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2004 DIGILAW 308 (KER)

Kalijani Amma v. Sarojini Amma

2004-07-02

J.M.JAMES, K.S.RADHAKRISHNAN

body2004
Judgment :- Radhakrishnan, J. Is the Rent Control Court bound to examine the question whether it would be financially viable for the tenant to conduct the business in the building available in the locality under the second proviso to Section 11 (3) and also under Section 11 (4) (iii) of Act 2 of 1965 is the question that has come up for consideration in this case. 2. Rent Control petition was filed under Sections 11 (2) (b), 11 (3) and 11 (4) (iii) of the Act. Landlady wanted the tenanted premises for the purpose of her dependent son who wanted to start business in cutlery and allied products. Tenant is conducting grocery business in the tenanted premises. Landlady submits that subsequent to the lease tenant constructed a building No.135-A in Ward No. II of Mulivar Panchavat, which is reasonably sufficient for his requirement. Consequently eviction was also sought under Section 11 (4) (iii) of the Act. 3. Tenant resisted the petition contending that there is no bona fides in the plea. Further it is also stated that son is not a dependent and that the son has no intention to start any business in the tenanted premises. Further it was also stated that the landlady is in possession of door No.II-110, 111, 112, 114 to 118 in Ward No. II of Muliyar Panchayat. Tenant also took up the contention that door No.II/135-A is not sufficient for the purpose of his business. That building, according to the tenant, is situated in a distant place and is not suitable to conduct grocery business. 4. Landlady’s son was examined as P.W.1. P.W.2 is the commissioner. Documents marked as Exts.A1 to A20 were produced by the landlady. Fifth respondent was examined as RW-1. Ext.C1 is the commission report. Rent Control Court after considering the oral and documentary evidence allowed petition under Section 11 (2) and 11 (4)(iii). However, the claim for eviction under Section 11 (3) was rejected. Rent Control Court found fault with the landlady for not having disclosed the fact that she was in possession of door No.II-110, 111, 112, 114 to 118 in Ward No. II of Muliyar Panchayat. Non disclosure of the facts according to the Rent Control Court shows lack of bona fides and hence ground under section 11 (3) was rejected. Rent Control Court found fault with the landlady for not having disclosed the fact that she was in possession of door No.II-110, 111, 112, 114 to 118 in Ward No. II of Muliyar Panchayat. Non disclosure of the facts according to the Rent Control Court shows lack of bona fides and hence ground under section 11 (3) was rejected. Rent Control Court however found that the tenant is in possession of shop room bearing door No.II/135-A. Commissioner though reported that if the business is shifted to that building it would adversely affect her business, it was not accepted by the Rent Control Court. On the evidence Rent Control Court concluded that room No.II/135-A which is situated by the side of P.W.D. road is sufficient for the requirement of the tenant. Eviction was accordingly ordered under Sections 11 (2) and 11 (4) (iii) of the Act. 5. Landlady then filed R.C.A.No.22 of 1997 against the order passed by the Rent Control Court rejecting the claim under Section 11 (3). Tenant filed R.C.A.No.21 of 1997 against the order of eviction under Section 11 (4) (iii) of the Act. Both the appeals were heard together by the Appellate Authority. On facts Appellate Authority found that door numbers II/110 and II/112 are in the possession of the father of P.W.1 who is conducting business by name M.S.G.M. Traders. It was noticed that his father was conducting business in the premises prior to the filing of the rent control petition. It was also noticed that door No.II/111 is being used as jeep shed from 1984 onwards. Appellate Authority therefore concluded that the need urged by the landlady is genuine and bona fide. Appellate Authority also examined whether the tenant is entitled to get the benefit of the second proviso to Section 11 (3) especially in the light of the plea of the landlady under Section 11 (4) (iii). Appellate Authority concluded that the tenant is not entitled to get the benefit of the second proviso. Since the building II/135-A owned by the tenant is sufficient for his requirement appeal filed by the landlady was allowed and order of eviction was passed under Sections 11 (3) as well as under Section 11 (4) (iii) of the Act. The appeal filed by the tenant was dismissed. Aggrieved by the same tenant has come up in this revision. 6. Counsel appearing for the petitioner Sri. The appeal filed by the tenant was dismissed. Aggrieved by the same tenant has come up in this revision. 6. Counsel appearing for the petitioner Sri. K. Jayakumar submitted that the rent control petition lacks bona fides since landlady has failed to disclose the fact that she is in possession of door Nos.110 to 112 and 114 to 118 in Ward No. II of Muliyar Panchayat in the rent control petition. Counsel for the tenant contended that when the tenant came up with the definite case that the landlady is in possession of the vacant room, she filed a petition for amendment explaining that those rooms are in the possession of her husband. Counsel submitted that this explanation came only when the landlady was confronted with the situation that she was in possession of various rooms. Counsel therefore submitted that the rent control petition is liable to be dismissed due to non disclosure of relevant facts. Counsel also submitted that building door No.II/135-A is not suitable for the requirement and also not financially viable. Counsel also submitted that no other suitable buildings are available in the locality for the tenant to carry on his trade. Placing reliance on the commission report, counsel contended that if the business is shifted to that premises it would adversely affect the business prospects and would affect his main source of his livelihood. 7. Counsel appearing for the respondent Sri. Harish contended that landlady is not bound to disclose the fact that she is the owner of room bearing door Nos.110 to 112 and 114 to 118 since she is not in possession of those rooms. Counsel submitted that door numbers 110 and 112 are in the possession of the landlady’s husband and he is conducting business by name M.S.G.M. Traders even prior to the filing of the rent control petition. Landlady has specifically averred in the petition that she is not in possession of any building. Further room No.111 is being used as jeep shed from 1984 onwards. Counsel submitted that if it is the case of the tenant that landlady is the owner and is in possession of any other building, it is for the tenant to plead and establish the same under the first proviso to Section 11 (3). Further room No.111 is being used as jeep shed from 1984 onwards. Counsel submitted that if it is the case of the tenant that landlady is the owner and is in possession of any other building, it is for the tenant to plead and establish the same under the first proviso to Section 11 (3). When there is a specific pleading in the petition which has not been controverted, tenant cannot urge that the landlady has failed to disclose all the details in the petition. Counsel also submitted that the building II/135-A is on the side of P.W.D. road and is sufficient for the requirement of the tenant, and the contention that if the business is shifted that would affect his means of livelihood cannot be sustained. 8. Second limb of the second proviso to Section 11 (3) and Section 11 (4) (iii) are at times inseparable. Second proviso to Section 11 (3) deals with availability of suitable building in the locality while Section 11 (4) (iii) refers to a building which is reasonably sufficient for the requirement in the same city, town or village. Commissioner has reported that building bearing door No.II/135-A is situated 262 metres away from the tenanted premises. Tenanted building is having an area of 4.43 sq. metres and is having a veranda with an area of 3.42 sq. metres. The building II/135-A is situated on the side of P.W.D. road, which is situated at a height of four metres from the road with a provision to enter the building from P.W.D. road. Rent Control Court and the Appellate Authority found that the building II/135-A is sufficient for the requirement of the tenant. In Francis v. Sreedevi Varassiyar (2003 (2) KLT 230), the Full Bench had no occasion to consider the question whether the building available within the meaning of the second proviso to Section 11 (3) or Section 11 (4) (iii) would be suitable for generating the same income which is being generated from the business conducted in the tenanted premises. The legislature only wanted an enquiry to determine whether the building is reasonably sufficient for the tenant’s requirement and not whether it would generate the same income for the livelihood of the tenant. In this connection reference may be made to the decision in Narayanan Nair v. Pachumma (1980 KLT 480). The legislature only wanted an enquiry to determine whether the building is reasonably sufficient for the tenant’s requirement and not whether it would generate the same income for the livelihood of the tenant. In this connection reference may be made to the decision in Narayanan Nair v. Pachumma (1980 KLT 480). True, Rent Control Court while deciding the first limb of the second proviso has to examine whether the tenant is depending for his livelihood mainly on the income derived from the trade or business conducted in the tenanted premises. Rent Control Court however is not expected to make an enquiry as to whether if the business is shifted to the new building the business would generate the same income which the tenant used to generate from the business or trade conducted in the tenanted premises. Such an enquiry is not contemplated either by the second proviso to Section 11 (3) or under Section 11 (4) (iii) of the Act. Rent Control Court is expected only to ascertain the availability or suitability of the building under the second proviso to Section 11 (3) and also whether the building in the possession of the tenant is reasonably sufficient for the tenant’s requirement under Section 11 (4) (iii) of the Act. Commissioner doubted whether the business if conducted in building No.II/135-A would generate the same or equal income generated by the tenant from the business conducted in the tenanted premises. We are of the view, such an enquiry is not contemplated under the second proviso to Section 11 (3) or under Section 11 (4) (iii). 9. Landlady has given acceptable explanation for the amendment of the pleadings. It has come out in evidence that the building said to be in the possession of the landlady is in the possession of her husband and he is actually conducting business therein and one of the rooms is being used as jeep shed. The explanation is convincing and only to be accepted. In such circumstances, we find no reason to grant the reliefs prayed for and the revision petition is dismissed. The explanation is convincing and only to be accepted. In such circumstances, we find no reason to grant the reliefs prayed for and the revision petition is dismissed. However, considering the facts and circumstances of the case, we are inclined to give time to the tenant upto 31.08.2004 for vacating the premises on condition that the tenant should file an undertaking in the form of an affidavit before the Rent Control Court within one month from today and would pay arrears of rent, if any, and future rent.