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2001 DIGILAW 475 (KER)

Aboobacker v. Nanu

2001-08-24

S.MARIMUTHU, S.SANKARASUBBAN

body2001
Judgment :- S. Sankarasubban, J. This revision is filed under S.20 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter called as 'the Act') against the judgment of the Rent Control Appellate Authority in R.C.A. No. 83 of 1989. Petitioners in R.C.P. No. 124 of 1985 are the petitioners in this revision petition. The Rent Control Petition was filed under Ss.11(3) and 11(4)(i) of the Act. 2. There are two petitioners in the R.C.P. The bonafide need alleged was that the first petitioner was doing business in Bombay on the road side. The Bombay Corporation has prohibited such vending and hence, he has to come back to Thalassery and he wants to start a business in the room occupied by the respondent. Further contention was that the respondent/ tenant is conducting a cycle shop in the room. But he is using it in such a way that there is diminution in its value and utility. It is on the above allegation that the petition was filed. 3. The tenant filed objection in which it is stated that the bonafide need alleged is not true. Petitioners 1 and 2 are brothers. According to the tenant both of them were doing business at Bombay and the business is being conducted even now. According to him, the arrangement between petitioners 1 and 2 is that when one of them returns to home, the other should look after the business. It was further contended that notice was issued by the petitioners. There was mediation by merchants association. There the petitioners wanted only an increase in the rent. The tenant was willing to increase the monthly rent by Rs. 60/-. But the landlords wanted it at Rs. 80/ -. The tenant further contended that the landlords have got another building in which they can do business. The other contention was that he is earning for his livelihood in the business conducted. So far as the ground under S.11(4)(ii) of the Act is concerned, the tenant contended that he has not committed any waste in the building. The cement on the floor has developed cracks due to non-maintenance. So also the plaster on the walls was worn out. It was further contended by the tenant that the R.C.P. was filed nearly 11/2 years after the issue of notice. This itself will show that there is no bonafides in filing the petition. 4. The cement on the floor has developed cracks due to non-maintenance. So also the plaster on the walls was worn out. It was further contended by the tenant that the R.C.P. was filed nearly 11/2 years after the issue of notice. This itself will show that there is no bonafides in filing the petition. 4. On the basis of the pleadings, parties went for trial. Exts. Al to A3 were marked on the side of the petitioners. Exts. BI to B3 were filed on the side of the respondent. Ext. Cl is the commission report. PWs.1 and 2 were examined on the side of the petitioners, while RWs.1 and 2 were marked on the side of the respondent. The Rent Control Court found that the bonafide need alleged is not true. Further, it also held against the landlords regarding the ground under S.11(4)(ii) of the Act. But it found that the tenant is not entitled to the benefit of the Second Proviso. Thus, the R.C.P. was dismissed. The landlords preferred appeal before the Appellate Authority as R.C.A. No. 83 of 1989. The Rent Control Appellate Authority upheld the findings of the Rent Controller and dismissed the appeal. It is against that the present revision is filed. 5. We heard learned counsel for the petitioners Sri. K.V. Sohan and learned counsel for the respondent Sri. T.A. Ramadasan. 6. Learned counsel for the petitioners submitted that so far as the ground of bonafide need is concerned, both the courts had made a wrong approach. According to the counsel, both the courts were carried away by the fact that there was a delay in filing the petition. He submitted that merely because some time lapsed between the issue of notice and the filing of the petition, it does not mean that there is no bonafide need. Learned counsel submitted there was mediation by the merchants association and the petitioners thought that the respondent will vacate the premises. Hence, they waited for some time. He submitted that merely because some time lapsed between the issue of notice and the filing of the petition, it does not mean that there is no bonafide need. Learned counsel submitted there was mediation by the merchants association and the petitioners thought that the respondent will vacate the premises. Hence, they waited for some time. Regarding the ground under S.11(4)(ii) of the Act is concerned, learned counsel brought to our notice a decision reported in Gurbachan Singh & Ann v. Shivalak Rubber Industries & Ors., AIR 1996 Supreme Court 3057 and contended that the question whether there has been diminution of value or utility should be looked into from the point of time and hence, both the courts were not correct in holding that the ground under S.11(4)(ii) of the Act was not available. So far as the ground under S.11(3) of the Act is concerned, it is further stated that there is nothing to show that the first petitioner was conducting business at Bombay and hence, the bonafide need ought to have been accepted. It was further contended that the allegation regarding acquisition of another building, viz., a hotel, is not correct, because that hotel is conducted by the second respondent. With regard to acquisition of another room, learned counsel submitted that there was no proof to show that the room was vacant. Learned counsel for the respondent submitted that the facts and circumstances of the case will show that after issuing notice, the first petitioner went to Bombay and there he was conducting business. But the delay in filing the petition cannot be excused. Immediately after the issue of notice by the petitioners, there was a mediation by the merchants association. There, the landlords only contended that they want increase in rent. After the mediation failed, the tenant replied by Ext. A3 within the short time. Ext. A3 is dated 16.1.1984. But the RCP was filed only in 1985. He further supported the reasonings of the courts below on the other aspects of the case. 7. The first question to be considered in this case is whether the ground under S.11(4)(ii) of the Act has been established by the petitioners. The only evidence regarding this aspect is the report of the Commissioner which is produced as Ext. Cl. He further supported the reasonings of the courts below on the other aspects of the case. 7. The first question to be considered in this case is whether the ground under S.11(4)(ii) of the Act has been established by the petitioners. The only evidence regarding this aspect is the report of the Commissioner which is produced as Ext. Cl. A perusal of the report of the Commissioner will show that the case set up by the petitioners cannot be accepted. In the report of the Commissioner, in paragraph 3, it is stated as follows: "In the room cement flooring is seen gone in some places. The plastering of walls is also worn out in some places. At the entrance the room from the verandah cement is gone to the extent, that one can see the laterite stones. In the central portion of the verandah cement flooring is gone. In some places even jelly which is used for flooring is also gone". It is on the basis of that the petitioners contended that they are entitled to get eviction under S.11(2) of the Act. We don't for a moment disagree with the contention raised by the petitioners. What S.11(4)(ii) of the Act contemplates is that "if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently". As was observed in the decision reported in Shanmugam v. Rao Saheb, 1988 (1) KLT 86, the expression "materially and permanently" in clause (ii) of sub-r.(4) of the Act would certainly indicate that a landlord cannot get an order of eviction on that ground by mere proof of minor destruction, or alteration, even if it results in marginal reduction of value or utility. As the expression was used conjunctively the legislature has indicated that even material alterations of a temporary nature would not help the landlord in getting an order of eviction. The destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude. When we test the Commissioner's report in the light of the above decision, it cannot be said that there has been any reduction in value of the utility materially and permanently. In this context, it is to be noted that the landlords have not repaired the building for a long time. When we test the Commissioner's report in the light of the above decision, it cannot be said that there has been any reduction in value of the utility materially and permanently. In this context, it is to be noted that the landlords have not repaired the building for a long time. This will give credence to the case of the tenant that the repairs found out by the commissioner were due to non-maintenance. Hence, we agree with the Rent Control Court that the landlords are not entitled to get eviction under S.11(4) (ii) of the Act. 8. The next question is regarding S.11(3) of the Act. As we already stated, both the courts have concurrently found against the landlords. The Appellate Court has discussed this question in paragraphs 8 to 11. The Court below has taken into account the Rent Control Petition. The Rent Control Petition was filed about one year and 10 months after the issuance of Ext. A2 notice. It also found that the explanation given by the landlords for the delay is not correct. Then it took note of the fact that there was mediation by the merchants' association after notice was issued to the tenant. In that mediation, the demand by the landlords was for increase in monthly rent and there was no mediation for surrender of possession of the shop room. Then regarding the contention that the landlords purchased another building and was conducting a lodging business by name "Palace Lodge", the Appellate Authority held that so far as the Palace Lodge is concerned, it will not be possible to start a stationery business. So far as the building, which was lying vacant, the petitioners' case was that it was in the possession of one Ummer. The Appellate Court took the view that there was no evidence to show that the above building is in the possession of Ummer. It is on this ground that the Appellate Court rejected the contention of the petitioners holding that there was no bonafide. 9. We went through the evidence adduced in this case. It is true that it may not be possible always to state that immediately after the issue of notice for eviction, the Rent Control Petition should be filed. The Court can take note of the fact that a party may not rush to the court to get remedy. 9. We went through the evidence adduced in this case. It is true that it may not be possible always to state that immediately after the issue of notice for eviction, the Rent Control Petition should be filed. The Court can take note of the fact that a party may not rush to the court to get remedy. In many cases, parties are getting eviction without approaching the Court. Hence, there may be obligations between the parties even after issuing notice and there is nothing wrong for the landlords to wait for some time to see that the tenant voluntarily surrenders the building. Sometime it may happen. If some time is given, the tenant will find an alternate accommodation and vacate the premises. Hence, according to us, the delay as such may not be a criteria to throw out the claim of a landlord under S.11(3) of the Act. Now, both the Courts have not rejected the contention on the ground of delay. But only stated that the explanation given by the landlords for the delay is not acceptable. We agree with the findings of the courts below, because immediately after the issue of notice, reply was given by the tenant. In the reply, the tenant also stated about the mediation efforts. It is only one year afterwards that the petition was filed. So far as this case is concerned, the landlords very well knew that there was no possibility of the tenant vacating the premises. It is after Ext. A3 that rent was sent to the landlords by Money Order. It was returned on the ground that the addressee was not there. From this, an inference is taken that the first petitioner has gone to Bombay. Further, in the mediation by the merchants association the only ground put forward is regarding the enhancement of rent. If as a matter of fact, the petitioners wanted the room on the ground of own occupation, definitely this matter would have been stated before the merchants association. On the other hand, it is seen from the evidence that both the parties agreed to enhance the rent. But ultimately that settlement fizzled out. This circumstance shows that the need alleged is not bonafide. It may be that Palace Lodge was purchased in the name of the second petitioner. But even then, there was delay in producing the deed. On the other hand, it is seen from the evidence that both the parties agreed to enhance the rent. But ultimately that settlement fizzled out. This circumstance shows that the need alleged is not bonafide. It may be that Palace Lodge was purchased in the name of the second petitioner. But even then, there was delay in producing the deed. Before this Court, the petitioners produced some documents by filling C.M.P. No. 3896 of 1992, which will show that no room is in their possession and that the room is in the possession of Ummer. We don't think, it is necessary to go into that question because, we agree with the court below that the need alleged by the petitioners is not bonafide. In the above view of the matter, we uphold the order of the Appellate Authority and dismiss the Civil Revision Petition.