Kerala High Court
Subramaniyan Pillai vs M. Shamsar Jihan on 19 December, 2008
Equivalent citations: AIR 2009 (NOC) 1589 (KER.)
Bench: P.R.Raman, T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 222 of 2008()
1. SUBRAMANIYAN PILLAI, MANAGER,
... Petitioner
Vs
1. M. SHAMSAR JIHAN, D/O.MOHAMMED KUNJU,
... Respondent
2. M. RAJEES JIHAN, D/O. MOHAMMED KUNJU,
3. JAWAHAR KHAJA BEEDI MERCHANT,
4. GEORGE ABRAHAM, S/O.P.V. ABRAHAM,
5. BEENA, D/O.P.V. ABRAHAM,
6. ISSAC, S/O. P.V. ABRAHAM,
7. SHERRU K. MATHEW, ROYA COFFEE WORKS,
8. ROYA COFEE WORKS, REPRESENTED BY ITS
9. SUHARA BEEVI, W/O. YOUNUS KUNJU,
10. R.K HARDWARES, REPRESENTED BY ITS
11. P.A. PHILIP, PHILIP MUSIC,
12. PRABHAKARAN, MANAGER,
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.R.D.SHENOY (SR.)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :19/12/2008
O R D E R
P.R. RAMAN &
T.R. RAMACHANDRAN NAIR, JJ.
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R.C.R. NOS. 222, 223, 224 & 238 OF 2008
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DATED THIS, THE 19TH DAY OF DECEMBER, 2008.
O R D E R
Raman, J.
All these revision petitions are filed by the tenants occupying different shop rooms in a common structure belonging to the petitioners in the Rent Control Petition and thus, all the four revisions arises out of the same R.C.O.P. (27/1997) on the file of the Rent Control Court, Kollam. The Rent Control Court ordered eviction against which four appeals were preferred and by a common order, all the appeals were dismissed. Since there are four tenants, four revisions are filed before this Court. Thus, the subject matter of all the four revisions are the same and hence we heard all the four revisions together and dispose of by this common judgment.
2. As already stated, all these revisions arise from R.C.P. 27/1997. R.C.R. 222/2008 is filed by one Subramaniyan Pillai, who is the 11th respondent therein. R.C.R. 223/2008 is filed by George Abraham, who is the second counter petitioner in the above said case. The Revision petitioner in R.C.R. 224/2008 is the first counter petitioner and the 8th RCR. NOS. 222, 223, 224 & 238/2008 :2: counter petitioner in the above said Rent Control Petition is the revision petitioner in R.C.R. 238/2008.
3. Respondents 2 to 4 and 7 to 9 alone appealed against the order of eviction and only four of them have chosen to file revisions. The remaining parties have thus given up their claim and the order of eviction as against them has become final.
4. Respondents 1 and 2 as landlords filed the rent control petition seeking eviction under Section 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act on the material allegations as follows: They are sisters and represented by their mother and Power of Attorney Holder by virtue of the Power of Attorney dated 11.12.1979 and 17.3.1980 respectively. An extent of 21 cents of property with shop rooms bearing Nos. 8060 to 8070 (Re-survey No. 34/2, Block No. 180 measures 18,400 cents) of Kollam belonged to Umaiban Beevi, out of which northern 101/2 cents including shop room bearing Nos. 2552 to 1555 (new No. MC. 2008 to 2011) and the go down attached thereto was gifted to the first petitioner by virtue of gift deed No. 188/76 dated 27.1.1976 of SRO, Kollam, which are shown as plaint schedule items 1 to 4. The southern 101/2 cents with building bearing Nos. 1556 to 1561 (New No. MC. 2012 to 2015) and two go downs bearing Nos. 2017 and 2018 was gifted to the second petitioner by virtue of the same gift deed, which are plaint B RCR. NOS. 222, 223, 224 & 238/2008 :3: schedule items 1 to 6. Petitioners are the absolute owners and landlords of the building. Petition A schedule Item No.1 bearing No. 2008 was leased out to the first counter petitioner on 4.3.1991 (petitioner in R.C.R. 224/2008) for conducting business in 'Khaja Beedi'. Plaint A schedule item No.2 bearing No. 2009 and the godown bearing No. MC 2016 were leased out to P.V. Abraham on 4.3.1981 based on which a rent deed was executed and after his demise the tenancy right devolved upon counter petitioners 2 to 4 (Second counter petitioner is the revision petitioner in RCR 223/2008. Counter petitioners 3 and 4 are arrayed as Respondents 8 and 9 therein.) B schedule item No.1 bearing No. 2012 and the petition B schedule item No.6 go-down bearing No. 2018 was taken on lease by 8th counter petitioner (R.K. Hardwares, petitioner in RCR 238/2008) from the 2nd petitioner on 27.2.1981 on a monthly rent of Rs.250/-. Petition B schedule item No.4 bearing No. 2015 was taken on lease, as per a rent deed executed in favour of the second petitioner, by the 11th counter petitioner, which is a partnership firm represented by its managing partner Subramaniyan Pillai, who has filed RCR 222/2008. Petition schedule shop rooms and go-downs form part of a row of building facing the road on the eastern side and property on the southern side. They situate just on the western side of Hospital Chamakkada road in a most important business centre in Kollam town. There are other rows building on RCR. NOS. 222, 223, 224 & 238/2008 :4: the same and opposite sides of the road including modern multi-storeyed building adjacent to the petition schedule building. Petition schedule building is an old, out fashioned, and structurally unsound building having tiled roofs with laterate walls. The income derived from the same are too meagre when compared to the capital value of the property and in these circumstances, the landladies jointly decided to demolish the petition schedule building and to put up a multi-storeyed commercial building in its place which will be more profitable to them and also advantageous to the counter petitioners. For the said purpose, they jointly obtained approved plan, licence and permit from concerned authorities and the counter petitioners would be provided with more or less identical accommodation in the building to be put up after reconstruction. According to the petitioners, they have the ability and capacity to effect reconstruction of the building and they agreed to complete the construction by twelve months. The approved plan was shown to the counter petitioners and they were satisfied with the bonafides and agreed to surrender vacant possession of the petition schedule premises; but they have been protracting the final settlement in one pretext or other. Since they are in bona fide need of the petition schedule building for reconstruction, they issued notice to the counter petitioners/tenants demanding vacant possession and since they did not accede to the same, they filed the rent control original petition RCR. NOS. 222, 223, 224 & 238/2008 :5: seeking their eviction.
5. The first counter petitioner in the R.C.O.P. who is the revision petitioner in R.C.R. 224/2008, in his objection, mainly contended that the petition is not maintainable, that he is conducting beedi business in petition A schedule Item No.1 from 1968 onwards, after paying rent regularly, that the building is put up with laterate stones and cement and having tiled roof, that the building situates not in an important locality or business centre as alleged, that several rooms in the multi - storeyed shopping complex situates in Chinnakkada remain vacant, that petition schedule building situates two kilometres away from Chinnakkada, that the petition schedule shop room requires no reconstruction, that he had made certain repairs to the building, that the same is strong, that the northern wall of petition schedule item No.1 forms lateral support of the neighbouring shop owner and hence it is not possible to demolish the same alone, that there is no scope for reconstruction, that there is no sufficient space to reconstruct the building after leaving road margins and open space on other sides, that the petitioners have no bonafide in getting vacant possession of the petition schedule premises, that first petitioner is not residing in Kerala and she is settled in North India as her husband is a Government servant therein, that they have no ability to reconstruct the building, that there is no possibility of putting the reconstructed building for a RCR. NOS. 222, 223, 224 & 238/2008 :6: more profitable use, that there was no agreement to surrender vacant possession of the building as alleged, that the counter petitioners are depending upon the income derived from the business that is being conducted in the petition schedule premises for their livelihood, that if they are evicted, they will be put to untold hardship and loss of their business and that the petition is bereft of bonafide and is liable to be dismissed.
6. Counter petitioners 2,3,4,7,8 and 9 (Counter petitioners 2 and 8 are the revision petitioners in R.C.R. 223 and 238 of 2008 respectively) in their joint objection interalia contended among other things that the petition is not maintainable, that the second counter petitioner has been paying rent on behalf of the other counter petitioners and the rent was periodically enhanced to Rs. 525/- per month, that the petitioners refused to accept the rent for January, 1997, that when there was an attempt to evict them forcefully, a civil suit was filed, which is pending, that Ramakrishna Pillai - the father of the 8th counter petitioner took the petition B schedule item No.1 and 6 in 1970 on a monthly rent of Rs. 225/- from the prior landlord for conducting business in building materials and after his demise, it devolved upon his legal representatives and 8th counter petitioner has been conducting the business on their behalf. They jointly disputed the age of the building and contended that the building is stable and strong, that most of the building in and around of the petition schedule RCR. NOS. 222, 223, 224 & 238/2008 :7: building are also of the same nature, that the building requires no reconstruction as alleged, that the petitioners have no intention to reconstruct the building, that their only intention is to let out the shop rooms to strangers for pakidi and on enhanced rate of rent, that the existing building is befitting to the social surrounding and it does not require any reconstruction, that petitioners have no ability to re-construct the building, the contention that they have approved plan is not true, that they have no idea to reconstruct the building nor to provide identical accommodation to the tenants, that the counter petitioners were offered to provide accommodation in the underground portion, but they demanded shop rooms in the ground floor itself to carry on their business to which the petitioners did not accede, that the petitioners have other properties in the locality and town, that the counter petitioners are solely depending on the income from the business in the petition schedule building and they have no other building for their accommodation and besides they will cause undue hardship if they are evicted, that the petition is devoid of merit and the same is to be dismissed.
7. The 11th counter petitioner, who is the revision petitioner in RCR 222/2008 filed a separate objection, contending that the R.C.O.P. is not maintainable, that the shop rooms and godown did not form part of a row of building, that there are 11 tenants occupying various shop rooms in different RCR. NOS. 222, 223, 224 & 238/2008 :8: buildings and hence the petition framed as such is not maintainable, that the power of attorney has no manner of right to institute the petition on behalf of the landladies, that the petition has been filed against the provisions of the Building (Lease & Rent Control) Act and Rules, that petition B schedule item No.4 was taken on rent by the partnership firm in March, 1981, that he admits the landlord-tenant relationship between himself and the petitioners, that the building is not in an important business locality as alleged, that the allegation that there are multi storeyed buildings near the petition schedule property is denied, that the building is not 100 years of old as alleged and it has strong roof and side walls and it needs no reconstruction, that the averment that petitioners are getting only meager income by way of rent from the petition schedule premises is wrong, that their intention is to build up a multi-storeyed building, that the petitioners did not partition the property or did they produce consent deed relating to the building and and the nature and location of the shares in the proposed building, that they did not obtain plan and licence for reconstruction, that they did not provide identical accommodation to the tenants in the building, that no other suitable building available for them to shift their business, that they have invested more than 30 lakhs in the business which is their main source of income, that they would be put to untold hardship and loss in case their business place is shifted, that the petition is a pretext for RCR. NOS. 222, 223, 224 & 238/2008 :9: eviction and that the petitioner's intention is to dispose of the property on higher price.
8. In the additional objection filed by the 11th counter petitioner, it is contended that Subramanian Pillai is not the Managing Partner of K.V. Mankaran and Company, he is only a manager of the company, partners to the firm are necessary parties to the petition, the petition is filed under Order Order XXX of the Code of Civil Procedure, that the managing partner Velayudha Pillai is no more, that the petitioners were aware of this fact and that the petition is bad for non joiner of necessary parties.
9. The evidence in the case consists of the oral testimony of PWs 1 and 2 and Exts.A1 to A25 on the side of the petitioners and Ext. B1 and the oral testimony of CPW.1 to CPW 3 on the side of the counter petitioners. Court Exhibits C1 and C2 were also marked.
10. The Rent Control court raised an issue regarding the maintainability of the petition and it was held that the petition is maintainable. It was also found that the landlord-tenant relationship and the rate of rent are admitted and that petition A schedule items 1 to 4 and B schedule 1 to 6 were let out to counter petitioners 1 to 11 and others for conducting various business. It was also found that the managing partner of the 11th counter petitioner M/s. K.V. Mangaram & Company has accepted notice after convincing that it has RCR. NOS. 222, 223, 224 & 238/2008 :10: been issued to the Company and thereafter he filed objection on behalf of the Company and the partners authorized him to contest the proceedings on their behalf and that he has been paying rent on behalf of the firm to the petitioners.
11. Since the objection was filed by CPW.3 representing the firm, it was held that even without other partners in the party array, the firm has been properly represented and the petition is well maintainable. It was further held that the contention regarding non joinder of necessary parties as raised by the other counter petitioners was not explained further to support their contention, that counter petitioners 2 to 4 are holding tenancy as joint tenants and there is substantial representation and therefore, the allegation of non joinder of necessary parties to be rejected. Though the 11th counter petitioner contended that the power of attorney holder has no authority to sign the petition, the court below did not accept the same and after referring to Section 11 (16) of the BRC Act, it was held that the said provision empowers the agent to apply for eviction with the written consent of the landlord, that Ext.A1 is the power of attorney executed by the second petitioner and that Ext.A2 is the power of attorney executed by the first petitioner, authorising PW.1 to let out the petition schedule premises, to receive rent from the tenants, conduct legal proceedings, apply for eviction etc. Thus Exts.A1 and A2 were held valid authorisation as provided under the Act and following the dictum laid down in Aravind v. RCR. NOS. 222, 223, 224 & 238/2008 :11: Raghavan (2000(1) KLJ 242) it was held that the power of attorney is well authorised to file application for eviction as per the clause contained in the power of attorney and so the petition was held maintainable.
12. Nextly, it was contended that the petition schedule building consisting of many shop rooms and different structures and a single petition for eviction on the ground of re-construction is bad for mis-joinder of cause of action. It was found that only the 11th counter petitioner has set up such a contention. The first counter petitioner, on the other hand, contended that petition A schedule item No.1 is part of a single building having eleven rooms. The Commissioner appointed by the court visited the premises, filed a report Ext.C1 and a mahazar Ext.C2 which reveal that the entire shop rooms form part of a single structure facing the road on the eastern side. The Commissioner was examined as PW.3 who deposed that all the building are under the same roof having tiled and asbestos sheet roofing, the eves of which are joined with the sheets. Cross examination of CPWs 1 to 3 brought that the shop rooms and the godowns are having common wall over which they situate. It was held that Ext.A11 series would reveal the intention of the petitioners to demolish the entire structure to which the petition schedule form part and to effect reconstruction. Ext.A11 series are the approved plan in respect of the proposed building and Exts.A12 and A13 are the building permit and the extension order RCR. NOS. 222, 223, 224 & 238/2008 :12: and therefore, the petition for eviction on the ground of reconstruction of the entire building is not bad for misjoinder.
13. The Rent Control Court, after analysing the entire evidence in the matter held that the petitioners are in bona fide need of the petition schedule building for reconstruction and hence entitled for an order of eviction. In the result, the petition was allowed on the ground of bona fide requirement to reconstruct the building.
14. Challenging the said order of eviction, R.C.A. 25/2001 was filed by Counter petitioners 2, 3, 4, 7, 8 and 9. The Manager of the 11th respondent filed R.C.A. 27/2001. The Appellate Authority disposed of both these appeals by a common judgment dated 5.8.2008, concurring the findings of the Rent Control Court and dismissing the appeals. The appeal filed by the first counter petitioner as RCA 33/2001 also ended with the same fate.
15. The 1st and 5th appellant in R.C.A. 25/2001 filed separate revision as R.C.R. 223/2008 and R.C.R. 238/2008 respectively before us and the appellant in R.C.A. 27/2001 has filed R.C.R. 222/2008. The revision petitioner in R.C.R. 224/2001 is the appellant in R.C.A. 33/2001.
16. We may notice that even though RCA 25 & 27/2001 and R.C.A. 33/2001 were disposed of by two separate judgments by the same Appellate Authority, the points considered and decided are the same. It is against those RCR. NOS. 222, 223, 224 & 238/2008 :13: orders, that the present revisions are filed and various contentions are raised in the course of arguments.
17. We have heard the learned Senior counsel Sri. Govind K. Bharathan, appearing on behalf of the revision petitioner in R.C.R. 238/2008, Sri. A.M. Shaffique, Senior counsel appearing on behalf of the petitioners in R.C.R. 222/2008, learned counsel Sri. P.B. Suresh Kumar, appearing on behalf of the petitioners in R.C.R. Nos. 223 and 224/2008 and Senior counsel Sri. R.D. Shenoy appearing on behalf of the respondents in the above revision petitions.
18. The learned counsel Sri. P.B. Suresh Kumar, appearing on behalf of the petitioner in R.C.R. 224/2008 contended that the requirement of the landlord to reconstruct the building is not bona fide and the proposal to reconstruct the building is a ruse for eviction. Bona fide being a state of mind, the same can be proved only by examining the person who procured it by that sense and so the best evidence is that of the person who needs the building to be reconstructed. Reliance is placed on the decision of this Court in Shaji v. Reghunandanan (1999(3) KLT SN 82), Ratheesh Kumar v. Jithendra Kumar ( (2005(2)KLT 669) and Joseph Mathew v. Jose Thomas (2005 (4) KLT 764). In so far as the landlord has not come to the box for giving any such evidence, an adverse inference has to be drawn against the case set up by her. He seeks support on the decision of the Apex Court in Vidhyadhar v. RCR. NOS. 222, 223, 224 & 238/2008 :14: Manikrao (1999(3) SCC 573). It is also contended that instead of the landlord, the Power of Attorney holder gave evidence as PW.2 and challenging the bonafides of the landlord, suggestions were also made in the cross examination of PW.2. The non examination of the landlord in the absence of any satisfactory explanation, is according to him, fatal to the very plea raised regarding bonafides. Learned Senior Counsel M/s. Govind K. Bharathan and A.M. Shaffique appearing for the petitioners in the connected revision petition, in support of the contention so raised, points out that as per the provisions contained in Section 11(4) of the Act besides the condition of the building the landlord should further show that he bonafide requires the building to be reconstructed. That such bona fides cannot be proved otherwise than by examining himself (by the landlord) and at least swears by oath that he bonafide requires the building to be reconstructed so that the testimony can be tested in the cross examination and the evidence assessed by the court. Per contra, Sri. R.D. Shenoy, Senior counsel appearing on behalf of the respondents landladies would contended that the landladies have proved that the building is in a dilapidated condition besides produced the approved plan for the proposed new building and also proved their ability to put up the new building as proposed and hence the bona fide requirement for reconstruction is beyond any scope for doubt. According to him, the Power of Attorney holder examined as RCR. NOS. 222, 223, 224 & 238/2008 :15: PW.2 is none other than the mother of the landladies to whom the building belonged and gifted to her daughters in equal proportion.
19. Before we advert to the rival contentions, we may now refer to Section 11(4)(iv) and the factors to be proved for securing an order of eviction thereunder. As per Section 11(4)(iv), landlord can apply for an order of eviction 'if the building is in such a condition that it needs reconstruction and if the landlord requires bonafide to reconstruct the same and if he satisfies the court that he has the plan and licence if any required and ability to rebuild and the proposal of reconstruction is not made as a pretext for eviction". Therefore, the court, before passing an order of eviction, has to be satisfied that (i) the condition of the building is such that it needs reconstruction, (ii) the landlord requires bonafide to reconstruct the same, (iii) he has the plan and licence, if any, required, (iv) the landlord has the ability to rebuild and the proposal is not made as a pretext for eviction.
20. To satisfy the conditions of the building one may show that the building is out-fashioned or dilapidated and considering the surrounding circumstances and the type of the buildings around the area it is commercially viable and economically feasible that it needs to be reconstructed, or it may be a case where the conditions of the building may be such that the landlord want a better building with more area so that he would get a better income for his RCR. NOS. 222, 223, 224 & 238/2008 :16: livelihood or still it may be a case where the building is so dilapidated that unless it is demolished, the same is likely to fall of its own and the like causes or situations. We cannot exhaustively comprehend all such situations and what is stated is only a few illustrations.
21. In this case, on evidence, it is found by the authorities below that the building is in a dilapidated condition. After referring to the evidence in extenso including the commissioner's report Exts.C1 and C2, the authorities found that the building is situated in a commercially importance business centre and there are new concrete buildings coming up in the locality and its economic viability cannot be countenanced. It is also found that the building put up can be profitably used to accommodate more tenants. Exts.C1 and C2 also reveal the fact that new buildings are coming in the locality. On the above findings, the Rent Controller and the Appellate Authority found that the bona fide need set up is true. Turning to the question whether the landlords have got prepared plan and licence for reconstruction and whether they have ability and capacity to reconstruct the building, the evidence was discussed by the court below. Ext.A11(b) is the front elevation of the plan. A2(c) is the first floor which also shows four sides with passage on the side and in the middle. A11A11 series is the approved plan. A12 is the building permit issued by the Town Planner. Ext.13 is the letter of renewal of the permit. Thus, they have RCR. NOS. 222, 223, 224 & 238/2008 :17: the permit and licence for construction of the building. Though there was a conclusion that construction as Ext.A11 series is not possible in the available area, that the building owned by one Noorunneesa on northern side, without being demolished, then a building as proposed cannot be constructed, the court below discussed the evidence of PW.2 and answered satisfactorily. All the objections raised were over-ruled and came to the conclusion that the petitioners have the valid plan and licence for reconstruction. It is after visiting the site that approval was granted by the Municipality. Those authorities have given consent to the landladies to construct the building as per the plan which was produced before Ext.A12 was issued. Total estimate of the construction is Rs. 80 lakhs. Ext.A12 is issued in the joint name of the petitioners. The finding of fact by the two authorities after elaborate discussion of the evidence is not assailable unless they are perverse.
22. Next point to be considered is regarding the ability to reconstruct the building. The first petitioner and her husband are having landed properties. The second petitioner and her husband are at Dubai. The oral testimony of PW.2 is relied on by the court below who deposed that her husband is having landed properties both at Trivandrum and at his native place. Further, they intend to avail loan from the Bank. Ext.A14 is a certificate of deposit dated 9.10.2000 issued from the State Bank of Travancore evidencing RCR. NOS. 222, 223, 224 & 238/2008 :18: the fact that PW.2's husband holds a Fixed Deposit of Rs. 17 lakhs. What we are considering is the ability to raise funds. Hence Ext.A14 is sufficient evidence to prove the factum of deposit made in the absence of any contra evidence. Ext.A15 is a certificate issued by the Canara Bank, Thiruvananthapuram, as per which 30 lakhs is in deposit by various NRI accounts. According to PW.2, these certificates were given by the husband of the second petitioner, for the joint venture project and that he has no objection to utilize these funds towards construction of the building. The court below, after discussing the evidence, held that petitioners have successfully proved their ability to reconstruct the building and that they are in bona fide need of the building for reconstruction. According to the petitioners, to prove that they are having landed properties, no documents are produced. The deposits, if any, in the name of the second petitioner's husband, if not shown to be intended for the construction and the best evidence to prove so is the evidence of the depositor, who has not been examined in the case. PW.2 in her evidence asserts that the petitioners have the ability to reconstruct the building which is not seriously challenged in the cross examination. Besides, Exts.P14 and P15 supports the case of the petitioners regarding the fixed deposit in the name of the husband of the second petitioner. During the pedency of this revision petition, three affidavits are filed - one by the second respondent herein and RCR. NOS. 222, 223, 224 & 238/2008 :19: another by her husband and the third one by the husband of the first respondent. The first and second respondents are the landladies and the petitioners in the Rent Control Petition.
23. Rayees Jihan - the second respondent in the revision petition, in her affidavit swears that the the intention to reconstruct the building entertained by her and her sister is bona fide and is not a pretext for evicting the tenants, that the building is dilapidated and structurally unsafe and is quite unproductive in its present state, that if the reconstruction is effected it will be more beneficial to the land ladies as well as to the tenants in more ways than one, that they are having necessary financial capacity and ability to raise necessary amounts to facilitate the reconstruction within a period of one year from the day vacant possession is surrendered, that her husband is presently employed as the Director, Business Planning at Federal Electricity and Water Authority, Dubai, that she is earning INR 3 lakhs per mensem besides other allowances, that she and her husband are jointly holding mutual funds and investments totally worth Rs. 37 lakhs, in addition, her husband has at his disposal a sum of Rs. 25 lakhs in his Savings Bank Account maintained at Mashriq Bank towards his earnings, that he is having 13 cents of land in Kazhakkoottam Menamkulam Village near to Technopark, Thiruvananthapuram which is worrth Rs. 26 lakhs and that the amount as stated above can be utilized as and when required to finance the RCR. NOS. 222, 223, 224 & 238/2008 :20: reconstruction, besides she can either avail loan on the strength of the property mentioned above or dispose of the same for raising additional funds. Details of various kinds of deposits in the name of the second respondent and her husband and the details of the landed properties they owned and possessed jointly and severally are also given in paragraphs 6, 7, 8 and 9 of the affidavit. Further, it is averred that she will be able to avail loan from Canara Bank, State Bank of Travancore etc. to finance the whole or portion of the construction to complete the same within the time frame fixed by the court. It is further averred that her sister's husband was an IAS Officer in the Madhya Pradesh Cadre who retired from service with effect from 7.5.2000 and that presently he is working as Project Consultant for various companies. Details of his assets - both movable and immovable properties worth crores of rupees are also given in Para 11 of the affidavit and it is averred that herself and her sister have the financial capacity and the ability to raise necessary funds to facilitate the reconstruction.
24. The husband of the second respondent has filed a separate affidavit dated 17th November, 2008 wherein reference is made to the affidavit filed by the second respondent. He swears that he is prepared to finance the reconstruction and he has the ability and funds for such reconstruction, as stated by the second respondent in her affidavit, and he is prepared to utilize RCR. NOS. 222, 223, 224 & 238/2008 :21: the amounts in his account and the assets to finance the reconstruction.
25. The husband of the 1st respondent filed an affidavit stating that he and his father have sufficient financial resources to finance the reconstruction of the building in question and they are prepared to render financial assistance to carry out the reconstruction work.
26. A counter affidavit is filed by the petitioner in R.C.R. 222/2008 to the affidavit filed by the second respondent dated 29.9.2008. It is contended that the said affidavit filed by the second respondent does not in any way amount to an evidence in the case and it is totally contradictory to the averments and evidence adduced in the case and the same should not be considered as proof of the averments stated therein.
27. Learned counsel for the revision petitioners would contend that the above affidavit cannot be taken note of at the revisional stage since the tenants have no opportunity to cross examine the deponent. However, they did not chose to file any counter affidavit controverting the averments made in the affidavit so filed. However, it is not necessary to go in to the minute details of the various assets and finance said to be available with the landladies since the ability to reconstruct the building is a matter to be inferred from the totality of the evidence adduced and in that regard what has to be satisfied is the capacity to raise funds for reconstruction and in that regard the following factors will RCR. NOS. 222, 223, 224 & 238/2008 :22: have a bearing namely, the status of the person, his position in the society, his financial background etc. based on which the court can draw an inference about such capacity. Besides the very site where the building stands is also available as a security for raising funds. On a consideration of the oral testimony of PW.2 who is none other than the mother of the landladies and the Power of Attorney Holder who filed the Rent Control petition, the court below considered this aspect of the matter and found in favour of the landladies. It is based on the gift executed by PW.2 - the mother that the rent control petitioners became owners of the property. She speaks of the fund available and has already referred to Ext.A14 and A15 and also speaks about the immovable properties owned by her. Though a suggestion was made in the cross-examination that what she has stated in the chief examination regarding the immovable property possessed by the landladies is false, she denied the same. The other aspect suggested was that consent of the second petitioner's husband to advance the fund is not obtained. There is also evidence regarding the banks which are willing to advance loans, though at that stage no documentary evidence regarding the readiness of the banks to advance such loans is produced, we do not think that the parties can be insisted to produce such documents at this stage since it is too early to obtain such documents unless the landladies obtained vacant possession of the building and only when RCR. NOS. 222, 223, 224 & 238/2008 :23: they actually start reconstruction that the amount will have to be mobilized. Further, since the landladies have produced evidence to show that part of the funds are readily available with them, nothing prevents them from spending the same at the first stage before they go for loan at the subsequent stage. The evidence of CPW.1 and CPW.2 also show that they are ignorant regarding the ability of the landladies to raise funds to reconstruct the building. CPW.3, on the other hand, would say that the landladies do not have enough money for reconstruction. He placed reliance on Exts.A14 and A15 to contend that they are in the name of the son-in-law of PW.2 and not in the name of the landladies. It is after appreciating the entire evidence on record that the trial court chose to believe the evidence of PW.2 which lies in the realm of appreciation of evidence. The Appellate court re-appreciated the whole evidence and concurred with the finding of fact by the Rent Control Authority and accepted the evidence of PW.2. Therefore, the finding regarding availability of funds being based on the appreciation of evidence available strictly, it is not a matter for this Court to interfere in the absence of strong evidence adduced contra in the case and unless the finding is shown to be perverse. On the other hand, there are three affidavits filed on the side of the respondents herein - the landladies, which we have already referred to, which only supports the other evidence in the case regarding their financial position. RCR. NOS. 222, 223, 224 & 238/2008 :24: At least this will satisfy the mind of this court that the finding regarding the ability of the landladies to re-construct the building in no way can be said to be irrational or perverse. Therefore, we are not inclined to interfere with the above said finding regarding the ability of the landladies to reconstruct the building.
28. From the discussion of the evidence as above, it is thus established that the building is in a dilapidated condition, that it requires reconstruction, that it is practically viable to reconstruct the building, that the locality is fast growing and at present various type of business are being conducted by the tenants in the building in question, that similar types of building are coming up in and around the area, that it is based on the evidence - both oral and documentary - and the evidence of the Commissioner and his report that the court below entered a finding. It is also established that the landladies have ability and capacity to reconstruct the building. It has also been found by the court below, based on the evidence as already discussed in the foregoing paragraphs, that the petitioners have produced necessary plans and licence for reconstruction of the building.
29. Then, the next aspect required to be considered is whether the landladies bona fide requires the building for reconstruction and whether the proposal is made as a pretext for eviction. According to us, if the bona fide requirement of the landladies is established, it follows that the proposal made is RCR. NOS. 222, 223, 224 & 238/2008 :25: not a pretext for eviction. Therefore, the use of the word "and that the proposal is not a pretext for eviction", is to ensure that the requirement should be bona fide to be made out by the landlord. In other words, the proposal is not made for a pretext for eviction is an inference to be drawn based on the totality of the facts established in the case and cannot be said to be an element or fact separately to be proved as it is incapable of adducing any direct evidence to show that it is not a pretext for eviction. There is no evidence as such adduced by the tenants to show that the proposal made is a mere pretext for eviction. Of course, they have challenged the bonafides of the landladies in seeking eviction. In a case where the landlord establishes that the building is in a dilapidated condition, it needs reconstruction, that it is economically viable to reconstruct the building having due regard to the surrounding circumstances, his ability to reconstruct the building, and he is having an approved plan and licence for reconstruction, the court is entitled to draw an inference therefrom that the need for reconstruction is not a pretext for eviction but a bonafide one.
30. As held by the Apex Court in Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde ((1999) 4 SCC 1) the statute enjoins that the court should be satisfied about the requirement and in appropriate cases it is even open to the court to presume that the ladlord's requirement is bona fide RCR. NOS. 222, 223, 224 & 238/2008 :26: and to place the burden of disproving the presumption on the tenant. The term "bona fide" or "genuinely" refers to the state of mind whereas the requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than the mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. The judge of facts should place himself in the arm chair of the landlord and the ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretense or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards nothing further requires to be proved to satisfy the mind of the court that there is a bona fide requirement for the landlord in the factual situation. Therefore, the concept of 'bona fide need or genuine requirement needs a practical approach instructed RCR. NOS. 222, 223, 224 & 238/2008 :27: by realities of life and the approach either too liberal or too conservative or pedantic must be guarded against.
31. The learned counsel appearing for the revision petitioners strongly contended that the petitioners themselves have not come to the box to state their intention to reconstruct the building. According to them, the evidence of the Power of Attorney Holder is not a substitute for the evidence of the landladies who intend to put the reconstruction. Both sides have placed reliance on some of the decisions on this point to which we may refer.
32. Justice Krishna Iyer, (a learned Judge of this Court as he then was) in Kalliani v. Madhavi (1970 KLT 257) while considering a case under Section 11(4) of the Kerala Buildings (Lease and Rent) Control Act, has held that wider meaning is to be given to the expression "condition of the building"
taking into account considerations of social surroundings. In the words of His Lordship, ' the controller has to be satisfied about the genuineness of the claim.
To reach this conclusion obviously the controller must be satisfied about the reality of the claim made by the landlord and this can only be established by looking at all surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward and says that he entertains a particular intention, RCR. NOS. 222, 223, 224 & 238/2008 :28: however strongly, said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances. If really the landlord is wanting to start a big trade on his own and for that purpose he is trying to get recovery of possession, it follows that he bona fide intends to reconstruct the present building because it is common case that in the present thatched shed the landlord cannot carry on any business that he envisages. Therefore, far from negativing the bonafides of the landlord in the matter of reconstruction, his desire to start a business of his own emphasizes the bonafides of his intention to rebuild. A blend of the social needs of replacement and renewal and the avoidance of unreasonable eviction is achieved by S. 11(4)(iv), in that it provides for eviction when the building is in a physically or socially bad condition. At the same time, the tenant is armed with a right to get back into possession of the premises when rebuilt.'
33. Again in P.C. Warriar v. K.. Lakshmikutty Warassiar (1986 KLJ
311), a learned Judge of this Court had occasion to consider whether it is RCR. NOS. 222, 223, 224 & 238/2008 :29: imperative to examine the bona fide need. It was held thus:
"Proof regarding the bona fide need of a landlord can be established at least in certain circumstances by the evidence of persons other than the landlord. In all cases it is not imperative that the landlord has to be examined. If the test is objective, proof can be given by objective facts which do not require as a must an examination of the landlord as a witness in the proceedings. Of course, whether a landlord requires the building is a matter for the landlord to determine. There it may have a subjective element. But the question whether the requirement is bona fide in the sense that the requirement is reasonable is a matter for the court to decide on the objective facts."
34. That was a case where eviction was sought by a landlady who had no other building in her possession. But the landlady did not chose to appear before the Rent Controller as a witness instead her father was examined as PW.1 and the father did not offer any explanation as to why the landlady did not appear before the court to speak about the bona fide requirement of the building. It was in that context that a contention was raised that in the absence of the landlady being examined in the case, the state of mind of the landlady could not be known to the court by any substituted evidence. In that regard, this court referred to the decision of the Supreme Court in Mattulal v. Radhe Lal (AIR 1974 SC 1596) wherein it is held as follows:
RCR. NOS. 222, 223, 224 & 238/2008 :30:
"It is for the court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one".
35. In the decision reported in K.C. Bhaskaran v. P.C. Unni (1984 KLJ
802) where a landlady wanted eviction on the ground of bona fide need for own occupation, this Court held that it is not necessary that the landlady has to be examined as a witness. It was further held as follows:
"There may be a variety of justifiable grounds which preclude the landlord from giving evidence in the case directly and in person. To sign a petition for eviction to an irredeemable doom in such cases, for the only reason that the landlord did not give the evidence, even when there was abundance of other evidence establishing the claim, would be a gross deflection of the course of justice. It is not an inflexible requirement of law that the landlord should necessarily enter the witness box to give evidence. It would depend upon the facts of each case."
36. C. Karunakaran v. T. Meenakshi ((2005) 13 SCC 99) was a case where the landlady sought eviction on the ground of bona fide need under Section 11(3) of the Act, for occupation of her son, for conducting a stationary business. That was resisted by the tenant. The Rent Control Court dismissed the petition. The appeal filed by the landlady was also dismissed. On her further revision before this Court, the judgment of the courts below RCR. NOS. 222, 223, 224 & 238/2008 :31: were set aside and eviction ordered accepting the plea of the landlady for eviction on the ground of bona fide need against which the tenant approached the Apex Court. It was held that there is no infirmity in the finding recorded by this Court. In that context, it was held thus:
"The High court while setting aside the above said findings came to the conclusion that if the view taken by the courts below was to be accepted, then no person living outside Kerala would come back to Kerala and get back his building even on the ground of personal necessity. The High Court took judicial notice of the fact that persons go outside in the pursuit of their profession and come back after retirement or for some other purposes or for that of their children. That in the present case, the husband of the respondent who was in service of the Railways had died and, after his death, the respondent thought it proper for her son to come back to his native place and start a business where a building was available. That simply because a person was away for a number of years is no ground to deprive him/her from getting back the building on the ground of personal necessity. Mere non-examination of the person for whose need the building was required by itself was no ground to non-suit the landlady. In a number of decisions (this fact is acknowledged by the first appellate court also), it has been held that it is not necessary to examine the person for whose need the premises are required. It depends on the facts and circumstances of each case."
37. In Neta Ram v. Jiwan Lal (AIR 1963 SC 499) arising under the House and Rents, Patiala and East Punjab States Union Urban Rent Restriction RCR. NOS. 222, 223, 224 & 238/2008 :32: Ordinance (8 of 2006 BK) S. 13(3) (a)(iii) and (b) it was held thus:
"Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about genuineness of his claim and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward and says that he entertains a particular intention, however strongly, said to be entertained by him. Section 13(3)(b) of the Pepsu Urban Rent Restriction Ordinance speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances."
38. Mr. Justice K.K. Mathew, (as he then was) while considering a similar case of eviction under Section 11(4)(iv) on the ground of bona fide requirement for reconstruction, in Ahammad Kanna v. Muhammed Kaneef (1967 KLT 841),dealt with the matters to be considered by the Rent Control Court and in that context, it was held thus:
RCR. NOS. 222, 223, 224 & 238/2008 :33:
"A conclusion on the question as to whether a building is in such a condition that it needs reconstruction, is to be arrived at, not merely on the basis of looking at the building alone or taking into account the actual physical condition of the building alone but having due regard to various other circumstances, namely the area where the building is situated, the nature of the developments that are taking place in the area etc. The Court has to be satisfied about the genuineness of the claim. To reach this conclusion obviously the Court must be satisfied about the reality of the claim made by the landlord and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of it being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fidies of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances."
39. On the basis of the above discussion of the case law, it cannot be said that it is the invariable rule of law that the bona fide requirement for reconstruction of the building can be proved only by examining the landlord or landlady. For that reason alone, a petition cannot be dismissed. The bona fide RCR. NOS. 222, 223, 224 & 238/2008 :34: requirement is a matter to be inferred from the various circumstances as proved to be exist in the case and it is for the court to record its satisfaction that the requirement pleaded is bona fide. In other words, even if the landlord/ landlady come forward and say that he/she bona fide require the building for reconstruction, the court is not bound to order eviction unless it adjudges and finds about the bona fide requirement on an assessment of the materials produced in the case. Thus, it is a matter where an inference is to be drawn from the materials produced. The provision is clear that it puts the duty on the court to satisfy itself of the bona fide requirement before ordering eviction. It was in that connection that the Apex Court in Vijay Singh v. Vijayalakshmi Ammal ((1996) 6 SCC 475) held that eviction cannot be ordered on mere asking of the landlord that the building is required for immediate demolition and reconstruction and whether demolition sought with the sole object of getting rid of the tenant is relevant for ascertaining the bona fide requirement of the landlord. While granting permission under Section 14(i)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, it was held that the Rent Controller has to take into account (i) bona fide intention of the landlord far from the sole object only to get rid of the tenants; (ii) the age and condition of the building and (iii) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These RCR. NOS. 222, 223, 224 & 238/2008 :35: are some of the illustrative factors which have to be taken into consideration before an order is passed under Section 14(1)(b).
40. It was contended by the counsel appearing on behalf of the revision petitioners that in a case where the landlord did not give evidence rather his Power of Attorney Holder was examined, the same is not permissible. To substantiate this contention, he has placed reliance on the decision in Joseph Mathew v. Jose Thomas (2005 (4) KLT 764) wherein it was held by the Apex Court thus:
" A General Power of Attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the said party. No one can delegate the power to appear in the witness box on behalf of himself and to appear in a witness box is altogether a different act inasmuch as a general Power of Attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. ......."
41. That was a case where the order of eviction was passed on the evidence of the Power of Attorney holder alone and nobody else was examined. ( In that case, nowhere it was stated that the landlord required the premises in question for his son who was the Power of Attorney holder. ) In that context, the question considered was whether by virtue of the power conferred on the agent by the Power of Attorney, whether he can become a witness on behalf of RCR. NOS. 222, 223, 224 & 238/2008 :36: the principal. Therefore, the principle held in the said decision was that a Power of Attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. In our view, the said decision in no way supports the contention that the bonafide requirement can be established only if the landlord himself is examined in the case.
42. In this connection, we may refer to the decision of the Apex Court in Ramkubai (deceased by Lrs.) v. Hajrimal Dhokalchand Chandak ((1999) (6) SCC 540). That was a case of eviction on the ground of bona fide need where the landlady required the premises in question for carrying on a business by her son who was also her Power of Attorney holder. He deposed as a witness on her behalf. The Apex Court upheld the order of eviction holding that the evidence of the Power of Attorney holder who was the son of the landlady could be taken into consideration for passing order of eviction as the premises was required by the landlady for use of her son whose evidence alone could form the basis of eviction though the landlady herself did not come in the witness box. The above said decision was distinguished by the Supreme Court in (2005 (4) KLT 764).
43. If we examine the facts of the present case in the light of the above decision, it can be seen that the petitioners are the sisters who sought eviction and eviction petition itself was signed by the mother who was also their Power RCR. NOS. 222, 223, 224 & 238/2008 :37: of Attorney holder that the tenanted premises was owned by the mother earlier and it was subsequent to the gift in favour of the landladies that they became entitled to the property. Bot the landladies were away - one of them abroad and another in another State. Therefore, the mother gave evidence besides placing other materials both oral and documentary on various aspects required to be considered before ordering eviction under Section 11(4)(iv) of the Act, which on facts satisfies the requirement of law. A Division Bench of this Court in Aravindakshan v. Raghavan (2000(2) KLJ 242), after referring to Section 2(3) of the Kerala Buildings (Lease & Rent Control) Act, held that a Power of Attorney holder can file a petition for evicting the tenant if he is authorised to do so as per the clauses in the Power of Attorney. The petition is signed by the mother - Power of Attorney holder who is competent to speak in support of the petition thus signed by her. Further, if we are to eschew from consideration all the evidence and reject the petition on the sole ground of non examination of the landladies, it will deflect the course of justice. The question of bona fide need is a matter to be inferred by the court in an objective manner on an assessment of the materials produced. We do not think that the non examination of the landladies in any way is fatal to the case on hand.
44. The next contention raised by the revision petitioners is that the application is bad for mis-joinder of cause of action. According to them, RCR. NOS. 222, 223, 224 & 238/2008 :38: even though the provisions contained in the Code of Civil Procedure are not applicable, the principle would apply and it is contended that under Rule 3 of Order 2 CPC, if only the plaintiffs in a suit have causes of action against the defendants jointly, they are entitled to unite such causes of action. Under Section 11(4)(iv) of the Act, a landlord alone is conferred with the right to evict his tenant and as far as a tenant is concerned, his landlord alone will have a cause of action to evict him. In the instant case, the first petitioner landlord has no cause of action against the tenants of the second petitioner and vise- versa. Therefore, they have no cause of action jointly and the eviction petition is therefore, bad for misjoinder of causes of action. According to them, prejudice has been caused on account of misjoinder as the ability of the first petitioner/landlord has not been established in the proceedings and but for the misjoinder the first petitioner/landlady would not have obtained an order of eviction against her tenants. Reference was made to the decision of the Apex Court in Prem Lala Nahata v. Chandi Prasad (2007 (1) KLT 910) wherein it is held that the Court has the liberty even to treat the plaint in such a case as relating to two suits and try and dispose of them on that basis. But according to them, the present application, even if it is treated as two different applications, the ability of the first and second petitioner is not independently established in this case. So the order of eviction as against the tenants of the RCR. NOS. 222, 223, 224 & 238/2008 :39: first petitioner is illegal.
45. Per contra, the learned counsel for the respondent argued that the revision petitioners are not entitled to raise this issue in the light of the law relating to misjoinder of parties and cause of action. Relying on the decision reported in Sulthan v. Mohanan (2000(3) KLT 338) it is contended that where construction involved is with the obligation to reinduct the tenant the reconstruction contemplated is of the whole of the structure. That what is important is the opportunity to be given to the tenants to resist the claim. It is also contended that mere raising an objection of misjoinder of parties is not sufficient but must be proved and an adjudication is to be sought. Further, the objection regarding misjoinder of parties is procedural and the court is having the discretion to treat the application as separate and can deal with it on that basis.
46. In Jamal v. Safia Beevi (2005 (2) KLT 359) a Full Bench of this Court has considered as to whether a landlord can prefer an application under Section 11(4)(iv) of the Act against various tenants who are occupying distinct portions of the same structure and it was held as follows:
" ............ Landlord can prefer an application under Section 11(4)(iv) against various tenants who are occupying distinct portion of the same structure since the tenants are jointly interested in the causes RCR. NOS. 222, 223, 224 & 238/2008 :40: of action and the defence available to all the tenants would be by and large common and hence there will not be any misjoinder of causes of actions or misjoinder of parties. The landlord cannot unite different causes of action in a single petition filed against various tenants whether they are in occupation of same building or different building. Such a petition would be bad for misjoinder of causes of actions and misjoinder of parties. Objection as to the misjoinder of causes of actions and misjoinder of parties should be taken at the earliest opportunity; failing which the Court would not interfere unless it is shown that serious prejudice has been caused to the parties. Rent Control Court can consolidate the applications for eviction if there are similarity or identity of the matters in issue in the petitions which is to be left to the discretion of the Rent Control Court, depending upon the facts and circumstances of each case."
47. In Prem Lala Nahata v. Chandi Prasad (2007(1) KLT 910) (SC) the Apex Court held that a suit bad for misjoinder of parties or misjoinder of causes of action cannot be held to be barred by any law within the meaning of Order VII Rule 11(d).
48. In the light of the decision of the Apex Court in Prem Lala Nahata v. Chandi Prasad (2007(1) KLT 910)(SC), it has to be held that a suit is not barred within the meaning of Order VII Rule 11 (d) even if it is bad for misjoinder of parties or cause of action, the scheme of Order 1 and Order 2 would show that the prescription there in are in the realm of procedure and not RCR. NOS. 222, 223, 224 & 238/2008 :41: in the realm of substantive law or right. This is also clear from Section 99 of the Code of Civil Procedure as per which no decree can be reversed on appeal on account of misjoinder of parties or cause of action; unless the court finds that the nonjoinder is a necessary party. Procedure is a hand made of justice. Here the building (the whole structure) is to be demolished and reconstructed by the petitioners who own the respective portions of the same structure. The fund is to be consolidated by the two together. Evidence in this regard has been discussed at length. So, in the factual situation, the evidence adduced in common relates to the ability of the landladies who wanted to rebuild the same as a joint venture. Opportunity has been given to all the tenants. Both the authorities below appreciated the evidence and came to the conclusion that the petitioners in the Rent Control Petition have proved their ability to reconstruct the building. There is nothing to show any individual prejudice as having been suffered by the tenants. Therefore, we are not persuaded to hold that the application is liable to be rejected on the ground of misjoinder of parties or cause of action. Consolidation is a power exercised by the courts in appropriate cases so that it may save court's time and effort and to make the conduct of several action is more eminent by treating them as one action. Therefore, even a suit defective for misjoinder of parties or cause of action is not barred by law. Hence in the present case, even if two separate petitions RCR. NOS. 222, 223, 224 & 238/2008 :42: are filed by each of the landladies separately, can it be separately tried? Is it not a fit case for consolidation? The building is one structure owned by the mother who gifted portion of it to her two daughters. The building is having one roof. It is that building which is required to be demolished. Therefore, unless both of them jointly require the building to be demolished and rebuild, the very petition may lack bona fide, as a portion of the whole structure in the factual situation may not be feasible if not impossible. Hence the pleading will be common; evidence is to be appreciated in toto. We therefore find that even if two petition had been filed, unless consolidated and tried, it may not be possible to fully appreciate the evidence to ascertain the condition of the building with reference to the surrounding circumstances, economical viability etc. in an objective manner. Counsel for the petitioners Sri. Suresh Kumar vehemently contended that he need only show that his landlord is not having the capacity to reconstruct the building and the court below did not seriously consider the aspect from this angle. We find that both the petitioners are sisters, the building is one structure though half of the building belongs to one sister and the other half by the other sister. It is after demolishing the existing building that new building jointly is being put up. Both of them wanted the reconstruction to be made as a joint venture. The husbands of the petitioners are ready to invest amounts which they possess and ready to raise funds from RCR. NOS. 222, 223, 224 & 238/2008 :43: financial institutions. Therefore, reading the evidence as a whole, we cannot find that the landladies have not proved their ability to reconstruct. The tenants thoroughly examined the mother who was examined as PW.2 and nothing is brought out to discredit her testimony. In these circumstances, no prejudice is proved by the petitioners. We are not in the factual situation, persuaded to hold that the petition is liable to be rejected on the ground of misjoinder of parties.
49. The next contention advanced is that the application is not in accordance with Rule 7(3) of the Kerala Building (Lease and Rent Control) Rules. Rule 7(3) of the said Rules reads as follows:
"Every application shall be signed by the applicant or his counsel and presented to the Rent Control Court by the applicant himself personally or by his authorised agent or by counsel at any time during office hours on a working day. (No document or proceedings received by post or telegraph shall be considered/entertained/acted upon by the Rent Control Court). "
Interpreting the said Rule, a Division Bench of this Court in Baburaj v. Dr. M.T. Yacob (2001(2) KLJ 360) held that a reading of the Rules shows that so far as signing is concerned, it should be signed by the applicant. But so far as the presentation is concerned, it says that the application shall be RCR. NOS. 222, 223, 224 & 238/2008 :44: presented by the applicant himself personally or by this authorised agent. It was further held as follows:
"...........Further we are of the view that 'nothing in the rule prevents the representation of the party through his authorised agent. Under Rule 23 of the Civil Rules of Practice, if any proceeding which under any provision of law or these rules is required to be signed or verified by a party, is signed or verified by any other person on his behalf, a written authority in this behalf signed by the party, except in the case of persons under disability, shall be filed in court, with an affidavit by such person verifying the signature of the party and stating the reasons for the inability of the party to sign or verify the proceeding. . .............".
50. Following the said decision, it has to be held that even though the petitioners as such have not signed the petition, signing of the petition by their Power of Attorney Holder cannot be said to be in any way violative of Rule 7 (3) of the Rules.
51. The contention raised on behalf of the revision petitioners in R.C.R. 222/2008 is that without impleading the partners, eviction petition against the firm alone is not maintainable. This question was considered by this Court in Lieya v. Kaliyappa Chettiar & sons (1995(2) KLT 783 holding that the term 'tenant' as defined in Section 2(6) takes in any person by whom or on whose account rent is payable and so it cannot be said that the firm is not a tenant. It RCR. NOS. 222, 223, 224 & 238/2008 :45: was held that the Rent Control Petition is maintainable against a partnership without individual parters in the array of parties. This answers the contention of the petitioners.
52. In the given set of facts and evidence as appreciated by the two authorities concurrently and even after appreciating the evidence, we do not find any reason to disagree with the finding so reached. We have discussed the evidence in its entirety in the foregoing paragraphs.
53. Thus we find no merits in the revision petitions. Accordingly, they are dismissed. However, considering the fact that the revision petitioners/ tenants are continuing business in the petition schedule premises, we grant them three months time to surrender vacant possession of the tenanted premises. The execution petition, if any filed, pursuant to the order of eviction, shall stand deferred for a period of three months.
In the circumstances, there will be no order as to costs.
P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-