Kerala High Court
San Varghese vs Avira Pappu on 1 March, 2013
Equivalent citations: AIR 2013 (NOC) 398 (KER.)
Author: A. V. Ramakrishna Pillai
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934
RCRev..No. 390 of 2010 ( )
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AGAINST THE JUDGMENT IN RCA.24/2009 of ADDL.D.C. & MACT, PARAVUR
AGAINST THE ORDER IN RCP.6/2008 of MUNSIFF COURT, PERUMBAVOOR
REVISION PETITIONER(S)/APPELLANTSPETITIONER :
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1. SAN VARGHESE, AGED 35 YEARS,
BUSINESS, S/O.V.P. VARKEY, VETTICKANAKKUDY
HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE.
2. V.P. JOSE, AGED 53 YEARS,
BUSINESS, S/O. PAILY, VETTICKANAKKUDY HOUSE
AIMURY KARA, KOOVAPPADY VILLAGE.
BY ADV. SRI.S.SREEKUMAR
RESPONDENT(S)/RESPONDENT :
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AVIRA PAPPU, AGED 66 YEARS,
S/O. MATHAI, KARIPRA HOUSE, AIMURY KARA
KOOVAPADY VILLAGE, BUSINESS ROOM NO.PMC, VI/593
WEST OF VEGITABLE MARKET, PERUMBAVOOR KARA
PERUMBAVOOR VILLAGE, P.O. PERUMBAVOOR - 683 542.
R BY ADVS. SRI.G.KRISHNAKUMAR
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD
ON 31/01/2013, ALONG WITH RCR. 391/2010, RCR. 434/2010, THE
COURT ON 01-03-2013 PASSED THE FOLLOWING:
BP
'C.R'
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
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R.C.R. Nos.390, 391 & 434 of 2010.
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Dated this the 1st day of March, 2013.
ORDER
Ramakrishna Pillai, J.
Under challenge in these revisions filed by the landlords under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as, the Act, for short) is the judgment of the Rent Control Appellate Authority refusing to order eviction against the respondents/tenants under Sections 11(3) and 11(4)(iv) of the Act, confirming the order of the Rent Control Court dismissing the rent control petitions. Though it was found by the learned Appellate Authority that the need alleged is bona fide, eviction was refused finding that the petitions are bound to fail by virtue of the first proviso to sub section (3) of Section 11 of the Act.
2. The pleadings in the rent control petitions are identical, but there are variations regarding the terms of the lease deeds. As pleaded, the case of the landlords was that the rooms which are the subject matter of three rent control petitions viz., RCP Nos.4/2008, 5/2008 and 6/2008 together RCR.390,391&434/10 -:2:- with the other portions of the building situated upon the land having a total extent of 4.5 cents in Perumbavoor Town, belong to them and they are under the possession of the respondents/tenants on the basis of separate rental arrangements entered into between them with the previous owners of the building.
3. In the room, which is the subject matter of R.C.P No.4/2008 (corresponding to RCA No.25/2009 and RCR No.391/2010), the office of the Perumbavoor Block Committee of the Indian National Congress Party is functioning.
4. In the room, which is the subject matter of R.C.P No.5/2008 (corresponding to RCA No.23/2009 and RCR No.434 of 2010) Wilson, the tenant therein is conducting a tailoring shop by name Good Will Dress Makers.
5. In the room, which is the subject matter of R.C.P No.6/2008 (corresponding to RCA No.24/2009 and RCR No.390 of 2010), Avira Pappu, the respondent therein is dealing with the hill produce items including spices. The common pleading in all these rent control petitions in the context of the ground under Sections 11(3) and 11(4)(iv) was that RCR.390,391&434/10 -:3:- the first revision petitioner/landlord No.1 has an agency of Hindustan Lever Limited and is doing the whole sale distribution of their products in a place by name Aimury in Koovappady village and he has decided to shift his whole sale business from Aimury to Perumbavoor Town where the petition schedule rooms are situated. It is averred that for shifting/starting whole sale business, the landlords do not have any property other than the property extending to 4.500 cents where the building consisting of the rooms which are the subject matter of the rent control petitions are situated. It is further averred that the petitioners intend to demolish the building which presently stands on the property, to put up a modern building with facilities necessary for accommodating their whole sale business. It is also averred that the Perumbavoor Municipality has already been moved for approval of the reconstruction plan and the Municipality has issued building permit as B.A.No.95/2008- 2009 in respect of the proposed two storeyed building on 22.7.2008.
6. Paragraph (10) of the rent control petitions contain pleadings regarding the need of the landlords. Translation of paragraph (10) in R.C.P No.6/2008 which is similar to paragraph (10) in the other two RCR.390,391&434/10 -:4:- RCP's is as follows:
" There is necessity to demolish the existing building and to put up a new building in order to enable the first petitioner (the first revision petitioner-landlord No.1) to commence his own whole sale shop. Therefore, the tenant was requested to put the landlord's possession of the room in their possession and the tenants have avoided surrender of the rooms raising one excuse or the other. "
7. Anticipating defence by the tenants based on the second proviso to sub section (3) of Section 11 of the Act, it is averred in paragraph (11) of the rent control petitions that in the locality other buildings, including those belonging to the Municipality, are available and it is also averred that the income derived from the business carried on in the rooms, which are the subject matter of the rent control petitions is not the principal income for the tenants. In paragraph (12) of the petitions, it is averred that notices demanding surrender of the rooms were sent to the tenants through lawyer, but it could evoke only a reply raising untenable contentions.
8. It is further averred that unless the landlord No.1 shifts his whole sale shop presently conducted in a remote village by name Aimury in Koovappady Panchayat to Perumbavoor Municipal Town, he stands at the RCR.390,391&434/10 -:5:- risk of loosing the agency given to him by M/s Hindustan Lever Limited.
9. The tenants in the three rent control petitions filed objections disputing the landlords' claims as well as their liability to surrender the building. The tenant in RCP No.4 of 2008 has specifically contended in the statement of objections that the need to have surrender of the building has been raised without any bona fides and further that the landlords' case that they intend to put up modern building after demolishing the existing building is bereft of bona fides.
10. In the statement of objections referring to two other rooms, it is contended that the landlords are in possession of other rooms sufficient for their requirements. The contention that the landlord's need is without any bona fides is reiterated. The tenant in R.C.P No.5 of 2008 (Wilson- the Tailor) has contended in the objections that the need of the landlords to have surrender of the building in his possession is without any bona fides and that, as the landlords are already in possession of spacious rooms adjacent to the building in his possession, the petition for eviction is not maintainable. It is further contended that room Nos.589, 590 and 591 in door No.6 form part of the very same building were returned to the RCR.390,391&434/10 -:6:- possession of the landlord recently and the landlord let out those rooms to one Sijo for the conduct of business in coconut oil and to other persons for the conduct of trade. The contention that the need is not bona fide is reiterated. The landlords' claim that they propose to put up a modern building is also disputed.
11. The tenants also claim the protection of the second proviso to sub section (3) of Section 11. In the penultimate paragraph of the objection, it is contended that the rent control petitions are actuated by the oblique motive of either to dispose of the properties after evicting the tenants or to let out the building to new tenants on much higher rent.
12. The tenant in RCP No.6 of 2008 has, in the objections filed, contended that the intention of the landlords to shift their whole sale business from Aimury to Perumbavoor itself is oblique and mala fide. The tenant disputes the landlords' claim that the Perumbavoor Municipality has granted approval to the plan for construction of a double storeyed building in the place of the existing old building and contends that there is no need for the landlords presently to demolish the existing building and to put up a new building. It is further contended that the RCR.390,391&434/10 -:7:- getting approval to this plan itself is part of the landlords' creation to evict the tenant from the building. It was further added that the claim of the landlords that they have a need to put up a new building after evicting the tenants is without any bona fide. These tenants also claim protection of the second proviso to sub section (3) of Section 11. As regards the landlords' averment that the landlords stand at the risk of loosing the agency of M/s. Hindustan Lever Limited, if the wholesale shop is not shifted to Perumbavoor town, the tenants contend that such a feeling is not real and is only the imagination of the landlords.
13. The Rent Control Court consolidated the three rent control petitions and conducted a joint trial. At trial, the evidence consisted of Exts.A1 to A21, B1 to B4, Ext.C1 Commissioner's report as well as Exts.X1 to X3(a), apart from the oral evidence of PWs.1 to 4 and RWs.1 to 3. PW1 was the landlord No.1, the first petitioner in the RCP itself. PWs.2 and 3 were the persons inducted by the landlords into the other portion of the building which came back to their possession during the pendency of the proceedings. Their evidence was to the effect that the understanding was that they will be ready to vacate. RCR.390,391&434/10 -:8:-
14. PW4 was the Commissioner, who conducted the local inspection at the instance of the landlords. RWs.1 and 2 were the tenants in two of the rent control petitions and RW3 was the Secretary of the Perumbavoor Municipality.
15. In all these rent control petitions, the grounds invoked were the grounds of arrears of rent under Section 11(2)(b) and bona fide need for own occupation under Sections 11(3) and 11(4)(iv) also. However, as the ground under Section 11(4)(iv) was invoked only in the context of the landlords' need to occupy the room after re-construction, the statutory authorities construed the claim of the landlords, as raised only under Sections 11(2)(b) and under Section 11(3). It is submitted at the very outset that the only ground which survives in these cases is the ground under Section 11(3), as the need of the landlords for own occupation after re-construction.
16. The Rent control Court, after evaluation of the evidence, came to the conclusion that the need projected by the landlords in all the petitions to re-construct the building as a double storeyed building is not a bona fide one. It was also found that the need to have own occupation of the RCR.390,391&434/10 -:9:- building after re-construction of the building is not bona fide. Incidentally, it was found that the landlords, at any rate, are not eligible for eviction on the ground under sub section (3) of Section 11 as they suppressed the existence of one building in the possession of landlord No.1/the first revision petitioner at Pathipalam and had not made out any special reason justifying eviction.
17. The landlords carried the matter in appeal before the Rent Control Appellate Authority. After hearing both sides, the learned Appellate Authority confirmed the decision of the Rent Control Court, dismissing the rent control petitions under Section 11(4)(iv). Regarding Section 11(3), though the learned Appellate Authority found that the need projected by the landlords is bona fide and the tenants are not entitled to the protection under the second proviso to Section 11(3), it was found that the petitions are bound to fail under the first proviso to Section 11(3), finding that PW1 has admitted that vacant rooms are available in the same building where petition schedule rooms are situated and no special reasons are pleaded for not occupying those rooms. Thus, the claim under Section 11(3) of the Act was rejected. That is how, now the landlords have come RCR.390,391&434/10 -:10:- up before this Court in revision.
18. We have heard Mr.S.Sreekumar, the learned senior counsel appearing for the revision petitioners/landlords, Mr.P.Viswanathan, the learned counsel for the tenants in R.C.R.No.391 of 2010 and Mr.G.Krishnakumar, the learned counsel appearing for the tenants in the other rent control revisions, in quite extenso. We have perused the impugned common judgment, the order of the Rent Control Court and the connected records.
19. The case of the landlords is that the first revision petitioner has an agency of Hindustan Lever Limited and is doing whole sale distribution of their products in a place by name Aimury in Koovappady village, which is a remote area and he has decided to shift his whole sale business to Perumbavoor town, where the petition schedule rooms are situated. It is their further case that they intend to demolish the existing building, which presently stands on the property, to put up a modern building with facilities necessary for accommodating their whole sale business. The municipality concerned has been moved for approval of plan and licence. Though the Rent Control Court found that the need RCR.390,391&434/10 -:11:- alleged is bona fide, the learned Appellate Authority reversed the same and found that the claim put forward by the revision petitioners is bona fide.
20. It is clear from the evidence that the business conducted by the first revision petitioner in the present building and location is causing inconvenience to him, which necessitates shifting of the business to the Perumbavoor town. Therefore, the need put forward by the petitioners is genuine.
21. The revision petitioners wanted to demolish the existing building and to put up a modern building for the use of their business. Under such a situation, the factors like the physical condition of the building, the possibility of its being put to more profitable use after re- construction, has to be taken into consideration.
22. Though the learned Appellate Authority upheld the genuineness of the need put forward by the revision petitioners, the final decision was in favour of the respondents/tenants, finding that the first revision petitioner is in possession of other rooms in the same building. It is the definite case of the revision petitioners that a few rooms in the same RCR.390,391&434/10 -:12:- building, which they obtained vacant possession from the tenants, have been temporarily allotted to two persons who had undertaken to surrender the same as and when the tenants, who are contesting these petitions, are evicted. It is for that purpose, the revision petitioners examined PW2 and PW3, who are persons inducted by the revision petitioners in the other portion of the building, which was returned to their possession during the pendency of the proceedings.
23. As the need put forward by the revision petitioners/landlords to use the building after demolishing the existing structure, the finding that they are in possession of other vacant rooms in the same building thereby, falling within the ambit of the first proviso to Section 11(3), is not legally sustainable.
24. The Rent Control Court has observed that the revision petitioners have suppressed the existence of a room belonging to them at Pathipalam which is 1 KM away from Perumbavoor town. It was found by the Rent Control Court that the same could be made use of by the revision petitioners. We cannot agree with the said finding. PW1 has admitted that the same has been leased out to a third person who is RCR.390,391&434/10 -:13:- conducting sale of old tyres in the said room. Moreover, the very purpose for which eviction is sought for, is to conduct a whole sale business in a large scale manner, after demolition of the existing building. The special reason for not closing the room at Pathipalam can be gathered from the pleadings which would reveal that the proposed business cannot be confined to a small area.
25. The learned counsel for the respondents/tenants in R.C.R. No.390 & 434 of 2010 relying on a series of authorities would argue that there is no definite pleadings to that effect in the petition filed by the landlords before the Rent Control Court.
26. The learned Senior Counsel appearing for the revision petitioners, per contra, would submit that so long as the broad foundation is there, the same has not caused any serious prejudice to the tenants. In our view, the object of the pleadings in a case is to bring the parties to the issues. If the parties were at issues and have understood the case pleaded by the landlord in the petition, the failure of the landlord to make meticulous pleadings is not fatal.
RCR.390,391&434/10 -:14:-
27. Here, the respondents/tenants with their eyes wide open had defended their case, treating the claim as one for own occupation of the revision petitioners/landlords after demolishing the building. May be true that the pleadings are not happily worded. But, we notice that the broad foundation is there in the pleadings. All the contesting respondents/tenants very well understood the need put forward by the revision petitioners/ tenants and they have adduced evidence in support of their contentions. No serious prejudice has been caused to the respondents/tenants. It is also relevant to note that the right of the tenants to get re-inducted to the same premises is safeguarded by the Act, if the landlords do not re-construct the building after evicting them.
28. From the materials now placed on record, it is very clear to our mind that the finding of the learned Appellate Authority, that the revision petitioners/landlords are not entitled to get an order of eviction by virtue of the first proviso to sub section (3) of Section 11, shall not be allowed to stand. We reverse the said finding and hold that the possession of vacant rooms in the same building which is intended to be demolished, will not take away the right of the revision petitioners/landlords as it is already RCR.390,391&434/10 -:15:- found that their claim is bona fide.
29. The respondent in R.C.R.No.391 of 2010 cannot claim protection under the second proviso, as it is only a wing of a National Party. Regarding the respondents in other two petitions, though the Rent Control Court found that they are entitled to the protection under the second proviso, the learned Appellate Authority for genuine reasons has found that the respondents/tenants in those petitions are not entitled to the protection under the second proviso to sub section (3) of Section 11 of the Act.
30. In the light of the said finding, we hold that the respondents/tenants in all the petitions are liable to be evicted from the respective tenanted premises under Section 11(3) of the Act. We need not go into the question of Section 11(4)(iv), as the very purpose of re- construction is to use the re-constructed building for own occupation of the landlords.
In the result, the revision petitions are allowed. The impugned judgment of the Rent Control Appellate Authority is set aside. All the three rent control petitions seeking eviction of the respondents in all these RCR.390,391&434/10 -:16:- revision petitions from the respective tenanted premises under Section 11 (3) of the Act shall stand allowed.
However, we are of the view that the respondents/tenants, who are occupying the premises be given a breathing time to vacate. On a consideration of the entire facts and circumstances, we grant time to the respondents/tenants up to 30.6.2013 to surrender vacant possession of the tenanted premises to the landlords, subject to the following conditions:
(a) The entire arrears of rent shall be paid by the respondents to the revision petitioners/landlords within one month from today and the receipt thereof shall be produced before the Rent Control Court or the Execution court as the case may be, without fail;
(b) The respondents shall file affidavit, within one month from today before the Execution Court or the Rent Control Court as the case may be, undertaking to surrender vacant possession of the petition schedule building peacefully to the landlords on or before 30.6.2013 and he will continue to pay occupational charges at the current rent rate till the date of actual surrender of the building to the landlords.
RCR.390,391&434/10 -:17:-
We make it clear that the tenants will get the benefit of time granted as above, only if they file the affidavit on time and honour the undertakings contained therein.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI
JUDGE
krj
//TRUE COPY// P.A. TO JUDGE