M/S.Sudharma Metropolis Health ... vs R.Mani Kumar
2023 Latest Caselaw 2914 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                 &
          THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                    RCREV. NO. 358 OF 2019
AGAINST THE ORDER/JUDGMENT IN RCP 18/2015 OF RENT CONTROL
                         COURT, ALAPPUZHA
      RCA 25/2017 OF RENT CONTROL APPELLATE AUTHORITY
         (ADDITIONAL DISTRICT COURT- 1), ALAPPUZHA.
REVISION PETITIONER/APPELLANT/RESPONDENT:

          M/S.SUDHARMA METROPOLIS HEALTH SERVICES PRIVATE
          LIMITED, PATTURAICKAL JUNCTION, SHORNUR ROAD,
          THRISSUR-680001, REPRESENTED BY M.G.SIVAKUMAR -
          THE AUTHORISED SIGNATORY.
          BY ADV SREEKALA KRISHNADAS


RESPONDENT/RESPONDENT/PETITIONER:

          R.MANI KUMAR,
          S/O.LATE S.RENGAN REDDIAR, SREE RANGA NANDANAM,
          NO.126/B, EVANJELICKAL CHURCH ROAD, M.O.WARD,
          ALAPPUZHA-688011.
          BY ADV SRI.R.AZAD BABU



      THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD
ON   23.02.2023,   THE   COURT   ON   13.03.2023   DELIVERED   THE
FOLLOWING:
 RCR No.358 of 2019                  2



                      P.B SURESHKUMAR &
                       SOPHY THOMAS, JJ.
              -------------------------------------------
               Rent Control Revision No.358 of 2019
              -------------------------------------------
              Dated this the 13th day of March, 2023

                             ORDER

Sophy Thomas, J.

The tenant is the revision petitioner challenging the

concurrent orders of eviction under Sections 11(4)(iii) and

11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act,

1965 (hereinafter referred to as 'the Act').

2. The landlord filed RCP No.18 of 2015 before the Rent

Control Court, Alappuzha, for evicting the tenant under

Sections 11(3), 11 (4)(iii) and 11(4)(v) of the Act. The Rent

Control Court, though found the bonafide need of the

landlord, for the petition schedule building for starting a scan

centre, it was also found that the landlord was in possession of

other rooms in the very same building conducive for staring a

scan centre, and no special reasons were shown for getting

possession of the petition schedule room after evicting the

tenant. So, giving the benefit of the first proviso to

Section 11(3) of the Act, the Rent Control Court rejected the

prayer of the landlord for eviction under Section 11(3).

Regarding the prayer under Sections 11(4)(iii) and 11(4)(v) of

the Act, the Rent Control Court found that the tenant acquired

a suitable building reasonably sufficient for their requirement,

very near to the petition schedule building and moreover, the

tenant ceased to occupy the building for more than six months

without any reasonable cause. So, the eviction prayed for

under Sections 11(4)(iii) and 11(4)(v) was allowed by the Rent

control Court.

3. The tenant, aggrieved by the order of eviction under

Sections 11(4)(iii) and 11(4)(v) of the Act, preferred RCA

No.25 of 2017 before the Rent Control Appellate Authority,

Alappuzha. The landlord, aggrieved by the dismissal of his

prayer for eviction under Section 11(3) of the Act, preferred a

cross objection in that appeal. The Rent Control Appellate

Authority, on analysing the facts and evidence and also on

hearing the rival contentions raised from either side, dismissed

the appeal of the tenant as well as the cross objection of the

landlord, upholding the order of eviction under

Sections 11(4)(iii) and 11(4)(v) of the Act. Against the

dismissal of the appeal, the tenant has come up with this

revision.

4. The landlord is not challenging the dismissal of the

cross objection, and hence the order of the Rent Control Court

denying eviction under Section 11(3) of the Act, has become

final.

5. In this revision, we are called upon to find out,

whether there is any illegality, irregularity or impropriety in the

judgment of the Rent Control Appellate Authority in RCA No.25

of 2017, upholding the order of eviction under Sections 11(4)

(iii) and 11(4)(v) of the Act.

6. Heard Smt.Sreekala Krishnadas, learned counsel

appearing for the revision petitioner/tenant, and Sri.R.Azad

Babu, learned counsel appearing for the respondent/landlord.

7. Before the Rent Control Court, the parties went on

trial by examining PWs 1 to 4, DWs 1 and 2 and marking

Exts.B1 to B16 and Ext.C1.

8. The tenant, a Private Limited Company, took the

petition schedule building on lease for a period of five years, as

per lease agreement dated 01.04.2010. Even after the period

of tenancy, the tenant continued there as a statutory tenant.

The tenant was conducting a Diagnostic Centre in the schedule

building in the name and style "Sankers Lab Metropolis". They

invested huge amounts to start their business in the tenanted

premises. There was a business agreement between the

landlord and the tenant for transferring the business of the

landlord, a pathological lab named Dr.Shanker's Lab at

Alleppey to the tenant including the machineries, goodwill etc.

of that business. As per the agreement, the landlord agreed

that, he will not use the name Dr.Sanker's Lab any more as it

was assigned to the tenant as per the agreement. In violation

of the business agreement, the landlord started a laboratory

named 'Sanker's Health Care Diagnostic' which is similar to the

business run by the tenant in the name and style 'Sanker's

Metropolis'. So, the tenant filed two suits against the landlord

as O.S No.1 of 2013 and O.S No.1 of 2014 before the District

Court, Alappuzha, invoking the provisions of Trademarks and

Copyrights Act and both the cases are pending trial. Because

of that vengeance, the landlord initiated eviction proceedings

against the tenant, without any bonafides.

9. According to the tenant, the need projected by the

landlord was not bonafide and it was only a ruse to evict

them. Moreover, the case of the landlord that the tenant had

acquired other buildings reasonably sufficient for their

requirement is not correct. They never ceased to occupy the

tenanted premises. So, the order of eviction passed by the

Rent Control Court under Sections 11(4)(iii) and 11(4)(v),

which was confirmed in appeal by the Rent Control Appellate

Authority, is liable to be set aside.

10. As far as the eviction ordered under Section 11(4)

(iii) of the Act, the tenant is admitting the fact that just 50

meters away from the petition schedule rooms and opposite to

the Excise Office, Alappuzha, they had acquired another

building. But, according to them, the acquisition of new

building was for expansion of their business, as they are

having more branches for their business, and it was not

intended for shifting their existing business in the petition

schedule rooms. So, according to the tenant, acquisition of

another convenient building in the same locality could not be a

ground for evicting them under Section 11(4)(iii), as it was

meant for starting a new branch of their business, and not for

shifting their existing business in the petition schedule rooms.

If such an argument is accepted, the landlord will be deprived

of his valuable right of eviction envisaged under Section 11(4)

(iii) of the Act, as any subsequent acquisition of building by

the tenant can be said to be for starting a new branch for

expanding his existing business. In the case on hand, there is

clear evidence to show that, the tenant acquired a building just

50 meters away from the petition schedule rooms having more

plinth area than the petition schedule rooms. DW2, an

employee of the tenant, categorically deposed before the Rent

Control Court, that the new building taken on lease by the

tenant is more spacious than the petition schedule rooms.

PW2, the owner of that building, also deposed that, the area

leased out to the tenant is 1980 sq.feet, and it was leased out

in the year 2012. He further stated that, the laboratory which

was functioning in the petition schedule rooms was shifted by

the tenant to the new building owned by PW2.

11. The evidence given by PW4-the Commissioner,

coupled with Ext.C1 commission report, is sufficient to show

that, the lab which was functioning in the petition schedule

rooms was shifted to the new building, and a flex board was

exhibited in the petition schedule rooms informing the public,

regarding the shifting of the lab to the newly acquired building,

which was just 50 meters away from the petition schedule

rooms. DW2-the staff of the tenant, also corroborated that

fact. The tenant also categorically admitted acquisition of the

building owned by PW2 on lease, in the year 2012. But,

according to them, it was for expansion of their business by

opening a new branch. If that be so, there was no necessity to

exhibit a flex board in the petition schedule building indicating

shifting of business from the petition schedule building to the

newly acquired building. The tenant is not disowning the flex

board exhibited by them in the petition schedule building. The

testimony of the witnesses coupled with Ext.C1 commission

report, amply prove that the tenant acquired the building

owned by PW2 on lease in the year 2012, and the business in

the petition schedule rooms was shifted to the new building,

which was reasonably sufficient for their requirement. So, the

trial court as well as the appellate court rightly found that the

tenant acquired another building in the same locality, just 50

meters away from the petition schedule rooms, reasonably

sufficient for their requirement so as to order eviction under

Section 11(4)(iii) of the Act.

12. Regarding cessation of occupation, the tenant

contended that, they never ceased to occupy the petition

schedule rooms, and still they are using those rooms as a

store for their business. They are relying on clause 6 of

Ext.B16 lease agreement which says that, the lessee agrees to

use the place for the purpose of keeping dry

materials/reagents with necessary permit and licence from the

authorities wherever required and not for any manufacturing

activities. So, according to the tenant, the shifting of the lab

from the petition schedule rooms will not mean that they

ceased to occupy the rooms, as still they are using the petition

schedule rooms for the storage of dry materials/reagents.

13. The tenant has no case that they never conducted

'Sankers Lab Metropolis' in the schedule building and they

were simply using that premises for storage only. But, there is

clear evidence to show that, the tenant was conducting

Sanker's Lab Metropolis in the schedule building, and after

acquiring the building owned by PW2, they shifted the lab into

that building. When the Commissioner inspected the petition

schedule rooms, he could not see any symptoms of uses of

that building, either as a lab, or as a storage place of dry

materials/reagents for the purpose of conducting the lab. The

Commissioner has clearly reported in Ext.C1 that, the building

was seen in an unused condition, and it was full of dust, trash,

unused tables, old microscopes and X-ray machines etc. with a

wet floor and a leaking roof. Most of the electric bulbs were

not seen functioning. If dry materials/reagents to be used in

laboratory was kept in the petition schedule rooms, it would

have been kept neat and tidy. But, the Commissioner could not

find out any such storage in the petition schedule rooms.

Moreover, if the lab was not functioning there, there was no

possibility for keeping dry materials/reagents necessary for the

lab, in that building. Clause 6 of Ext.B16 lease agreement

shows that, the dry materials and reagents should have been

kept with necessary permit. The tenant could not produce the

permit necessary for keeping materials and reagents in the

petition schedule rooms, after 2012. So, the evidence given

by PW4 coupled with Ext.C1 commission report was sufficient

to hold that, the tenant ceased to occupy the petition schedule

rooms since long, and that is why the building was seen in an

unused condition with full of dust and trash with a wet floor

and leaking roof. Though the period of cessation of occupation

could not be definitely answered by the Commissioner, there is

testimony of PW2 that the tenant acquired his building on

lease in the year 2012.

14. The landlord filed the RCP on 09.04.2015. The

Commissioner inspected the petition schedule building on

10.04.2015. On going through the facts reported by the

Commissioner regarding the appearance of the petition

schedule rooms, in all probability, the tenant might have

shifted the lab from the petition schedule rooms to the newly

acquired building immediately after its acquisition on lease in

the year 2012. The case of the tenant that the newly acquired

building was for expanding their business by starting a new

branch, is not tenable in the light of the admission from the

part of PW2 and DW2 that, the lab which was functioning in

the petition schedule rooms was shifted to the newly acquired

building and a flex board was also exhibited in the petition

schedule rooms, announcing shifting of the lab to the new

building which was just 50 meters away. So, the trial court as

well as the appellate court rightly found that, the tenant

ceased to occupy the petition schedule rooms and so, they

were liable to be evicted under Section 11(4)(v) of the Act.

15. Learned counsel for the tenant argued that, there

was business competition between the tenant and the

landlord, and when the landlord, in violation of the business

agreement, started a Laboratory by name 'Sanker's Health

Care Diagnostic' similar to the name of their business concern

'Sanker's Metropolis', they filed OS No.1 of 2013 and O.S No.1

of 2014 before the District court, Alappuzha, under the

Trademarks and Copyrights Act and those cases are pending

trial. According to them, the trial court as well as the

appellate court failed to notice the business competition

between the landlord and the tenant, and the pendency of

trademark and copyrights cases between them, and ordered

eviction without application of mind.

16. The dispute with respect to trademarks and

copyrights has nothing to do with the landlord-tenant

relationship between them and it may take its own course till

its logical conclusion. Here the question is, whether pendency

of those cases prompted the landlord to file RCP against the

tenant without any bonafides. The bonafide need projected by

the landlord to get vacant possession of the building for

starting a scan centre was answered in his favour by the trial

court as well as the appellate court. That finding was never

challenged by the tenant. Since the landlord was found in

possession of other suitable rooms in the very same building,

and no special reasons were shown by him, for getting

possession of the petition schedule rooms itself for starting the

scan centre, giving the benefit of the first proviso to Section

11(3), the eviction sought for on the ground of bonafide need

was declined by the Rent Control Court. That does not mean

that the need projected by the landlord was not bonafide.

17. Learned counsel Smt.Sreekala Krishnadas, appearing

for the tenant further argued that, for granting eviction under

Section 11(4), the Rent Control Court shall satisfy that the

claim of the landlord was bonafide. According to her, the relief

sought under Section 11(3) was declined, as there was no

bonafides in claiming vacant possession of the petition

schedule rooms, suppressing his possession of other vacant

rooms in the very same building and it will have a say on the

bonafides to be satisfied under Section 11(10) of the Act.

18. As we have seen, the bonafide need of the landlord

for starting a scan centre in the petition schedule rooms was

answered in his favour. But, by giving protection of the first

proviso to Section 11(3), eviction was not allowed on that

ground. The tenant is admitting that they acquired another

building on lease from PW2 in the year 2012, and shifted the

lab which was functioning in the petition schedule rooms to

that building. The landlord filed the eviction petition in the

year 2015, after shifting of the lab from the petition schedule

rooms. Moreover, Ext.C1 commission report and the

testimony of PW4 were sufficient to show that, the petition

schedule rooms were not being used for long, from the

symptoms he could see there. So, we could not say that there

was no bonafides from the part of the landlord while making a

claim for eviction under Sections 11(4)(iii) and 11(4)(v) of the

Act.

19. The argument put forward by the learned counsel for

the tenant that, declining the prayer for eviction on the ground

of bonafide need will eclipse the bonafides of the claim under

Section 11(4), envisaged under Section 11(10) of the Act, is

not a legally sustainable one. When there is clear and cogent

materials to show that, the tenant acquired another building

and shifted the business which they were conducting in the

petition schedule rooms into the newly acquired building, and

ceased to occupy the petition schedule premises thereafter, we

cannot say that, the claim of the landlord was not bonafide,

even if there were pending litigations between them on

trademarks and copyright. If the landlord starts a scan unit in

the petition schedule rooms, the tenant cannot prevent him

saying that, they would be put to a disadvantageous situation

due to the business competition. The argument that the

landlord may start a business of similar nature to that of the

tenant in the petition schedule rooms, may not be a ground to

find that the claim of eviction was not bonafide. The tenant

cannot dictate terms on the landlord and it is the landlord who

has to decide how he has to make use of his building.

20. On going through the entire facts and materials, we

find no illegality, irregularity or impropriety in the judgment of

the Rent Control Appellate Authority, upholding the order of

eviction under Sections 11(4)(iii) and 11(4)(v) of the Act. So,

the revision is liable to be dismissed.

Considering the facts and circumstances of the case,

we deem it appropriate to grant six months time to the tenant

to surrender vacant possession of the premises, on condition

that the tenant shall file an affidavit before the Rent

Control Court within 15 days from the date of receipt of copy

of this order, unconditionally undertaking to vacate

the tenanted premises within six months, and agreeing

to pay the arrears of rent, if any, within one month and to

continue payment of the monthly rent before the due date, till

they vacate the premises.

With these directions, the Rent Control Revision stands

dismissed.

The pending interlocutory applications, if any, shall stand

closed.

Sd/-

P.B SURESH KUMAR JUDGE

Sd/-

SOPHY THOMAS JUDGE

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