Kerala High Court
Bonny vs Koshi P.John on 20 December, 2004
Equivalent citations: 2005 A I H C 1279, (2005) 1 KER LJ 796, (2005) 1 RENCR 645, (2005) 1 RENTLR 629
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 2601 of 1996(C)
1. BONNY
... Petitioner
Vs
1. KOSHI P.JOHN
... Respondent
For Petitioner :SRI.S.P.CHALY
For Respondent :SRI.BECHU KURIAN THOMAS
Coram
Dated : 20/12/2004
O R D E R
.SP 2 .TM 4 .BM 4 ........L.......T.......T.......T.......T.......T.......T.......J M.RAMACHANDRAN & V.RAMKUMAR, JJ.@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
----------------------------@@ j C.R.P.NO.2601/1996@@ j
----------------------------@@ j DATED: 20th DECEMBER, 2004.@@ j ORDER@@ jAAAAA V.Ramkumar, J@@ AAAAAAAAAAAAA ((HDR 0 C.R.P.NO.2601/1996 :#:
)) .HE 1 The petitioners (landlords) in R.C.P.141/90 on the file of the Rent Control Court, Ernakulam, are the revision petitioners. Eviction of the respondent herein from the petition schedule premises was sought on the ground of arrears of rent under section 11(2))(b) and bona fide own occupation under section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as `the Act'). Both the Rent Control Court as well as the Rent Control Appellate Authority held that eventhough the provision of law which was quoted in the Rent Control Petition was Sec.11(3), the claim of the landlords was really one for additional accommodation for expansion of the business falling under Sec.11(8) of the Act but disallowed eviction on both grounds. It is aggrieved by the orders rejecting the application for eviction that the landlords have come up in revision.
2. We heard Adv.Sri.S.P.Chaly, the learned counsel appearing for the revision petitioners and Adv.Sri.Bechu Kurian Thomas, the learned counsel appearing for the respondent-tenant. We also perused the oral and documentary evidence on record.
3. Adv. Sri.Bechu Kurian Thomas made the following submissions before us in support of the impugned orders:-
It is true that the claim under Sec.11(3) of the Act was considered as one under Sec.11(8) of the Act. Even though the element of bona fides is absent under section 11(8) of the Act, it is supplied by section 11(10) of the Act which enjoins that the claim under section 11(8) should be bona fide. The six petitioners are co-owner landlords and the need alleged was one for the fourth petitioner who was examined as PW1. He has admitted before court that the business that is carried on in the first floor of the building is in respect of computer graphics. If so, it does not require any additional space. The facts and circumstances of the case will show that the other half of the ground floor of the building in which the tenant is conducting the business of selling study books and other allied items under the name and style of Auroville was also in the possession of the tenant who is running a business under the name and style of Vidhyarthimithram in the petition schedule premises. Similarly, in the nearby building by the side of the Press Club Road also the tenant was running a similar book shop. Three Rent Control Petitions were filed as R.C.P. Nos.140/1990, 141/1990 and 142/1990 for evicting the tenant from the building in the Press Club Road, the present petition schedule building and the premises where "Auroville" is located. C.R.P. 2796/2001 is pending before this Court against the orders passed in R.C.P.142/1990. After the examination of PW1, pursuant to an understanding between the petitioners and the respondent to the effect that the respondent will surrender the Vidhyarthimithram shop in the Press Club Road whereupon the petitioners will not prosecute the present case, the respondent had surrendered about 1100 square feet area in the Press Club Road building. However, the petitioners after getting possession of the premises in the Press Club Road building uncharitably pressed the present case for eviction. PW1 had admitted that during the pendency of the Rent Control Petition a room on the ground floor having an area of 150 square feet fell vacant and the petitioners leased out the said room to one Bazi Traders and the petitioners are having custody of the lease deed in that behalf. If there was any grain of bona fides in the claim they could have occupied the said area for the alleged requirement. PW1 had further admitted that on the first floor of the petition schedule building the petitioners had given on rent another premises to one Super Tex Sales and Services and that at the time of letting out that area PW1 had the desire of expanding his existing business. Again PW1 has admitted that another premises on the first floor of the petition schedule building was let out by all the petitioners together to a concern belonging to Devi Group where screen printing is carried on and that at the time of the said letting also PW1 was entertaining the idea of expanding his existing business. The further admission of PW1 is to the effect that business concerns by name V.M.Zero Graphic, Technics India, John Lukose Associates etc. are also functioning on the first floor of the petition schedule building and it was the petitioners who let out those premises to the afore mentioned concerns and the petitioners have got the lease deeds with them. The real intention behind the present claim for eviction came out of the mouth of PW1 who admitted that the premises to the new tenants were let out was at the prevailing rates of rent and deposits were also collected by them and further that the present rates of rent are far in excess of the rent which was prevailing in the year 1978 and also that in that area there is the practice of collecting a huge amount by way of pakidi over and above the rent advance. On 19-6-1996 the tenant had filed an affidavit before the Rent Control Appellate Authority stating that he has surrendered the Vidhyarthimithram Book Shop premises in the Press Club road building. PW1 has also admitted that in the ground floor of the building at Press Club Road where the petitioners were formerly conducting `Cafe Crystal' a firm by name Bible House was the rental occupant and they vacated the premises in the year 1991 and the said premises have been leased out to Spencer Dresses and there are records in their possession regarding the said lease and that at the time of letting out the premises to Spencer Dresses PW1 was nurturing his desire to expand the existing business. PW1 has further admitted that in the ground floor of the Press Club road building a portion was occupied by Vibhava Restaurant and after their vacating the premises about three months prior to his examination it was let out to new tenants by name Sonal Greetings and there are records showing the letting of the said premises. PW1 has deposed that there are documents to show the letting of portions of the Press Club Road building to a firm of auditors by name M/s.Vijaya Babu & Company, to the Ernakulam Bureau of the Express Daily, to Kissan Enterprises and to Climax Tailoring Company. The deposition of PW1 will further show that they are the owners of another building where Boney Cycle Emporium, Star Watch, Bed Centre, etc. are functioning on the ground floor. Even though the petitioners got vacant possession of many premises during the pendency of the Rent Control Petition and they let out those premises to various other tenants and there are documents in their possession to show the lease arrangements pertaining to those lettings, for reasons best known to the petitioners they have not produced any scrap of paper in support of the same. Those are matters which were within the exclusive knowledge of the petitioners attracting Sec.106 of the Evidence Act as per which the burden was on the petitioners to enlighten the court regarding those entrustments. Similarly from the conduct of non-production of those documents the court can draw an adverse inference under section 114(g) of the Evidence Act that if those documents within the exclusive knowledge of the petitioners were produced they would have gone against their contentions. The decision reported in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
- 1999 (6) SCC 222 will show that the requirement of the@@ AAAAAAAAAAAAAAAAAAA landlord should be in good faith, sincere, genuine and honest and it should not be a pretence or pretext to get rid of the tenant. The subsequent event of several premises getting vacant and the petitioners letting out those premises to strangers on higher rent without utilising the same for the need alleged, can be taken note of by the Court in view of the decisions reported in Pasupuleti Venkateswarlu v. The Motor & General Traders@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
- (1975) 1 S.C.C. 770 and M.M.Quasim v. Manohar Lal@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Sharma and Others (1981) 3 S.C.C. 36. It was taking@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA notice of the subsequent events and gauging the real intention of PW1 that the authorities below have concurrently held that the claim of the petitioners is not bona fide. This is a pure finding of fact which should not be interfered with by this court in its revisional jurisdiction. This court must be reluctant to embark upon an independent re-assessment of the evidence and come to a different finding merely because it does not agree with the findings recorded by the authorities below. (Vide K.A.Anthappai v. C. Ahammed - 1992 (3)@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA SCC 277). The petitioners are wealthy landlords who have@@ AAAAAAAA several buildings in their possession and their conduct will show that they are bent upon uprooting all the three business ventures of the tenant. Court should ordinarily lean in favour of a weak landlord and in not favour of rich landlords like the petitioners. (Vide Joginder Pal@@ AAAAAAAAAAAAAAAAAAA v. Naval Kishore Behal - (2002) 5 SCC 397). Even if@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA this Court is inclined to interfere with the finding that the claim for additional accommodation is not bona fide, the matter may be remanded to the Rent Control Court since both the authorities have not considered the comparative hardship which has to be mandatorily considered under the first proviso to Sec.11(10) of the Act.
4. We are afraid that we are unable to uphold the above submissions on behalf of the tenant. The 6 petitioners who are brothers constitute the landlords in respect of the petition schedule premises which is a shop having 1531 square feet on the ground floor of a two - storeyed building situated by the side of the market road near the convent road-market road junction at Ernakulam. The two storeyed building is known as Choolackal building. The respondent tenant is running a book shop in the petition schedule premises under the name and style of "Vidhyarthimithram" which has road frontage to the market road. The remaining portion on the ground floor of the said building and having almost similar area is also in the possession of the tenant who runs similar business therein under the name and style of "Auroville". The entrustment of the petition schedule premises to the tenant was on 1-9-1978 for a monthly rent of Rs.2,250/-.
5. The arrears of rent alleged in support of the claim for eviction under Sec.11(2)(b) of the Act was Rs.29,160/-. After giving credit to the sum of Rs.14,539.80 paid by the tenant towards property tax in respect of the tenanted premises and to the discharge pleaded by the tenant, the Rent Control Court held that the landlords were not entitled to claim eviction under section 11(2) (b) of the Act. Eventhough a point formulated by the Rent Control Court as to whether the landlords were entitled to evict the tenant on the ground of tenant having in his possession another premises within the meaning of Section 11 (4)(iii) of the Act, eviction was disallowed on that ground for the reason that there was no pleading in that behalf in the petition for eviction and that section 11(4)(iii) was not even invoked or quoted in the petition. What, therefore, survived for consideration was whether the landlords' claim for additional accommodation was bona fide or not. Eventhough the provision of law quoted in the petition for eviction in this context was Section 11(3) of the Act, it was conceded before both the authorities below that the real claim of the landlords was one for eviction under section 11(8) on the footing that the existing space in the possession of the landlords on the first floor of the very same building was insufficient. The parties went to trial also with this understanding. The necessary averment in this behalf as contained in paragraph 3 of the Rent Control Petition is extracted here below:-
"The 4th petitioner C.M.Joy is now conducting@@ i business in the name "Metro Marketing Services"
in a 600 sq. feet room in the upstair portion of the petition schedule building belonging to the petitioners. The Metro Marketing Services run by the 4th petitioner is not have any road frontage, the entrance to this business place is through a passage having a width of 4 feet only. Apart from the inconvenience that is being caused to the 4th petitioner on account of no road frontage to the business premises, 4th petitioner requires larger area for the business in question. Apart from the extension of the existing business, 4th petitioner intends to conduct allied business of `subtitling of cassets'. For the aforesaid purposes more business space is required. 4th petitioner will get good business if business premises having road frontage and having ground floor area is available. Hence the necessity for getting back the petition schedule building in the occupation of the respondent".
In Ext.A1 notice dated 6-10-1990 which preceded the petition for eviction also the need of the 4th petitioner (C.M.Joy) to have the petition schedule premises for the expansion of his existing business in the upstair portion of the very same building, had been put forward. No doubt, the said notice did not mention about the need of the 4th petitioner (PW1) to start a business in the sub titling of cassettes also. Since the statute does not insist on a notice prior to a claim under Section 11 (3) or Sec.11(8) of the Act, the non-mention in Ext.A1 notice of sub-titling of cassettes as an additional business is of no consequence, particularly when the fact remains that the tenant did not even care to reply to Ext.A1 notice. In fact, the tenant examined as RW1 admitted at page 17 of his deposition that the 4th petitioner is carrying on the business of preparing sub titles to customers like Dooradarshan.
5. Towards the end of page 6 of his deposition PW1 has stated that Metro Marketing Services which is his proprietary concern which was started in the year 1988, is dealing in computer consumables. He has consistently stuck to the version that the area now occupied by him for the above business run on the first floor of the building is not sufficient for the expansion of his business and that access to the existing premise is through the staircase and a narrow passage and that it has been his desire for long to have a larger premises on the ground floor with road frontage. Nobody can dispute that for a business of the above nature a premises on the ground floor with road frontage is definitely an added advantage. The law is well settled that portions occupied by the landlord and tenant of the same building used as an integral unit cannot be treated as different buildings in the context of a claim under section 11 (8) of the Act. Vide Punjab National Bank v.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Dr.A.K.Sabhapathy - 2001 (1) KLJ 86; Shaji Varghese v.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Cherian - 1993 (1) KLT 133 and Rawalmal Naraindar v.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Amarnath - 1999 (4) SCC 25).@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAA
6. The tenant was actually misleading the Rent Control authorities below by subjecting PW1 to a searching and incisive cross-examination with a view to elicit that portions of the tenanted premises in the first floor and ground floor of Choolackal building and other nearby bindings belonging the very same landlords became vacant pendente lite and were let out to various tenants for higher rent affecting the bona fides of the present claim. There is no dispute that Metro Marketing Services run by PW1 on the upstair portion of Choolackal Building is having an area of about 600 square feet only and the additional accommodation claimed by PW1 for the expansion of his business is the petition schedule premises on the ground floor having road frontage and having an area of 1531 square feet. The only other rented premises which fell vacant on the ground floor of this building and which was let out to one Bazi Traders pendente lite, was even on the admission of PW1 himself, not more than 150 square feet and that too below the staircase. The tenant cannot dictate the landlord to remain content with a smaller and less convenient premises in preference to the tenanted premises which is more spacious and more advantageous. It is not for the court also to find out whether even without such additional accommodation the landlord could somehow manage to carry on. (Vide Subramonia Iyer v/s.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAA Krishnaswami AIR 1981 Kerala 57). All the other rooms@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA which fell vacant and which were let out pendente lite were either on the first floor of Choolackal building or in other buildings belonging to the landlords. When the existing business of PW1 is admittedly in the upstair portion of Choolackal building and the desire evinced in the R.C.P. as well as in the evidence of PW1 is to have additional space by having the tenanted premises as well which is on the ground floor of the same building, it is poor solace to PW1 to be told that he may either have additional space in the upstair portion itelf or in another building. It is not for the tenant or even the Court to ask the landlord to transplant or uproot his business to another premises. With regard to the other half on the ground floor of Choolackal building where the tenant is running another business by name "Aurovilli", what PW1 has stated is that in R.C.P. No.142/19900 the said premises were claimed for the own use of the 5th petitioner and that the said need was not upheld. (See PW1- Page 17). So, that premises is not available. It is in respect of the said case that C.R.P. 2796/2001 is stated to be pending before this Court. Even if eviction is eventually ordered in that case it will only enure to the benefit of the 5th petitioner and not PW1. Likewise, there is no evidence in this case to show that the premises in the Press Club Road where the very same tenant was conducting a similar business in the same name, "Vidhyarthimithram" has been surrendered to the petitioners. Even if it is true, the said premises are admittedly in another building and cannot be made use of by PW1 for the purpose stated in the present proceedings. Moreover, the landlords have a case that the affidavit filed by the tenant before the Appellate Authority was really to circumvent the claim of the landlords under Section 11 (4)(iii) of the Act. When such is the factual position regarding the vacancy and re-letting of other premises pendente lite, the non production of the lease deeds by the petitioners does not expose them to the risk of being disbelieved or to the danger of any adverse inference being drawn against them.
7. The statement of PW1 out of context has been made much of by the authorities below to hold that the claim for eviction was a ruse to evict the tenant for a higher rent. What PW1 was asked was whether the subsequent letting of the other premises which fell vacant pendente lite was on the prevailing rate of rent and taking advance and PW1 replied in the affirmative. Similarly, he was asked whether the area was one where there was the practice of collecting a huge amount by way of "pakidi" over and above the rent advance. That also he replied in the affirmative. But PW1 was never asked as to whether he or any of the petitioners had taken "pakidi" from any of the new tenants. It was, therefore, uncharitable on the part of the authorities below to infer that the claim for eviction was with a cupid eye on rack renting. It is trite law that even the conduct of the landlord asking for more rent will not affect the bona fides of the claim. (See John v. District Court@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAA 1992 (1) KLT 803). The only conclusion possible on the@@ AAAAAAAAAAAAAAAAA evidence before Court is that the need put forward by the landlords was an honest, genuine and sincere one in good faith and not an irrational or unreasonable one actuated by any oblique motive.
8. It is well settled that a decision not based on legal evidence raises a question law. (VideV.Ramachandra Ayyar and another v. Ramalingam@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Chettiar and another - AIR 1963 S.C.302). When a finding@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA is rendered without any evidence to support such finding, it involves a question of law. (See Harendra Lal Roy@@ AAAAAAAAAAAAAAAAAAAAA Chowdhuri v. Sm. Haridasi Debi and others - AIR 1914@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA P.C. 67). Failure to appreciate and determine the@@ AAAAAAAAA question of fact to be tried is an error of law (Vide@@ AAAAA Sheikh Rahmat Ilahi v. Mohammed Hayat Khan and others@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA AIR 1943 P.C.208 and M/s. Orient Distributors v. Bank@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA of India Ltd. and others - AIR 1979 S.C.867).@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Concurrent finding is no finding if based on an error of law. (See AIR 1927 P.C. 38). Misreading or non-reading@@ AAAAAAAAAAAAAAAAAAAAAAAA of evidence is an error of law (See Sree Meenakshi Mills@@ AAAAAAAAAAAAAAAAAAAAAAAAA Ltd, Madurai v. Commissioner of Income Tax, Madras - AIR@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 1957 S.C. 49 Para 5 ). Rejection of evidence by lower@@ AAAAAAAAAAAAAAAAAAAAAAA courts on flimsy grounds involves a substantial question of law. (See Major Singh v. Rattan Singh - AIR 1997@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA S.C.1906). After an anxious consideration of the@@ AAAAAAAAAA pleadings and evidence and the statutory provisions and their interpretations in the light of the revisional power of this Court as expatiated in the decisions in Nalakath Sainuddin v. Koorikadan Sulaiman - 2002 (6) SCC@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 1 and Francis v. Sreedevi Varassiar - 2003 (2) KLT 230@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA (FB), we have no hesitation to hold that the conclusions@@ AAAA reached by the authorities below are faulty, untenable and no reasonable forum well instructed in law and facts would have come to those conclusions. We, therefore, set aside the orders of the authorities below and hold that the petitioners have satisfactorily made out a ground for additional accommodation for the expansion of the business of PW1 and that their claim is bona fide.
9. What now remains to be considered is whether the hardship which may be caused to the tenant by granting the application under section 11 (8) of the Act will outweigh the advantage to the landlord within the meaning of the first proviso to section 11 (10) of the Act. When the parties admittedly went for trial with the full knowledge that the claim was one for additional space under section 11 (8) of the Act and both sides adduced evidence also with that awareness, we are not persuaded to remand the case to the authorities below merely because there is no finding regarding the comparative hardship. The question of comparative hardship is really one for the consideration of the Court before deciding whether to reject or allow the application for eviction of the tenant. A decision to allow the application will, no doubt, cause some heartburn to the tenant. Likewise, a decision to reject the application will cause despair to the landlord also. What the Court is expected to do is to balance the pros and cons and arrive at a just conclusion on the evidence before Court.
10. Admittedly the tenant is running similar business in 3 separate premises namely "Vidhyarthimithram" in the petition schedule premises and also in the nearby building at Press Club Road and the third business by name "Aurovilli" in the other portion of the ground floor in choolackal building. Whatever be the motive which prompted the tenant, he has claimed that he has now voluntarily surrendered the "Vidhyarthimithram" shop in the Press Club Road to the landlords. This shows that he could afford to survive with the remaining business. At page 9 of his deposition RW1 has admitted that "Vidhyarthimithram" has branches at Kozhikode, Palakkd, Thiruvalla, Thrissur, Kottayam and Kollam. He further stated that the Head Office of "Vidhyarthimithram" at Kottayam also makes an yearly profit of about 10 to 25 lakhs which is made at the petition schedule premises also. RW1 clarified that his statement in the counter that there are no other buildings in the city was intended to mean that there are no other buildings in his name in the city. RW1 confessed that he did not make any enquiries as to whether there are premises available for his business in that locality particularly in the nearby shopping complex constructed by the Cochin Chambers. (See RW1- Page 18). As against this, there is the evidence of PW1 that Metro Marketing Services is the only business belonging to him. The petitioners may be the owners of other buildings as well. But they are six in number and each of them can legitimately look forward to a brighter future for his own family.
Considering the relevant facts and circumstances of the case, the inescapable conclusion to be reached is that the hardship that may be caused to the tenant by granting eviction under section 11(8) of the Act will not outweigh the advantage of giving vacant possession to the landlords particularly PW1. Hence, in reversal of the orders of the authorities below we allow the revision granting eviction to the landlords under section 11 (8) of the Act. There shall be no order as to costs.
.JN M.Ramachandran, (Judge) V.Ramkumar, (Judge) .JY
----------------------------
M.Ramachandran & V.Ramkumar, JJ.
C.R.P. 2601/1996ORDER Dated 20th Dec. 2004
----------------------------
.PA ========================= V.RAMKUMAR, J.
NO.
JUDGMENT DATED:
=========================