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2017 DIGILAW 1229 (KER)

P. T. MATHEW v. G. JOHN

2017-09-19

A.M.BABU, K.HARILAL

body2017
ORDER : Harilal, J. The legality and propriety of the concurrent findings granting order of eviction under section 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short "the Act") have come up in this revision filed by the revision petitioner/tenant. (The parties are referred to as in the Rent Control Petition.) According to the petitioner/landlord, he is occupying for his business, a part of the building, in which the tenant is carrying on his business and he is in bona fide need of additional accommodation for expansion of his existing business. The respondent/tenant is in occupation of item No.2 shop room which is situated at the westernmost portion of item No.1 building having three rooms and the petitioner was conducting a medical shop in the middle room. The eastern room was occupied by another tenant and thereafter he vacated that shop room and the petitioner joined the eastern room and the middle room together and thereafter he is conducting the medical shop in the said room, which is numbered as item No.3. Thus, now there are only two rooms in the ground floor of the building, that is, the western room, which is in the possession of the respondent and the eastern room which is in the possession of the petitioner. The total area of the shop room in his possession is less than 220 sq.ft. and the same is not sufficient for his business. The petition schedule item No.3 shop room, in which he has been conducting the medical shop, is not having sufficient area to accommodate the petitioner, his wife, staff members and trainee staff. Thus, it was due to the shortage of space, much inconvenience is experiencing for stacking and displaying the medicines. Further, to develop his business in a professional manner, more space is highly required. Even after repeated demands made by him the respondent is not amenable to surrender the vacant possession and in that circumstance he filed the Rent Control Petition seeking an order of eviction under section 11(8) of the Act. 2. The respondent resisted the requirement of additional accommodation pleaded in the petition contending that it is a pretext for eviction only. According to the respondent, even if the petitioner wants to stack more medicines, there is enough space available in the first and second floors of the petition schedule item No.1 building. 2. The respondent resisted the requirement of additional accommodation pleaded in the petition contending that it is a pretext for eviction only. According to the respondent, even if the petitioner wants to stack more medicines, there is enough space available in the first and second floors of the petition schedule item No.1 building. An area having more than 2000 sq.ft. is available in the upstairs of the building. The intention of the petitioner is to evict the respondent from the petition schedule item No.2 room at any cost so as to rent out the said room to another tenant. Hence the respondent canvassed dismissal of the petition. 3. The landlord was examined as PW1 and his witnesses were examined as PW2 to PW9 and Exts.P1 to P35 were marked. The respondent was examined as DW1 and Exts.C1 to C2(a) were also marked as court exhibits. After analysing the aforesaid evidence on record the Rent Control Court granted an order of eviction on a finding that the requirement of additional accommodation is bona fide and the hardship that may be caused to the respondent, in case an order of eviction is granted to the petitioner, would not outweigh the advantages to the landlord. In appeal the Appellate Authority also confirmed the aforesaid finding as such without any interference. 4. Heard the learned counsel for the respondent/tenant and the learned counsel appearing for the petitioner/landlord. 5. The learned counsel for the respondent/tenant mainly contended that it has come out in evidence that the need for additional accommodation was for the expansion of the partnership business, which is being conducted in the petition schedule item No.3 shop room; but the same was not pleaded in the Rent Control Petition. It was pleaded in such a way that the petitioner/landlord alone is occupying item No.3 room for conducting a medical shop and item No.2 shop room is also required for the expansion of his business in item No.3 shop room. But, it has come out in evidence that the shop room in possession of the petitioner/landlord was occupied by him along with his wife under a partnership deed. So the Rent Control Court could not have granted an order of eviction under section 11(8) of the Act. But, it has come out in evidence that the shop room in possession of the petitioner/landlord was occupied by him along with his wife under a partnership deed. So the Rent Control Court could not have granted an order of eviction under section 11(8) of the Act. So also it is contended that the requirement of additional accommodation for the expansion of partnership business in which the petitioner/landlord also is a partner would not fall under "personal occupation" contemplated under section 11(8) of the Act. It is specifically contended that exclusive occupation of the part of the building by the landlord himself is required for getting an order of eviction for additional accommodation. Similarly, the expansion of own business alone would fall under "personal occupation" contemplated under Section 11(8) of the Act. Thus, the courts below went wrong by granting an order of eviction to the petitioner/landlord where it was found that the additional accommodation was sought for expansion of the partnership business conducted by the petitioner/landlord along with his wife in item No.3 shop room. In support of the arguments the learned counsel for the respondent/tenant cited Abdulla Haji v. Krishnan [2010 (4) KLT 888]. 6. Per contra the learned counsel for the petitioner/landlord advanced arguments to justify the concurrent findings of the courts below under section 11(8) of the Act. According to him, exclusive occupation of the landlord himself of a part of the building is not required to claim an order of eviction under section 11(8) of the Act. Similarly, it is also contended that the occupation of the landlord as a partner of the partnership firm along with his wife also would fall under the expression 'personal use' contemplated under section 11(8) of the Act. In other words, exclusive personal use of the landlord alone is not required for claiming an order of eviction under section 11 (8) of the Act. In support of the aforesaid argument, the learned counsel for the petitioner/landlord cited Rajkumar v. Abdulrahiman [ 1987 (2) KLT 3 ], Arjun v. Eranu [2008 (4) KLT 279] and Pakran v. Kunhiraman Nambiar [ 2004 (1) KLT 824 ]. 7. In support of the aforesaid argument, the learned counsel for the petitioner/landlord cited Rajkumar v. Abdulrahiman [ 1987 (2) KLT 3 ], Arjun v. Eranu [2008 (4) KLT 279] and Pakran v. Kunhiraman Nambiar [ 2004 (1) KLT 824 ]. 7. In view of the rival arguments raised at the Bar, the question to be considered is, whether exclusive occupation of a part of the building and additional accommodation for exclusive personal use are required to claim an order of eviction for 'additional accommodation' contemplated under section 8 of the Act? 8. In the instant case, as rightly contended by the learned counsel for the revision petitioner/respondent, it is the case of the petitioner that he is in occupation of a part of the building and additional accommodation is required for expansion of the medical shop which is being conducted by the petitioner. But, it has come out in evidence that the shop room which forms part of the petition schedule item No.1 is occupied by a partnership firm of which the petitioner/landlord and his wife are partners and the medical shop is being conducted by them jointly under a partnership deed. Similarly the additional accommodation was sought for the expansion of the said partnership business in the petition schedule item No.3 shop room. 9. Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act reads as follows: "A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use." 10. We have meticulously gone through the decisions cited at the Bar. Going by the decision in Rajkumar v. Abdulrahiman [ 1987 (2) KLT 3 ], it could be seen that a single Bench of this Court has considered the question whether the need for additional accommodation, for business of a firm can be said to be a 'personal use' of the landlord under section 11(8) of the Act. The relevant finding of the learned single Judge is extracted as given below: "What S.11(8) contemplates is requirement of additional accommodation for his personal use. It is significant to note that the expression 'own' is absent in S.11(8). The relevant finding of the learned single Judge is extracted as given below: "What S.11(8) contemplates is requirement of additional accommodation for his personal use. It is significant to note that the expression 'own' is absent in S.11(8). Additional accommodation must be required for his personal use and not for his exclusive personal use. When a partnership is running a business, at least so far as the active partners are concerned (it is unnecessary to consider the case of dormant partners since there is no case that the landlord herein is only a dormant partner) they are personally using the premises. The landlord in this case as an active partner of the business is personally using the premises and when additional accommodation is required for the business of the partnership the req1uirement is for his personal use. It may be that it is for the personal use of other active partners also. But as long as the provision does not insist on the requirement for exclusive personal use, the court will not be justified in putting such a narrow construction to the provision. Even in the absence of specific reference to the members of the landlord's family this court in Subramonia Iyer v. S.H. Krishnaswamy (1981 (2) ILR Ker. 442) has interpreted the expression 'personal use' as including used by members of the landlord's family, who want to live with him. I am not able to agree that a partner who is actively running a partnership business in the premises is not putting the premises to personal use." 11. Further the aforesaid question was elaborately considered by the division Bench of this Court in Arjunan v. Eranu [ 1991 (2) KLT 279 ], which reads as follows: "6. We are of the view that the above pleas lack substance. Under S. 11(8) of the Act, the words "if he requires additional accommodation for his personal use" are not confined to the landlord alone, but will also include the use by the members of his family, who want to live with him. "Personal use" in the context does not necessarily mean use by the landlord alone, but also includes use by the members of his family who want to live with him. "Personal use" in the context does not necessarily mean use by the landlord alone, but also includes use by the members of his family who want to live with him. See - Bega Begum v. Abdul Ahad Khan ( AIR 1979 S.C. 272 , at p. 277 para 16); S. Sivasubramanya Iyer v. S.H. Krishnaswamy (AIR 1981 Kerala 57) and Sivasankaran v. Kacharlala Sowcar ( 1984 (1) M.L.J. 155 at pp. 160 & 161 para 12). So, the first point raised to the effect that the requirements of additional accommodation should be only for the landlord's personal use is without substance." Further, in George v. Abdul Rahimankutty [ 2008 (4) KLT 1016 ], another Division Bench of this Court considered the question whether the 'need' for additional accommodation of a landlord, who is a partner of the partnership firm, can be considered as additional accommodation 'for his personal use' as contemplated under Section 11(8) of the Act. In this decision, this Court, relying on the decision in Arjunan's case (supra), held that the expression "personal use" in Section 11(8) will not spell out "exclusive personal use" and the use of a partnership firm wherein the landlord is a partner would also fall under the expression "personal use". 12. We also agree with the above view. What requires primarily under section 11(8) of the Act, to claim additional accommodation is that the landlord should occupy a part of a building of which the tenanted premises also form a part. Here the law does not insist own or exclusive occupation of the landlord alone. The conspicuous absence of any expression, which would modify the landlord's occupation, is significant particularly when such expressions are seen employed before 'occupation' in certain other situations in the Act. So it could be reasonably presumed that the legislature has consciously excluded such expressions before 'occupation'. In other words, the nature of occupation is not specified there. So we are of the opinion that occupation need not be an exclusive personal occupation of the landlord alone and it can be an occupation along with other family members or co-owners or partners. Similarly, in the absence of the expression "own" before 'personal use' in section 8, additional accommodation can be required for his use along with other family members and exclusive personal use is not required for claiming an order of eviction under section 11(8) of the Act. 13. Similarly, in the absence of the expression "own" before 'personal use' in section 8, additional accommodation can be required for his use along with other family members and exclusive personal use is not required for claiming an order of eviction under section 11(8) of the Act. 13. On a combined reading of all the aforesaid decisions, we are of the opinion that neither the present "exclusive occupation" of the landlord alone of a part of the building nor the additional accommodation for the "exclusive personal use" of the landlord alone is required to grant an order of eviction for additional accommodation, under section 11(8) of the Act. Therefore, a partnership business wherein the landlord himself is a partner, along with other family members, would fall under the expression "occupying" and additional accommodation for the usage of such partnership firm would fall under the expression "personal use" contemplated under section 11(8) of the Act. In the above view, we reject the argument advanced by the learned counsel for the petitioner in this respect. 14. The next question to be considered is, whether there is any illegality or impropriety in the concurrent finding of the courts below that the claim for additional accommodation is a bona fide one. It is not disputed that the extent of area occupied by the petitioner is 220 sq.ft and the respondent is in occupation of 190 sq.ft. It is not disputed that earlier there were two rooms in the ground floor and the petitioner was occupying the middle room having a lesser area only and the eastern room was occupied by another tenant and he subsequently vacated that room. Thereafter the petitioner removed the wall separating the middle room and the eastern room and he occupied both the rooms jointly for conducting the medical shop. In view of the admitted fact, we prima facie find that the petitioner was in need of more space and otherwise he would have rented out the eastern room for a higher rent when he got vacant possession of the said room from the other tenant. 15. In order to prove the bona fides of the requirement of additional accommodation the petitioner himself was examined as PW1 and his wife was examined as PW8. 15. In order to prove the bona fides of the requirement of additional accommodation the petitioner himself was examined as PW1 and his wife was examined as PW8. The courts below concurrently observed that even though they were cross-examined at length, nothing has been brought out to discredit their evidence as to the need for more space to conduct their business. Further, the evidence of PW1 to PW8 is supported by PW3 and PW7. PW3 is an independent witness who used to purchase medicines from the medical shop which is functioning in petition schedule item No.3 shop room and PW7 is an employee of the medical shop. Thus, from Exts.C1 and C2 commission reports, which stand corroborated by the oral evidence of PWs 4 and 5, it can be safely inferred that there is lack of sufficient space in the petition schedule item No.3 shop room and the requirement for additional accommodation is a bona fide one. 16. That apart, it has come out in evidence that from Ext.P17 service record book maintained in the medical shop that initially six employees were working in the medical shop and now 12 employees are working there. More specifically, from Ext.P18 it can be seen that from June 2008 onwards the business was progressing day by day and in such a situation lack of sufficient space in the petition schedule item No.3 shop room is a reality and the claim for additional accommodation is a bona fide one. 17. The petitioner has no case that the courts below omitted to consider any relevant evidence or placed reliance on any irrelevant evidence. Therefore this court is not inclined to re-appreciate the entire evidence on record as a revision is not an appeal in disguise. Needless to say, the scope and extent of interference under section 20 of the Act is confined to legality and propriety of the concurrent findings only. 18. As regards the comparative hardship contemplated under section 11(10) of the Act, going by the impugned judgment passed by the Appellate Authority, it is seen that the findings of the Rent Control Court were not sufficiently challenged before the Appellate Authority by way of arguments. 18. As regards the comparative hardship contemplated under section 11(10) of the Act, going by the impugned judgment passed by the Appellate Authority, it is seen that the findings of the Rent Control Court were not sufficiently challenged before the Appellate Authority by way of arguments. But the Appellate Authority with abundant caution considered the evidence on record under section 11(10) of the Act and concurred with the finding of the Rent Control Court that the hardship that may be caused in case an order of eviction is passed would not outweigh the benefit to the landlord. We do not find any reason to interfere with the concurrent finding under section 11(10) of the Act also. In the absence of any illegality or impropriety in the concurrent findings, this Rent Control Revision fails and it is dismissed accordingly. 19. The learned counsel for the respondent/tenant prayed for granting some time to surrender the vacant possession of the tenanted premises. Having regard to the entire facts and circumstances of the case, the respondent/tenant is given six months' time from today to vacate the petition schedule shop room, on the following conditions. (1). The respondent/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule shop room within six months from today. (2). The respondent/tenant shall deposit entire arrears, if any, within one month from today, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent without default. (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the petitioner/ landlord will be at liberty to proceed with the execution of the eviction order. All pending interlocutory applications will stand closed.