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2000 DIGILAW 681 (KER)

Punjab National Bank v. A. K. Sabhapathy

2000-12-19

M.R.HARIHARAN NAIR, P.K.IYER BALASUBRAMANYAN

body2000
ORDER M.R. Hariharan Nair, J. 1. The tenant respondent in R.C.P.No. 225/96 of the Additional Rent Control Court, Ernakulam, challenges the legality and propriety of the order passed by the Appellate Authority (District Judge, Ernakulam) in R.C.A.No. 80/99 allowing eviction under S.11(8) of the Kerala (Lease and Rent Control) Act, 1965. The respondents herein filed the said Rent Control Petition demanding surrender of possession of the ground floor room occupied by the Punjab National Bank which forms part of the larger structure in which the respondents herein landlords are running the Krishna Nursing Home using the rest of the ground floor area and the entire first floor. The contention was that to meet existing requirements of the Nursing Home as also for the purpose of immediate expansion, there was dire need of the ground floor space occupied by the tenant. 2. The Rent Control Court, on a consideration of the questions involved, found that the demand of the landlords was devoid of bona fides and that the hardship that would be caused to the tenant in case eviction is allowed would out weigh the advantage that may accrue to the landlords. On appeal by the landlords, the Appellate Authority, however, noted that actually the question of eviction under Sec.11(8) of the Act alone arises for consideration in so far as the relief under S.11(3) was not pressed before the Appellate Authority and that on the facts and circumstances established in the case the demand for additional space for the purposes of the landlords was justified. Accordingly eviction was allowed. 3. Sri.P.K. Ravindran Puzhankara, who argued the case of the petitioner, submitted that the documents produced by the respondents before the Rent Control Court had not been properly considered by the Appellate Authority and that these documents clearly show that the attempt of the landlords has been to get enhancement of rent rate periodically and that whenever the tenant yielded to the said request, the landlords retreated from their demand for additional space and that this itself would indicate the want of bona fides on the part of the landlords. It was further argued that the hardship that would enure to the tenant would far out weigh the advantage that would accrue to the landlords in case eviction is allowed. 4. The points that arise for consideration are: (1) Whether the claim of the landlords is bona fide? It was further argued that the hardship that would enure to the tenant would far out weigh the advantage that would accrue to the landlords in case eviction is allowed. 4. The points that arise for consideration are: (1) Whether the claim of the landlords is bona fide? (2) Whether the rule of comparative hardship applies in favour of the tenant? (3) Whether the order of eviction passed by the Appellate Authority warrants interference? 5. Point No.1: It is true that the documents produced by the tenant indicate that similar claims for additional space had been raised by the landlords even in the year 1989 and again in the year 1994 and that based on enhancement of the rent conceded by the tenant, the said demand was not pursued. The question is whether from not pressing the demand as above, the landlords are estopped from successfully contending that their demand for surrender is justified. Besides the petitioners, PW.2 who is the brother of the 1st petitioner, has also given evidence in the case to the effect that the present landlords have been in possession of another building which belongs to P.W.2 situated on the other side of the road as tenants. The out patient wing and clinical laboratory of the Nursing Home are now established in the said rented premises. The said fact is, spoken to by PWs.l and 2 and it is not denied by the tenant. This itself would show that there is dearth of space for the genuine purposes of the landlords. P.W.2 has deposed that he and his son wanted the tenants Krishna Nursing Home to vacate the space occupied in the building of P.W.2 as it was required for their own purposes. There is nothing to show that the said demand is either fictitious or unjustified. The fact that cordial relationship exists between PWs 1 and 2 is not a relevant factor while judging the bona fides of a claim of this nature. If any authority is needed oh this aspect, reference may be made to Sarla Ahuja v. United India Insurance Co. ( AIR 1999 SC 100 ). For shifting the two units of the Nursing Home now working in the said premises, additional space is certainly required and viewed from this perspective the demand for the space presently occupied by the revision petitioner - Bank made by the landlords is certainly justified. ( AIR 1999 SC 100 ). For shifting the two units of the Nursing Home now working in the said premises, additional space is certainly required and viewed from this perspective the demand for the space presently occupied by the revision petitioner - Bank made by the landlords is certainly justified. We find absolutely no illegality, irregularity or impropriety in the said finding arrived at by the Appellate Authority which, according to us, was made on a proper appreciation of evidence and from the right perspective. 6. No serious challenge was made with regard to the finding based on the commission report that the space occupied by the revision petitioner actually forms part of the larger building where Krishna Nursing Home Works. The said building has two stories and the portion occupied by the tenant is the western part facing the M.G. Road. What separates the portion occupied by the revision petitioner from the rest of the area where the Krishna Nursing Home Works is a removable wall alone. Once the said wall is removed, there is absolutely no difficulty for establishing the amenities presently working in the rented premises in that portion so that the entire building can be put in use as one establishment for the purpose of Nursing Home. 7. Based on the decision in Gangaram v. N. Shankar Reddy ( AIR 1989 SC 302 ) it was contended that the portions occupied by the revision petitioner is a separate building and that that portion cannot be taken as a part of the landlords' building where the Krishna Nursing Home works. It is also argued that only where the tenant is actually occupying a part of the 'building' of the landlords S.11(8) will have any application. A Division Bench of this court had occasion to consider the purport of the above decision of the Apex Court in Shaji Varghese v. Cherian ( 1993 (1) KLT 133 ). This court found that where a building is constructed in such a manner that it is intended for use as a single or integral unit and thereafter different portions thereof are occupied by the tenant and the landlord, they cannot be treated as different 'buildings' merely because different door numbers are assigned. In other words, the term 'building' referred to in Sec.11(8) has to be given a wider meaning. In other words, the term 'building' referred to in Sec.11(8) has to be given a wider meaning. The question is whether the two portions form part and parcel of one and the same larger structure with a common roof. It was found that as far as Act 2 of 1965 is concerned, what is made relevant is a whole building and the occupation of a portion thereof by the landlord. If the restricted meaning pleaded by the tenant is accepted, it was found, the startling result would be that S.11(8) would be rendered otiose and purposeless. A building constructed and intended to be used as one integral unit of which portions are occupied by the tenant and the landlord respectively cannot be treated as different buildings to preclude the operation of S.11(8). 8. Applying the dictum in the said case to the facts of the present case as evident from Ext.Cl report, what emerges is that the two portions actually form part of one and the same building for the purpose of S.11(8). The contention of the tenant in the matter was rightly repelled by the Appellate Authority. We agree that this is a fit case where eviction under Sec.11(8) of the Act would be justified provided the principle of comparative hardship applies in favour of the landlords. 9. Here is a case where the tenancy originally allowed was for a period of five years and there was provision for renewal of the tenancy on mutually agreed terms. In such a case, there is nothing wrong in landlord's insisting on appropriate revision of rent on the termination of the contractual period of tenancy. It is true that in the notice demanding such revision, there was reference also to the need for additional space. When the tenant agreed for enhancement of rent, the landlords reconsidered the extent of their need with reference to the advantage of enhanced rent and thought it fit to go in for alternative rented premises to meet their needs. Merely because such a consideration was made by the landlords, it cannot be said that the desire expressed by them for additional space and the demand for surrender made to the tenant are without good faith. Merely because such a consideration was made by the landlords, it cannot be said that the desire expressed by them for additional space and the demand for surrender made to the tenant are without good faith. The present petition for eviction appears to have been filed when P.W.2 insisted that the space occupied by the Nursing Home in his building should be surrendered for the need of P.W.2 and his son. The correspondence produced in this case as Exts.B 1 to B27, in the circumstances, does not indicate that the landlords' demand for surrender made from time to time were only with an idea of getting enhancement of rent and that there was actually no need for more space for their own purposes. As already mentioned, the very fact that the landlords went in for rented occupation, where two wings of the Nursing Home have been working for several years itself bears testimony for the bona fides of the landlords' claim for additional space. As held in S.Siva Subramanya Iyer v. S.H. Krishna Swamy, AIR 1981 Ker. 57 ) in a case of this nature it is not for the court to see whether even without the additional space the landlord could somehow manage or carry on. If the possession of the additional space would normally enhance the convenience of the landlord, then he can very well seek to get it from the tenant under S.11 (8). The question is only whether the desire is honest in the circumstances. We therefore answer the point in favour of the landlords. 10. Point No.2: It has come out from the oral evidence that there is difficulty to park vehicles of the customers of the Nursing Home on the Chittoor Road where one way traffic is the rule. If the landlords succeed in getting possession of the space occupied by the revision petitioner - Bank, the Krishna Nursing Home can have access from the M.G.Road as well and there is ample facility for the car parking on the M.G. Road. This is a definite advantage that would accrue to the landlords in case surrender of possession is obtained from the revision petitioner. That apart, having two wings of the Nursing Home to work in a different building on the other side of the road is certainly a matter of much inconvenience as far as the working of a Hospital/Nursing Home is concerned. That apart, having two wings of the Nursing Home to work in a different building on the other side of the road is certainly a matter of much inconvenience as far as the working of a Hospital/Nursing Home is concerned. The respondents herein will hence be achieving a definite advantage by locating all the facilities of the Nursing Home in one and the same building and that too with access from the two different roads. 11. As far as the tenant - Bank is concerned, it is evident that it has another branch on the same road working at Ravipuram. The nature of the business carried on in a bank is such that it can effectively work even if it is not on the M.G. Road. Here is a case where the respondents landlords themselves offered another portion of a building on the second floor for establishing the bank, but the bank was disinterested in that offer. That shows that the Bank is not particular of having its branch on the M.G. Road. There is nothing to show that any serious inconvenience would be caused in functioning of the bank even if it is forced to shift to another building. Of course, the customers of the bank may have some inconvenience, but there will be corresponding convenience to the clients of the landlords whose customers are more incapacitated or handicapped than the customers of the bank. Hence it cannot be said that the comparative hardship is more for the tenant than the landlords. In these circumstances, we find no illegality or irregularity or impropriety in the impugned order passed by the Appellate Authority. 12. Point No.3: Considering the fact that the bank has to find out an alternative place for shifting, we deem it proper to grant time of three months to the revision petitioner to surrender actual possession. With this modification, the revision is dismissed.