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1981 DIGILAW 224 (KER)

THOMAS v. KUNJI THOMMAN

1981-08-26

M.P.MENON

body1981
Judgment :- 1. The landlords applied, under S.11 (3) of Act 2/65, for evicting two tenants occupying adjacent shop-rooms, for starting a business in cold storage. Vacant possession of one room was obtained through court, in RCOP. 11/70, on 6-4-79; and possession of the other was obtained on 18-6-79. On 1-8-79 the tenant in O. P. No. 11/70 applied tor restoration under S.11(12) The landlords resisted the application. Their case was that cold storage business had become unattractive in the meanwhile, that they had decided to start a business in hardwares instead using both the rooms, and that because of the intervention of the rainy season, necessary repairs and improvements could not be completed in time. They had thus "reasonable cause" within the meaning of the sub-section. The Rent Control Court, the appellate authority and the revisional court over-ruled this case and ordered restoration. The landlords have now come in revision under S.115 CPC. 2. Sub-sections (12) and (13) of S.11 of Act 2/65 read as follows: - '(12) Where a landlord who has obtained possession of a building in pursuance of an order under sub-section (3), does not occupy it without reasonable cause within one month of the date of obtaining possession, or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who his been evicted may apply to the Rent Control Court for an order directing that he shall be restored to possession of the building, and the Court shall make an order accordingly notwithstanding anything contained in S.4. (13) Where a tenant who is entitled to apply for possession under sub-section (12) fails to dp so without reasonable cause within one month from the date on which the right to make the application accrued to him, the officer referred to in sub-section (1) of S.4, shall have power, if the building is required for any of the purposes or for occupation by any of the officers or persons specified in sub-section (3) of that section to give intimation to the landlord that the building is so required, and thereupon the provisions of sub-sections (5) and (8) of S.4 shall apply to the building: Provided that this sub-section shall not apply to a building the monthly rent of which does not exceed fifteen rupees." 3. Under sub-section (12), the landlords bad to occupy the room within one month; and admittedly they had not done so even if this period were to be computed from 18-6-79 when alone the second room had fallen vacant. The defence was "reasonable cause" and the Rent Control Court noticed the following facts and circumstances to over-rule the plea: (i) the evidence of CPW. 1 (first petitioner) was insufficient to hold that the rooms were badly in need of repairs and that any attempt had been made before 1-8-79 even to commence repairs; (ii) pw. 1, a trader across the road, and pw. 2, a neighbour, had stated that no repairs had been undertaken before the aforesaid date; (iii) Ext. Cl commission report and the evidence of the Commissioner disclosed that the two rooms were remaining closed till 1-8-79. (iv) application for licence to start the business in hardwares was itself made after the filing of the restoration petition; and (v) though some repairs were made by the time Ext. C2 report was drawn up, the motion for issue of that commission was made only on 12-11-79, showing thereby that no repairs at all had been attempted before 1-8-79. 4. Faced with the above situation, the landlords made an attempt before the appellate authority to adduce additional evidence, but that did not succeed. Legal arguments were then advanced that the possession the landlords had obtained was itself "occupation" within the meaning S.11(12). But this too did not succeed either before the appellate authority or before the revisional court. 5. It is argued before me that the concurrent view taken by the courts below on the question of "reasonable cause" requires reconsideration under S.115, but I am not impressed. The purpose of sub-s (12) may be to ensure that after evicting a tenant for self - occupation, the landlord does not put the building for other use or simply keep it closed. The bona fides with which he approaches the court under S.11(3) is thus subjected to another check after obtaining vacant possession. In the present case there was evidence to show that the landlords had occupied the building and started the business in hardwares at least when the matter was pending before the Rent Control Court. The bona fides with which he approaches the court under S.11(3) is thus subjected to another check after obtaining vacant possession. In the present case there was evidence to show that the landlords had occupied the building and started the business in hardwares at least when the matter was pending before the Rent Control Court. A view could probably have been taken that this was not an instance of brazen misuse of S.11(3), but one where there was some excuse for the delay. But whether there was reasonable cause or not for the delay was primarily for the Rent Control tribunals to determine; and in a case where even the revisional court with its comparatively wider jurisdiction has refused to interfere, there is no scope for this Court to step in under S.115 CPC. 6. A contention is raised that sub-s. (12) cannot apply to cases where delivery is effected through court in execution proceedings. The sub-section speaks of obtaining possession "in pursuance of" an order under S.11(3), and so long as possession was obtained in the present case in pursuance of such an order, albeit through court, I think the sub-section should apply. The intention behind the sub-section, as noticed earlier, cannot be overlooked. 7. Strong reliance is then placed on the first part of sub-section (13) to contend that where the tenant does not apply for restoration within the one month specified therein, he should show reasonable cause for the delay. The time had expired on 5-6-79 and since no reasonable cause was shown by the tenant, the petition was time-barred, it is urged. The point was apparently taken before the Rent Control Court, but not before the appellate authority and the District Court. That apart, it seems to me that sub-section (13) of S.11 has to be read along with S.4 of the Act, which empowers the Accommodation Controller to allot vacant buildings. Where a landlord tails to occupy the building in pursuance of an order under S.11(3), and the tenant also fails to seek restoration under S.11(12), the building remains vacant: and the purpose of S.11(13) is to treat it as a vacant building available for allotment under S.4. Where a landlord tails to occupy the building in pursuance of an order under S.11(3), and the tenant also fails to seek restoration under S.11(12), the building remains vacant: and the purpose of S.11(13) is to treat it as a vacant building available for allotment under S.4. The legislative aim is to ensure that during a period of acute shortage of housing, a building does not remain vacant for an unreasonably long period; the aim is not to prescribe limitation by implication, in respect of the tenant's rights under sub-s (12). Where the tenant fails to apply for restoration in time, the Accommodation Controller can step in under sub-s. (13); and even then the tenant can show that he had reasonable cause for the delay. It is for the Accommodation Controller in proceedings under sub-s (13), and not for the Rent Control Court in proceedings under sub-s. (12), to examine the reasonable cause the tenant may have; and till the Accommodation Controller does so and arrives at a decision, the tenant's right under sub-s. (12) would survive. When sub-s. (13) prescribes the consequences of the tenant's failure to apply, that consequence alone can follow, and not others. I am therefore of the view that the application made in the present case was not out of time There is thus no merit in the revision. The CRP. is dismissed without costs.