Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 28 (KER)

KYTHAYIL RAJU v. VALAPPIL MANOJ KUMAR

2013-01-10

A.V.RAMAKRISHNA PILLAI, THOTTATHIL B.RADHAKRISHNAN

body2013
ORDER : Thottathil B. Radhakrishnan, J. The 2nd among the respondents in the rent control petition is the revision petitioner herein. The Rent Control Court and the Appellate Authority concurrently upheld the bona fide need pleaded by the landlord u/s 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 'the Act', for short, answering all relevant questions, including the benefit of the provisos to that sub-section (3) of Section 11. The order of eviction was granted by the Rent Control Court also u/s 11(2)(b). The eviction order stands confirmed in appeal on both counts. The basic facts to consider the arguments advanced at the stage of consideration of this revision for admission are as follows: The petition schedule shop room belonged to C.M. Rajan. it was outstanding on lease when the person, who filed the rent control petition, namely, Manoj Kumar, purchased it in 2008. He sued for evicting Sreedharan and his son Raju. He pleaded that Sreedharan is the tenant and Raju, who is Sreedharan's son, had been inducted as sub-tenant. Nevertheless he did not sue on a ground referable to Section 11(4)(i) of the Act, and confined his request for eviction to be under sub-sections (2)(b) and (3) of Section 11 of the Act. The respondents to the rent control petition, filed joint counter-statement pleading that it was the 2nd respondent Raju, who took the building on lease from C.M. Rajan, the previous owner. They denied the plea that the building was taken by Sreedharan and thereafter, sublet to Raju. They also challenged the bona fide need pleaded by the landlord and raised contentions challenging the claim for eviction. 2. At trial, the landlord, Manoj Kumar, gave evidence saying that he knows that the application is not founded on a ground referable to the alleged sub-tenancy and that no notice has been issued in relation to any such ground. Per contra, Raju gave evidence as RW 1 to the effect that he is the tenant and the tenancy commenced with Rajan. 3. With the aforesaid, adverting to the definition of the term "landlord" in Section 2(3) of Act 2 of 1965, we see that the said term is defined as an inclusive one. It includes, among other things, one who would be entitled to receive the rent, if the building was let to a tenant. 3. With the aforesaid, adverting to the definition of the term "landlord" in Section 2(3) of Act 2 of 1965, we see that the said term is defined as an inclusive one. It includes, among other things, one who would be entitled to receive the rent, if the building was let to a tenant. Sub-section (6) of Section 2 defines tenant to mean "any person by whom or on whose account rent is payable for a building". It has also an inclusive component which enlarges the definition of that term. RW 1, Raju, having admitted that he is the tenant, it makes no difference whether the tenancy commenced during the days when Rajan was the owner, or after Ext. A1. We say so because, Ext. A1 transfer of title by Rajan to Manoj Kumar, the person who filed the rent control petition, is not disputed. If that were so, such transfer of title included the transfer of right to receive the rent, if building was let to a tenant. Manoj Kumar, therefore, squarely falls within the definition of the term "landlord" in Section 2(3), on that ground. We cannot hold that no further sharpening of the relationship by any mode was necessary for the jural relationship between Manoj Kumar, Sreedharan and Raju to fructify as pleaded by Manoj Kumar in the rent control petition. 4. The manner in which the Rent Control Court and the Appellate Authority have marshalled the evidence and appreciated all aspects of the case, clearly rules out any revisional interference with the findings on the question of bona fide need and also as to the non-availability of the benefit of the provisos to Section 11(3). The findings cannot be criticized as unavailable on the materials on record. It is settled law that the findings on facts and appreciation of evidence would not be interfered with in a revision u/s 20 of the Act unless the authorities below have concluded perversely, in the appreciation of evidence and have reached conclusions based on no evidence. 5. With the aforesaid, the learned counsel for the revision petitioner, Raju, argued that with Manoj Kumar as PW 1 having confirmed before the Rent Control Court that his belief is that Raju is the sub-tenant and that no action having been taken u/s 11(4)(i), Raju cannot be evicted in a proceedings u/s 11(3) of the Act. 5. With the aforesaid, the learned counsel for the revision petitioner, Raju, argued that with Manoj Kumar as PW 1 having confirmed before the Rent Control Court that his belief is that Raju is the sub-tenant and that no action having been taken u/s 11(4)(i), Raju cannot be evicted in a proceedings u/s 11(3) of the Act. The argument advanced is that an order of eviction would lie only against the original tenant u/s 11(3) and such an order cannot be obtained or passed against any alleged sub-tenant, and a sub-tenant can be evicted only u/s 11(4)(i) of the Act. If this argument is accepted, we have to necessarily foresee that the Act provides more protection to the sub-tenant rather than to the tenant. The concept of sub-tenancy and the use of the word 'sub-tenant' is only to the limited extent of bringing them also under the umbrella of law given in Section 11(4)(i) of the Act. The only protection available under that sub-section is to the tenant, provided through the proviso thereto. Not only that, Section 21 of the Act provides that any order of eviction of a tenant shall be binding on all sub-tenants under such tenant, whether they were parties to the proceedings or not, except to the extent of exclusions provided in that section. No such exclusion is applicable to the case in hand. Nor is any such plea raised even before us. Therefore, an order of eviction passed u/s 11(3) even if it is only against the original tenant, would ipso facto fasten liability on the sub-tenant under the tenant to be thrown out in execution of that order of eviction. This is the effect of Section 21 of the Act. We, therefore, reject the argument advanced in that regard on behalf of the revision petitioner. Having regard to the aforesaid, this revision petition fails and is dismissed in limine. However, we are of the view that sufficient time can be granted for the revision petitioner to vacate the premises. He says that the revision petitioner is engaged in a business in furniture. This matter is being considered at the stage of admission and the respondents are not heard. The plea concurrently found is that the first respondent, who is assisting his father in running a hotel, wants to start a hotel by himself for his livelihood. He says that the revision petitioner is engaged in a business in furniture. This matter is being considered at the stage of admission and the respondents are not heard. The plea concurrently found is that the first respondent, who is assisting his father in running a hotel, wants to start a hotel by himself for his livelihood. Taking all circumstances, we are of the view that the revision petitioner can be granted four months' time from today to vacate the premises, but on terms. (a) The tenants are granted four months' time from today to vacate the premises and deliver possession to the landlord on the following conditions: i. They remit the entire arrears as on today before the executing Court within three weeks from today and files an affidavit before the executing Court within three weeks from today, unconditionally undertaking to surrender vacant possession of the premises to the landlord within four months from today. ii. They pay charges towards use and occupation of the building at the current rent rate from today till they give vacant possession of the premises to the landlord. (b) Execution proceedings, if any, pending before the executing Court shall be kept in abeyance for a period of four months if the aforesaid conditions are satisfied. (c) If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenants as per this order will stand recalled automatically and the executing Court shall effect delivery forthwith. Dismissed.