Kerala High Court
Beena Thomas Alexander vs Biji Samuel 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. 405 OF 2017
AGAINST THE JUDGMENT DATED 17.07.2017 IN RCA NO.3 OF 2014 ON THE
FILE OF THE RENT CONTROL APPELLATE AUTHORITY,PATHANAMTHITTA
REVERSING THE ORDER OF THE RENT CONTROL COURT, ADOOR IN RCP NO.8
OF 2011 DATED 31.10.2013.
PETITIONER/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
W/O.THOMAS ALEXANDER,
KIZHAKKE VEEDU,KAWADIAR,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SRI.THOMAS T.VARGHESE
RESPONDENT/APPELLANT/RESPONDENT:
ASHRAFUDEEN
S/O.KHADARU RAWTHER,
BHOOTHAKUZHI MALETHIL,
KANNAMKODE MURI,
ADOOR VILLAGE,ADOOR TALUK,
REPRESENTED BY POWER OF ATTORNEY HOLDER USHAIBA BEEVI,
W/O.ASHRAFUDEEN,
BHOOTHAKUZHI MALETHIL,
KANNAMKODE MURI,
ADOOR VILLAGE, ADOOR TALUK-689694.
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HERING ON
23.12.2022, ALONG WITH RCRev..97/2018, 102/2018 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
2
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. 406 OF 2017
AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY,
PATHANAMTHITTA IN R.C.A.NO.9/2012 DATED 17.07.2017 REVERSING THE
ORDER OF THE RENT CONTROL COURT, ADOOR IN R.C.P.NO.12/2011 DATED
25.09.2012.
PETITIONER/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER,
W/O.THOMAS ALEXANDER,
KIZHAKKE VEEDU,
KAWADIAR,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SRI.THOMAS T.VARGHESE
RESPONDENT/APPELLANT/RESPONDENT:
1 REHELAMMA
W/O.CHACKO,
KOIKKAL PUTHEN VEEDU,
KANNAMKODE MURI,
ADOOR VILLAGE,
ADOOR TALUK-689694.(DIED)
*2 P C MATHEW,
S/O RAHELAMMA
RESIDING AT KOICKAL PUTHENVEEDU ANISH BHAVAN
KANNAMKODE,
ADOOR P.O., PATHANAMTHITTA 691 523.
*3 ANNAMMA YOHANNAN,
AGED 66 YEARS,
D/O RAHELAMMA,
R.C.R.No. 405 of 2017 and connected cases.
3
RESIDING AT VENGAVILAYIL J J HOUSE,
MAROOR P.O.
ELAMANOOR, ADOOR,
PATHANAMTHITTA-691 524.
*4 P. C. RAJAN,
AGED 62 YEARS,
S/O RAHELAMMA,
KOICKAL PUTHENVEEDU,
KANNAMKODE, ADOOR
PATHANAMTHITTA - 691 523
*5 P.C REMANI,
AGED 60 YEARS,
D/O RAHELAMMA,
RESIDING KIZAVARAKAL,
KARMAL HOUSE,
THUMPAMON,
PATHANAMTHITTA 689 502.
*6 JACOB P.C.
AGED 53 YEARS,
S/O RAHELAMMA
RESIDING AT KOICKAL PUTHENVEEDU,
KANNAMKODE,
ADOOR, PATHANAMTHITTA -691 523
* ADDITIONAL RESPONDENTS R2 TO R6 ARE BEING LEGAL HEIRS
OF DECEASED SOLE RESPONDENT, ARE IMPLEADED AS PER THE
ORDER DATED 20.12.2022 IN I.A.NO.2/2022.
BY ADVS.
SRI.S.AJITH PRABHAV
No Advocate
SRI.C.D.ANIL
C.S.MANILAL
S.NIDHEESH(K/1061/2007)
KUNJAPPEASOW RAINGE(K/1346/2018)
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
4
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. 407 OF 2017
AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY,
PATHANAMTHITTA IN R.C.A.NO.12/2014 DATED 17.07.2017 REVERSING THE
ORDER OF THE RENT CONTROL COURT, ADOOR IN R.C.P.NO.9/2011 DATED
04.01.2013.
PETITIONER/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
W/O. THOMAS ALEXANDER,
KIZHAKKE VEEDU, KAWADIAR,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SRI.ACHU SHUBHA ABRAHAM
SMT.V.T.LITHA
SRI.THOMAS T.VARGHESE
RESPONDENT/APPELLANT/RESPONDENT:
BIJI SAMUEL
S/O. SAMUEL KUTTY,
OVIL VEEDU, ANGADICKAL THEKKEKARA MURI,
ANGADICKAL VILLAGE - 689 694.
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
5
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. 408 OF 2017
AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY,
PATHANAMTHITTA IN R.C.A.NO.4/2014 DATED 17.07.2017 REVERSING THE
ORDER OF THE RENT CONTROL COURT, ADOOR IN R.C.P.NO.7/2011 DATED
31.10.2013.
PETITIONER/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
W/O. THOMAS ALEXANDER,
KIZHAKKE VEEDU, KAWADIAR, THIRUVANANTHAPURAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SRI.THOMAS T.VARGHESE
RESPONDENT/APPELLANT/RESPONDENT:
VIDHYADHARAN
PULLANKATTIL, THUVAYOOR NORTH MURI,
ERATHU VILLAGE, ADOOR - 689 694.
BY ADVS.
SRI.S.AJITH PRABHAV
SRI.C.D.ANIL
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON
23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
6
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. 409 OF 2017
AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY,
PATHANAMTHITTA IN R.C.A.NO.5/2014 DATED 17.07.2017 REVERSING THE
ORDER OF THE RENT CONTROL COURT, ADOOR IN R.C.P.NO.15/2011 DATED
31.10.2013.
PETITIONER/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER,
W/O THOMAS ALEXANDER, KIZHAKKE VEEDU, KAWADIAR,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SRI.THOMAS T.VARGHESE
RESPONDENT/APPELLANT/RESPONDENT:
A.MOHAMMED YOUSEF, S/O ABDUL KHADER,
NIHAN MANZIL, KANNAMKODE MURI,
ADOOR VILLAGE, ADOOR TALUK.
BY ADVS.
SRI.S.AJITH PRABHAV
SRI.C.D.ANIL
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
7
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. 410 OF 2017
AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY,
PATHANAMTHITTA IN R.C.A.NO.10/2013 DATED 17.07.2017 REVERSING THE
ORDER OF THE RENT CONTROL COURT, ADOOR IN R.C.P.NO.11/2011 DATED
28.06.2013.
PETITIONER/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
W/O. THOMAS ALEXANDER, KIZHAKKE VEEDU,
KAWADIAR,THIRUVANANTHAPURAM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SRI.THOMAS T.VARGHESE
RESPONDENT/APPELLANT/RESPONDENT:
K.H.NAZARUDHEEN
KANJARAVILA VEEDU, KANNAMKODU MURI,
ADOOR VILLAGE, ADOOR TALUK - 695 110.
BY ADV SRI.C.D.ANIL
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
8
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. 97 OF 2018
AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY,
PATHANAMTHITTA IN R.C.A.NO.5/2014 DATED 17.07.2017 CHALLENGING THE
FINDINGS IN THE 2ND AND 1ST PART OF THE 3RD POINT OF CONSIDERATION
DISCUSSED IN THE SAID JUDGMENT.
REVISION PETITIONER/APPELLANT/RESPONDENT:
A.M.MUHAMMED YOUSEF
AGED 59 YEARS, S/O ABDUL KHADAR, RESIDING AT NIHAL
MANZIL,KANNAMCODE MURI, ADOOR VILLAGE, ADOOR
TALUK,PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.S.AJITH PRABHAV
SRI.C.D.ANIL
RESPONDENT/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
AGED 53 YEARS, W/O THOMAS ALEXANDER, KIZHAKKE
VEEDU,KAWADIAR, THIRUVANANTHAPURAM.
BY ADVS.
SRI. ASHITHA S
SMT.ACHU SUBHA ABRAHAM
SMT.AFSANA ASHRAF
SMT.ANITYA ANNIE MATHEW
SMT.JOAN JOSEPH
SMT.V.T.LITHA
SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
9
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. 102 OF 2018
AGAINST THE JUDGMENT OF THE RENT CONTROL APPELLATE AUTHORITY,
PATHANAMTHITTA IN R.C.A.NO.3/2014 DATED 17.07.2017 CHALLENGING THE
FINDINGS IN THE 2ND AND 1ST PART OF THE 3RD POINT OF CONSIDERATION
DISCUSSED IN THE SAID JUDGMENT.
REVISION PETITIONER/APPELLANT/RESPONDENT:
ASHARFUDEEN
AGED 58 YEARS,
S/O. KAITHARU RAWTHER,RESIDING AT BHOOTHAKKUZHI
MELETHIHL,
KANNAMCODE MURI, ADOOR VILLAGE,
ADOOR TALUK,
PATHANAMTHITTA DISTRICT.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
USHAIVA BEEBI,AGED 48 YEARS,
W/O. ASHARFUDEEN,
RESIDING IN THE SAME ADDRESS
BY ADVS.
SRI.S.AJITH PRABHAV
SRI.C.D.ANIL
RESPONDENT/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
AGED 53 YEARS,
W/O. THOMAS ALEXANDER,
KIZHAKKE VEEDU, KAWADIAR,
THIRUVANANTHAPURAM
BY ADVS.
PHILIP. T.VARGHESE(BY ORDER)
SMT.ACHU SUBHA ABRAHAM
KUM.T.A.ANJANA LAKSHMI
R.C.R.No. 405 of 2017 and connected cases.
10
KUM.S.ASHITHA
SMT.JOAN JOSEPH
SMT.V.T.LITHA
SRI.PHILIP T.VARGHESE
SRI.K.R.PAUL
SRI.THOMAS T.VARGHESE
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
11
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. 107 OF 2018
AGAINST THE JUDGMENT DATED 17.07.2017 IN RCA NO.10 OF 2013 ON THE
FILE OF THE RENT CONTROL APPELLATE AUTHORITY,PATHANAMTHITTA
CHALLENGING THE FINDINGS IN THE 2ND AND 1ST PART OF THE 3RD POINT
OF CONSIDERATION DISCUSSED IN THE SAID JUDGMENT.
REVISION PETITIONER/APPELLANT/RESPONDENT:
K.H.NAZERUDHEEN
AGED 60 YEARS,
S/O. HASSAN RAWTHER,
RESIDING AT KANJIRAVILAYIL,
KANNAMCODE MURI, ADOOR P.O., ADOOR VILLAGE,
ADOOR TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.S.AJITH PRABHAV
SRI.C.D.ANIL
RESPONDENT/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
AGED 53 YEARS,
W/O. THOMAS ALEXANDER,
KIZHAKKE VEEDU, KAWADIAR,
THIRUVANANTHAPURAM-695 009.
BY ADVS.
SMT.ACHU SUBHA ABRAHAM
KUM.T.A.ANJANA LAKSHMI
KUM.S.ASHITHA
SMT.JOAN JOSEPH
SMT.V.T.LITHA
SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
12
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. 183 OF 2018
AGAINST THE JUDGMENT DATED 17.07.2017 IN RCA NO.9 OF 2012 ON THE
FILE OF THE RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA
CHALLENGING THE FINDINGS IN THE 2ND AND THE 1ST PART OF THE 3RD
POINT OF CONSIDERATION DISCUSSED IN THE SAID JUDGMENT.
REVISION PETITIONER/APPELLANT/RESPONDENT:
RAHELAMMA
AGED 79 YEARS,
W/O. CHACKO, RESIDING AT KOIKKALPUTHEN VEEDU,
KANNAMCODE MURI, ADOOR VILLAGE, ADOOR TALUK,
PATHANAMTHITTA TALUK.
BY ADVS.
SRI.S.AJITH PRABHAV
SRI.C.D.ANIL
RESPONDENT/RESPONDENT/PETITIONER:
BEENA THOMAS ALEXANDER
AGED 53 YEARS,
W/O. THOMAS ALEXANDER,
KIZHAKKE VEEDU,KAWADIAR,
THIRUVANANTHAPURAM - 695 003.
BY ADVS.
SMT.ACHU SUBHA ABRAHAM
KUM.T.A.ANJANA LAKSHMI
KUM.S.ASHITHA
SMT.JOAN JOSEPH
SMT.V.T.LITHA
SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING
ON 23.12.2022, ALONG WITH RCRev..405/2017 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.C.R.No. 405 of 2017 and connected cases.
13
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
--------------------------------------------------
R.C.R.Nos. 405, 406, 407, 408, 409, 410 of 2017
and 97, 102, 107 and 183 of 2018
-------------------------------------------
Dated this the 23rd day of December, 2022
ORDER
C.S.Sudha, J.
These R.C.Rs. filed under Section 20 of the Kerala Buildings (Lease &
Rent Control) Act, 1965 (the Act) are against the common judgment dated
17/07/2017 in R.C.A.Nos. 9/2012, 10/2013, 3/2014, 4/2014, 5/2014 and 12/2014 on
the file of the Rent Control Appellate Authority (RCAA), Pathanamthitta.
R.C.R.Nos.405/2017, 406/2017, 407/2017, 408/2017, 409/2017 and 410/2017 have
been filed by the petitioner-landlady in the R.C.Ps. filed before the Rent Control
Court (RCC), Adoor. R.C.R.Nos.97/2018, 102/2018, 107/2018 and 183 of 2018
have been filed by the various respondents-tenants in the R.C.Ps. The parties and the
documents will be referred to as described in the R.C.Ps.
2. The petitioner-landlady filed six R.C.Ps, namely, R.C.P.Nos.7/2011,
8/2011, 9/2011, 11/2011, 12/2011 and 15/2011 claiming eviction under Section 11(3)
of the Act. According to the petitioner, she is the owner of a multi storeyed building
by name Apsara Tourist Home. The petition schedule rooms in the R.C.Ps are
situated in the ground floor of the aforesaid three storeyed building. The petitioner
R.C.R.No. 405 of 2017 and connected cases.
obtained title over the property by virtue of sale deed no.108/2010 of Adoor Sub
Registrar Office. The respondents-tenants have taken the room on rent from the
previous owner. The petitioner duly informed the tenants of the purchase of the
building and thereafter they have attorned to her. The petitioner's husband is an
Engineer conducting a Construction Company in the Sultanate of Oman. The
petitioner and her husband intends to start a hotel business in the three storeyed
building housing the schedule rooms. Presently, there is no sufficient vehicle parking
space for the building. So petitioner intends to convert the ground floor of the
building as a parking space and the other rooms for restaurant and lodging facility.
There are no suitable buildings or rooms in the possession of the petitioner to start the
hotel business. Hence the respondents were requested to vacate the room. However,
they have not vacated the room so far and hence the R.C.Ps.
3. The respondent-tenants in the R.C.Ps entered appearance and contested
the matter. They filed separate objections in the respective R.C.Ps, the gist of which
is that, initially the building had only one floor and five rooms in the ground floor.
The tenants had given substantial amounts as security to the earlier landlord of the
building and that it was using their funds he had constructed the present three
storeyed building. The rooms were taken on rent years back and when substantial
sums were given as security, the then landlord had assured the tenants that they would
not be evicted as long as the building stands. Hence the respondents are entitled to
permanent tenancy. The need put forward was denied by the tenants, which
R.C.R.No. 405 of 2017 and connected cases.
according to them, lacked bonafides and that it was a mere ruse for eviction. The
petitioner's husband is a business tycoon and therefore they have no intention to start
the proposed business in the building. The upper floors of the building comprising
of small rooms is designed to run a lodge and therefore it is impossible to convert it
into a hotel. Like wise, the ground floor cannot be converted into a parking space by
retaining the upper floors. If the rooms in the ground floor are demolished, the
building itself would collapse. They also claimed the benefit of the second proviso to
Section 11(3).
4. R.C.P.Nos. 7/2011, 8/2011 and 15/2011 were tried jointly and disposed of
by a common judgment dated 31/10/2013. R.C.P.Nos. 9/2011, 11/2011 and 12/2011
were tried separately and disposed of by judgments dated 04/01/2013, 28/06/2013
and 25/09/2012 respectively. The RCC on appreciation of the oral and documentary
evidence, found the need to be bona fide; that the tenants had failed to prove both the
limbs of the second proviso to Section 11(3) and hence granted eviction under
Section 11(3) of the Act. The tenants took up the matter in appeal as R.C.A.Nos.
9/2012, 10/2013, 3/2014, 4/2014, 5/2014, and 12/2014. The RCAA by the impugned
common judgment found the case to be falling under Section 11(8) and finding that
the comparative hardship caused to the tenants would outweigh the advantage to the
landlord in case eviction is ordered, allowed the appeals, by reversing the order of
eviction granted under Section 11(3) by the RCC and dismissed all the six R.C.Ps.
Aggrieved, the landlady has come up in revision. The tenants have also filed revision
R.C.R.No. 405 of 2017 and connected cases.
namely, R.C.R.No.97/2018, 102/2018, 107/2018 and 183/2018, challenging the
finding of the RCAA that they are not entitled to permanent tenancy or the benefit
under Section 11(9) of the Act.
5. The only point that arises for consideration is whether the findings of
the RCC or RCAA suffer from any illegality, irregularity or impropriety.
6. Heard Sri.Philip.T.Varghese, the learned counsel for the petitioner and
Sri.C.S.Manilal, Sri.C.D.Anil and Sri. K.M.Firoz, learned counsel for the
respondents.
7. According to the learned counsel for the landlady, the RCAA went
wrong in allowing the appeals filed by the tenants and dismissing the R.C.Ps. after
having found the need to be bonafide solely on the ground that the landlady is quite
affluent and so the comparative hardship would be more on the tenants, if eviction is
ordered. In support of this argument, reference was made to the decisions in Jose v.
Antony, 2005 (1) KLT 252, Mohd. Ayub v.Mukesh Chand (2012) 2 SCC 155
and Bhimanagouda Basanagouda Patil v. Mohd. Gudusaheb, (2003) 3 SCC 101.
Per contra, it was submitted by the learned counsel for the tenants that this Court in
exercise of its powers under Section 20 cannot re-appreciate the evidence on record
or interfere with the findings of fact by the RCAA. Section 20 is not an appellate
jurisdiction and so no interference into the findings of the RCAA, which are findings
on facts, is called for. In support of this argument, reference is made to the decisions
in M/s Boorugu Mahadev & sons v. Sirigiri Narasing Rao, AIR 2016 SC 433 and
R.C.R.No. 405 of 2017 and connected cases.
Addissery Raghavan v. Cheruvalath Krishnadasan, AIR 2020 SC 2854.
8. Section 20 of the Act allows the aggrieved party to challenge the
legality, regularity or propriety of the order or proceeding of an appellate court. It is
no doubt true that this Court sitting in revision cannot convert itself into an evidence
collecting or fact finding court. The scope of interference by the revisional court is
restricted to cases where the RCC or RCAA have relied on irrelevant consideration,
ignored valuable items of evidence or applied wrong principles of law. As held by a
Constitution Bench of the Apex Court in Hindustan Petroleum Corporation Ltd. v.
Dilbahar Singh, AIR 2014 SC 3708 a finding of fact recorded by the RCC or the
RCAA if perverse, or has been arrived at without consideration of the material
evidence or such finding is based on no evidence or misreading of the evidence or is
grossly erroneous that, if allowed to stand, would result in gross miscarriage of
justice, then it is open to correction, because it is not treated as a finding according to
law. In that event, the High Court in exercise of its revisional jurisdiction under the
Act is entitled to set aside the impugned order as being not legal or proper. The High
Court is entitled to satisfy itself of the correctness or legality or propriety of any
decision or order impugned before it.
8.1. Further, this Court under Section 20 is duty bound to test the order
of the RCC and the RCAA on the touchstone of "whether it is according to law" and
for that limited purpose it may re-appraise the evidence and ascertain whether the
conclusion arrived at is wholly unreasonable or is one that no reasonable person
R.C.R.No. 405 of 2017 and connected cases.
acting with objectivity could have reached on the material available. Ignoring the
weight of evidence, proceeding on a wrong premise of law or deriving such
conclusion from the established facts as to betray a lack of reason and/or objectivity
would render the findings of the authorities not according to law calling for an
interference under Section 20 of the Act. A judgment leading to miscarriage of justice
cannot be said to be a judgment according to law [Shiv Sarup Gupta v. Dr.Mahesh
Chand Gupta, (1999) 6 SCC 222]. The aforesaid principles have been reiterated by
the Apex Court in the decision in Addissery Raghavan (Supra) submitted on behalf
of the tenants. Keeping the said principles in mind, we will consider whether the
findings of the RCAA suffer from any infirmity, impropriety or illegality or is in any
way perverse.
9. The need alleged in paragraph 3 of the R.C.P. reads -
"3. The petitioner's husband is an Engineer conducting Construction Company in
Sultanate of Oman. The petitioner and her husband decided to start a Hotel
business in Adoor in the building in which the petition schedule room situates.
Now there is no sufficient vehicle parking space for the building. So the petitioner
intends to convert the ground floor of the building for parking facility and other
floors for restaurant and lodging facility. For which the petition schedule room
and other rooms in the said building are required for starting the said business.
There are no other suitable and convenient rooms and building in the possession
of the petitioner to start the above said business at Adoor Municipality. Hence, the
petitioner requested the counter petitioner and the lessees of other rooms to
vacate the rooms. But they did not vacate the room so far. So the petitioner is in
need of the petition schedule room for starting the above said business................".
The provision of law under which eviction is sought is stated in the R.C.P. to be
under Section 11(3) of the Act. The respondents also understood it to be a case under
R.C.R.No. 405 of 2017 and connected cases.
Section 11(3), which is quite clear from a reading of their objections. They denied
the bonafides of the need put forward and also claimed the benefit of the second
proviso to Section 11(3). Nobody had a case before the RCC that the need put
forward by the landlady did not fall under Section 11(3) or that it infact fell under
Section 11(8) of Act. Parties went to trial understanding it to be a case under Section
11(3) and evidence was also adduced in tune with the same. Even at the time of
arguments before the RCC, neither party had a case that it fell under Section 11(8) of
the Act. It was only when the matter came up before the RCAA, an argument is seen
advanced by the tenants that the need alleged actually falls under Section 11(8) of the
Act.
10. It is true as held by a Full Bench of this Court, in Pottarath
Kunhammi v. Varikkapulakkal Abdulla Kutty @ Abdu Haji, 2015(1) KHC 684,
which dictum has been relied on by the RCAA also, the need under Section 11(3) and
11(8) are mutually exclusive and independent. However, they are not always
mutually destructive. The Court thus would not be precluded from allowing a petition
under Section 11(3) even if Section 11(8) alone or 11(8) also is mentioned in the
R.C.P. and vice versa provided the facts pleaded and proved in the case would justify
such a conclusion.
11. Going by the pleadings in the R.C.P., the need clearly falls under Section
11(3) as it is the case of the landlady that she wants to start a new business, that is, a
hotel in the building housing the tenanted premises for which she intends to convert
R.C.R.No. 405 of 2017 and connected cases.
the ground floor into a parking place and convert the upper floors into a hotel. The
need is apparently not for expansion of the present business. The petitioner's case is
also not that the space presently available with her is not sufficient for the business of
lodging being conducted in the premises. Therefore, the pleading clearly makes out a
case under Section 11(3). The respondents never had a case of comparative hardship
as provided in the first proviso to Section 11(10) in their respective objections. On
the other hand their contention was that they are entitled to the benefit of the second
proviso to Section 11(3). Therefore, when pleadings make out a case under Section
11(3) and when parties understood the case to be also under Section 11(3), went to
trial on the basis of such an understanding, adduced evidence and contra evidence in
support and against the case pleaded under Section 11(3), we think that the RCAA
was not justified in finding the need to be under Section 11(8). For a moment, we
will assume that the RCAA was right in holding that the need alleged falls under
Section 11(8), and then consider whether there is any impropriety or illegality in the
further findings of the RCAA.
12. Both the authorities have found the need to be bona fide and rejected all
the contentions raised by the tenants attacking the bona fides of the need alleged. The
contention regarding the impossibility of converting the ground floor into a parking
space, while simultaneously retaining the upper floors, has also been rejected. The
said findings of fact based on an appreciation of evidence by both the authorities has
not been shown by the tenants to be in any way wrong or perverse. Therefore, we
R.C.R.No. 405 of 2017 and connected cases.
have concurrent findings regarding the bonafides of the need alleged, which finding
suffers from no infirmity. However, the RCAA found comparative hardship of the
tenants to outweigh the advantage to the landlady in case eviction is ordered. Let us
examine whether the said finding is right based on the principles laid down by the
Apex Court. The sole reason which prompted the RCAA to give the benefit of the
first proviso to Section 11(10) is because the husband of the landlady is an
immensely rich man with several businesses in and around the country as well as
abroad. This aspect weighed heavily in the mind of the RCAA in finding the
comparative hardship factor in favour of the tenants. This finding of the RCAA is
apparently wrong in the light of the decisions in Mohd. Ayub (Supra) and
Bhimanagouda Basanagouda (Supra), where the Apex Court held that greater
affluence of the landlord is irrelevant in cases where the need projected is found to be
bonafide. Therefore, merely because the landlady herein is quite affluent and has
several businesses being profitably run by her husband, is no ground to reject the need
projected especially when the bonafides of the need has been found in her favour.
13. The respondents in their respective objections have not taken up a case
of comparative hardship as contemplated under the proviso to Section 11(10). On the
other hand their contention is that they are entitled to the benefit of the second
proviso to Section 11(3) of the Act. The RCC found that though the tenants have
taken up a contention that the income from the business being conducted in the
tenanted premises is their sole means of livelihood, no evidence had been produced to
R.C.R.No. 405 of 2017 and connected cases.
substantiate the same. The respondents had not produced their sales tax returns or
income tax returns or any such documents to prove their income. The account books
or ledgers or any other documents evidencing the transactions of the business being
conducted in the tenanted premises were also not produced by the tenants. Therefore,
the RCC found that the tenants had failed to establish their contention that the income
derived from the business being conducted in the tenanted premises is their sole
means of livelihood. However, according to the RCAA, the landlady had no case that
any of her tenants were having any other business or income other than the business
being carried out in the schedule premises. Therefore, the failure of the landlady to
prove other sources of income of the tenants was taken to be the ground to hold said
aspect in favour of the tenants. This is a fundamental mistake committed by the
RCAA. As held by a Division Bench of this Court in Jose (Supra), the burden is on
the tenant to establish the hardship that may be caused to him, if he is evicted from
the tenanted premises. Paragraph 5 and 6 of the said judgment reads -
" 5. Advantage versus hardship. The advantage that the landlord would
derive if the tenant is evicted under S. 11(8) of the Act is that he would get
additional space so that he could expand his existing business. He could do more
volume of business and gain more profit and also be able to compete with others
in the same line of business. Definitely if the landlord expands his business his
volume of business may increase, so also his profit, a definite advantage to the
landlord. Even if the landlord has got other buildings elsewhere that would not
satisfy his need for additional accommodation and such a plea may be available
to a tenant under the first proviso to S. 11(3) in a petition under S.11(3) but not
under 11(8). By shifting the business elsewhere the landlord would not gain any
advantage but may adversely affect his existing business. These are the
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advantages derive by the landlord in case he gets additional accommodation.
6. Now let us see what would be the hardship that may be caused to the
tenant if he is evicted from the existing premises. Tenant will have to find out
another accommodation if he is evicted from the premises. Non availability of
building in the locality would affect the tenant especially in a case where the
main source of livelihood is the income derived from the business conducted in
the tenanted premises. But once availability of building in the locality is
established the plea that the main source of livelihood of the tenant is the income
derived from the business conducted in the tenanted premises as a defence is not
available, though such a plea can be successfully raised by the tenant under the
second proviso to S. 11 (3) in a petition filed under S. 11(3) of the Act. Rent
Control Court has opined that even if the tenant gets alternate accommodation he
will have to spend huge amount for shifting the business and that there is no
guarantee that the business in the new premises would run smoothly. Reasoning
of the Rent Control Court in our view is unsound. It is entirely the look out of the
tenant to successfully conduct his business in the new premises. Naturally shifting
of the business would cause inconvenience to the tenant and such inconvenience
cannot be termed as "hardship" under the first proviso to S. 11(10) of the Act."
14. The case of the tenants that the income being derived from the business
being conducted in the tenanted premises is a fact known to them and therefore, it is
for them to prove the said aspect going by Section 106 of the Evidence Act. The
landlady cannot be expected to bring in documents to disprove the same when the
tenants would certainly be in possession of documents to establish the claim of sole
means of livelihood. The RCAA relied on the bare assertions of the tenants in the
box to the effect that the income from the business being conducted in the tenanted
premises is their sole means of livelihood. The RCC had rightly pointed out the
failure of the tenants to produce documents to establish their claim. The tenants have
R.C.R.No. 405 of 2017 and connected cases.
no case that the documents referred to by the RCC are not available with them.
Mere oral assertion without any supporting material to show the income is not sufficient to
prove the tenants are mainly depending for their livelihood on the income derived by
them from the businesses being carried down in the tenanted premises. The evidence
regarding the income derived by them is peculiarly within their knowledge and the
best available evidence should be produced by them. They have not produced such
evidence in this case. Therefore to reverse the finding of the RCC on the basis of
mere assertions made by the tenants in the box was certainly not correct, that too,
when the tenants have no case that documentary evidence is not available.
15. The RCC also found from the evidence on record that vacant rooms are
available in the locality. However, the RCAA observed that there is no clear evidence
available on record regarding the availability of other vacant rooms in the locality for
the purpose of shifting the business of the tenants. It was also urged on behalf of the
tenants that even if rooms are available the tenants would have to give huge amounts
as security and also that if their business is shifted to other places, they would
experience much difficulty in getting a good start. This argument found favour with
the RCAA, who observed that though it is true that if the proposed hotel business is
started, the landlady would get more income, however considering the fact that her
husband is conducting several businesses in Kerala and abroad, even if the proposed
business is not started it would not fundamentally affect their life. Therefore, it was
concluded that if eviction is allowed under Section 11(8), the hardship that would be
R.C.R.No. 405 of 2017 and connected cases.
caused to the tenant would outweigh the advantage to the landlady. As rightly pointed
out by the RCC, the evidence on record shows that rooms are available in the locality
for the tenants to shift their business. The mere assertion by the tenants that no
suitable rooms are available in the locality is not sufficient. The tenants have not
shown the income derived by them from the business being carried in the tenanted
premises. Therefore, there is no material to substantiate their contention that they
would be unable to afford the huge amounts, which according to them have to be
given as security for getting a new room on rent. Moreover, the fact that the tenants
will be forced to pay rent that is commensurate with the rent now prevalent in the
locality, is not a ground to deny relief to the landlord. The Act does not contemplate
that the landlord and the tenant should be pinned down to the state of things as they
were on the date of the letting. What the court is called upon is to see whether on
paying the current going rate of rent, any other building in the locality is available for
the tenant to shift his business. It cannot be expected that a tenant would now get a
building on rent that he originally agreed to pay to his landlord, in the same locality
and in the same town. Rents have gone up. He will have to pay the prevalent rent in
the locality consistent with the economic situation now obtaining (Xavier v.
Krishnakumari, 2000 KHC 714). Therefore, the argument advanced on behalf of
the tenants that they will have to pay huge amounts as security or higher rent to get
rooms on rent cannot be accepted. As held in Jose (Supra), Shifting of the business
naturally would cause inconvenience to the tenant. However, such inconvenience
R.C.R.No. 405 of 2017 and connected cases.
cannot be termed as hardship under the first proviso to Section 11(10) of the Act. In
these circumstances, we are constrained to interfere with the findings of the RCAA in
the impugned judgment as the Appellate Authority has apparently erred in concluding
the case to be under Section 11(8) in the absence of pleadings or evidence to the said
effect. The order of the RCC, a reasoned one, is therefore liable to be restored.
16. In the revision petitions filed by the tenants, they have challenged the
finding of the RCAA rejecting their claim of permanent tenancy and the protection
under Section 11(9) of the Act. We do not find any impropriety, illegality or
irregularity in the said finding of the Appellate Authority. Therefore, no interference
into the same is called for.
In the result, R.C.R.Nos.405/2017, 406/2017, 407/2017, 408/2017,
409/2017 and 410/2017 filed by the landlady are allowed. The impugned judgment
of the RCAA is reversed and the order of the RCC granting eviction under Section
11(3) of the Act is restored. R.C.R.Nos.97/2018, 102/2018, 107/2018 and 183/2018
filed by the tenants are dismissed. Taking into account the facts and circumstances in
the case, we deem it appropriate and reasonable to grant the tenants six months' time
to vacate the schedule rooms on condition that they file an undertaking before the
RCC on or before 23/01/2023 to vacate the tenanted premises within a period of six
months from today and on condition that the tenants pay the arrears of rent if any, on
or before 23/01/2023 and also continue to pay the monthly rent on or before the 10 th
day of every succeeding month till they vacate the building.
R.C.R.No. 405 of 2017 and connected cases.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
P.B.SURESH KUMAR
JUDGE
Sd/-
C.S.SUDHA
JUDGE
Jms/21.12
