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2004 DIGILAW 174 (KER)

Cyril Xavier v. V. V. Simon

2004-04-07

CYRIAC JOSEPH, K.THANKAPPAN

body2004
Judgment :- Thankappan, J. Respondent/landlord sought eviction of petition schedule building under Sections 11(2)(b) and 11(3), 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to short as ‘the Act’. In the petition it is averred that the petition schedule building was rented out to the revision petitioner/tenant in February, 1986 for a monthly rent of Rs.425, which was later raised to Rs.525, that the landlord and his family were in Oman from 1976 to 1995, that his wife was working as a medical officer in a private hospital at Oman and the landlord was working as Administrator in the said hospital, that on return from Oman the landlord requested the tenant to hand over vacant possession of the petition building to start a medical clinic for his wife and also to start a business for his unemployed younger son. It is further averred in the petition that the tenant was in possession of a three storeyed building, reasonably sufficient to shift his business. It is also averred that the tenant caused damages to the petition schedule building so as to reduce its value and utility, materially and permanently. All the averments were denied by the respondent/tenant and stated that he had not caused any damage to the petition schedule building. The tenant though admitted ownership and possession of his own building, denied that the building owned by him is sufficient for the purpose of his business. The case of the tenant was that the building owned by him was a residential building. He and his family are residing in the first floor and the ground floor is being used as a parking area. The tenant further contended that the need set up by the landlord was not bona fide and both the landlord and his wife are very old in age and landlord’s wife is not having physical and mental health to conduct a medical clinic and the landlord was not having sufficient financial stability to start any business either for his wife or for his son. The tenant also contended that he had offered surrender of one of the rooms of the tenanted premises during 1994 itself, but the landlord did not accept the same at that time. 2. Before the Rent Control Court the landlord examined PWs.1 to 4 and relied on Exts.A1 to A10 and C1 and C2. The tenant also contended that he had offered surrender of one of the rooms of the tenanted premises during 1994 itself, but the landlord did not accept the same at that time. 2. Before the Rent Control Court the landlord examined PWs.1 to 4 and relied on Exts.A1 to A10 and C1 and C2. On the side of the respondent/tenant, RWs.1 and 2 were examined. The tenant relied on Exts.B1 to B4. 3. Before the Rent Control Court the contention raised under section 11(2)(b) of the Act was not pressed. The other grounds urged were considered by the Rent Control Court in the light of the oral and documentary evidence adduced by the landlord. The landlord as PW1 had given evidence in accordance with the averments contained in the petition. The evidence of the landlord was supported by PWs.2 and 3. The Rent Control Court on analyzing the evidence adduced for and on behalf of the landlord found that the averments in the petition with regard to the possession of the alternate building by the tenant were proved. The Rent Control Court also found that the Commissioner reports, Exts.C1 and C2, proved by PW4, would indicate that the tenant was in possession of a three storeyed building numbered as 41/2600 ABC and this building was reasonably sufficient for the tenant to shift his business. On this finding, the Rent Control Court allowed the application for eviction of the petition schedule building under Section 11(4)(iii) and no finding is entered on the ground urged under section 11(3) of the Act. Against the judgment of the Rent Control Court the revision petitioner/tenant filed R.C.A.110/2000 before the Appellate Authority. The appellate authority after considering the entire evidence held that the finding entered by the Rent Control Court was sustainable and the eviction ordered under Section 11(4)(iii) was confirmed. Even though the learned counsel for the landlord before the Appellate Authority had taken the contention with regard to the grounds urged under section 11(3) and 11(4)(ii), that contentions were rejected by the Appellate Authority as there was no cross appeal by the landlord. As the Appellate Authority as well as the Rent Control Court allowed eviction of the tenanted premises under Section 11(4)(iii), the revision is only confined to the eviction ordered under section 11(4)(iii) alone. 4. Sri. As the Appellate Authority as well as the Rent Control Court allowed eviction of the tenanted premises under Section 11(4)(iii), the revision is only confined to the eviction ordered under section 11(4)(iii) alone. 4. Sri. S. Sreekumar learned counsel for the revision petitioner has raised mainly two contentions, Firstly, it is contended that the findings entered by the court below with regard to the acquisition and possession of alternate building by the tenant are not supported by any legal evidence. Secondly, it is contended that the eviction now ordered under Sec. 11(4)(iii) is not in accordance with Sec. 11(10) of the Act. To substantiate the second contention the learned counsel relies on the judgment reported in Krishnan v. Vijayaraghavan. 1977 KLT 1013, Azhikode service Co-op. Bank Ltd. V. V. Narayanan, 1994 (2) KLT 29 & Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC 100. The definite case of PW1, landlord, was that the tenant is in possession of a three storeyed building having 5 shop rooms and these shop rooms remain unoccupied. It is deposed by the landlord that the second floor of the building was vacant at the time when the Rent Control Petition was filed. The finding on this aspect by both the courts below conclusively proves that the revision petitioner/tenant is in possession of a multi-storeyed building and the evidence of the landlord was not shattered by any cross-examination. That apart it is to be noted that Ext.C1 commission report fully corroborates the evidence of PW1. In Ext. C1 commission report it is stated that building No. 41/2610 situated to the back of the petition schedule building belonged to the revision petitioner/tenant and building Nos.41/2602 and 41/2600 ABC situated near the petition schedule building are also belong to the revision petitioner/tenant. The above evidence has not been rebut by the revision petitioner/tenant. We are of the view that on the concurrent finding entered on this aspect by the courts below does not warrant any interference by this Court. Hence, the first contention is answered against the revision petitioner. 5. The answer the second contention, it is to be noted that this question was not urged either before the Rent Control Court or before the Appellate Authority. Hence, the first contention is answered against the revision petitioner. 5. The answer the second contention, it is to be noted that this question was not urged either before the Rent Control Court or before the Appellate Authority. This question was though admitted to argue before the Appellate Authority, the Appellate Authority did not consider it as there was no such ground raised in the appeal memorandum. The question now raised by the learned counsel for the revision petitioner is that as the ground urged under section 11(3) has been rejected by the Rent Control Court as well as the Appellate Authority, the eviction ordered under Sec. 11(4)(iii) can be granted only after complying section 11(10) of the Act. Sec. 11(10) of the Act reads as follows:- “(10). The Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-sections (3), (4), (7) or sub-sec. (8) is bone fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application: Provided that, in the case of an application made under sub-sec. (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. Provided further that the Rent Control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.” 6. The eviction of the tenanted premises is ordered by the Rent Control Court is on the ground that the tenant has got three buildings of his own and the tenant has failed to establish that such buildings are not sufficient for his requirement. To substantiate this ground the courts below relied on evidence of the landlord as well as the commission report. The revision petitioner/tenant resisted this contention stating that though he was in possession of a three storeyed building, the building in question was occupied by his family and the ground floor of the building is used as a parking place. To substantiate this ground the courts below relied on evidence of the landlord as well as the commission report. The revision petitioner/tenant resisted this contention stating that though he was in possession of a three storeyed building, the building in question was occupied by his family and the ground floor of the building is used as a parking place. It has come out in evidence that the building is having 5 separate shop rooms fitted with rolling shutters. Hence it is only proper to conclude that the building possessed by the revision petitioner/tenant is sufficient and suitable to shift his business Subsection (10) of Sec. 11 only states that the bona fide requirement of the landlord for filing a petition for eviction of the tenanted of the landlord of the building for his own use. It has come out in evidence that the landlord and his family were abroad from 1976 to 1994. The wife of the landlord is a medical practitioner and after return from Oman she sought employment in certain places in Kerala and had worked for some time. The requirement set up by the landlord under Sec. 11(3) was that his wife intended to start a medical clinic of her own in the tenanted premises and his unemployed younger son wanted to start a telephone booth in one of the rooms of the buildings. Though the order of eviction is under Sec. 11(4)(iii), we are not in a position to see the purport or the intention of the landlord to get back the building is bona fide. Subsection (10) speaks about the bona fide intention or the prerequisite of the requirement for getting back the building under Sec. 11(4)(iii). The balance of hardship of both the tenant as well as the landlord have to be considered here as the requirement of bona fide differs from the bona fide requirement contemplated under Sec. (3) of Sec. 11 for tendering application for eviction of tenanted premises. The judgment reported in 1994 (2) KLT 29 (supra) contemplates only circumstances under which the bona fide need is established and in such case the requirement of sub-sec. (10) of Sec. 11 also stands proved. The bona fide of the landlord to get eviction of the building is established and in such case the requirement of sub-Sec. (10) of Sec. 11 also stands proved. (10) of Sec. 11 also stands proved. The bona fide of the landlord to get eviction of the building is established and in such case the requirement of sub-Sec. (10) of Sec. 11 also stands proved. The bona fide of the landlord to get eviction of the building is established as and when the landlord proves that the tenant is in possession of sufficiently suitable building to shift his business. In the judgment reported in AIR 1999 SC 100 (supra) the Apex Court considered the bona fide need set up by the landlord for eviction. The Apex Court held that in case the landlord put forth a variety of reasons to seek recovery of tenanted premises and if one of such grounds has been rejected, that by itself may not be a reason to find that the bona fide claim of the landlord is not established. In the case in hand the tenant is in possession of sufficiently suitable building to shift his business and the bona fide element of the landlord is established in evidence and there is compliance of Sec. 11(10) of the Act. 7. In the result, the revision petition stands dismissed, confirming the impugned judgment.