Kerala High Court
Ittiarath Ramakrishnan vs Azhakath Valappil Abdulla on 23 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 23RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944
RCREV. NO. 426 OF 2017
AGAINST THE JUDGMENT DATED 01.11.2017 IN RCA NO.17 OF
2015 OF DISTRICT COURT& SESSIONS COURT,MANJERI CONCURRING
WITH THE COMMON ORDER IN RCP NO.19 OF 2014 DATED
27.02.2015 OF MUNSIFF MAGISTRATE COURT,PONNANI
REVISION PETITIONER/RESPONDENT/RESPONDENT:
ITTIARATH RAMAKRISHNAN
AGED 63 YEARS, S/O. ITTIARSASAN NAIR, OATTITHARA
AMSOM, ALOOR DESOM, OTTAPPALAM TALUK, DOING
BUSINESS AT RAJI MEDICALS, NEAR BLOCK OFFICE,
DOCTOR COLONY ROAD, P.O. SUKAPURAM, EDAPPAL,
MALAPPURAM DISTRICT.
BY ADV SRI.K.K.MOHAMED RAVUF
RESPONDENT/APPELLANT/PETITIONER:
AZHAKATH VALAPPIL ABDULLA
AGED 59 YEARS, S/O.ABDURAHIMAN, ALAMCODE AMSOM,
PANTHAVOOR DESOM, PONNANI TALIK, MALAPPURAM
DISTRICT.
BY ADVS.
SMT.DEEPA NARAYANAN
SRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SRI.T.SETHUMADHAVAN SR.
SMT.VANDANA MENON
THIS RENT CONTROL REVISION HAVING COME UP FOR
ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.C.Rev.No.426 of 2017 2
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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R.C.Rev.No.426 of 2017
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Dated this the 23rd day of December, 2022.
ORDER
P.B.Suresh Kumar, J.
The tenant in a proceedings for eviction under
Sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and
Rent Control) Act, 1965 (the Act), is the petitioner in this
revision petition. The Rent Control Court rejected the claim of
the landlord under both heads. In appeal, the Appellate
Authority modified the decision of the Rent Control Court and
granted to the landlord the order sought under Section 11(3).
The tenant is aggrieved by the said decision of the Appellate
Authority and hence, this revision petition.
2. The subject matter of the proceedings is a
room in a commercial complex where the tenant is running a
medical store. The landlord who was working earlier in a Gulf
country, came back and instituted the eviction petition alleging
that he needs the room for the purpose of running a stationery
business. The tenant contested the proceedings contending,
inter alia, that there is no bona fides in the need set out by the
landlord for eviction as there are several other vacant rooms in
the very same commercial complex.
3. The commercial complex, of which the
tenanted premises is a part, is one located in Ponnani Town,
facing Pattambi-Edappal main road which is on the northern
side of the said complex. There is a road on the eastern side of
the commercial complex as well, called Doctors Colony road.
The commercial complex is constructed facing both the main
road as also the side road. The room sought to be evicted is the
tenanted premises facing the main road.
4. The specific contention raised by the tenant at
the time of hearing was that a room facing the main road
adjoining the staircase to the upper floors of the commercial
complex and a room facing the Doctors Colony road are vacant.
It was also contended by the tenant that the landlord had
earlier preferred eviction petitions in respect of two other rooms
facing the main road for the need of his son and also his
brother, and on obtaining possession of the rooms based on the
orders passed in the said cases, the rooms were not being used
for the purpose for which they were sought to be evicted.
5. As regards the alleged vacant room adjoining
the staircase, it was pointed out by the landlord that he intends
to widen the staircase to the upper floors by taking a portion of
the said room and the same cannot, therefore, be used for the
proposed business. In order to establish the said case, the
building permit and plan obtained by the landlord for widening
the staircase were produced in the proceedings as Exts.A1 and
A2 respectively. As regards the alleged vacant room facing
Doctors Colony road, it was asserted by the landlord that the
same is not vacant and has been leased out to a scrap
merchant. As regards the earlier proceedings for eviction, the
stand taken by the landlord was that his son and brother are
conducting business in the rooms. It was, however, conceded
by the landlord that they are not conducting the business
intended to be carried on by them in the said premises as
mentioned in the eviction petition as they are unable to do so
for reasons beyond their control. In order to show that the said
premises are occupied by the son and brother of the landlord
respectively, licences obtained by them in respect of the said
premises were produced as Exts.A3 and A4 in the proceedings.
6. The Advocate Commissioner who visited the
building reported that the room facing Doctors Colony road
does not appear to be occupied by anyone. It is in light of the
said report of the Advocate Commissioner that the Rent Control
Court accepted the case of the tenant that the said room is
vacant, and found that there is no bona fides in the claim of the
landlord for eviction. In order to reinforce the said finding, as
already noted, the Rent Control Court also observed that the
landlord had earlier preferred eviction petitions in respect of
two other rooms facing the main road for the need of his son
and also his brother, and on obtaining possession of the rooms
based on the orders passed in the said cases, the rooms were
not being used for the purpose for which they were sought to
be evicted. In appeal, the Appellate Authority reversed the
decision of the Rent Control Court taking the stand that the
finding of the Rent Control Court that the room facing Doctors
Colony road is vacant, cannot be accepted as correct. The
Appellate Authority also found that inasmuch as the rooms in
the shopping complex which were earlier evicted by the
landlord are being occupied by his son and brother
respectively, merely for the reason that they are not conducting
the business proposed by them in the said rooms, it cannot be
said that the need projected by the landlord is not bona fide.
The Appellate Authority also rejected the contention of the
tenant that the room adjoining the staircase is vacant, holding
that the same is intended by the landlord to be used for
widening the staircase to the upper floors. As noted, the tenant
is aggrieved by the said findings of the Appellate Authority.
7. Heard the learned counsel for the tenant as
also the learned counsel for the landlord.
8. The learned counsel for the tenant, at the
outset, pointed out that there is no finding either by the Rent
Control Court or by the Appellate Authority on the issue as to
whether the need set out by the landlord for eviction is bona
fide. It is pointed out by the learned counsel that going by the
scheme of the Act, it is obligatory for the Appellate Authority,
before ordering eviction under Section 11(3), to consider the
question as to whether the need set out for eviction is bona
fide. According to the learned counsel, in the absence of any
finding on that issue, the impugned judgment is liable to be set
aside. The learned counsel did not raise any argument based
on the shop rooms earlier evicted by the landlord for the need
of his son and brother. Instead, the learned counsel asserted
that one of the rooms facing Doctors Colony road and the room
adjoining the staircase facing the Pattambi-Edappal main road
are lying vacant. According to him, insofar as the above
mentioned two rooms in the same building are lying vacant, it
cannot be said that there is any bona fides at all for the
landlord to seek eviction of the tenanted premises, as the
landlord can certainly occupy either of these rooms for the
purpose of running the proposed stationery business. It was
argued by the learned counsel that the Appellate Authority
ought not have accepted the argument of the landlord based on
Ext.A1 building permit, as it was one obtained by him as early
as on 20.10.2008 itself and the landlord has not widened the
staircase till now. According to learned counsel, Ext.A1 building
permit is one obtained and kept by the landlord to use against
the tenants. It was also argued by the learned counsel that
Ext.A2 building plan appended to Ext.A1 building permit would
show that the latter is not one obtained in respect of the
commercial complex of which the tenanted premises is a part,
as the building shown in the plan is not in conformity with the
description of the building contained in the report of the
Advocate Commissioner. It was also argued by the learned
counsel that there is absolutely no reason for the Appellate
Authority to reverse the finding of the Rent Control Court that
the room facing Doctors Colony road is lying vacant. According
to the learned counsel, in the circumstances, the Appellate
Authority ought not have set at naught the decision of the Rent
Control Court.
9. We have examined the arguments advanced
by the learned counsel for the parties on either side.
10. As noted, the contention raised by the learned
counsel for the tenant that the need set out by the landlord is
not bona fide is on the premise that the room facing Pattambi-
Edappal main road adjoining the staircase and the room facing
Doctors Colony road, are lying vacant and that there is no
satisfactory explanation on the side of the landlord for not using
the same for the proposed business. As far as the room
adjoining the staircase is concerned, the specific case of the
landlord is that the same is intended to be used for widening
the staircase and it cannot, therefore be used for the proposed
business. As far as the room facing Doctors Colony road is
concerned, the case set out by the landlord is that the same is
occupied by a scrap merchant. As far as the room facing the
Doctors Colony road is concerned, the Advocate Commissioner
has noted in Ext.C3 report thus:
"അത പ ല തല എട പ മ റ യ ലട ലതക വശത ള എടപ ൾ
ഗ മ ഞ യത നലറ വ ർഡ X 1237 എ നമറ ട മ റ
തറ ര എങ # വളലര ക റച പ സ ക കചറകള # (Low
quality of plastic waste products) രണ ല*റ യ ഇര മ നലറ
ഗ ല കള # കണ . Active ആയ ഒര ബ സ നസ ആ മ റ യ ൽ
ഗ വർത ച വര ത യ ക ണ ൻ കഴ യ ല".
It is placing reliance on the said report that the Rent Control
Court took the view that the said room is vacant. The Rent
Control Court also took the view that insofar as there exists a
dispute as to whether the said room is occupied by anyone, the
landlord should have produced some documentary evidence to
show that the room is occupied by someone, whereas the
Appellate Authority took the view that non-production of
documents alone is not a reason to hold that the room in
question is not occupied by another tenant, as even the tenant
involved in the case does not have any document to show that
he is occupying the tenanted premises. According to the
Appellate Authority, the tenant in the case on hand has not
established that the room referred to above is one that is lying
vacant. The said finding being one based on a question of fact,
its correctness cannot be examined, unless there are materials
to show that the same is erroneous or perverse. Even
assuming that the room facing Doctors Colony road is vacant,
as there is no dispute to the fact that the tenanted premises is
a better room, in a commercial point of view, when compared
to the room facing Doctors Colony road, being one facing the
main road, we are of the view that the same does not, in any
manner, affect the bona fides of the landlord in seeking
eviction, as the landlord who owns a building can certainly
aspire to conduct a business in the best room available in the
building.
11. Coming to the room adjoining the staircase,
there is no dispute to the fact that the said room is vacant. The
special reason shown by the landlord for not occupying the
same is that he intends to widen the staircase by taking a
portion of the room and as such, it cannot be used for the
proposed business. In order to substantiate the said case, he
has produced Ext.A1 building permit and Ext.A2 plan. A perusal
of the building permit and plan would indicate that the same
have been obtained for the purpose of widening the existing
staircase. The argument raised against the same by the learned
counsel for the tenant that even though Ext.A1 building permit
has been obtained by the landlord as early as on 20.10.2008,
the said work has not commenced till date, according to us,
does not affect the bona fides of the landlord, for the landlord
will have variety of reasons for not widening the staircase. But,
the fact that long before the institution of the eviction petition,
he obtained a building permit for widening the existing
staircase itself is sufficient for us to hold that the same is not a
document obtained for the purpose of seeking eviction of the
tenant. The argument advanced by the learned counsel for the
tenant that Ext.A2 plan does not indicate that it relates to the
commercial complex, as the same does not tally with the
description of the building as pointed out by the Advocate
Commissioner, is also not worthy of consideration, as the same
is not an objection that was raised by the tenant either before
the Rent Control Court or before the Appellate Authority. The
landlord who proved the said documents, has not been cross-
examined also on these aspects. In other words, the Appellate
Authority cannot be found fault with for having rendered a
finding that the existence of the room aforesaid does not affect
the bona fides of the claim of the landlord for eviction.
In the said view of the matter, there is no illegality,
irregularity or impropriety in the decision of the Appellate
Authority. The revision petition, in the circumstances, is devoid
of merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
Mn/YKB
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE DISCHARGE SUMMARY
DATED 22/3/2021 ISSUED FROM SUN
MEDICAL AND RESEARCH CENTRE, THRISSUR
ANNEXURE A2 TRUE COPY OF THE DISCHARGE SUMMARY
DATED 26.8.2021 ISSUED FROM SUN
MEDICAL AND RESEARCH CENTRE, THRISSUR
