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2013 DIGILAW 229 (KER)

Ponan Krishnan v. Bharathan

2013-03-14

A.V.RAMAKRISHNA, T.R.RAMACHANDRAN NAIR

body2013
ORDER T.R. Ramachandran Nair, J. 1. The defeated tenants are the petitioners herein, aggrieved by the common judgment rendered by the Appellate Authority in R.CA. Nos. 15/2010 and 17/2010. The appeals were filed by the landlords aggrieved by the rejection of the application for eviction on various grounds under Ss. 11(3), 11(4)(ii) and 11(4)(iv) of the Act. The Appellate Authority by reversing the order of the Rent Control Court ordered eviction under S.11(3) and 11(4)(iv) of the Act. i.e., bona fide need and for reconstruction of the building. 2. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent. The learned counsel appearing for the revision petitioners raised the following arguments:- 3. It is submitted that as far as eviction sought under S.11(4)(iv) is concerned, admittedly, the plan and license were not produced along with the eviction petition. It is submitted that the area in question is in a Municipality. Therefore the landlord ought to have obtained mandatory license. The learned counsel further contended that before the Appellate Authority along with an application under O.XLI R.27, the same was produced. But that was only after the order was passed by the Rent Controller. The learned counsel in that context drew our attention to a decision of the Full Bench of this Court in Beeyathu v. Gopalan ( 2005 (1) KLT 313 (F.B.), especially paragraph 15. 4. The learned counsel appearing for the respondent submitted that the evidence as of now produced before the Appellate Authority will show that an application was there even before the filing of the Rent Control Petition and therefore nothing turns upon the filing of the same before the Rent Control Appellate Authority. 5. We will find first refer to the finding of the Appellate Authority. In paragraphs 11 and 12, the said aspect has been considered. It is found in paragraph-11 that it is the settled position that it is not necessary to produce the plan and license for reconstruction along with the application. At the time of evidence, the landlord could not produce the plan and license also. In both the appeals, the landlord has produced the permit and plan issued by the Koothuparambu Municipality on 14.7.2011. At the time of evidence, the landlord could not produce the plan and license also. In both the appeals, the landlord has produced the permit and plan issued by the Koothuparambu Municipality on 14.7.2011. The case of the landlord is that he had approached the Municipality as early as on 24.4.2005 by filing necessan applications, but it was not obtained due to some technical reasons in the Municipality and later he had been granted permission for the construction of the building on the second application and the same was accordingly produced. The Appellate Authority was of the view that the landlord had made arrangements to get the plan and license for reconstruction of the building in the year 2005 itself. It is further found that by the production of the documents, the landlord has satisfied the genuineness of the case that he had taken steps to obtain permission and license for his construction and he has obtained the plan and license for reconstruction of the building. The Full Bench of this Court in Beeyathu v. Gopalan (supra) analysed the requirement of S. 11(4)(iv), essentially the meaning of the words "if required'. The Full Bench explained the legal position in the following words:- "These words, in our opinion, clearly qualify the expression 'the plan and licence'. The landlord has to satisfy the Court with regard to the existence of a plan and licence only if it is shown that these are required, in the absence of a positive requirement, it is not necessary for the landlord to produce the plan or the licence with the petition. Of course, if a plea regarding the plan is raised, the landlord may have to prove the relevant facts. Then the Court shall have to consider and decide the matter in the light of the evidence that may be adduced by the parties. Otherwise, the failure to produce the plan with the petition, in a case where the law does not require a prior permission from any authority, cannot be fatal to the claim of the landlord." 6. As rightly pointed out by the learned counsel for the respondent in this case, the grounds under S.11(3) have been fully established and therefore, it is not a case where S.11(4)(iv) alone is the ground pleaded by the landlord. As rightly pointed out by the learned counsel for the respondent in this case, the grounds under S.11(3) have been fully established and therefore, it is not a case where S.11(4)(iv) alone is the ground pleaded by the landlord. It is submitted that as the said requirement has been complied with by the landlord, this Court need not go in to the pleas raised by the learned counsel for the petitioners. We find force in the said plea. This is a case where the landlord has pleaded that as the building is in a dilapidated condition, he has proposed reconstruction of the building also. Therefore, when these two grounds viz., S.11(3) and 11(4)(iv) are confined together, it cannot be said that the non-production of the plan and license along with the petition will have any bearing on the issues involved. Therefore, we reject the contention. 7. No other points have been raised for consideration and we are satisfied that all the legal issues have been considered and found against the petitioners rightly by the Appellate Authority. It is a case where the ground pleaded under S.11 (3) is fully established and the finding based on the report of the commissioner is that the building requires reconstruction also. Therefore, the physical condition of the building has been found in favour of the landlord to find that it requires reconstruction. We are of the view that the findings on the above ground also do not warrant interference under S.20 of the Act in exercise of the revisional jurisdiction. 8. The learned counsel for the petitioner submitted that the tenants are respectively conducting business in grocery as well as auto electrical works and this Court may grant at least one year's time to vacate the premises. The same is stoutly opposed by the learned counsel appearing for the landlord. 9. Having regard to the fact that the tenants have been doing business for a long time and they will have to find out another accommodation, we grant time up to 31.12.2013 to vacate the premises. This order will be on the following conditions: The petitioners will file separate affidavits before the execution court within a period of three weeks from today undertaking to vacate the premises within the time granted by this Court. If any arrears of rent are there, the same will also be deposited within the aforesaid period of three weeks. This order will be on the following conditions: The petitioners will file separate affidavits before the execution court within a period of three weeks from today undertaking to vacate the premises within the time granted by this Court. If any arrears of rent are there, the same will also be deposited within the aforesaid period of three weeks. They will continue to pay at the same monthly rate for the use and occupation of the building up to 31.12.2013. If any of the conditions is violated, the benefit of the order will not be available to the petitioners.