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2001 DIGILAW 774 (KER)

Varghese Ittoop v. Jossie

2001-12-21

CYRIAC JOSEPH, N.KRISHNAN NAIR

body2001
ORDER N. Krishnan Nair, J. 1. The tenant in R.C.P.No. 133/99 on the file of the Rent Control Court, Ernakulam is the revision petitioner. The respondent is the landlord. The landlord, a retired Superintending Engineer filed the petition for eviction of the tenant from the scheduled premises on the grounds under Secs. 11(3), 11(4)(iii) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court by its order dated 4-11-2000 allowed eviction on the ground under Sec.11(4)(iii) of the Act and directed the tenant to surrender vacant possession of the scheduled premises to the landlord. The claims for eviction under Secs. 11(3) and 11(8) were rejected by the Rent Control Court. Aggrieved by the order of eviction passed by the Rent Control Court under Sec.11(4)(iii) of the Act, the tenant preferred R.C.A.No. 14/2001 before the Rent Control Appellate Authority, Ernakulam. On a reappraisal of the evidence, the Appellate Authority confirmed the order of the Rent Control Court under Sec.11(4)(iii) of the Act and dismissed the appeal. Hence this revision. 2. Though the petition was filed under Secs. 11(3), 11(8) and 11(4)(iii) of the Act, the grounds under Secs. 11(3) and 11(8) do not survive for consideration since the Rent Control Court rejected those grounds and the landlord had not taken up the matter in appeal. Therefore, the only question that arises for consideration in this revision is whether the orders of the authorities below directing the tenant to hand over possession of the scheduled premises to the landlord under Sec.11(4)(iii) of the Act can be sustained. 3. We heard the counsel for the petitioner and also the respondent. Having heard the counsel on both sides, we are of the view that the orders under challenge warrant no interference by this court in the exercise of the revisional jurisdiction. 4. As per Sec.11(4)(iii) of the Act, the landlord is entitled to get an order of eviction, if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirements in the same city, town or village. In this case, the petition scheduled building is located within the city of Kochi. According to the landlord, the tenant is in possession of rooms bearing door Nos. In this case, the petition scheduled building is located within the city of Kochi. According to the landlord, the tenant is in possession of rooms bearing door Nos. C.C.XL/ 3546, 3547 and 3975-A. Admittedly, room No.XL 3546 is in the name of Remeena Ittoop and room No.XL 3546 in the name of P.V. Ittoop. Room No. XL/3975 is stated to be in the name of Varghese Ittoop, the revision petitioner. The landlord has also a case that the tenant has constructed a multi-storeyed building under the name 'Ittoop Towers'. It is in evidence that after the lease of the petition scheduled building in his favour, the tenant has put up the building within the city of Kochi. It is also in evidence that 'Ittoop Towers' is at a distance of 2 Kms. from the scheduled premises. Even if it is assumed that room Nos. C.C.XL/3546, 3547 and 3975-A are not in the possession of the tenant, he is liable to be evicted from the scheduled premises, if the Ittoop towers is reasonably sufficient for his requirements. The Commissioner deputed by the Rent Control Court inspected the building and reported that at the time of inspection, 5 rooms in the ground floor of the building were found closed and those rooms were being used as godowns. The tenant has admitted in his evidence that he is using the four rooms in the 'Ittoop towers' for the purpose of his Imperial shop business conducted at the Broadway. But, his contention is that those rooms are no suitable for shifting the business being carried on in the petition scheduled premises. He has also a case that there is no road access to the newly put up building. But, in the box, he changed his version and said that vehicle cannot be parked on the Jews Street which runs in front of the Ittoop towers. It is not in dispute that many other business for which transportation is required are run by various persons in the buildings by the side of the Jews Street. As observed by the appellate authority, merely because parking cannot be done in Jews Street, it cannot be said that Ittoop towers is not sufficient to meet the requirements of the tenant. As observed by the appellate authority, merely because parking cannot be done in Jews Street, it cannot be said that Ittoop towers is not sufficient to meet the requirements of the tenant. It is relevant to note that the petition scheduled building has an area of only 250 to 300 sq.ft., while in the Ittoop Towers, even on the ground floor, much larger space is available. On an overall assessment of the materials on record, both the authorities below have found that Ittoop towers is reasonably sufficient to meet the requirements of the tenant. This court, in the exercise of revisional jurisdiction, can interfere with the findings of facts only when such findings can be regarded as improper and unreasonable. This court is not expected to re-appreciate the evidence in order to differ from the conclusion of the two authorities below so long as the view taken by the two authorities is a reasonably possible view on the evidence in the case. Therefore, we are not inclined to interfere with the findings of the authorities below that the Ittoop towers is suitable to meet the requirements of the tenant. 5. The learned counsel for the petitioner contended that a landlord who is vigilant to make demand at a proper time alone is entitled to an order of eviction under Sec.11(4)(iii) of the Act. According to the learned counsel, the construction of the building, Ittoop Towers was over in the year 1997, but, the landlord demanded possession of the scheduled building only on 15-6-1999. He also pointed out that there was a renewal of the lease of the scheduled building after the tenant had put up the new building. Under these circumstances, according to the learned counsel the landlord is not entitled to get an order of eviction under S.11 (4)(iii) of the Act. The learned counsel placed much reliance on a Division Bench decision of this court in Kanhangad Coop. M.S. Society Ltd. vs. Ganapathy Kamath, 1995 (1) KLT 681 . No doubt, in the decision referred to by the learned counsel, it has been held that the crucial time with reference to the sufficiency of tenants requirement as envisaged in Sec.l l(4).(iii) of the Act is the time when landlord demands vacant possession from his tenant. M.S. Society Ltd. vs. Ganapathy Kamath, 1995 (1) KLT 681 . No doubt, in the decision referred to by the learned counsel, it has been held that the crucial time with reference to the sufficiency of tenants requirement as envisaged in Sec.l l(4).(iii) of the Act is the time when landlord demands vacant possession from his tenant. There is nothing in the decision to indicate that a landlord should move the Rent Control Court for eviction of the tenant under Sec.11(4)(iii) of the Act, immediately after a building is put up by the tenant. On the other hand, the tenor of the decision in Kanhangad Coop. M.S. Society Ltd. vs. Ganapathy Kamath (supra) is that the landlord is at liberty to move the Rent Control Court for eviction of the tenant under Sec.11(4)(iii) at any time after the building is put up by the tenant. In this connection, it is relevant to note the following observations of the Division Bench in the above case. "As the landlord is given the right to apply for eviction on the ground envisaged in Sec.11(4)(iii), it is open to the landlord either to apply for eviction or to refrain from so applying or he may wait for some more time thinking that the nature and size of the tenant's business may dwindle down". Thus the contention of the learned counsel in this regard is against the spirit of the decision reported in 1995 (1) KLT 681 . 6. The learned counsel for the petitioner further contended that at the time of the demand, the building put up by the tenant was in the possession of other tenants and therefore, the landlord in this case is not entitled to the benefit of Sec.11(4)(iii) of the Act. We see no force in this contention also. As already noticed, the Commissioner has reported that the rooms were in the possession of the tenant both in the first floor and ground floor of the building. It is also relevant to note that the case set up by the tenant that he has leased out a portion of the building to his wife is not substantiated in this case. It is also relevant to note that the case set up by the tenant that he has leased out a portion of the building to his wife is not substantiated in this case. Even if it is assumed that the tenant is not in possession of the newly put up building at the relevant time, it is no defence for him against a claim under Sec.11(4)(iii) that he has leased out the building to others. In a case where the tenant puts up a building after the commencement of the lease of the building in his favour, he cannot be heard to say that the landlord's claim under Sec.11(4)(iii) of the Act is not sustainable since he is not in possession of the newly put up building. The question of possession is material only when eviction is sought on the ground that the tenant is already in possession of another building or he subsequently acquired possession of another building. 7. For the reasons stated above, we find no reason to interfere with the orders passed by the authorities below. Both the authorities have properly appreciated the evidence and have come to the correct conclusions. This revision is groundless and is liable to be dismissed. In the result, the revision is dismissed with costs.