccessful in establishing the second ingredient of sub- section (3). No attempt was made by the tenant to examine the landlord of the building which according to the Commissioner's report was lying vacant. The learned counsel reminded us of the attenuated nature of the jurisdiction in which we are sitting and submitted that this RCR. N0. 251/08 -11- court is not expected to substitute its findings for the findings entered by the authorities below especially when they are concurrent and based on evidence. 9. We have anxiously considered the rival submissions addressed at the Bar. Having examined the pleadings in the case and the admissions of the parties discernible both from the pleadings and the evidence and also the submissions made at the Bar, we are of the view that the apposite eviction ground which may be available to the landlord in this case is sub-section (3) of section 11 and not subsection (8) of section 11. Admittedly, the landlord was not in occupation of any portion of the larger building of which the petition schedule building is a part. The landlord's case was that he intends to start a lodging house business and auditorium business in the first floor and second floor, the construction of which was only under way. All the other rooms in the ground floor were admittedly under the occupation of other tenants. Sub-section (8) of Section 11 RCR. N0. 251/08 -12- can have application only when the landlord is occupying a part of the larger building and the landlord wants to occupy the portion occupied by the tenant also for his personal use by way of additional accommodation. It will be stated in this context that occupation means physical occupation for residential or other purpose and not having mere vacant possession. The situation in this case was that the landlord wanted possession of the petition schedule building so that he can complete the construction of the first and second floors easily and he and his prospective tenants and customers can use the first and second floors more conveniently. Though other requirements were also stated in respect of the petition schedule room the need prominently raised was that the petition schedule building is necessary in order that the construction of the first and second floors is accelerated and made easy. According to us, in the fact situation obtaining in this case the rent control petition cannot be maintained under sub-section (8) RCR. N0. 251/08 -13- of Section 11. It is trite by now that sub-sections (3) and (8) are mutually exclusive. The Rent Control Court allowed eviction both on the ground under sub-section (3) and sub- section (8). Before the Appellate Authority, it was submitted on behalf of the revision petitioner tenant that the case can be considered under sub-section (8) of Section 11 and that was the reason why the Appellate Authority after entering findings in favour of the landlord both in the context of sub-section (3) and sub-section (8) of Section 11, ultimately passed eviction only on the ground under sub- section (8) of Section 11. According to us, it was unnecessary for the Appellate Authority to have accepted the submission made on behalf of the tenant that the rent control petition is to be considered in the context of sub- section (8) of Section 11 when that sub-section did not have application to the fact situation which actually existed in this case. The finding of the Appellate Authority that the petitioner is liable to be evicted on the ground under sub- RCR. N0. 251/08 -14- section (8) of Section 11 will necessarily have to be interfered with. 10. The Rent Control Court found on the basis of the evidence that the ground under sub-sections (3) and (8) stood established. The Appellate Authority also agreed with the Rent Control Court in its findings regarding sub-section (3) of Section 11; however, did not pass order of eviction under that sub-section in view of the submission made at the Bar on behalf of the tenant. As stated already to our mind it is clear that the apposite ground which may be applicable in this case is sub-section (3) of Section 11. Therefore we will now proceed to examine whether the petitioner is liable to be evicted under sub-section (3) of Section 11. 11. In order that a landlord succeeds in a petition under sub-section (3) of Section 11, it is necessary that he establishes that the need projected by him in the petition is bona fide. Even when the court finds that the need is bona RCR. N0. 251/08 -15- fide it may not be possible for the court to pass order of eviction if the first proviso to subsection (3) applies, i.e., if it is seen that the landlord has under his ownership and possession other buildings in the same city, town or village and there are no special reasons justifying eviction. It may not be sufficient that the landlord surmounts the above two hurdles. If the building is a commercial building and if the tenant claims the protection of the second proviso to subsection (3) a negative finding against the tenant regarding that proviso also will have to be given by the Rent Control Court. The first and foremost consideration is whether the need projected is bona fide. Bonafides is a state of mind and direct evidence regarding the same will be the oral evidence of the claimant to which naturally there will be counter oral evidence. The Rent Control Court will have to decide whose version is true by analysing the circumstances attending on the case as they emerge from the evidence which comes on record. Sri.P.K.Muraleedharan RCR. N0. 251/08 -16- would highlight as many as three circumstances already noticed by us as circumstances which are indicative of absence of bonafides in the mind of the landlord. We are unable to agree with him that the circumstances highlighted by him by themselves will prove that the need is not bona fide. After all, it is trite that bona fide need in the context of sub-section (3) of section 11, only means a reasonable need involving elements of necessity and need not amount to an absolute or pressing necessity. 12. We will now examine the circumstances highlighted by Mr.Muraleedharan one by one. The first circumstance highlighted is that the landlord had been attempting to evict the tenant forcefully other than through due process of law. The landlord's answer to this allegation is that there never has been any attempt on the side of the landlord to evict the tenant forcibly and that the very filing of the RCP is demonstrative of the landlord's intention to evict the tenant through due process of law. We will notice RCR. N0. 251/08 -17- that no material is available in the evidence to come to a conclusion that the landlord attempted to evict the tenant forcibly. At the most, it can be stated that there was some compulsion on the part of the landlord to the tenant to vacate the premises immediately. Exertion of such compulsion by a landlord on the tenant for procuring early eviction in our opinion cannot be a circumstance indicative of absence of genuineness in the need projected by the landlord. On the contrary the circumstance that the landlord had been compelling the tenant to vacate the building immediately, in a given case can be indicative of the genuineness and urgency of the landlord's need. We in this context will notice that a learned Judge of the Punjab and Haryana High Court had occasion to observe as follows in his judgment in Madan Lal v. Smt.Gurbachan Kaur, 1981 (1) R.C.J. 640. “It is a matter of common knowledge that no tenant would willingly vacate a residential house unless he or she is subjected to some sort of compulsion to do so”. RCR. N0. 251/08 -18- Ofcourse the observation was made by that learned Judge in a different context. But we feel that such an observation will apply a fortiori to a commercial building like the present one which the tenant is unwilling to vacate on the reason that the income derived there from is his only means of livelihood and that like buildings are not at all available in the locality. Therefore we hold that merely because there was persistent demand and even compulsion on the part of the landlord it cannot be said that the need projected by the landlord is not genuine. 13. The next circumstance highlighted by Mr.Muraleedharan was that there were previous litigations between the parties and that the relationship had already become strained by the time of filing of the RCP and hence the need was not a genuine one, but only a ruse for evicting his tenant, who had already become a headache, at any cost. Previous litigation between the parties and strained RCR. N0. 251/08 -19- relationship between them even before the RCP was instituted need not be of much relevance while deciding the question whether the need projected in the RCP is genuine. As for this case, the relationship between the parties became strained obviously because of the unfavourable response of the tenant to the persistent demands of the landlord to vacate. As for the previous litigations, we are informed that one of the two litigations is a suit instituted by the tenant before the local Munsiff Court to restrain the landlord from evicting the tenant other than through due process of law. The defence of the landlord in that suit is that there has been no attempt to evict the tenant other than through due process of law and that it is to pre-empt the RCP that such a suit was instituted by the tenant in anticipation of the RCP. We have no hesitation to state that such a litigation will not militate against the genuineness of the need projected by the landlord for the purpose of sub- section (3) of section 11. The other litigation, we are RCR. N0. 251/08 -20- informed, is a writ petition instituted by the tenant before this court seeking a direction to the concerned authorities for opening the building which had been closed consequent to the banning of on-line lotteries by the Government of Kerala. Ofcourse the tenant had an allegation in that case that it is at the behest of the landlord that the authorities sealed the schedule room. The said allegation remains unsubstantiated. At any rate, we are of the view that even if the landlord tried to take advantage of a Government Order banning on-line lotteries, for accelerating the surrender of the premises by the tenant it is not possible to say for that reason alone that the need projected in the rent control petition is not a genuine one. 14. The third point highlighted by Mr.Muraleedharan is that too many purposes have been mentioned by the landlord in the RCP to be accomplished on getting eviction such as providing access to the first and second floors, storage of materials, reception-cum-office room, providing RCR. N0. 251/08 -21- for toilets etc. The total carpet area of the schedule room is 100 sq.ft. or so and it certainly appears that there is some artificiality about the landlord's case of occupying the room which is the stair case room in a building which have three storeys for all these purposes. We are certainly not much impressed by the submission of Mr.Bechu Kurian Thomas that it is possible for the landlord to use the schedule building for all the above mentioned purposes. At the same time we are of the view that the requirement of having exclusive user of this room for access to the upper floors for paving way for completion of the construction of those floors, and the requirement of having a reception-cum-office room for the prospective lodge and the auditorium coming up in these floors under construction is by all appearances a genuine one and there is no reason for interfering with the concurrent findings entered in that context by the two fact finding authorities under the statute and hence despite our observation regarding the artificiality in the case to use this RCR. N0. 251/08 -22- small room for purposes like storage and toilets also, we hold that just because the landlord has stated too many purposes in the rent control petition, the need cannot be said to be not bona fide. Under the statutory scheme the final court on facts is the Rent Control Appellate Authority and we find that the said authority has thoroughly re- appreciated the evidence and concluded that the need under section 11(3) is bona fide. The argument of Mr.Muraleedharan that if necessary, stair case to the upper floors can be provided through another room in the ground floor cannot be countenanced at all since all the other rooms in the ground floor are occupied by tenants. His argument that if the landlord so desires he can construct separate stair case from