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2004 DIGILAW 361 (KER)

A. K. Ramayyan v. K. Rajagopal

2004-08-04

J.M.JAMES, K.S.RADHAKRISHNAN

body2004
ORDER K.S. Radhakrishnan, J. 1. Tenant is the revision petitioner. Eviction was sought for under S.11(3),11(4)(i), 11(4)(ii), 11(4)(v) and 11(8) of Act 2 of 1965. Rent Control Court allowed eviction under S.11(4)(ii) of the Act and the rest of the grounds were rejected. Tenant took up the matter in appeal against the finding underS.11(4)(ii) by filing RCA. 64 of 1994. Landlord did not file an appeal initially, but later filed a cross appeal on 28-08-2002 challenging the findings under S.11(3), 11(8) and 11(4)(i) of Act 2 of 1965. Cross appeal was filed with apetition for condonation of delay of 7 years, 7 months and 18 days. Objection was filed by the tenant against the petition for condonation of delay. Delay was condoned and cross appeal was entertained and appeal and cross appeal were heard together by the Appellate Authority. Appellate Authority confirmed the findings of the Rent Control Court under S.11(4)(ii) of the Act. Appellate Authority also allowed the cross appeal to the extent of allowing claim underS.11(8) of the Act. In short, Appellate Authority has ordered eviction underS.11(4)(ii) and 11(8) of the Act. Aggrieved by the same this revision petition has been preferred. 2. Counsel appearing for the revision petitioner Sri. G. S. Reghunath raised apreliminary objection stating that the cross appeal filed by the landlord should not have been entertained. Counsel submitted if at all the landlord has got any grievance against the findings of the Rent Control Court he should have filed an appeal under S.18 of the Act and not a cross appeal. Counsel submitted the grounds under S.11(8), 11(4)(ii) etc. are independent grounds and therefore cross appeal is not liable to be entertained. Counsel submitted S.23of the Rent Control Act also would not confer any power on the Appellate Authority to entertain a cross appeal. Counsel also took us through the or a land documentary evidence and contended that the finding of the Appellate Authority under S.11(4)(ii) and 11(8) cannot be sustained. Counsel also submitted the court below has not properly evaluated the comparative hardship and the advantage vis a vis the tenant and the landlord and reached a wrong conclusion. 3. Counsel appearing for the respondent Sri. K. Jaju Babu contended that the landlord had entrusted the files to an advocate for filing the appeal, but the same was not filed in time. 3. Counsel appearing for the respondent Sri. K. Jaju Babu contended that the landlord had entrusted the files to an advocate for filing the appeal, but the same was not filed in time. Counsel submitted though his client wanted to file an affidavit sworn to by the advocate to that effect the same could not be filed due to various reasons. Counsel submitted in any view, the appeal filed by the tenant was pending consideration before the Appellate Authority, hence no-prejudice was caused to the tenant by examining the legality of the rest of the findings. Counsel also placed reliance on the decision of this court in Santha v. 1st Addl. District Judge. 1994 (1) KLT 516 and contended that the principles laid down under O.41 R.22 is applicable to the rent control proceedings also and consequently Appellate Authority has rightly entertained the cross appeal. 4. We need not in this case consider the question whether the principles laid down under O.41 R.22 of the CPC would be applicable to the Rent Control Proceedings since the issue has already been answered by this Court in Santha's case (supra) wherein the Bench has upheld the right of the landlord to challenge the findings rendered against him by the Rent Control Court in an appeal preferred by the tenant against the order of eviction. Landlord need go for an appeal only if there is an adverse order against him. On the contrary tenant has necessarily to go for an appeal or revision since he faces an order of eviction. So far as the landlord is concerned, whether eviction was ordered under S.11(4)(ii) or 11(8) is of no consequence. Question ultimately is against whom the order of eviction was passed. Appeal would normally be preferred by a party against whom an unfavourable order has been passed. Further no-prejudice would be caused to the tenant since the appellate or revisional authority are deciding the issues on the evidence which is already on record. We may in this connection refer to the decision of the apex court in Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 (6) SCC 1 . Further no-prejudice would be caused to the tenant since the appellate or revisional authority are deciding the issues on the evidence which is already on record. We may in this connection refer to the decision of the apex court in Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 (6) SCC 1 . The apex court while dealing with S.20 of the Kerala Rent Act held as follows : "There is, therefore, no doubt in the present case that in a revision preferred under S.20 of the Act by the tenant laying challenge to the propriety of the decision of the Appellate Authority under S.11(8) of the Act, the landlord could have urged that the order for eviction could be sustained under S.11(3) of the Act also. The High Court has not erred in permitting the landlord to urge such a plea in the revision filed by the tenant though the landlord did not file any revision of his own. A landlord who has succeeded in securing an order of eviction on one of the several grounds urged by him cannot be said to be a person aggrieved by such order. He cannot file a revision rather he can feel satisfied with the order. The person aggrieved is the tenant and in a revision preferred by the tenant it is only just and equitable that the landlord should be permitted to support the order of eviction by disputing the correctness of the finding recorded in the impugned order whereby the availability of additional ground for eviction was negatived. Such a right has to be necessarily spelled out in favour of the landlord who has succeeded from the court below else there would be grave injustice". We are of the view the same principle is applicable in the case of an appeal preferred under S.18 of the Rent Act. The Appellate Authority also minuted inits judgment that the petition for condonation of delay was not seriously opposed by the other side. Under such circumstances we find no illegality, irregularity or impropriety in the Appellate Authority entertaining the cross appeal. 5. Rent Control Court and Appellate Authority have concurrently found that the landlord is entitled to get an order of eviction under S.11(4)(ii) of the Act. Under such circumstances we find no illegality, irregularity or impropriety in the Appellate Authority entertaining the cross appeal. 5. Rent Control Court and Appellate Authority have concurrently found that the landlord is entitled to get an order of eviction under S.11(4)(ii) of the Act. Landlord has specifically contended that the tenant has put up an illegal construction on the front side of the schedule shop room and has effected structural alterations so as to reduce the value and utility of the building materially and permanently. Contention was raised by the tenant that they have not put up any structure and that it was put up by the landlord himself. Reference was made to Ext. B6 and also on the oral evidence. We notice that the extended portion of the premises was not scheduled in the rent deed. PW1 has categorically stated in his evidence that the extended portion was erected by the tenant himself. When he tried to erect the additional structure landlord filed O. S.2406/90 for restraining the tenant from making such aconstruction. Landlord has also filed OS. 2409/90 for restraining the tenant from making further alterations, removing the asbestos sheet from the roof of the extended portion etc. Exts. B14 and B15 are two commission reports filed by CPW 3 in OS. 2406/90. B16 is another commission report filed by CPW 4in OS. 2409/ 90. Ext. C1 and the evidence tendered by PW 1, PW 2, CPW 1,CPW 3 and CPW 4 coupled with Exts. B14 to B16 would clearly show that illegal construction was effected by the tenant in front of the tenanted premises. CPW 3 was the commissioner appointed in OS. 2406/90. CPW 3'sevidence would show that construction is a new construction made by the tenant. Further we also notice that the Municipality has also initiated proceedings against the unauthorised construction. Counsel for the tenant tried to contend that event though the construction has been effected by the tenant it has only increased the value and utility of the building. Reference was made to the decision of the Apex Court in JT 2002 (9) SC 189. First of all, the tenant has no such case in his objection. Tenant has not adduced any evidence to show that by virtue of that construction the value and utility of the building has been increased. Reference was made to the decision of the Apex Court in JT 2002 (9) SC 189. First of all, the tenant has no such case in his objection. Tenant has not adduced any evidence to show that by virtue of that construction the value and utility of the building has been increased. On the other hand, facts would indicate that it is an illegal construction effected by the tenant without obtaining permission from the local authority. Both the Rent Control Court and the Appellate Authority concurrently found so. We find no illegality, irregularity or impropriety in the finding concurrently rendered by the Rent Control Court and Appellate Authority under S.11(4)(ii) of the Act. 6. Landlord wanted the tenanted premises for the expansion of his existing business by providing modern T.V. sets, V.C.R., V.C.P. etc. In one of the rooms in the first floor, the petitioner has stocked vessels and utensils, V.C.R.,V.C.P. etc. Landlord has already engaged in the business of T.V., V.C.R., V.C.P. etc. Due to lack of entry to the main road the landlord finds it difficult to carry on his business. Landlord has no direct access to the main road. He wanted to conduct the business with publicity and exhibition of articles which is not possible in the space now occupied by him, which is on the rear side of the tenanted premises. We have perused the commission report as well as the oral evidence in this case which would indicate that the landlord has no direct entry from the main road, but only through a passage from the main road. Tenanted premises is situated in front of the building in the occupation of the landlord. Entire portion facing the main road is in the occupation of the tenant. Unless and until tenant vacates the premises the landlord would not get direct access to the main road. The access is now from a passage which originates from the main road. Going through the entire documentary and oral evidence we are in agreement with the Appellate Authority that the need urged by the landlord under S.11(8) is bona fide. 7. Counsel appearing for the tenant submitted that the Appellate Authority has not properly evaluated the comparative hardship and advantage underS.11(10) of the Act. Going through the entire documentary and oral evidence we are in agreement with the Appellate Authority that the need urged by the landlord under S.11(8) is bona fide. 7. Counsel appearing for the tenant submitted that the Appellate Authority has not properly evaluated the comparative hardship and advantage underS.11(10) of the Act. The first proviso to S.11(10) enables the court to reject an application made under sub-s.(8) if the court is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. In P.B. Desai v. C.M. Patel. AIR 1974 SC 1059 the apex court held that both sides must adduce all relevant evidence before court. Landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence to that effect. Counsel appearing for the tenant submitted that the Appellate Authority has committed an error in holding that the tenant had failed to establish that his main source of income is the business conducted in the tenanted premises and that no suitable building is available in the nearby locality. Counsel submitted those factors have to be proved only when the tenant is attempting to defend a plea under S.11(3).Counsel submitted the tenant need not establish that his main source of income is the business conducted in the tenanted premises and about the non-availability of building in the nearby locality. 8. The landlord has clearly established the advantage that he would derive if he got the tenant evicted. The advantage is that he would have direct road frontage to the building having 2500 sq. feet area. Therefore if the tenant is evicted that will be of considerable advantage to the landlord. On facts landlord has established the advantages that he would derive by getting the tenant evicted. Tenant has to establish that the hardship that would be caused to him. Tenant has not stated anything about the income which he derives from the business conducted in the tenanted premises. In our view that is are levant factor to be taken note of by the court. Tenant has to establish that the hardship that would be caused to him. Tenant has not stated anything about the income which he derives from the business conducted in the tenanted premises. In our view that is are levant factor to be taken note of by the court. If the tenant has no sources of income apart from the income derived from the business conducted in the tenanted premises the tenant should establish that his main source of income is the business conducted in the tenanted premises and if he is evicted considerable hardship would be caused to him. In this case no evidence has been adduced by the tenant to show that the income that he is derives from the business conducted in the tenanted premises. He has also not adduced any evidence to show that he has made any enquiry whether suitable buildings are available in the locality. On the other hand, landlord has pointed out the availability of buildings in the nearby locality. Under such circumstances we are in agreement with the Appellate Authority that the tenant has failed to establish the hardship that would be caused to him if he is evicted. We are of the view Appellate Authority has rightly came to the conclusion that by granting an order of eviction under S.11(8) the hardship that would be caused to the tenant would not outweigh the advantage to the landlord. 9. Under such circumstance revision lacks merits and the same would stand dismissed. Considering the entire facts and circumstances of the case we are inclined to grant time to the tenant for vacating the premises upto 31-12-2004 on condition that he files an undertaking in a the form of an affidavit before the Rent Control Court within one month stating that he would vacate the premises within the aforesaid time and that he would pay arrears of rent, if any, and also future rent.