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2013 DIGILAW 257 (KER)

Puthampurayil Mariyam v. Sunenda @ Suganda

2013-03-20

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

body2013
Judgment :- T.R. Ramachandran Nair, J. 1. This revision petition is filed by the defeated landlord being aggrieved by the rejection of the application for eviction. We would refer the parties as they are arrayed in the Rent Control Petition. Four petitioners are co-owners of the building. The eviction was sought on three grounds -- viz. under Section 11(3) (bonafide need), Sections 11(4) (ii) (ie., use of the building by the tenant so as to reduce its value materially and permanently) and 11(4)(iii) (ie., tenants having a building sufficient for their occupation) -- of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). It was specifically averred that the building is needed for Sri. Ibrahim Puthenpurayil, the husband of the first petitioner and a dependent of her, for the purpose of running a grocery trade. It was averred that the petitioners bonafide need the said building for providing the same to Ibrahim. It was also alleged that the 5th respondent is running a business in the petition schedule building and was convicted for the offence of adulterating honey and therefore the tenants are using the building to destroy and reduce the value and utility materially and permanently. 2. Objections were filed by the respondents tenants and the parties led evidence. PW1 was examined on the side of the petitioners and Exhibits A1 and A2 were marked. Respondents have not adduced any oral or documentary evidence. 3. The Rent Control Court found in paragraph 13 of the order that the petitioners are entitled for an order of eviction under 11(3) of the Act. In paragraph 14 the ground pleaded, under Section 11(4) (ii) was found against the petitioners. No evidence was let in by the landlords to prove that tenants are having other rooms in their possession to attract Section 11(4)(iii) of the Act. Thus, ultimately eviction was ordered under Section 11(3) of the Act and the other grounds were disallowed, against which an appeal was filed by the tenants as R.C. Appeal 41 of 2010. 4. Now we are called up on to decide the question whether the view taken by the Appellate Authority that the subsequent event has its own impact on the ground pleaded under Section 11(3) is correct. The husband of the first petitioner died on 18.03.2011, which is the subsequent event that had occurred. 4. Now we are called up on to decide the question whether the view taken by the Appellate Authority that the subsequent event has its own impact on the ground pleaded under Section 11(3) is correct. The husband of the first petitioner died on 18.03.2011, which is the subsequent event that had occurred. In the appeal, I.A.46/2011 was filed by the petitioners seeking amendment of the rent control petition. The amendment sought was on the plea that her son who was abroad has decided to come to India to look after the first petitioner and her daughter and the prayer in the petition was that the petition schedule room is required for doing business by the petitioner's son. She has two daughters, one daughter is married and other daughter is yet to be married. The I.A. was dismissed on the ground that though there is an order of eviction in favour of the landlord under Section 11(3), as admittedly the dependent husband of the first petitioner is no more the bonafide need does not survive. 5. Regarding the remaining grounds also it was held that the landlords are not entitled for an order of eviction under Sections 11(4)(ii) as well as 11(4)(iii) of the Act. 6. We have heard Sri. B. Krishnan, learned counsel for the petitioners and Sri. P.B.Krishnan, the learned counsel appearing for the respondents. 7. The learned counsel for the petitioners pointed out that this court in Sumathi v. Rabia 2012(1)KLT 595 had considered a case wherein, after the death of the landlord an amendment by incorporating a plea that the need continues as far as the legal representatives was found in favour of the landlord. Our attention was invited to paragraph 8 of the said decision. Therefore, the learned counsel submits that there can be cases wherein the court can hold that the need survives in spite of death of the person on whose behalf it was set up. 8. The learned counsel also relied upon the decision of the Apex Court reported in Sheshambal (Dead) Through LRS. v. Chelur Corporation Chelur Building and others (2010) 3 SCC 470 . Paragraph 28 of the said judgment, which is relied upon in that context, reads as follows: "28. 8. The learned counsel also relied upon the decision of the Apex Court reported in Sheshambal (Dead) Through LRS. v. Chelur Corporation Chelur Building and others (2010) 3 SCC 470 . Paragraph 28 of the said judgment, which is relied upon in that context, reads as follows: "28. As noticed earlier, the requirement pleaded in the eviction petition by the original petitioners was their own personal requirement and not the requirement of the members of their family whether dependent or otherwise. Indeed if the deceased landlords had any dependent member of the family we may have even in the absence of a pleading assumed that the requirement pleaded extended also to the dependent member of their family. That unfortunately, for the appellants is neither the case set up nor the position on facts. The deceased couple did not have any dependent member of the family for whose benefit they could have sought eviction on the ground that she required the premises for personal occupation." Learned counsel for the petitioners therefore submits that herein the son being a dependent and a member of the family, would be entitled to maintain the eviction petition. 9. Sri. P.B. Krishnan the learned counsel for the respondents submitted that the facts of the present case are clearly distinguishable. Our attention was invited to paragraphs 5 and 6 of the rent control petition. It is submitted that the landlords had specifically pleaded that the building is required for the deceased husband of the 1st petitioner and not for any other members of her family or to any of the dependents of the deceased. 10. We shall refer to the pleadings now. Averment in paragraph 5 is that "Ibrahim Puthenpurayil husband of the first petitioner is a dependent of the first petitioner for the purpose of exploiting the two rooms to run a grocery trade." 11. Averment in paragraph 6 is that "the petitioners bona fide need the said building to provide Ibrahim a dependent of all the petitioners for that mater." 12. Therefore the learned counsel for the respondents submitted that unlike the case decided by this court in Sumathi's case (Supra), the particular facts of this case and pleadings will not help the petitioners to maintain the application for amendment. Therefore the learned counsel for the respondents submitted that unlike the case decided by this court in Sumathi's case (Supra), the particular facts of this case and pleadings will not help the petitioners to maintain the application for amendment. It is submitted that in Sheshambal's Case (Supra), it was found that, on the death of petitioners, the right to seek eviction on the ground of personal requirement became extinct. 13. We will now examine the principles stated in the above decisions, and the applicability of the same to the present context. In Sumathi v. Rabia 2012(1)KLT 595, the need alleged in the eviction petition by the deceased landlord was for conducting a stationery business in the petition schedule building to eke out livelihood for himself and his family. While appreciating the said plea the Division Bench in paragraph 8 is held as follows: "Thus the need for the entire family comes within the ambit of S.11(3). On an analysis of S.11(3), in the light of the above decisions, we hold that the bona fide need will survive, even if the landlord died before securing order of eviction and the legal representatives have the right to proceed with the petition, provided that the need projected by the landlord for his occupation must continue after the death of the landlord for the occupation of any member of his family dependent on him at the time of death. The death of the original landlord who filed a petition under S.11(3) before securing eviction, shall not cause the bona fide need to be abated automatically. It is also incumbent on the legal representatives to make necessary amendment in the petition to the effect that the need is continuing. Whether the need continues or not is a factual issue depending upon the facts and circumstances of each case." On a reading of the said paragraph it can be seen that the Devision Bench held that the need projected by the landlord for his occupation must continue after the death of the landlord for the occupation of any other member of his family dependent on him at the time of his death. It was also held that the death of the original landlord shall not cause the bonafide need to be abated automatically and whether the need continues or not in a factual issue. 14. It was also held that the death of the original landlord shall not cause the bonafide need to be abated automatically and whether the need continues or not in a factual issue. 14. Shri. P.B. Krishnan, learned counsel for the respondents relied upon another decision of this Court in Chella Rowthar v. Remabhai [ 2011(1) KLT 850 ]. Therein, it was held that the death of the landlord subsequently will not eclipse the need. It is submitted by the learned counsel that that was a case where eviction was sought to start a stationery business for the livelihood of the landlord and his family members and it was proved in evidence that the son of the landlord is unemployed. While considering these aspects, this Court has held in paragraphs 2, 6 and 7 as follows: "The tenant contends that subsequent to the dismissal of the RCA, the landlord expired and so the need does not survive. According to the revision petitioner the subsequent event ie; the factum of death of the original landlord has to be taken into account and as there is no evidence to show that the need was for family members as well, order to eviction cannot be sustained. It has to be now seen whether the need projected by the original landlord was only of his own need or of his family members also. It was stated in the pleadings that he was getting only a meagre income form his pension which was insufficient for eking out the livelihood of himself and his family members and so he intends to conduct a stationery business in the petition schedule building. In evidence it was further stated that his eldest son was unemployed and for eking out the livelihood of the family the stationery business has to be conducted. Therefore, the argument advanced by the learned counsel for the revision petitioner that the need ceased on the death of the landlord does not appeal to us. We are fully satisfied that the need was not only of the original landlord but also of his family members." Therefore, we are also of the view that the learned counsel is right in submitting that in such cases, it can be stated that the death of the landlord subsequently will not eclipse the need. But herein, the same is not the situation. 15. But herein, the same is not the situation. 15. Of course the need projected herein was for the deceased husband alone. As we see from paragraphs 5 and 6 of the petition, what is projected is that the husband of the first petitioner is a dependent of her for starting business. It was not pleaded that it was also for the business purpose for all the members of the family including his son who is abroad. Hence, the decision of the Apex Court in Sheshambal's Case (Supra) relied upon by the learned counsel for the petitioners clearly goes against their contentions. 16. Therefore, we find that the appellate authority has not gone wrong in rejecting the application for amendment. We are definitely of the view that the appellate authority has not acted erroneously in rejecting the application for amendment. 17. The learned counsel for the petitioners then submitted that the plea of the landlord under Section 11(4) (ii) could have been accepted by the Appellate Authority, in the light of the fact that the 4th respondent was convicted and sentenced, in a criminal case, and therefore it would cause infame to the building, which in turn will reduce its value or utility materially and permanently. 18. The learned counsel relied upon the decision of a Devision Bench of this Court in Raghavan Pillai v. Sainaba Beevi [ 1977 KLT 417 ] and the discussion on various principles therein in the light of some decisions of the English Courts. According to the learned counsel the tenant was not expected to indulge any activity which will lead to a criminal prosecution and definitely the user of the building for said purposes will be within the four corners of the provision. 19. This contention is opposed by the learned counsel for the respondents by pointing out that the particular setting of the limbs under Section 11(4) (ii) are not attracted in a case where a tenant who is a dealer in various articles is placed as an accused for any technical violations of the provisions of the Prevention of Food Adulteration Act. 20. It is explained by the learned counsel for the respondents that the original tenant Raghavan and one of the sons Vinod Kumar were accused in a criminal case and later Raghavan died. 20. It is explained by the learned counsel for the respondents that the original tenant Raghavan and one of the sons Vinod Kumar were accused in a criminal case and later Raghavan died. Consequently the case against him was split up but as on the date on which the prosecution was launched Vinod Kumar was not a tenant also. The learned counsel for the respondents also relied upon the decisions in Raghunathan v. Varghese [2005(4) KLT 147 SC)] and in Vijayan v. Sakeena [ 2011 (3) KLT 657 ]. 21. Section 11(4) (ii) reads as follows: "11(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-- (i) xxxx xxxxx (ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently." 22. The emphasis given, going by the provisions under Section 11(4)(ii) of the Act, is that the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently. The Apex Court in Raghunathan v. Varghese [2005 (4) KLT 147(SC)] considered the impact of the words 'materially' and 'permanently' and held that they are not disjunctive. While considering the matter it was held as follows in paragraph 9: "For seeking eviction, the user should destroy or reduce the value or utility of the building materially and permanently. Even if the user leads to some reduction in the value or utility of the building, eviction cannot be ordered. But, if the value or utility is materially and permanently affected, an order for eviction could be passed." In paragraph 12, it was further held as hereunder:- "The question depends upon the facts of the case. The nature of the building, purpose of the letting, the terms of the contract and the nature of the interference with the structure by the tenant are all relevant." The learned counsel for the respondents laid emphasis to the word 'structure' therein. In paragraph 12, it was further held as follows. "The value of the building, if at all, has only been enhanced. In paragraph 12, it was further held as follows. "The value of the building, if at all, has only been enhanced. In this state of the record, it is not possible to infer that the acts of the tenant have materially or permanently destroyed or reduced the value and utility of the building." Thus, it can be seen that the provision was understood in consonance with the physical structure of the building itself. 23. The learned counsel for the respondents submitted that there is no decision of this court interpreting Section 11(4) (ii) in the manner as now sought to be interpreted by the learned counsel for the petitioner. It is also submitted that in a case of this nature where the conviction is only out of a technical offence under the Prevention of Food Alteration Act, it cannot be said that the tenant has indulged in the user of the building in the manner as contemplated by Section 11(4)(ii) of the Act. 24. We will now come to the decision relied upon by the learned counsel for the petitioners i.e., Raghavan Pillai v. Sainaba Beevi [ 1977 KLT 417 ]. A similar argument was considered in the light of Section 108 (o) of the T.P. Act, 1882, wherein the shop room was let out for running gold trade and it was used by the tenant to run a wine store. The landlady was a Muslim. The question whether the action is destructive or permanently injurious to the shop, was considered. The argument was that when there is a positive covenant in the document that the letting was to carry on a particular trade it implies a negative covenant that no other trade should be carried on. After analysing certain decisions of the English courts, the Devision Bench did not accept the said plea in the following words: "we are unable to share the view of the learned Single Judge that the use of the premises for conducting a wine trade, in the circumstances disclosed, amounts to an act destructive of, or permanently injurious to, the property leased. The use of the premises as a gambling house or as a brothel, as in the English cases referred to, appear to us to stand on a fundamentaly different basis, as the very nature of the use itself involves a slur or stigma on the premises and is sufficient to destroy its value or permanently injure the same. But we find it difficult to hold that the use of premises as a wine store has the same result or effect because the landlord (landlady) is a Muslim whose religion does not view drinking with favour. She resides far away from the premises." 25. It is true that there is conviction as alleged against one of the tenants. Section 11(4) (ii), as we have already noticed, denotes the user of the building, that also in a manner which destroys or reduces its value and utility materially or permanently. We cannot, for a moment, think that, anything of the sort that is projected here was in contemplation of the legislature. As far as various provisions of the Act are concerned, it can be seen that specified grounds have been provided therein which enable the landlord to seek eviction and there are provisions also wherein the tenants can also rely upon certain circumstances to deny the benefit of eviction to the landlord. If we accept the plea of the learned counsel for the petitioners on its face value, it will be a case where the legislature has not contemplated such a situation. Even though the learned counsel for the petitioner specifically contents that such pleas also can be accepted by this court while interpreting the provisions under Section 11(4)(ii), we cannot agree with the same. The provisions were interpreted by the Apex court in Raghunathan v. Varghese [2005 (4) KLT 147 SCC], by referring to the physical structure of the building. Even though the learned counsel for the petitioners urged us to distinguish the said decision by contending that the particular facts of the said case alone led to the above view, as rightly pointed out by Sri. P.B. Krishnan the term 'building' as defined under Section 2 (1) of the Act is also important. Even though the learned counsel for the petitioners urged us to distinguish the said decision by contending that the particular facts of the said case alone led to the above view, as rightly pointed out by Sri. P.B. Krishnan the term 'building' as defined under Section 2 (1) of the Act is also important. Section 2(1) reads as follows: "(1) "building" means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes and includes- (a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut or part of such building or hut, and let or to be let along with such building or hut; (b) any furniture supplied [ x x x ] by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding-house; (c) any fittings or machinery belonging to the landlord, affixed to or installed in such building, or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let; The term 'building' in Section 11(4)(ii) will have to be definitely understood in the light of the definition provided in Section 2(1) of the Act itself. Therefore, the use of such a building in a manner as to destroy or reduce its value or utility materially and permanently alone will attract Section 11(4)(ii) of the Act. 26. Therefore ill fame or the other like matters which Sri. B. Krishnan wanted to us import into the provision were never in the contemplation of the legislature. Therefore, we reject the said contention also. For all these reasons we agree with the Appellate Authority and the revision petition is dismissed accordingly.