Mavilattu Shamsudheen vs Thanthonnikkandiyil Balan Nair @ ... on 31 October, 2011

[Cites 10, Cited by 6]

Kerala High Court

Mavilattu Shamsudheen vs Thanthonnikkandiyil Balan Nair @ ... on 31 October, 2011

The landlord, who obtained an order of eviction from the trial court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'), lost it in appeal. Now he is before this Court with this revision brought under Section 20 of the Act, challenging the legality and correctness of the judgment of the Appellate Authority against him. He filed R.C.P No.9/2007 before the Rent Control Court (Munsiff Court, Perambra) seeking eviction on the ground of bonafide need under Section 11(3) of the Act. The petition schedule building was let out to the tenant (respondent herein) years back. In 1993, when he was aged only 23 years, he filed R.C.P No.1/1993, for eviction on the ground of bonafide need. His request was disallowed by the trial court, and he lost his case in appeal also. The revision brought by him before this R.C.R No.17 of 2012 2 Court as C.R.P No.638/2000 was also dismissed, however giving liberty to him to file a fresh petition on the ground of bonafide need. Accordingly, he brought R.C.P No.9/2007 on the same ground of bonafide need. His case is that he does not have any job or business of his own, and he has decided to start a business in hill produce, for which he wants the petition schedule building. He seeks eviction of the respondent because he has no other building or room in his possession for the said purpose, but the respondent can very well shift his business to some other convenient place in the same locality.

2. The respondent resisted the prayer for eviction on the contention that the present Rent Control Petition is barred under Section 15 of the Act in view of the dismissal of the earlier application brought on the same ground, that the landlord has sufficient income from other sources, that he has no intention at all to start a business of his own, and that other vacant buildings are not available in the same locality for shifting his business.

3. The trial court conducted an enquiry in the proceedings, during which oral and documentary evidence was recorded. Two witnesses including the landlord were examined R.C.R No.17 of 2012 3 and Exhibits A1 to A11 were marked on the side of the landlord. The tenant was examined as RW1 and Exhibits B1 to B27 were marked on his side. The report submitted by the Advocate Commissioner appointed by the trial court during the proceedings was marked as Exhibit C1. On an appreciation of oral and documentary evidence the trial court found that the Rent Control Petition is not barred under Section 15 of the Act in view of the permission granted by this Court in the earlier proceeding to file a fresh petition, that the landlord bonafide needs the petition schedule building for his business purposes, for which he does not have any other vacant room or building in his possession, and that the tenant is not entitled for the benefit of the protection under the second proviso to Section 11(3) of the Act. Accordingly the trial court (Rent Controller) granted eviction under Section 11(3) of the Act by order dated 27.2.2010 in R.C.P No.9/2007.

4. Aggrieved by the order of eviction, the tenant preferred appeal before the Appellate Authority (District Court, Kozhikode) as R.C.A No.32/2010. In appeal, the appellate authority concurred with the findings of the trial court as regards the benefit of the second proviso to Section 11(3) of the R.C.R No.17 of 2012 4 Act and also as regards the bar under Section 15 of the Act. However, the Appellate Authority (III Additional District Judge, Kozhikode) reversed the findings of the trial court on bonafide need under Section 11(3) of the Act, on the finding that the need projected by the landlord is not genuine, and that he has income from other sources as a man of wealth. Now the case of the landlord is that the said finding of the appellate authority is quite erroneous, because it was not made on the basis of the evidence adduced in the case.

5. Before going to the legal aspect as to whether the present Rent Control Petition is barred under Section 15 of the Act, let us see whether the case of bonafide need advanced by the landlord in this case is acceptable. Admittedly, the petition schedule building was let out to the tenant (respondent herein) years back, and the landlord started his fight for getting his own building for his own purpose as early as in 1993. His definite case is that he is determined to start a business of his own in hill produce for which he requires the building, and he does not have any other space or room for the said purpose. The learned counsel for the tenant cited a decision of the Hon'ble Supreme Court in Shiv Sarup Gupta V. Dr.Mahesh Chand R.C.R No.17 of 2012 5 Gupta [(1999) 6 SCC 222], wherein the Supreme Court held that the bonafide of the need, or the genuineness of the need projected by the landlord will have to be objectively assessed by the Court, and the Court will have to find whether the need set up by the landlord as a ground for eviction is natural, real, sincere and honest. Of course, it is well settled that in a claim for eviction under Section 11(3) of the Act it must be the concern of the court to rule out any possibility of some need being projected as a ruse for eviction. It is well settled that the Rent Control Court must be satisfied by evidence that the need projected by the landlord in the application for eviction is a genuine need, or a rational and reasonable desire and determination. In this case the need projected by the landlord is that he wants to start a hill produce business in the petition schedule building.

6. The landlord, examined as PW1, has given definite and consistent evidence proving the bonafide need projected by him. It was submitted by the learned counsel for the tenant that the landlord has no consistent case regarding the need alleged by him. But we find that the landlord has well explained in evidence that the hill produce business meant by R.C.R No.17 of 2012 6 him is in fact a business in coconut and copra. We do not find any inconsistency on this aspect. We find that the landlord in this case is determined to start a business of his own in hill produce or a business of coconut and copra, in the petition schedule building. There is absolutely nothing to find that the said need projected by the landlord is a mere wish or an irrational desire, or a fancy wish regarding some business in his vision. We find from his evidence, which is definite and consistent, that he is determined to start a business in hill produce in the petition schedule building, and we find that the need projected by the landlord is quite bonafide.

7. The grounds found by the Appellate Authority to come to a divergent finding regarding boanfide need are (i) that the landlord is very much affluent with lot of assets, (ii) that he has income from other sources as a man of wealth, and (iii) that he is a member of some cosmopolitan clubs.

8. It is well settled legal position that the claim of the landlord for eviction on bonafide need cannot be rejected just because he has some income from other source, or just because he is a man of wealth and assets. Of course, it is true that the landlord has casually stated that he has no attractive income. R.C.R No.17 of 2012 7 But what is prominently pleaded in the eviction petition, and what is definitely spoken to in evidence, is that the landlord wants a business of his own, or he is determined of have some business of his own. Just because he has landed properties or assets yielding attractive income his claim for eviction cannot be rejected by the Court, if the Court is otherwise satisfied that he is determined to start a business of his own. That he has income from other sources will not stand in the way of granting eviction in such a factual situation.

9. Of course, it has come out in evidence that the landlord is member of some prominent clubs like Rotary Club, Oysca International, Ponpara Club etc. It has also come out in evidence that in connection with the programmes and activities of these clubs he had made some visits to some countries like China, Singapore, Malaysia etc. It would be really irrational to find that such a person, who is member of so many cosmopolitan clubs involved in various socio-cultural activities will not conduct a business of his own in hill produce, or that he cannot find time to conduct such a business. On an appreciation of the materials we find that the landlord in this case has the requisite resources and capabilities for starting a business of his own, and that he is R.C.R No.17 of 2012 8 really determined to start a business on of his own. We find that the approach of the Appellate Authority in this case is quite erroneous, that a member of so many clubs, who had undertaken visits to foreign countries, or an affluent person having much wealth and assets yielding attractive income, will not do some business in hill produce. When he says that he is determined, and that he has no social or other constraints for such a business, the said desire or determination cannot be doubted by the court. In the above circumstances, we find that the finding of the Appellate Authority against the landlord in this case is liable to be reversed, and that the need projected by the landlord in this case is quite bonafide and genuine.

10. Of course, as regards the 1st proviso and the second proviso to Section 11(3) of the Act, the two authorities below have concurrently found against the tenant. It has come out in evidence that the petition schedule building was taken on rent by the tenant for starting a business in Ayurvedic medicines. But now he has admittedly shifted the said business to some other building, and he has started another stationary business in the petition schedule premises. In such a situation we find that the tenant is not solely dependant on the business being R.C.R No.17 of 2012 9 conducted in the premises. It has also come out in evidence that other vacant buildings are available in the same locality. The tenant has miserably failed to prove that such vacant buildings are not available in the same locality. There is absolutely nothing to show that the landlord has any other building or space in his possession. Thus we find that the two authorities below have correctly found against the tenant that the first proviso will not stand in the way of granting eviction in this case, and that the tenant is not entitled for the benefit of the second proviso to Section 11(3) of the Act.

11. Now let us come to the legal aspect as to whether the present eviction petition is barred under Section 15 of the Act. Admittedly, the landlord had filed R.C.P No.1/1993 in the trial Court under Section 11(3) of the Act, projecting the very same need. But the petition happened to be dismissed, and the landlord lost his case in appeal, and also in revision. However, liberty was granted to him by this Court while disposing of C.R.P No.638/2000, that he can bring a fresh application under Section 11(3) on the same set of facts. The learned counsel for the tenant cited a very recent decision of this Court in Ayanikattu Unniraja and others V. Gurudas K.P and another (2014 (1) R.C.R No.17 of 2012 10 ILR 638). That is a case where the landlord brought a second petition for eviction on the basis of permission granted to him by the High court in an earlier proceeding.

12. The ground stated by the landlord in this case to maintain a second petition for eviction under Section 11(3) of the Act is that in an earlier proceeding which ultimately ended in favour of the tenant, this Court had granted liberty to him to file a fresh petition on the same ground. In Ayanikattu Unniraja's case cited above, this Court held that a second petition for eviction on the very same ground on which it was sought in an earlier proceeding which ended in favour of the tenant, is barred under Section 15 of the Act, and the fact that the High Court had granted him permission to make a fresh application while closing an earlier proceeding will not make the second application maintainable. In the said decision this Court held that the High Court could not have granted liberty to file a fresh petition in an earlier proceeding when the High Court confirmed the finding of the Appellate Authority that the landlord cannot obtain an order of eviction. In view of the decision of this Court in Ayanikattu Unniraja's case the landlord in this case cannot claim that this second application for eviction is not barred R.C.R No.17 of 2012 11 under Section 15 of the Act. This means that the landlord will have to stand on his own cause with sufficient and satisfactory explanation regarding material change in circumstances, to maintain this second application brought on the very same ground.

13. The law under Section 15 of the Act is that:

"The Rent Control Court shall summarily reject any application under sub-sections (2), (3), (4), (5), (7) or sub-section (8) of Section 11 which raises between the same parties or between parties under whom they or any of them claim substantially the same issues as have been finally decided or purports to have been finally decided in a former proceeding under this Act or under the corresponding provisions of any law in force prior to the commencement of this Act or the corresponding provisions of any law repealed or superseded by such law."

14. To attract the bar under Section 15 of the Act,

(a) the parties in the present proceeding and in the earlier proceeding must be the same, or the parties in the earlier proceeding must be the persons under whom the parties in the present petition or any of them claim, (b) the issue in the two proceedings must be substantially the same, and (c) the said issue has been finally decided or purports to have been finally decided in the former proceeding. In this case the earlier application for eviction was brought on the ground of bonafide R.C.R No.17 of 2012 12 need under Section 11(3) of the Act. The present application is also on the very same ground or need under Section 11(3) of the Act. The bar under Section 15 will apply when eviction is sought under sub Sections 2, 3, 4, 5, 7 or 8 of Section 11 of the Act. To decide whether the second application for eviction is barred under Section 15, the Court will have to consider whether the landlord had raised the same, or substantially the same issue in the earlier proceeding, and whether the Court has finally decided the said issue or ground in the earlier proceeding.

15. It is well settled that when eviction is sought on the very same ground, but in changed circumstances, the bar under Section 15 would not apply, and the Court cannot summarily reject the second application if the landlord could convincingly satisfy the Rent Control Court that he can sustain the ground, and justify eviction on the said ground in changed circumstances. It is also well settled that the burden is on the landlord to establish that there are changes in circumstances, when he brings a second application on the same ground on which eviction was sought in the former proceeding, which R.C.R No.17 of 2012 13 happened to be dismissed. The decision of this Court in Jayaram v. Achuthan Thampi (1997(2) KLT 909) is on the point. In so many subsequent decisions also this Court has held that a second application can well be maintained in changed circumstances, and that if the landlord could convincingly satisfy the Court that he has brought the second application in view of material change in circumstances, the bar under Section 15 of the Act will not apply.

16. To get the benefit of the settled law that a second proceeding on the same ground can be brought in changed circumstances, the landlord must plead and prove material change in circumstances. Some change one way or the other will not save the second eviction proceeding from the bar under Section 15 of the Act. It must definitely be some material change, and this change in circumstances can be change in the circumstances of the landlord, or change in the circumstances of the tenant, or change in circumstances of the subject matter, or even change in the circumstances of the ground set up for eviction.

17. In the present case, the landlord claims eviction on the ground of bonafide need for the second time on the R.C.R No.17 of 2012 14 ground of material change in his circumstances. When the landlord brought eviction petition in 1993 he was a bachelor aged only 23 years. But when he brought the present petition for eviction in 2007 he was aged 37 years, having his own family consisting of wife and three children. This change in circumstances of the landlord can very well be accepted as a material change in the circumstances of the landlord. When he brought the first proceeding for eviction, he had not much responsibilities except to maintain himself, but now the position is materially different. He is a person having much responsibilities including his duties and responsibilities towards his own family consisting of wife and three children. The Court cannot doubt the genuineness of the need now projected by him in the said changed circumstances. Just because, he has some income from other sources, or just because he is a man of wealth, his determination to have a business of his own for some additional source of income cannot be doubted by the Court, and eviction cannot be disallowed by the Court, if he is well justified in seeking eviction for the second time in changed circumstances. One could not dispute the fact that the change in the circumstances of the landlord, stated above, is in fact R.C.R No.17 of 2012 15 material change in the circumstances.

18. Another ground stated by the Appellate Authority to come to finding against the landlord is that he has been making attempts to evict the tenant somehow from 1993 onwards. We do not think that the delay in proceedings was his fault. Inspite of vigorous contest he could not obtain orders in his favour at the first round, but now his social circumstances including his family status and responsibilities have materially changed. When he brings a second claim for eviction in such a circumstance eviction cannot be disallowed by the Court simply on the ground that he had fought for his cause for years at the first round. That the landlord has been fighting for his cause for years, or that he is a member of cosmopolitan clubs, or that he has income from other sources, or that he had visited so many foreign countries will not disentitle him for eviction, if he is otherwise entitled under the law. When the landlord claims eviction on the ground of bonafide need for starting a business of his own, and when the Court finds that he is determined to start such a business in the particular situation of material change in his circumstances as discussed above, eviction cannot be declined on some other extraneous grounds.

R.C.R No.17 of 2012 16

19. There can be situations where the social, economic or other circumstances of the landlord has undergone material change over years, there can be situations where the circumstances of the tenant have undergone material changes over years since the final decision in his favour in the earlier proceedings, and there can even be situations where the subject matter of eviction has undergone material change in circumstances. When such change in circumstances of the landlord or the tenant or the subject matter is pleaded in a second proceeding for eviction, the concern of the Court must be to decide whether the alleged change is material change in circumstances.

20. In this case as discussed above, we find material change in the circumstances of the landlord, to maintain a second application on the ground of bonafide need under Section 11(3) of the Act. Accordingly, we find that the present proceeding for eviction is not barred under Section 15 of the Act.

21. In the light of the findings above, we are inclined to allow this revision brought by the landlord. We find that the revision petitioner (landlord) is entitled to get order of eviction under Section 11(3) of the Act. As regards the application of the R.C.R No.17 of 2012 17 first proviso and the second proviso to Section 11(3) of the Act also we concur with the findings of the authorities below on facts. We find that the approach of the Rent Control Appellate Authority on the question of bonafide need is erroneous, and the appellate judgment on that ground is liable to be reversed. We find that the order of eviction rightly granted by the trial court on the ground of bonafide need was wrongly disallowed by the Appellate Authority, on an erroneous appreciation of facts and evidence. On the question of law involved also we have come to a finding in favour of the landlord. In the above circumstances, the judgment of the Appellate Authority will have to be set aside, and the order of eviction granted by the trial court will have to be accepted and maintained as proper and legal. In the particular facts and circumstances, the parties can bear their costs of this proceedings.

In the result, this revision petition is allowed. The impugned judgment of the Appellate Authority (Additional District Court, Kozhikode) in R.C.A No.32/2010 is hereby set aside, and the order of the Rent Control Court is hereby confirmed, granting order of eviction to the landlord under Section 11(3) of the Act. However, in the particular facts and R.C.R No.17 of 2012 18 circumstances the tenant is given time for three months to vacate the tenanted premises. He can avail this benefit of time to vacate, only if he satisfies the following conditions:

(a) That the tenant shall submit an affidavit of undertaking before the trial court on or before 22.5.2014 that he will vacate the premises within three months from this date.

b) That the tenant shall pay or deposit the entire rent arrear due upto 31.3.2014, on or before 22.5.2014 in the trial court, and the future amount of rent due shall also be paid under receipt by the time, the building is vacated.

Sd/-

K.T.SANKARAN JUDGE Sd/-

P.UBAID JUDGE //True Copy// P.A to Judge ab

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