Kerala High Court

M.K.Mahendrajith vs C.M. Madhusoodhanan on 25 February, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                         &

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

   THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942

                             RCRev..No.398 OF 2018

AGAINST THE ORDER/JUDGMENT IN RCA 180/2016 OF ADDITIONAL DISTRICT
                     COURT - II, THALASSERY

   AGAINST THE ORDER/JUDGMENT IN RCP 68/2015 OF MUNSIFF COURT,
                           THALASSERY


REVISION PETITIONER/S:

                M.K.MAHENDRAJITH
                AGED 46 YEARS
                S/O.KARUNAKARAN, EP.XVI/513, OPPOSITE FORD SHOW ROOM,
                THOTTADA.P.O., EDAKKAD, KANNUR DISTRICT.

                BY ADVS.
                SRI.K.C.SANTHOSHKUMAR
                SMT.K.K.CHANDRALEKHA

RESPONDENT/S:

                C.M. MADHUSOODHANAN
                AGED 63 YEARS
                S/O.ANANDAN, KRISHNA NIVAS, KOYYODE, CHEMBILODE
                VILLAGE, P.O.KOYYODE-670621.

                R1   BY   ADV.   SRI.P.U.SHAILAJAN
                R1   BY   ADV.   SRI.M.SURESH KUMAR
                R1   BY   ADV.   SMT.VIDYA KURIAKOSE
                R1   BY   ADV.   SRI.V.SREEJITH (K/1398/2000)

     THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18-02-
2021, THE COURT ON 25-02-2021 PASSED THE FOLLOWING:
 RCR No.398 OF 2018                        2



                                                                           'CR'
                     A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ
                       -------------------------------------------------
                                   R.C.R No. 398 of 2018
                                  --------------------------------
                      Dated this the 25th day of February, 2021


                                        ORDER

P.V.Kunhikrishnan, J

The revision petitioner is the respondent in RCP No.

68/2015 on the file of the Rent Controller/Munsiff, Thalassery.

The respondent herein is the petitioner in the above Rent

Control petition. The Rent Control petition was filed for eviction

under Sec.11(3) of the Kerala Buildings (Lease and Rent Control)

Act, 1965 (for short 'Act, 1965'). Hereinafter, the Revision

Petitioner and the Respondent are referred in accordance with

their rank before the Rent Control Court.

2. The case of the petitioner before the Rent Control

Court can be summarised like this:- The petitioner schedule

room bearing No.EP XVI 513 belonged to the petitioner. It was

given on lease to the respondent by the petitioner's mother,

C.M.Rohini and the rent was fixed as Rs.900 per month. The

petitioner is a yoga instructor and he wants to start a consultant

and treatment centre in the petition schedule room and other

rooms adjacent to it to the benefit of the people suffering from

permanent ailments of migraine, allergy, heart disease, blood

pressure etc. The petition schedule room and other rooms are

suitable for the said purpose. According to the petitioner, he can

profitably conduct the said business, if he gets possession of the

petition schedule room and other rooms near to it. The petitioner

pleaded in the Rent Control Petition that no other vacant

building is in his direct possession for conducting the said

business. He contended that the need of the petitioner for the

vacant possession of the petition schedule room is bonafide,

genuine, and urgent. Even though a request was made to the

respondent to get vacant possession of the room, the respondent

refused to surrender the room. Hence, the petition was filed

under Sec. 11(3) of the Act, 1965.

3. The respondent filed a counter in which the landlord-

tenant relationship and the rate of rent are admitted. According

to the tenant, the bonafide need projected in the petition is only

a ruse to evict the respondent. The respondent contended that

the petitioner is the owner in possession of a big hall having

double the size of the petition schedule room just on the adjacent

right side of the petition schedule room. There are other rooms

also lying vacant in the possession of the petitioner. The

respondent also contended that the petitioner is not a yoga

instructor or expert and he has no intention to start such a

business in his old age. Therefore, the respondent contended

that the petition is liable to be dismissed.

4. To substantiate the case, the petitioner was examined

as PW1, and the respondent was examined as RW1. Exts.A1 to

A3 were marked on the side of the petitioner and Exts. B1 to B9

were marked on the side of the respondent. After going through

the evidence and the documents, the Rent Control Court ordered

eviction under Sec. 11(3) of the Act, 1965.

5. Aggrieved by the order of eviction, the respondent

filed an appeal before the Rent Control Appellate

Authority/Additional District Judge-II, Thalassery. The Rent

Control Appellate Authority after considering the entire oral and

documentary evidence concluded that there is nothing to

interfere with the order of eviction passed by the Rent Control

Court and accordingly dismissed the appeal. Aggrieved by the

above eviction order passed by the Rent Control Court, which is

confirmed by the appellate authority, this revision is filed.

6. Heard counsel for the respondent/tenant and the

petitioner/Landlord.

7. The learned counsel for the respondent-tenant raised

only one point. The counsel submitted that he is entitled to the

benefit of the 1st proviso to Sec. 11(3) of the Act, 1965. The

counsel conceded that the tenant is not challenging the

concurrent finding of the lower authorities about the bonafide

need of the petitioner. But, the counsel for the respondent

argued that the landlord admitted to the effect that he is in

possession of another room and no special reasons are

mentioned by the landlord to support the order of eviction in

such a situation. The learned counsel takes us through the

pleadings in the rent control petition and his counter. Thereafter,

the learned counsel also takes us through the evidence adduced

by the petitioner and the respondent. The counsel submitted that

in the light of the oral and documentary evidence available in

this case, it is clear that the petitioner/landlord is in possession

of other rooms and no special reasons are mentioned for not

occupying those rooms for his need. In such circumstances, the

counsel for the respondent submitted that the Rent Control

Court erred in ordering eviction even if the bonafide need of the

landlord is genuine. The counsel for the respondent also relied

on the judgments of this Court in Mohammed Basheer v A

Mujib Rehman [2005 (4) KLT 697] and Suseela

M.K.v.P.N.Mangalam and others [2015 (5) KHC 277]

8. The counsel for the petitioner/landlord supported the

concurrent findings of the Rent Control Court and the Appellate

Court. The counsel submitted that the petitioner wants to start a

consultant and treatment centre in the petition schedule room

and other rooms adjacent to it. Therefore, simply because the

petitioner is in possession of some other rooms, the respondent

cannot take advantage of the same for his argument based on 1st

proviso to Sec. 11(3) of the Act, 1965 because he needs those

rooms also for his establishment.

9. The only point to be decided in this case is whether the

respondent-tenant is entitled to the benefit of 1 st proviso to Sec.

11(3) of the Act, 1965. For a proper consideration of the above

contention of the respondent-tenant, it will be better to extract

Sec. 11(3) and its 1st proviso. Sec.11(3) proviso is extracted

herein :

"Sec.11 (1) xxxx (2) xxxx (3) A landlord may apply to the Rent Control Court for an order directing tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him : Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so."

A bare reading of the 1st proviso to Sec. 11(3) would make it

clear that what has been enacted by the said provision is a

limitation of the power of Rent Control Court to issue a direction

to surrender the vacant possession of the premises under

Sec.11(3) of the Act 1965. In other words, the 1 st proviso to

Sec.11(3) interdicts the Rent Control Court for granting an order

of eviction based on the plea of bonafide needs in certain

situations explained in that proviso. The Rent Control Court shall

not give any such direction under Sec.11(3) of the Act, if the

landlord has another building of his own in his possession in the

same city, town or village except where Rent Control Court is

satisfied that for special reason in any particular case, it will be

just and proper to do so. What is the meaning of "another

building" mentioned in the 1 st proviso to Sec.11(3) of the Act,

1965? The meaning of the word "another" as per Chambers 20 th

Century Dictionary is "a different or distinct". The word

"another" is used to refer to a different person or thing from one

already mentioned or known about. In other words, it is an

additional person or thing of the same type as one already

mentioned or known about. Therefore, to get the benefit of 1 st

proviso to Sec. 11(3) of the Act, 1965 to the tenant, the landlord

should have another building of his own in his possession in

addition to the petition schedule building. Suppose the landlord

is having a building with several rooms and different tenants are

occupying those rooms, the landlord can file a petition against

one of the tenants to surrender the room occupied by that tenant

for bonafide purposes. The selection of the room in that situation

is the discretion of the landlord. If he selects one of the rooms

and files an eviction petition, the tenant of that room can't object

to the same except to challenge the bonafide of the landlord in

choosing that room. But on the other hand, if the landlord wants

all the rooms in the building and he obtained all the rooms

except one room he can file a Rent Control Petition before the

Rent Control Court to get vacant possession of that room also. In

such situation, the landlord can plead and contend that he wants

the petition schedule room and the other vacant rooms in his

possession for his bonafide need. In such a situation, a tenant

cannot take the benefit of 1 st proviso to Sec.11(3) of the Act,

1965. The meaning of "another building" mentioned in the 1 st

proviso to Sec.11(3) of the Act 1965 doesn't intend to mean that

the vacant building already in possession of the landlord, which

also he requires for his bonafide purpose in addition to the

petition schedule room. Therefore "another building" mentioned

in 1st proviso to Sec.11(3) means a different room and not vacant

rooms in possession of the landlord, which he required for the

bonafide purpose pleaded in the Rent Control Petition along with

the petition schedule rooms.

10. It is true that the building is defined in Sec.2(1) of the

Act, 1965 which is extracted herein :

"2. Definitions:- In this Act, unless the context otherwise requires,-

(1) "building" means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purpose and includes-

(a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut;

(b) any furniture supplied by the land lord for use in such building or hut or part of building or hut, ;

c) any fittings or machinery belonging to the landlord, affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let,

but does not include a room in a hotel or boarding-house ."

From the above definition, it is clear that building means any

building or hut or part of a building or hut, let or to be let

separately for residential and non-residential purposes.

Definition of building includes a room also. But for example, if a

landlord of a building requires all the four rooms in that building

for his bonafide purpose and three of the rooms were vacant,

and if a Rent Control Petition is filed to get the 4 th room, the

tenant cannot contend that since the landlord owns three vacant

rooms, he is entitled the benefit of the 1 st proviso to Sec.11(3) of

the Act, 1965. A contention can be raised by the tenant in such

a situation that the landlord need not require the 4th room in

addition to the three rooms already in occupation by him for his

bonafide purpose. But that contention cannot be raised for

getting the benefit of the 1st proviso to Sec.11(3) of the Act,

1965. That contention can be raised only to contend that there is

no bonafide to the landlord for claiming the 4th room when he is

in the occupation of three other vacant rooms. In such a

situation also, it is a settled position that a tenant cannot dictate

to a landlord about the requirement of the space for starting his

business or for use of the same for his bonafide purpose. Hence,

from the above discussion, it is clear that "another building"

mentioned in 1st proviso to Sec.11(3) means a different room

from the rooms which are already in possession of the landlord.

11. Now coming back to the facts of this case. The

pleadings of the petitioner in the Rent Control Petition is

important, which is extracted herein :

"2. The petitioner is a Yoga Instructor and he wants to start a consultant and treatment centre in the petition schedule room and other rooms adjacent to it to benefit the people suffering from permanent ailment of migraine, allergy, heart disease, blood pressure etc. The petition schedule building and other rooms are suitable for the said purpose. The petitioner can profitably conduct the said business if he gets the possession of petition schedule room and other rooms near to it. No other vacant building is in the direct possession of the petitioner for conducting the said business."

From the above averments, it is clear that the petitioner wants to

start a consultant and treatment centre in the petition schedule

room and other rooms adjacent to it to benefit the people

suffering from different ailments. Therefore, the need put

forwarded by the landlord is a consultant and treatment centre

and further, the petitioner specifically stated that he wants the

petition schedule room and other rooms.

12. The counsel for the respondent relying upon certain

admissions of PW1 in his evidence contended that the landlord is

in possession of the other rooms and there is no special reason

for not occupying those rooms. But we cannot agree with the

argument of the counsel for the respondent/tenant. The landlord

clearly explained the facts in his cross-examination. He deposed

that the petition schedule building was given to him by his

mother in 2013. At the time of transferring the property to the

petitioner, there were five tenants in the building and a vacant

room. Before filing the Rent Control Petition, one tenant was

evicted from one of the rooms. The building in which the petition

schedule room is situated contains two floors. Room No. 512,

513 and 514 are the rooms in the ground floor and petition

schedule room is room No. 513. Room No. 512 is in the

occupation of one Dineshan. The landlord submitted that he

already filed a Rent Control Petition to vacate that room also and

the same is pending. He deposed that the reason mentioned in

that Rent Control Petition is also the same bonafide purpose

pleaded in this Rent Control Petition. According to him, that

room is in 'L' shape and the same is larger in extent compared to

other rooms. He admits that at the time of filing the petition,

there are two vacant rooms in his possession. This sentence is

relied on by the respondent/tenant to bolster up his contention

based on the 1st proviso to Sec.11(3) of the Act, 1965. It will be

better to extract the evidence of PW1, which is narrated above.

"2013 ലലാണണ് ഹർജജിപ്പടജിക എടുപ്പടക്കമുള്ള കകടജിടടം 'അമ്മ എനജിക്കണ് വജിൽപ്പന കചെയ്തതണ്. വജിൽപ്പന കചെയ്യുന്ന സമയതണ് 5 കുടജിയനലാരടം (2nd page) ഒകരലാഴജിഞ്ഞ മുറജിയുമലാണണ് ®æa കകവശതജിൽ വന്നതണ്. ഹർജജികകലാടുക്കുന്നതജിനണ് മുമലായജി ഒര കുടജിയലാകന ഒഴജിപ്പജിച. ഹർജജിപ്പടജിക എടുപ്പണ് എന്നു പറയുന്നതണ് 2 നജില building ആണണ്. അതജിൽ 512, 513, 514 മുറജികൾ തലാകഴനജിലയജിലലാണണ്. 513 നമർ മുറജിയലാണണ് ഈ കകസജികല മുറജി. 512 ദജികനശൻ എന്നയലാളുകട കകവശതജിലലാണണ്. ആ മുറജിയുടം ഒഴജിപ്പജിക്കലാൻ കവണജി കകസണ് ഫയൽ കചെയ്തതണ് നജിലവജിലുണണ്. അതടം ഈ ഹർജജിയജിൽ പറഞ്ഞ അകത ആവശശ്യതജിനലാണണ് ഒഴജിപ്പജിക്കലാൻ കവണജി കകസണ് ഫയൽ കചെയ്തജിട്ടുള്ളതണ്. ആ മുറജി 'L' കഷേപ്പജിലുള്ളതലാണണ്. ആ മുറജി മറ്റുള്ള മുറജികകളേക്കലാളുടം വലുതലാണണ്. രണണ് മുറജികളുകട വലുപ്പടം ¥ÄßÈáIí എന്നു പറഞ്ഞലാൽ ശരജിയല. ആ മുറജിയുകട വലുപ്പടം സടംബനജിചള്ള അളേവുകൾ എനജിക്കറജിയജില. ആ മുറജി 350 sq ft ഉണണ് എന്നു പറഞ്ഞലാൽ എനജിക്കണ് നജികഷേധജിക്കലാൻ പറജില. ®æa ഹർജജിയജിൽ ഞലാനുകദ്ദേശജിക്കുന്ന സലാപനതജിൽ എത്രയലാകളേ (3rd page) പരജിശശീലജിപ്പജിക്കലാകമന്നണ് ഉകദ്ദേശജിക്കുന്നുകണകന്നലാ അതജിനു കവണ സസൗകരശ്യതജികന്റെ അളേവുകകളേലാ ഏകകദശമലായജി കപലാലുടം പറഞ്ഞജിടജില. മുകളേജികലക്കണ് ഒരലാൾക്കണ് മലാത്രടം കയറലാൻ പറ്റുന്ന കകലാവണജിയലാണുള്ളതണ്. 512 കകടജിടതജികല സസൗകരശ്യടം മലാത്രടം ഉപകയലാഗജിചണ് ഞലാനുകദ്ദേശജിക്കുന്ന സലാപനടം നടതജികകലാണ്ടുകപലാകലാൻ സലാധജിക്കുന്നതലാകണന്നണ് പറഞ്ഞലാൽ ശരജിയല. 512 ഒഴജിചള്ള മുറജികൾ സമലാനമലായ വലുപ്പതജിലുള്ളതലാകണന്നണ് പറഞ്ഞലാൽ ശരജിയല. ഒഴജിഞ്ഞു കജിടക്കുന്ന മുറജികൾ കകവശടം വച കലാരശ്യടം ഹർജജിയജിൽ പറയലാതജിരജിക്കുന്നതണ് കകലാടതജികയ കതറജിദ്ധരജിപ്പജിക്കലാനലാകണന്നണ് പറഞ്ഞലാൽ ശരജിയല. കകലാടതജിയജിൽ ഹർജജി കകലാടുക്കുന്ന സമയതണ് 2 മുറജികൾ ഒഴജിഞ്ഞു കജിടക്കുന്നുകണന്നു പറയുന്നതണ് ശരജിയലാണണ്. (emphasis supplied)."

The above underlined portion is clearly explained by the

petitioner/landlord in his evidence. He admitted that one room

was vacant at the time when the building was transferred to him

by his mother. Subsequently, one of the tenants was evicted by

him and therefore, there are two rooms vacant. In the Rent

Control Petition, it is clearly stated that the petitioner wants the

petition schedule room and other rooms adjacent to it. From the

above evidence, it is clear that the rooms vacant are rooms

adjacent to the petition schedule room. Those rooms along with

the petition schedule room are necessary to the

petitioner/landlord to start the consultant and treatment centre.

In such a situation, the respondent/tenant cannot contend that

he is entitled to the benefit of 1 st proviso to Sec.11(3) because

the landlord is in possession of two vacant rooms. The "another

building" mentioned in the 1 st proviso to Sec.11(3) is a different

room and not rooms owned by the landlord which also he

requires for his bonafide need. Moreover, the contention that the

landlord can do the business in the vacant room is not to be

decided by the tenant. As we said earlier, the tenant cannot

dictate the landlord about the extent or area necessary for his

business. Therefore, the contention based on the 1 st proviso to

Sec.11(3) from the side of the respondent/tenant cannot be

accepted at all. No other contentions are raised by the

respondent/tenant.The decisions in Suseela's case and

Mohammed Basheer's case (Supra) relied by the counsel for the

tenant does not apply to the facts and circumstance of this case.

13. Finally, the counsel for the respondent/tenant

submitted that he may be given sufficient time to vacate the

room. Admittedly the Rent Control Petition was filed in the year

2015. Now almost 6 years elapsed after filing the Rent Control

Petition. Considering the facts and circumstances of the case,

we feel that six months can be granted.

15. Therefore, this Rent Control Revision is dismissed

granting six months to the respondent/tenant for vacating the

petition schedule room on the following conditions:

(1) The respondent/tenant will file an undertaking before the Rent Control Court to the effect that he will vacate the petition schedule premises within six months.