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2005 DIGILAW 245 (KER)

Saithu v. Thahira

2005-03-29

M.N.KRISHNAN, R.BHASKARAN

body2005
Judgment :- R. Bhaskaran, J. This Rent Control Revision is filed by the respondents in R.C.P.No.149 of 1995 on the file of the Rent Control Court, Kannur. The R.C.P. was filed under Ss.11(2)(a)(b), 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court dismissed the petition while the Appellate Authority reversed the order of the Rent Control Court and granted eviction under S.11(3) of the Act. 2. The contention of the landlord in the Rent Control Petition is as follows. The petition schedule building belonged to the petitioner’s father under whom the husband of the 1st respondent and father of respondents 2 to 9 was a tenant as per the rent deed dated 26.4.1972. The petitioner’s father gifted the property with the building in favour of the petitioner in 1979. The tenant attorned to the petitioner and paid rent to her. The rent is paid only up to 23.1.1995 and thereafter it was kept in arrears. The petitioner is in need of the petition schedule building for the purpose of setting up a business of manufacturing plastic and leather products including chap pals, bags etc. and that of lubricant oil and to use it as a go down and storing place for the goods and articles of such business to be conducted and run by the petitioner’s husband who is without any job. The petitioner wants to reconstruct the petition schedule building after demolishing it to suit the same for the above-said business once it is vacated by the respondents. The petition schedule building is totally dilapidated and is in dangerous position and it has to be demolished and reconstructed before putting it to be used for the bona fide need of the petitioner. The petitioner is financially sound to demolish and reconstruct the same. 3. Respondents 1 to 4 and 7 to 9 filed a counter in the Rent Control Petition. The liability for eviction under S.11 (2)(b) was denied on the ground that the rent was not paid since the landlord refused to accept the same. Along with the reply notice, a pay order for Rs.1,805/- drawn in favour of the petitioner was enclosed to discharge the rent upto 23.1.1994 and she had enchased the same. The liability for eviction under S.11 (2)(b) was denied on the ground that the rent was not paid since the landlord refused to accept the same. Along with the reply notice, a pay order for Rs.1,805/- drawn in favour of the petitioner was enclosed to discharge the rent upto 23.1.1994 and she had enchased the same. With regard to the bona fide need, it was contended that there was no bona fide need and the need set up was a mere use to evict the respondents. Earlier, the petitioner had filed R.C.P.No.88 of 1984 and it was dismissed. It was also contended that the petition schedule building not was needed for starting an industrial unit. The question of using it as a go down does not arise as the petitioner has not started a manufacturing unit. It was also contended that the petition schedule building alone cannot be reconstructed. It is one of the units in a main building. The building is strong and it can stand in its present condition for years. 4. When the petitioner was examined as P.W.1, a specific question was put to her as to whether it was possible to reconstruct the petition schedule building alone without damage to the other portions of the building as it was situated under a single roof. She said that it was possible and he was asked whether she was prepared to withdraw the Rent Control Petition in case a Commissioner inspects and finds that it was not possible to reconstruct the petition schedule building alone. She agreed to withdraw the Rent Control Petition if the Commissioner reports so. Based on this a Commission was appointed and the Commissioner reported that the petition schedule building alone cannot be reconstructed. The Rent Control Court found that the bona fide need set up by the landlord was to start business after reconstruction and if reconstruction was not possible, P.W.1 was ready to with draw the Rent Control Petition. On that ground the Rent Control Court dismissed the petition. 5. In appeal, the Appellate Court accepted the finding of the Rent Control Court with regard to the plea of reconstruction. On that ground the Rent Control Court dismissed the petition. 5. In appeal, the Appellate Court accepted the finding of the Rent Control Court with regard to the plea of reconstruction. However, the Appellate Court found that the Rent Control Court was not justified in dismissing the Rent Control Petition on the ground of bona fide need as the landlord could make use of the building without reconstruction but with necessary repairs and therefore the Appellate Court allowed the appeal on the ground of bona fide need. 6. In this revision, the learned counsel for the revision petitioners contended that the specific plea in the Rent Control Petition by the landlord was that the building was in a dilapidated condition and it required to be reconstructed. Once the landlord accepted the challenge by saying and agreeing for the dismissal of the Rent Control Petition if the Commissioner was to find that the petition schedule building alone could not be reconstructed, then the Appellate Authority was not justified in ordering eviction on the ground of bona fide need. 7. After hearing the learned counsel on both sides, we find merit in the contention of the learned counsel for the revision petitioners. It is the definite case of the landlord in paragraph 6 of the Rent Control Petition that the petition schedule building is totally dilapidated and is standing in a dangerous position. It. has to be demolished and reconstructed before putting it to use for the said bona fide need. The petitioner is financially sound to demolish and reconstruct the same. While examined as P.W.1, the landlady stated that the petition schedule building is in a dilapidated condition and it has to be repaired. The petition schedule room can be reconstructed separately. But in cross-examination, she stated that her intention was not to demolish the building and then construct a building and then start a new business. She also said that if it was so stated in the Rent Control Petition, it was false. However she also stated in the Rent Control Petition, it was false. However she also stated that it Was not correct that the roofing of the three rooms and the petition schedule room was one and she agreed that if it is proved by Commission that the roofing of all these rooms is one, she was prepared to withdraw the Rent Control Petition. However she also stated that it Was not correct that the roofing of the three rooms and the petition schedule room was one and she agreed that if it is proved by Commission that the roofing of all these rooms is one, she was prepared to withdraw the Rent Control Petition. On the basis of the above offer made by the landlord, an Advocate Commission was taken out and she submitted a report. She reported that the petition schedule building and all other rooms of the Pandikasala are having a common roof. Since the petition schedule building is having common walls with the adjacent rooms as mentioned above and was having common roof with the other rooms it could not be demolished without detriment to the other structures. The learned counsel for the revision petitioners relied on two decisions of the Supreme Court based on S.20 of the Indian Evidence Act. In Hirachand Kothari v. State of Rajasthan, AIR 1985 SC 998, the Supreme Court held as follows: “Where a party refers to a third person for some information or an opinion on a matter in dispute, the statements made by the third person are receivable as admissions against the person referring. The reason is that when a party refers to another person for a statement of his views, the party approves of his utterance in anticipation and adopts that as his own. The principle is the same as that of reference to arbitration. The reference may be by express words or by conduct, but in any case there must be a clear admission to refer and such admissions are generally conclusive.” In K.M. Singh v. Secretary, Association of Indian Universities, AIR 1992 SC 1356, the Supreme Court relied on the decision in Hirachand Kothari’s case and held as follows: “It will be noticed that in the present case the oath was administered as per plaintiff I petitioner’s statement and, therefore, there is no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondent’s claim on his part within the meaning of S.20 of the Evidence Act. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of S.20 of the Evidence Act would be treated as an admission of the parties. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of S.20 of the Evidence Act would be treated as an admission of the parties. Thus the order of the Trial Court dated 14th October, 1988 and 30th January, 1989, were unassailable and the High Court has rightly dismissed the Revision Petition.” 8. The learned counsel for the respondent argues that though under S.11(4)(iv), the Rent Control Court as well as the Appellate Authority have found that reconstruction is impossible without detriment to the other rooms which are not included in the petition schedule, the landlord can occupy the petition schedule room for a godown purpose and there is bona fide need and hence the reasoning of the Appellate Authority on the ground of bona fide need can be sustained. He relied on a Division Bench decision of this Court in George Varghese v. Ammini Cherian, 1995 (2) KLT 763. It is held in that decision as follows: ­ “When a landlord applies for eviction on two grounds - one under S. 11(3) and the other under S.11(4)(iv) of the Act - Rent Control Court can stop with the finding the ground under S.11(3) has been made out. In such a situation there is no need to proceed further to the consideration of the other ground. Of course, if the former ground is found against the landlord, there may arise the necessity to consider the latter ground when that ground is pressed into service.” In that case, the contention was that the landlord wants to reconstruct the building for her son, but it was held that it was for the landlady to make the choice and the tenant cannot dictate as to how she has to accommodate her son. The applicability of S.20 of the Evidence Act or its impact on the offer made by the landlord in the witness box to withdraw the Rent Control Petition itself if the Commissioner reports that the petition schedule building alone cannot be reconstructed was not involved in that decision. According to the learned counsel for the respondent, S.11(3) and 11(4)(iv) are independent grounds. For that purpose, he relied on the decision of this Court in Abdul Rahiman v. Ramankutty Moothan, 1983 KLT 726. According to the learned counsel for the respondent, S.11(3) and 11(4)(iv) are independent grounds. For that purpose, he relied on the decision of this Court in Abdul Rahiman v. Ramankutty Moothan, 1983 KLT 726. Justice V. Khalid of this Court, as His Lordship then was, has stated that S.11(3), 11(4)(iv) and 11(8) operates independently of the other, though in certain cases the Court may permit the landlord to occupy after necessary alterations or reconstruction. But a combined order for eviction under S.11 (8) cannot be passed, for these sections prescribe different post­ eviction conditions. 9. It is true that though the landlord has shown S.11(4)(iv) of the Act also in the Rent Control Petition really the eviction sought is under S.11(3) only as the landlord wanted to occupy the building after reconstruction. If S.11(4)(iv) is to be applied, the tenant has to be offered the re-constructed building for occupation. But in this case, the definite case of the landlord is that the building can be occupied only after demolition­ and reconstruction and it is in that context that she deposed that the petition schedule building alone can be demolished and reconstructed without detriment to the other potions of the building. It is to substantiate that plea that she accepted the challenge of the tenant and agreed to withdraw the Rent Control Petition itself, if the Commissioner reports that the petition schedule building alone cannot be reconstructed. In the evidence, she also stated that if it is stated in the petition that the building has to be reconstructed, that statement is false. Therefore, she wanted to give evidence against the pleading in paragraph 6 of the Rent Control Petition. When the bona fide need alleged is occupation of the building for business purpose after demolition and reconstruction and it is found that such a reconstruction is not possible since there are other rooms in the occupation of other persons under the same roof, it can be said that the bonafide need is not established. At any rate, as held by the Supreme Court in the two decisions mentioned earlier, the landlord is bound by her offer under S.20 of the Indian Evidence Act and the Appellate Authority was not justified in bifurcating the issue and ignoring the undertaking in the deposition of PW.1 to withdraw the Rent Control Petition if the Commissioner reports against her case. In that context the decisions relied on by the learned counsel for the respondent can be distinguished as those decisions are based on entirely different facts. 10. If the landlady requires the building for her own occupation and states that she wants demolition or reconstruction for the purpose of bona fide occupation of the building, the claim was only under S.11 (3) of the Act. The Appellate Authority did not in fact formulate a point based on S.20 of the Evidence Act though the Appellate Authority has discussed it in the course of the finding on S.11(4)(iv) of the Act. There could not have been an independent finding based on S.11(4)(iv) of the Act as it was intermingled with the finding on S.11(3) of the Act. 11. The Appellate Authority has found that the evidence does not disclose that the building is in such a condition as it required reconstruction. In fact this finding is made to come to the conclusion that the building can be used by the landlord if the tenant is evicted even without demolition and reconstruction. But the landlord has a definite case in the Rent Control Petition to the contrary. The Court cannot come to a finding in favour of the landlord which is against her own pleadings. The learned counsel for the respondent also argued that when the Commissioner was examined in Court she has stated that she could not say whether it was possible to reconstruct the roof of the petition schedule room alone, but she also stated that the Commissioner happens to note whether for all the rooms there is only one roof and whether reconstruction of the petition schedule room alone is possible without disturbing the other rooms. The petitioner has stated as P.W.1 that if it was proved by the Commissioner that roofing of all the rooms is one, she was prepared to withdraw the Rent Control Petition. The Commissioner has reported that roofing of all the rooms is one. It was to ascertain that aspect that the Commission was taken out. She was not entitled to go back after saying that the Commissioner reported against her case. She was bound by such offer under S.20 of the Evidence Act and the reasoning of the Rent Control Court was only correct and the Appellate Authority was not justified in interfering with that finding. She was not entitled to go back after saying that the Commissioner reported against her case. She was bound by such offer under S.20 of the Evidence Act and the reasoning of the Rent Control Court was only correct and the Appellate Authority was not justified in interfering with that finding. Therefore, the Rent Control Revision is allowed and the order passed by the Appellate Authority is set aside and that of the Rent Control Court is restored.