IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 224 of 2005()
1. C.O.VENUGOPAL, VAISALI TEXTILES,
... Petitioner
Vs
1. R.RAJALAKSHMI,
... Respondent
2. BEENA KRISHNA MOORTHY,
3. DEENA SATHEESH, W/O.P.SATHEESH,
For Petitioner :SRI.S.SANAL KUMAR
For Respondent :SRI.T.KRISHNAN UNNI
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :19/08/2009
O R D E R
C.R.
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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R.C.R. NOS: 224, 334, 335,343,349, 361,
363, 372, 570, 592 OF 2005
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Dated this the 19th August, 2009.
JUDGMENT
SURENDRA MOHAN, J.
These Rent Control Revisions are filed by the tenants
challenging the common judgment dated 21.12.2004 of the
Additional Rent Control Appellate Authority, Alappuzha in
connected Rent Control Appeals. The Rent Control Appeals were
filed by the respondents-landlords challenging the dismissal of the
Rent Control Petitions filed by them against the tenants. The Rent
Control Appellate Authority reversed the findings of the Rent
Controller and ordered eviction of the revision petitioners under
Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act,
1965, hereinafter referred to as the ‘Act’.
2. The revision petitioners are all tenants in occupation of
different shop rooms in a line building, in the heart of Alappuzha
town. The revision petitioners have been in occupation of the shop
rooms in their possession for considerably long periods of time and
the rent paid by them is also nominal. They are conducting various
businesses. The Rent Control petitions were tried together since
RCR 224/2005 etc. 2
the landlords in respect of all the premises are same and the
contentions raised by the parties are also common.
3. The line building situate in Survey No: 818/8, C1, C2, A2,
D1, 1/1 and 818/9 A2 belonged to late Radhakrishna Reddiar,
having acquired ownership and possession over the same as per
registered partition deed No: 18/1955. The first respondent is the
wife and the second and third respondents are the daughters of
late Radhakrishna Reddiar. They are his sole legal heirs, on whom
the property has devolved on his death. After the death of
Radhakrishna Reddiar the tenants in occupation of the building
attorned to the respondents and started paying rent in respect of
the premises to them. Thus, the petitioners in all these revision
petitions are tenants under the respondents.
4. The revision petitioners are all in occupation of separate
shop rooms forming part of the same building. They are
conducting various businesses of their own and paying rent at
different rates to the landlords.
5. In the above circumstances, the landlords filed separate
Rent Control Petitions for eviction of all the tenants alleging that
they required the building for their bonafide own occupation.
According to them, the existing building was old and, therefore,
RCR 224/2005 etc. 3
they wanted to demolish the building and construct a spacious
building in which, they wanted to start a textile shop. According to
the landlords, it was necessary to demolish the building for the
purpose of construction of the new building so as to provide the
same with proper road access and other conveniences. It was
contended by the landlords that the first respondent was having
sufficient experience in running a textile shop as she was doing the
business in the name and style, ‘Sowbhagya Textiles’. The second
respondent who is the eldest daughter is working in the IBM
Computers, U.S.A. She was prepared to join the business since it
was the desire of both herself and her husband to settle in India.
She also has the necessary financial resources to help her mother
in setting up and developing the business. The third respondent
who is the youngest daughter is without any employment.
Therefore, she wants to help her mother in conducting the
business. Her husband who is a businessman in the textile field
was prepared to give proper guidance and assistance to them in the
business. Though they requested the tenants for vacant possession
of the premises, they did not vacate the premises. Therefore, the
Rent Control petitions were filed.
6. The Rent Control Petitions were resisted by the tenants on
RCR 224/2005 etc. 4
the basis of identical contentions. According to them the need put
forward was only a ruse for eviction. The object of the respondents
was to let out the rooms on a higher rent. They had no need of the
schedule shop rooms for starting a textile shop. They have no plan
or licence to construct a building after demolishing the existing
structure. It was contended that the landlords did not have the
capacity or ability to construct the new building. Further the
tenants contended that the first petitioner who was a widow was
not capable of doing any business. The second respondent was a
person who was permanently settled in America with no interest in
India. She has no interest to settle in India or to start any business.
According to the tenants, the third respondent’s husband was
conducting a leading textile business at Alappuzha in the name
and style ‘Swamees’. It was pointed out that eviction proceedings
had not been initiated against some of the tenants. A further
contention was raised that the husband of the first respondent had
been conducting a textile shop in the building on the western side
of the scheduled shop rooms in the name and style ‘Saubhagya
Textiles’, which building was already in her possession.
Therefore, if the landlords were desirous of starting a business,
they could very well start the same in the said premises. On the
RCR 224/2005 etc. 5
above contentions they prayed for dismissal of the Rent Control
Petition.
6. The Rent Control Court tried all the Rent Control Petitions
together. The evidence in the cases consists of the oral testimonies
of P.W.1 and R.Ws 1 to 9 and Exts. A1 to A5 and B1 to B3
documents.
7. The Rent Control Court considered the contentions of the
rival parties and held that the bonafide need put forward by the
landlords was not proved. Hence, it was found that they were not
entitled to evict the tenants from the petition schedule shop rooms.
The Rent Control Court therefore dismissed all the petitions by a
common order. The respondents/landlords challenged the order
of the Rent Control Court before the Rent Control Appellate
Authority by filing separate appeals in all the cases. All the Rent
Control Appeals were heard and disposed of together by the Rent
Control Appellate Authority. The Appellate Authority reversed the
findings of the Rent Control Court and found that the bonafide
need projected by the landlords was established to be genuine and
bonafide. Therefore, the Appellate Authority set aside the
common order of the Rent Control Court and ordered eviction of
the tenants. It is the said common order of the Rent Control
RCR 224/2005 etc. 6
Appellate Authority that is assailed by the revision petitioners
before us.
8. We have heard the counsel appearing for the respective
tenants as well as the landlords, in detail. We have been taken
through the evidence in the cases both oral and documentary. We
have also considered the contentions of the parties.
9. The only point that arises for consideration in these
revisions is whether the landlords have been able to establish the
bonafide need put forward by them.
10. It is contended by the counsel for the revision petitioners
that though the case of the landlords is that they were proposing to
demolish the existing building and to construct a new building in
the property They have not obtained a proper plan and licence for
such construction. In the absence of any such plan or licence, it is
contended that no eviction could be granted. As rightly noted by
the Appellate Authority, eviction is sought in these cases under
Section 11(3) of the Act and not under Section 11(4)(iv) thereof.
Therefore, the requirement of production of a plan and licence need
not be insisted upon in an action under Section 11(3) of the Act.
Further, it is to be noted that in the present case in fact Exts.A3
and A4 plans have been produced by the landlords. Therefore, the
RCR 224/2005 etc. 7
fact that necessary plans have been prepared by the landlords
cannot be disputed. The requirement of a licence or a building
permit is necessary only for starting construction and can be
obtained subsequently. Therefore, as rightly found by the
Appellate Authority it is sufficient that the landlords obtain a
building permit before they start the actual construction. It has
been further found by the Appellate Authority that the landlords
have the necessary financial capacity to start the business and that
they have the necessary experience to conduct the same. The
counsel for the revision petitioners have not been able to point out
anything to assail the above findings of the Appellate Authority.
Therefore, we confirm the finding of the Rent Control Appellate
Authority that the landlords have been successful in establishing
the need projected by them under Section 11(3) of the Act.
11. Counsel for the revision petitioners have pointed out that
the landlords had not filed petitions for eviction against all the
tenants in the building. It is pointed out that the two tenants, who
are conducting business in the name ‘Prakruthi Stores’ and
Bhagavathy Textiles’ were not sought to be evicted. It is worth
noticing that when P.W.1 was in the box, she was questioned on
this aspect. Her explanation was that the said two tenants had
RCR 224/2005 etc. 8
already agreed to vacate the rooms occupied by them. Therefore,
no petitions for eviction were filed against them. However, it is
pointed out that they could have been examined to prove the above
fact or at least affidavits could have been obtained from them in
proof of the said statements. As rightly found by the Appellate
Authority, just because the said two tenants were not examined or
their affidavits obtained, it cannot be concluded that the
explanation of P.W.1 was not true.
12. Therefore the next question is whether it is necessary
that a litigation should precede the recovery of possession of the
tenanted premises by the landlord in all cases, as a general rule?
There is no presumption that as a general rule, a litigation has
to invariably precede the surrender of vacant possession of a
tenanted premises to the landlord. It is common knowledge that
many tenants vacate the premises occupied by them accepting and
appreciating the genuineness of the need of their landlords.
Especially so, in situations where the landlord and tenant maintain
close and cordial relationship among themselves. It is only in cases
where the tenant disputes the bonafides of the need put forth by
the landlord that the Rent Control Court is called upon to consider
the question of genuineness of the need and to pass orders of
RCR 224/2005 etc. 9
eviction. Though it has become common place for tenants to resist
the need of the landlords by protracted litigation and to continue in
possession for as long as possible, especially in the case of
commercial premises, such litigation cannot be held to be
necessary in all cases, as a rule.
13. At the same time, we do not think that the apprehensions
expressed by the tenants do not have any substance at all. The
conduct of the landlords in not initiating any action for evicting the
said two tenants has to be scrutinized closely with a view to
ensuring that the justification put forward is genuine. It is
contended that the landlords should not be permitted to pick and
choose in the matter of eviction of tenants who are all occupying
similar premises in the same building. We feel that the
apprehensions of the tenants can be set at rest by providing
appropriate safeguards to ensure that the said tenants are also got
vacated while evicting the revision petitioners.
14. A contention has been put forward by the tenant in RCR
592/2005 that he is occupying a separate building located in the
same property and that it was possible to reconstruct the existing
building without evicting him. However, the evidence of P.W.1 and
the plans Exts.A3 & A4 show that the said building is also required
RCR 224/2005 etc. 10
to be demolished to accommodate the proposed construction.
Therefore, the Appellate Authority has rejected the above
contention. We do not find any grounds to interfere with the said
finding.
15. As a last submission, counsel for the revision petitioners
made an appeal for the grant of a sufficiently long period of time, a
period of one year, to vacate the premises. Though we are not
inclined to grant one year’s time, considering their long occupation
of the premises, we feel that their request can be sympathetically
considered. Accordingly, we feel that the tenants could be granted
time up to 28.2.2010 subject to appropriate conditions.
16. In view of the above, the Rent Control Revisions are
dismissed confirming the common judgment passed by the
Additional Rent Control Appellate Authority, Alappuzha, subject to
the following conditions:-
1) The tenants are granted time upto 28.2.2010 to
surrender vacant possession of the premises to the
landlords on condition that each one of the revision
petitioners shall file separate affidavits before the Rent
Control Court or the Execution Court as the case may be,
unconditionally undertaking to vacate the premises on or
before the said date within 3 weeks of the date of receipt of
a copy of this judgment.
RCR 224/2005 etc. 11
2) The revision petitioners shall pay all arrears of rent
due in respect of the premises to the landlords and shall
continue to pay the future rent in respect of the premises
regularly till they surrender vacant possession thereof.
3) The landlords shall produce the approved pla n
and building permit in respect of the proposed construction
before the Execution Court for perusal before the time
fixed for the tenants to vacate the premises;
4) The Execution Court shall ensure that the tenants
in occupation of the shop rooms from where the business
of ‘Prakruthi Stores’ and ‘Bhagavathy Textiles’ are being
conducted are also vacated before 28.2.2010.
5) Delivery warrants shall be issued by the execution
court for compelling the eviction of these revision
petitioners only after conditions 3 and 4 above are
complied with.
PIUS C.KURIAKOSE
Judge
K. SURENDRA MOHAN
Judge
jj