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2004 DIGILAW 307 (KER)

Purushothaman v. Radhakrishnan

2004-07-02

J.M.JAMES, K.S.RADHAKRISHNAN

body2004
Judgment :- Radhakrishnan, J. The following questions arise for consideration in these cases. a) Is it imperative that the additional accommodation sought for should be sequel or supplementary to the existing requirement of the landlord? b) Whether demolition of a wall by the tenant which does not form part of the tenanted premises would fall within the mischief of Section 11(4) (ii) of Act 2 of 1965? 2. Rent control petition No. 16/98 was filed under Sections 11(2) (b), 11(8) and 11(4) (ii) of Act 2 of 1965. Building was leased out on 6.9.1983 wherein tenant is conducting a tailoring shop. Landlord wanted the tenanted premises for starting a business in electrical goods and for its expansion and hence eviction was sought for under Section 11(8) of the Act. Complaining that on 3.10.1997 tenant demolished a partition wall constructed by the landlord on the northern side of the veranda situated in front of the tenanted premises, petition was laid under Section 11(4) (ii) of the Act as well. 3. Tenant resisted the petition contending that there is no bonafides in the plea. Petitioner-landlord has stated that he required additional accommodation for the purpose of starting business in electrical goods. When he was examined he stated that he wanted the tenanted premises for keeping tables and chairs for hiring and not for expansion of electrical business. With regard to the claim under Section 11(4)(ii), tenant took up the stand that the landlord has not raised the plea that the tenant used the building in such a manner as to reduce or destroy its value and utility materially and permanently. Further it is also stated that landlord has constructed a wall in front of the tenanted premises so as to obstruct its view. On the complaint filed by the tenant, according to the tenant, landlord himself demolished the same. In any view, such an act, tenant submits, would not fall within the ambit of Section 11(4)(ii) of the Act. 4. Landlord got himself examined in this case as P.W.1 and produced Exts. A1 to A4 documents. Tenant got himself examined as R.W.1 and produced documents marked as Exts.B1 to B6. Rent Control Court after considering the oral and documentary evidence, allowed eviction under Sections 11 (2)(b) and 11 (4)(ii) of Act 2 of 1965. However, the plea for eviction under Section 11(8) was rejected. A1 to A4 documents. Tenant got himself examined as R.W.1 and produced documents marked as Exts.B1 to B6. Rent Control Court after considering the oral and documentary evidence, allowed eviction under Sections 11 (2)(b) and 11 (4)(ii) of Act 2 of 1965. However, the plea for eviction under Section 11(8) was rejected. Aggrieved by that part of the order tenant filed R.C.A.No.144 of 1999 and landlord filed R.C.A. No 167 of 1999. Appeal filed by the tenant was dismissed and the appeal filed by the landlord was partly allowed and eviction was ordered under Section 11(4)(ii). Claim for eviction sought by the landlord under Section 11(8) was rejected. Aggrieved by the order in R.C.A.No.167 of 1999, tenant has preferred C.R.P. No.999 of 2001 and against the order in R.C.A.No.144 of 1999 the tenant preferred C.R.P.No.843 of 2001. Landlord preferred C.R.P.No.1533 of 2001 against the finding under Section 11 (8) of the Act. 5. Before examining the claim under Section 11 (4)(ii), we may examine the claim of the landlord under Section 11(8). Rent Control Court and the Appellate Authority concurrently found that there is no bonafides in the claim under Section 11(8) and dismissed the petition. Burden of proving that the landlord bonafide requires additional accommodation for his personal use is on the landlord. Section 11(8) can be invoked only when landlord is in possession of a portion of the building and rest of that is required for additional accommodation. Section 11(8) will come into play if the landlord wanted to expand his business for which he requires additional accommodation. In the instant case, what was pleaded in the rent control petition is that landlord wanted additional accommodation for the purpose of electrical business, but no evidence was adduced to establish that plea. Further, in the oral deposition landlord stated that he requires the premises for doing the business of lending tables and chairs, altogether a different purpose. Such inconsistent pleas would definitely cause prejudice to the tenant. Further, claim under Section 11(8) would lie only if the requirement is additional, that is supplemental to the existing user by the landlord. Landlord cannot seek eviction under Section 11(8) for a purpose which is alien to his existing state of affairs. Additional requirement must be supplementary, so as to argument his existing need. The nature of additional requirement should have some nexus with the existing need. Landlord cannot seek eviction under Section 11(8) for a purpose which is alien to his existing state of affairs. Additional requirement must be supplementary, so as to argument his existing need. The nature of additional requirement should have some nexus with the existing need. We therefore hold that the additional accommodation sough for must be supplementary to the existing requirement of the landlord. The above reasoning will get support from the decision in Kanniammal v. Chellaram (2002 (4) SCC 627). The apex court held that the need for additional accommodation is for extending the user of the building by the landlord to the leased portion for the same purpose for which the portion not leased out is being used. In such circumstances, we are of the view, the courts below have rightly held that the landlord has not succeeded in proving the claim under section 11(8). We find no illegality, irregularity or impropriety in the orders passed by the Rent Control Court and the Appellate Authority to be interfered with in our revisional jurisdiction. C.R.P.No.1537 of 2001 filed by the landlord would therefore stand dismissed. 6. Rent Control Court and the Appellate Authority have however allowed eviction under Section 11(4)(ii) of the Act, in our view, without properly understanding the scope and ambit of the proviso. Section 11(4)(ii) is extracted below for easy reference. 4. A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building – xx xx xx xx xx xx xx (ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently, or The expression “the building” requires emphasis, which means only the tenanted building. “Building” has been defined in Section 2(1) of the Act. Landlord has no case that tenant has used the building in such a manner as to destroy or reduce its value and utility materially or permanently, but his case is that tenant has demolished the wall constructed by him in front of the tenanted premises. The wall is not part of the tenanted premises when it was let out. There is no averment in the rent control petition that the tenant has used the building in such a manner as to reduce its value or utility materially and permanently. The wall is not part of the tenanted premises when it was let out. There is no averment in the rent control petition that the tenant has used the building in such a manner as to reduce its value or utility materially and permanently. On the other hand landlord gave evidence to the effect that he had constructed the wall to protect the tenanted premises as per the direction of the Engineer for the purpose of giving support to the building and it is that wall which was demolished by the tenant. No evidence was adduced by the landlord to show that the wall was constructed so as to strengthen the tenanted premises. Engineer was not examined. No commission was taken out and no independent evidence was adduced. So we cannot accept the contention that the wall was constructed to support the tenanted premises. On the other hand evidence would indicate that the landlord had constructed the wall in front of the tenanted premises. Which according to the tenant, would obstruct its view. Landlord’s case is that tenant had demolished the wall constructed by him in front of the tenanted premises. We are of the view, such an action if at all true, would not fall under section 11(4) (ii) of the Act. The remedy open to the landlord in such a case is to sue for damages and not for an order of eviction. Unless it is shown that the tenant has demolished any portion of the building which is the subject matter of the lease and by such conduct the value and utility of the building has been reduced materially and permanently a plea under Section 11(4)(ii) will not lie. Demolition of wall constructed in front of the tenanted premises obstructing the view of the tenanted building would not fall within the mischief of Section 11 (4)(ii). Remedy open to the landlord is not to evict the tenant, but to sue for damages. 7. Counsel for the landlord submitted that this court shall not interfere with the concurrent findings of the courts below. The apex court in Pareed Kaka v. Shafee Ahmed Saheb (2004 (2) KLT 130) has held that the High Court has jurisdiction to go into the legality or correctness of the decision which includes the power to reappreciate evidence and that it can interfere with the findings of fact also. The apex court in Pareed Kaka v. Shafee Ahmed Saheb (2004 (2) KLT 130) has held that the High Court has jurisdiction to go into the legality or correctness of the decision which includes the power to reappreciate evidence and that it can interfere with the findings of fact also. In our view, both the Rent Control Court and the Appellate Authority have completely misunderstood the scope and ambit of Section 11(4)(ii) and acted erroneously to reach a wrong conclusion on law as well as on facts. In such circumstances, we are inclined to set aside the order of eviction passed under Section 11(4)(ii). Consequently order of eviction passed under Section 11(4)(ii) would stand set aside and the revision petitions filed by the tenant would stand allowed and the rent control petition filed by the landlord would stand dismissed.