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2002 DIGILAW 81 (KER)

B. M. Chandu v. Hajarabi

2002-02-01

K.A.MOHAMED SHAFI, K.S.RADHAKRISHNAN

body2002
JUDGMENT K.S. Radhakrishnsn, J. 1. Tenant is the revision petitioner. Revision is filed against the order in LA. No. 1723 of 1998 in R.C. P. No. 18 of 1986 on the file of the Rent Controller/Additional Munsiff, Kasargod. 2. The application was preferred under O.6 R.17 read with S.151 of the Code of Civil Procedure and S.23(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 for amending the counter affidavit dated 19-8-1986 so as to seek the benefit of the first proviso to S.11(3) of the Act. Rent Control court dismissed the application which was confirmed by the Appellate Authority. 3. Rent Control petition was preferred by the respondent's herein under S.11(2) and 11(3) of the Act. Rent Control court allowed eviction under S.11(2), however, dismissed the application under S.11(3), Landlords took up the matter in appeal, R.C.A. No.5 of 1988. Appellate Authority found bona fide need in favour of the landlords and granted protection to the tenant under the second proviso to S.11(3). Tenant then filed R.C.R.P. No. 26 of 1989 and the landlord filed R.C.R.P. No. 30 of 1989. Both the revision petitions were disposed of by a common order dated 30-5-1992. Both the revision petitions were dismissed by the revision authority upholding the findings of the Appellate Authority. 4. Landlords challenged the order of the revisional authority before this court in O.P. No. 12713 of 1992 and the tenant filed O.P. No. 17170 of 1992 under Art.227 of the Constitution of India. Learned single Judge of this court by common judgment dated 27-3-1998 dismissed O.P. No. 17170 of 1992. Learned Judge set aside the findings of the authorities below ' regarding entitlement under the second proviso to S.11(3) of.the Act but granted opportunity to the tenant to adduce evidence to claim protection under the second proviso. We may refer to the relevant portion of the judgment, which reads as follows: "In my view the authorities must look for clear evidence on the side of the tenant regarding his income from all sources, his income from the petition schedule building and his capacity to pay the rent. Obviously this could be established with reference to documents and other relevant evidence. Obviously this could be established with reference to documents and other relevant evidence. Considering that lam interfering with the findings in that behalf rendered by the authorities below in this proceeding under Art.227 of the Constitution on the ground that the approach to that question made by the authorities was not proper I think that it is proper to give the tenant a further opportunity to establish his claim for protection under the second proviso to S.11(3) of the Act. I am of the view that the said aspect requires to be re-tried by the Rent Controller. To that extent I find merit in O.P. No. 12713 of 1992." Against the above judgment tenant took up the matter before the apex court by filing special leave petition which was dismissed. 5. Tenant then filed the present application, LA. No. 1723 of 1998 for amendment of the counter affidavit seeking the benefit of the first proviso to S.11(3) of the Act also. It will be profitable to extract the amendment sought for, which is as follows: 9 (a) That the petitioners are owning the possession other buildings (sic) in the Uppala town adjacent to the petition A-schedule building. After the institution of the Rent Control Petition the petitioners have constructed several shop buildings near the petition A schedule building and they are in vacant possession of the. Same. Those new buildings are numbered as Ward No. X-289 to 295 of Mangalapady Grama Panchayat. Hence the petitioners are not entitled to get any order of eviction as provided under the first proviso to S.11(3) of the Kerala Buildings (Lease and Rent Control) Act. The above application was filed on 23-10-1998. In the affidavit filed in support of the application, it is stated as follows: "The petitioner in the R.G.P. have constructed these buildings during the pendency of the Rent Control Petition. The events came into existence subsequent to the filing of the R.C.P. are also relevant to determine the bona fide need pleaded by the landlords. The ground urged by the landlords must exist not only at the time of filing the petition but during the pendency of the same also. At any event I am entitled to get the protection under the first proviso to S.11(3) of the Act also. The landlords constructed the buildings only recently. Hence I could not raise this plea earlier. The ground urged by the landlords must exist not only at the time of filing the petition but during the pendency of the same also. At any event I am entitled to get the protection under the first proviso to S.11(3) of the Act also. The landlords constructed the buildings only recently. Hence I could not raise this plea earlier. I am entitled to plead the protection as contemplated under the first proviso to S.11(3) being the event subsequent to filing of the C.R.P. Hence the amendment sought for are highly necessary under law." 6. Placing reliance on the decision of this court in Achuthan Nair v. Raman and others (1979 K.L.T. 119) and Georgekutty v. Ouseph Varkey ( 1990 (1) KLT 452 ) the authorities below took the view that the parties are bound by the remand order and that the amendment sought for to get the benefit of the first proviso to S.11(3) of the Act cannot be entertained. 7. Counsel appearing for the petitioner Sri. P.K. Muhammed contended that the authorities below were in error in not entertaining the application of the petitioner for amendment. Counsel submitted that the tenant is well within his rights to place before the authorities below subsequent events which disentitle the landlords to claim eviction under S.11(3) if the landlords have acquired other buildings of their own in their possession in the same city, town or village during the course of the proceedings. Counsel placed reliance on the decisions of the apex court in Gulabbai v. Nalini Narsi Vohra ( AIR 1991 SC 1760 ), Hasmat Raj v. Raghunath Prasad ( AIR 1981 SC 1711 ), Pasupuleti Venkateswarlu v. The Motor and General Traders (AIR 1975 SC 1402) and contended that the Rent Control Court is bound to take not of the subsequent events if the same are brought before court. 8. Counsel appearing for the landlords Smt. Sumathi Dandapani submitted that the authorities below are justified in rejecting the application for amendment seeking the benefit of the first proviso to S.11(3) of the Act. Counsel submitted that the trial court is bound by the remand order. Authorities below are expected only to consider the protection claimed under the second proviso to S.11(3). Counsel submitted that the trial court is bound by the remand order. Authorities below are expected only to consider the protection claimed under the second proviso to S.11(3). Counsel made reference to the decisions of this court in Achuthan Nair v. Raman and others ( 1979 KLT 119 ) and Georgekutty v. Ouseph Varkey ( 1990 (1) KLT 452 ). 9. We may at the outset examine the scope of the first proviso to S.11(3) of the Act. We will extract the said proviso for easy reference. 11(3). A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. (under line supplied) Landlord may approach the Rent Control Court provided he bona fide needs the premises for his own occupation or for the occupation by any member of his family dependent on him. Right of the landlord to seek eviction under S.11(3) is subject to the provision contained therein. Landlord who seeks the benefit of S.11(3) is bound to disclose to the court while filing the petition if he has any building in his possession in the same city, town or village and in the event of which he could prove that the said premises is not sufficient for his personal use or his dependent. In a case where landlord has not pointed out the availability of other building in his possession the tenant could point out the same to the court through the written statement or by adducing evidence. The court at any stage refuse eviction if it come to the knowledge of the court that the landlord has acquired other building suitable for his purpose in the very same city, town or village. There is also a statutory bar in ordering eviction under S.11(3) if the court is satisfied on materials . that the landlord has acquired other buildings. There is also a statutory bar in ordering eviction under S.11(3) if the court is satisfied on materials . that the landlord has acquired other buildings. Even if the landlord has other building of his own in his possession in the same city, town or village court can give a direction as sought for under S.11(3) if special reasons are shown for not occupying those premises. Burden of proving the special reasons is always with the landlord. 10. We cannot accept the contention of the counsel for the respondent that court below is bound by the order of remand. It is true that the order of remand directs the Rent Control court to examine to claim raised under the second proviso to S.11(3). That would not debar the Rent Control . Court or the appellate authority to take note of the subsequent events. The apex court in Gulabbai v. Nalin Narsi Vohra and others ( AIR 1991 SC 1760 ) while examining the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1957 held as follows: "On a conspectus of all these decisions tendered by this court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bona fide requirement. Therefore, the High Court was right in duly considering the new facts and circumstances that have been brought to the notice of the court by the application for additional evidence filed under O.41 R.27 of the Code of Civil Procedure and in coming to a firm finding that the plaintiff - appellant constructed a spacious bungalow where she with the members of her family had been residing, there is no reasonable and bona fide requirement for the plaintiff to get a decree of ejecting of the defendants from the suit premises in as much as the first floor of the suit premises as well as the second floor could be conveniently used.." Same was the view taken in the earlier decisions of the apex court in Pasupuleti Venkatesarlu v. Motor and General Traders ( AIR 1975 SC 1409 ), HasmatRaj v. Raghunath Prasad ( AIR 1981 SC 1711 ) and Amarjit Singh v. Smt. Khatoon Quamarain ( AIR 1987 SC 741 ). 11. 11. We are therefore of the view that the authorities below were not justified in taking the view that they are not entitled to consider the petition for amendment filed by the tenant seeking protection of the first proviso to S.11(3) of the Act. We are of the view amendment sought for shall be considered after giving an opportunity to substantiate his contentions. It is also open to the landlord to refute the contentions raised by the tenant and also state the special reasons if necessitated. We make it clear we are not expressing any opinion on the merits of the contentions raised by the tenant seeking the benefit of the first proviso to S.11(3). In such circumstances we set aside the orders of both the authorities. Rent Control Court will consider IA. No. 1723 of 1998 and pass appropriate orders. The Civil Revision Petition is allowed.