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2000 DIGILAW 370 (KER)

Balachandran v. P. N. K. Pillai

2000-07-19

P.K.BALASUBRAMANYAN, T.M.HASSAN PILLAI

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Judgment :- P.K. Balasubramanyan, J. When this Revision came up for admission, this court ordered notice on admission. Pursuant to the notice the contesting respondent has appeared. When the matter came up again, both sides were heard. 2. The legal representatives of the landlord who are the respondents in an application filed by the tenant under S.11(12) of the Kerala Buildings (Lease and Rent Control) Act are the petitioners in this Civil Revision Petition. The landlord, the predecessor of the revision petitioners, one Janaki Amma applied for eviction of the tenant, the respondent herein under S.11(3) of the Act on the plea that she bonafide needed the petition schedule building for her residence. The petition schedule building was a godown while it was in the possession of the tenant. An order for eviction was passed was affirmed in appeal and was also affirmed in revision. Subsequent to the order in revision and the failure in his attempt to challenge that order in the Original Petition filed before this court, the tenant undertook before the executing court to vacate the building. Honouring his undertaking the tenant vacated the building on 26.9.1987. Thus the landlord Janaki Amma came into possession of the building pursuant to an order for eviction under S.11(3) of the Act on 26.9.1987. 3. S.11(12) of the Act gives right to the tenant to apply for restoration of possession in a case where the landlord after obtaining an order for eviction under S.11(3) of the Act does not occupy the building within one month of obtaining possession or ceases to occupy the building before the expiry of six months from the date of getting possession of the building. The tenant filed the application I.A. 2910 of 1988 under S.4 of the Act in a case where the tenant does not apply for restoration within one month of the accrual of aright in him to apply for restoration, held that the application filed beyond one month from such accrual of right is barred by time and could not be entertained. Thus the Rent Controller dismissed the application for restoration. The appellate authority on a reappraisal of the materials agreed with the Rent Controller in holding that the landlord had not occupied the building within one month of obtaining possession on 26.9.1987 and the tenant has made out a case for restoration of possession. Thus the Rent Controller dismissed the application for restoration. The appellate authority on a reappraisal of the materials agreed with the Rent Controller in holding that the landlord had not occupied the building within one month of obtaining possession on 26.9.1987 and the tenant has made out a case for restoration of possession. The appellate authority held that S.11(13) of the Act did not prescribe a period of limitation for making an application under S.11(12) of the Act but that only enabled the Accommodation Controller to act in terms of S.4 of the Act inspite of the exclusion contained in S.4(1) of the Act and in a case where Accommodation Controller had not acted in terms of S.11(13) of the Act the right of the tenant is not lost so long as the application is not unreasonably delayed. The appellate authority relied on the decision of this court in Thomas v. Kunjithomman (1981 K.L.T. 708) in support of its conclusion. The appellate authority thus reversed the order of the Rent Controller and allowed the application filed by the tenant under S.11(12) of the Act. 4. Assailing the decision of the Appellate Authority, learned counsel for the legal representatives of the landlord submitted that even though possession was surrendered on 26.9.1987, the tenant applied for restoration of possession on 4.11.1988, more than one year after the surrender of possession and the appellate authority was in error in holding that the application was not beyond time. Counsel also submitted that the two decisions of this court relied on by the Appellate Authority requires reconsideration. 5. There is no period of limitation as such prescribed for making an application under S.11(12) of the Act. Even if it is treated as an application to a court for which no period of limitation is otherwise prescribed, at best, the residuary article of the Limitation Act, namely, Art.137 may be attracted and it could be said that the application must be filed within three years of the accrual of the cause of action. This would be justified if it is held that the Rent Controller is a court and the principle of the decision in K.S.E.B. v. T.P.K. (1976 K.L.T. 810 (SC)) is applied. But what is to be noted here is that there is no period of limitation prescribed for making an application under S.11(12) of the Act. This would be justified if it is held that the Rent Controller is a court and the principle of the decision in K.S.E.B. v. T.P.K. (1976 K.L.T. 810 (SC)) is applied. But what is to be noted here is that there is no period of limitation prescribed for making an application under S.11(12) of the Act. But S.11 (13) of the Act indicates that a tenant is in danger of losing his rights under S.11(12) of the Act if he does not act within one month of the accrual of the right, in a case where the Accommodation Controller steps in and uses his authority in terms of S.4 of the Act read with S.11(13) of the Act. This is the only consequence provided for by S.11(13) of the Act as rightly observed by His Lordship Justice M.P. Menon in Thomas v. Kunjithomman (1981 K.L.T. 708). S.11(13) of the Act does not give a right as such to the landlord to raise an objection that the application for restoration is beyond time merely because the application is filed beyond one month after the accrual of the right to restoration. We are in respectful agreement with the view of Justice M.P. Menon in Thomas v. Kunjithomman (1981 K.L.T. 708) relied on by the appellate authority. We see no reason to take a different view on the scheme of sub-ss.(12) and (13) of S.11 read with S.4 of the Act. 6. On the facts here, both the authorities have found that there was non-occupation by the landlord after obtaining surrender of possession of the building pursuant to the order of eviction under S.11(3) of the Act. The building was a godown. The landlord sought for and obtained the order for eviction for the purpose of residence. The minimum that was required to be shown was that after getting the building vacated, the landlord had made arrangements for making it suitable for residence or residential occupation. There was no such evidence on the side of the landlord in this case. There was nothing to show that the landlord had stayed in the building even for a day after possession was obtained on 26.9.1987. Though R.W. 1. There was no such evidence on the side of the landlord in this case. There was nothing to show that the landlord had stayed in the building even for a day after possession was obtained on 26.9.1987. Though R.W. 1. examined on behalf of the landlord gave evidence to the effect that the landlord was residing in the building after she obtained possession thereof and he was also residing with her in that building and the landlord had died from the building, no attempt was made to corroborate any of those facts stated in the interested evidence of R.W. 1. In the absence of any evidence of occupation and based on the evidence of the tenant coupled with the report of the Commissioner supported by the evidence of the Commissioner, the authorities below came to the conclusion that there was non-occupation of the premises within the meaning of S.11(12) of the Act and the tenant was entitled to restoration. That finding rendered by the authorities below is fully justified on the materials available. In any event, we do not see any illegality, irregularity or impropriety in the finding warranting interference by us in revision. We therefore find no reason to interfere with the decision of the Appellate Authority. We confirm the order of the Appellate Authority and dismiss this Revision. We make no order as to costs.