Kerala High Court
Sreekumar vs Premachandran on 23 November, 2015
Author: A. Muhamed Mustaque
Bench: P.N.Ravindran, A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938
R.C.Rev.No. 65 of 2016 ()
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JUDGMENT IN RCA 6/2015 OF THE ADDL. RENT CONTROL APPELLATE
AUTHORITY - VII, THIRUVANANTHAPURAM DATED 23.11.2015
ORDER IN RCP 3/2013 OF THE PRL. MUNSIFF COURT, NEDUMANGAD
DATED 29.11.2014
PETITIONER(S)/APPELLANT/RESPONDENT:
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SREEKUMAR, AGED 52 YEARS, S/O.SANKARAN, RESIDING AT
'MANJUSHA', VATTIYOORKAVU P.O., VATTIYOORKAVU VILLAGE,
PROPRIETOR, SHANKAR CLLINIC, OPPOSITE GOVT. TALUK
HOSPITAL, NEDUMANGAD, PIN 695541.
BY ADVS.SRI.BIJIMON C.CHERIAN
SMT.P.P.STELLA
RESPONDENT(S)/RESPONDENT/PETITIONER:
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PREMACHANDRAN, AGED 55 YEARS, S/O.KRISHNAN NAIR,
SARADALAYAM, MUKKOLA, REPRESENTED BY POWER OF ATTORNEY
HOLDER RAJASEKHARAN NAIR.R, S/O. RAGHAVAN NAIR, SANTHI,
CHERUVALLYKONAM, NEDUMANGAD P.O., NEDUMANGAD VILLAGE,
PIN 695541.
BY ADV. SRI.RAM MOHAN.G.
BY ADV. SRI.G.P.SHINOD
BY ADV. SRI.GOVIND PADMANAABHAN
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
06-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
bka/-
P.N. RAVINDRAN
&
A. MUHAMED MUSTAQUE, JJ.
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R.C.R. No. 65 of 2016
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Dated this the 6th day of September, 2016
O R D E R
P.N. Ravindran, J.
The petitioner is the respondent in R.C.P. No. 3 of 2013 on the files of the Rent Control Court, Nedumangad, a petition filed by the respondent herein for an order of eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as "the Act" for short.
2. The respondent herein instituted R.C.P. No. 3 of 2013, praying for an order of eviction in respect of the first floor of a three-storeyed building situate opposite Government Taluk Hospital, Nedumangad. The building consists of a cellar, the first floor and the second floor. A press is being run in the cellar portion. The first floor is in the possession of the petitioner. The second floor is admittedly let out to New India Assurance Company Ltd. The respondent had, in the petition for order of eviction, averred that the petition schedule building, which as stated earlier is situate in the first floor and accessible from the main road, was let out to the petitioner herein on 01.06.2012 on a monthly rent of 8,000/- as R.C.R. No. 65 of 2016 ..2..
per Ext.A7. The respondent had further averred that the tenant was paying the rent through bank and rent up to August, 2013, has been paid. The respondent, who is employed abroad, had in the petition averred that he intends to return to his native place and start a medical store in the petition schedule building for earning his livelihood. He had further averred that since senior citizens and other aged persons will not prefer to come to the cellar portion or to the second floor of the building, the cellar portion, where a press is functioning, and the second floor, where the office of the New India Assurance Company Ltd. is functioning, are not suitable for the proposed medical store. He had also averred that the petition schedule building is situate very near to Government Taluk Hospital, Nedumangad and therefore, it is suitable for the proposed medical store. He contended that he bona fide needs the petition schedule building so as to enable him to start a medical store. He had further averred that other vacant shop rooms are available in the locality to which the tenant can shift his business. The rent control petition was instituted on 28.10.2013. It was signed and verified by R.Rajasekharan Nair, the power of attorney of the landlord. The original of the power of attorney was also produced along with the rent control petition and it is available in the records.
3. The petitioner herein, the respondent in R.C.P. No 3 of 2013, entered appearance on receipt of notice from the rent control R.C.R. No. 65 of 2016 ..3..
court and filed objections dated 24.05.2015. He contended that there is no rental agreement between him and the petitioner, that the petitioner is not the landlord and that he is not a tenant of the petition schedule building. He further contended that the petition for eviction has been filed by R.Rajasekharan Nair without any authority and that no power of attorney has been executed by the petitioner in the rent control petition in favour of R.Rajasekharan Nair. He further contended that R.Rajasekharan Nair has no authority to verify the pleadings and to institute the petition. He also contended that the petition schedule building originally belonged to one Sainudheen, that about 30 years back, he started a laboratory under the name and style, "Sanker Clinical Laboratory", after taking it on rent from Sainudheen. He had also stated that while he was running Sanker Clinical Laboratory in the petition schedule building, one Muraleedharan and Geetha Muraleedharan purchased the said building. Muraleedharan is, admittedly, the brother of the petitioner herein. He had further stated that later, he and his wife purchased the said property from Muraleedharan and Geetha Muraleedharan and that thereafter, he was conducting the laboratory in the tenanted premises as the owner of the building. The respondent in R.C.P. No 3 of 2013 had further averred that he had availed a loan to purchase a scanning machine, that the income from the lab run by him was insufficient to repay the loan and when R.C.R. No. 65 of 2016 ..4..
the bank initiated legal proceedings against him, he approached Chandrasekharan Nair, the brother-in-law of the petitioner in the rent control petition, for a loan of 10,00,000/- and he insisted on the execution of a sale deed in favour of the petitioner as a condition for lending the sum of 10,00,000/-. It is stated that in such circumstances, he was compelled to execute a deed styled as a sale deed in favour of the petitioner in the rent control petition. The respondent in R.C.P. No 3 of 2013 contended that the sale deed in favour of the petitioner in R.C.P. No 3 of 2013 is a sham document and not a sale deed. He had further averred that he had agreed to pay interest at the rate of 10,000/- per month till the sum of 10,00,000/- availed by him as loan is repaid and that he is remitting 10,000/- per mensem as interest for the loan availed by him. He contended that the petitioner in R.C.P. No 3 of 2013 does not have title to the property and is not the landlord of the building. He also raised various other contentions and also denied and disputed the bona fide need put forward by the petitioner in the rent control petition.
4. Shortly after the objections were filed, the respondent in R.C.P. No 3 of 2013 filed I.A. No. 3060 of 2014, praying that the issue regarding denial of title may be tried as a preliminary issue. That application was heard and allowed by order passed on 11.08.2014 and the issue regarding denial of title was tried as a R.C.R. No. 65 of 2016 ..5..
preliminary issue. After considering the rival contentions, by order passed on 26.08.2014, the rent control court held that the denial of landlord's title is not bona fide. The rent control court held that the evidence on record discloses that the petitioner in R.C.P. No. 3 of 2013 has let out the cellar portion and the second floor of the petition schedule building to other persons; that the respondent has not proved that he is paying 10,000/- per month as interest on the sum of 10,00,000/- stated to have been availed by him as loan; that though the sale deed was executed on 28.09.2005, the petitioner herein has not so far taken steps to have the sale deed set aside or his title declared; and that there was no material before the court to hold that Ext.A1 sale deed was executed as security for the loan alleged to have been availed by the respondent. The rent control court thereafter proceeded to consider the petition for eviction on the merits and after considering the rival contentions, held that the need put forward is bona fide. The rent control court also held that the tenant has not proved the ingredients of the second proviso to section 11(3) of the Act. The contention of the tenant that the landlord is in possession of other suitable buildings was also repelled. Consequently, by order passed on 29.11.2014, the rent control court ordered eviction and directed the respondent in R.C.P. No 3 of 2013 to surrender vacant possession of the petition schedule building. Challenging that order, he filed R.C.A. R.C.R. No. 65 of 2016 ..6..
No.6 of 2015 on the file of the Additional Rent Control Appellate Authority-VII, Thiruvananthapuram. By judgment delivered on 23.11.2015, the rent control appellate authority concurred with the rent control court and dismissed the appeal. Hence, this revision petition under section 20 of the Act.
5. We heard Smt.P.P.Stella, learned counsel appearing for the petitioner and Sri.G.P.Shinod, learned counsel appearing for the respondent. We have also gone through the pleadings and the materials on record. The petitioner herein admits having executed Ext.A1 sale deed dated 28.09.2005. He has however not been able to prove his contention that it is a sham document styled as a sale deed. The petitioner has not proved his case that he has availed a loan of 10,00,000/- from the brother-in-law of the landlord and that as security for the said transaction, Ext.A1 sale deed was executed. He has also not proved the case set out by him in the objections that he is paying 10,000/- per mensem as interest in respect of the said loan. He has also not instituted a suit for a declaration that Ext.A1 sale deed is a sham document and was not intended to be acted upon and that he continues to be the owner of the petition schedule building. That apart, it has come out in evidence that the landlord has executed Ext.A6 lease deed dated 30.08.2013, letting out the second floor of the petition schedule building to the New India Assurance Company Ltd. Ext.A1 sale deed R.C.R. No. 65 of 2016 ..7..
discloses that the petitioner herein and his wife had jointly sold the petition schedule building to the landlord and his wife. The sale was in respect of the entire building. From the facts before us, it is crystal clear that the petitioner herein had transferred the petition schedule building to the landlord and it was thereupon that Ext.A6 lease deed was executed in favour of the New India Assurance Company Ltd., in respect of the second floor of the building. It has also come out in evidence that after Ext.A1 was executed, mutation was effected in the revenue records and electricity connection was also transferred to the name of the landlord. In such circumstances, we are in agreement with the courts below that the denial of the landlord's title is not bona fide.
6. Though it was contended before us that the power of attorney holder, who had signed and verified the rent control petition and had presented it, was not competent to do so, we find that the original of the power of attorney was presented along with the rent control petition. On the merits also, we are not persuaded to hold that the petitioner has made out a case for interference. The need put forward by the landlord is that he intends to start a medical store in the petition schedule building. The petition schedule building is situate across the road from Government Taluk Hospital, Nedumangad. Though it was contended that the landlord has other buildings, one of the buildings pointed out by the tenant is a part of R.C.R. No. 65 of 2016 ..8..
the residential building, where the landlord is residing. It has come out in evidence that the said building is dilapidated. As regards the other building, it is situate far away from the Government Taluk Hospital, Nedumangad. In such circumstances, we are not persuaded to hold that the first proviso to section 11(3) of the Act would stand in the way of the landlord from praying for an order of eviction in respect of the petition schedule building. It has also come out in evidence that other vacant buildings are available in the locality. Apart from the interested testimony of the tenant, there is no material on record to show that other vacant buildings are not available in the locality. He has also not succeeded in proving that he is depending for his livelihood mainly on the income derived from the business carried on by him in the petition schedule building. In such circumstances, the courts below were, in our opinion, perfectly justified in holding that the landlord has made out a case for an order of eviction.
The revision petition is, in our opinion, without any merit. It fails and is accordingly dismissed. However, having regard to the fact that the petitioner/tenant has been running a business in the petition schedule building for the past several decades, we deem it appropriate to grant him time till 31.03.2017 to surrender vacant possession of the petition schedule building subject to the condition that he shall on or before 30.09.2016 file an undertaking in the R.C.R. No. 65 of 2016 ..9..
form of an affidavit in the execution court, undertaking to surrender vacant possession of the petition schedule building to the landlord on 31.03.2017. He shall further undertake in the said affidavit that he will continue to pay rent at the agreed rate till the date of such surrender and that he will not induct strangers into the petition schedule building or sublet it or commit acts of waste therein. He shall, on the day the affidavit is filed, also deposit the entire arrears of rent, if any. In the event of default on the part of the petitioner to file an undertaking within the time limit stipulated above, it will be open to the landlord to forthwith execute the order of eviction. If any amount has been paid as advance, the tenant will be entitled to obtain refund of the same in full on the date of surrender, if no amount is due to landlord towards arrears of rent as on the date of surrender. No costs.
Sd/-
P.N. RAVINDRAN, JUDGE Sd/-
A. MUHAMED MUSTAQUE, JUDGE bka/-
//True copy// PA to Judge