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2018 DIGILAW 529 (KER)

M. SUBRAMANIAN v. A. M. AMMATHUL HAI

2018-07-05

ANNIE JOHN, K.HARILAL

body2018
ORDER : K. Harilal, J. The revision petitioner/tenant is the respondent and the respondent/landlord is the petitioner in RCP. No.160/2015 of the Rent Control Court, Kozhikode. (The parties are referred to as in the Rent Control Petition). The aforesaid rent control petition was filed under Section 11(4)(iii) and 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'), seeking an order of eviction and fixation of fair rent. It is averred in the rent control petition that the respondent was conducting the business of manufacturing aluminium vessels in the petition schedule shop room and now the respondent has acquired another building at West Hill and started business therein and the said building is sufficient for his requirements. Since the respondent has acquired another building, the petitioner is entitled to get an order of eviction, under Section 11(4)(iii) of the Act. The respondent resisted the said claim for eviction denying the acquisition of another building at West Hill. According to him, he is a partner of the firm by name 'M/s. Burma Metal Mart' functioning in the building situated at West Hill. He has not acquired possession of or constructed any building of his own at West Hill. The respondent is not having any other shop room in his possession. With the aforesaid contentions, the respondent prayed for dismissal of the rent control petition. 2. Both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the petitioner has successfully proved the acquisition of another building by the respondent at West Hill and thereby the petitioner is entitled to get an order of eviction, under Section 11(4)(iii) of the Act. Feeling aggrieved, though the respondent preferred RCA No.36/2017 before the Rent Control Appellate Authority, Kozhikode, the Appellate Authority also concurred with the aforesaid finding of the Rent Control Court and dismissed the Appeal. The legality and propriety of the aforesaid findings are assailed in this revision petition. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 4. The sum and substances of the argument advanced by the learned counsel for the revision petitioner/tenant is that it has come out in evidence by Ext.B1 that the petitioner is one among the three partners of the firm having a building at West Hill and the said building was allotted by District Industries Centre. 4. The sum and substances of the argument advanced by the learned counsel for the revision petitioner/tenant is that it has come out in evidence by Ext.B1 that the petitioner is one among the three partners of the firm having a building at West Hill and the said building was allotted by District Industries Centre. An extent of land measuring 13.71 cents at West Hill was allotted to the partners of the said partnership firm for running a unit engaged in the manufacturing and marketing of aluminium vessels. According to the learned counsel for the revision petitioner, for the sole reason that the petitioner is a partner of the said partnership firm, and that partnership is conducting business in the building shown in Ext.B1, the courts below erroneously held that the revision petitioner/tenant has subsequently acquired possession of another building and thereby he is liable to be evicted, under Section 11(4)(iii) of the Act. 5. Per contra, the learned counsel for the respondent/petitioner submits that it has not come out in evidence that the shop room Nos.1/455A and 1/455B are occupied by the alleged partnership firm. The identity of the building in which the partnership business is being conducted at West Hill is not disclosed in Ext.B1. Since the respondent is also a partner of the firm, even if that firm has acquired possession of the building at West Hill, such acquisition would fall under section 11(4)(iii) of the Act, the learned counsel contends. Therefore, according to the learned counsel for the respondent/petitioner, the courts below are justified in finding that the respondent has failed to prove that respondent is a partner of a partnership firm and that partnership firm is conducting the business shown in Ext.B1. 6. In view of the arguments, the question that emerges for consideration is whether subsequent acquisition of possession or construction of another building in the same city, town or village, by a partnership firm in which the tenant, who is in occupation of a building on rent is also a partner would fall within the ambit of Section 11(4)(iii) of the Act. Section 11(4)(iii) of the Act reads as follows : Section 11(4) A Landlord may apply to the Rent Control Court for an order directing the tenant to put up the landlord in possession of the building (i) xxxxxxxxxx (ii) xxxxxxxxxxx (iii) If the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village. 7. Significantly, the expression, 'tenant' alone is employed in the beginning of the said provision. It follows that subsequent acquisition of possession or construction of another building contemplated under Section 11(4)(iii) must be by the tenant himself, to attract the said provision. We are of the opinion that subsequent acquisition by a partnership firm would amount to a joint acquisition by all the partners of the firm and each partner would get the status of a co-owner. So, unless all the partners agree, one partner, who is a tenant of another building, cannot use the building acquired by the firm, for his need only. Needless to say, it is a matter beyond his control. Therefore, we find that if the tenant, who is in occupation of a building on rent under a lease, is a partner of the partnership firm and that partnership firm subsequently acquires possession or puts up building in the same city, town or village, the said tenant is not liable to be evicted under Section 11(4)(iii) of the Act. 8. Then the point to be considered is, whether the respondent has succeeded in proving tat the building at West Hill, pointed out by the petitioner, is a building acquired by the partnership firm in which he is a partner only and that partnership firm is conducting business in that building. It is true that the respondent has produced Ext.B1 to prove the said fact. 9. Going by Ext.B1, it is seen that the number or particulars of the building in which the partnership business is being carried on is not shown in it. In other words, the identity of the shop room in which the said partnership business is being conducted is not proved in evidence. Admittedly, acquisition of possession under Ext.B1 is an acquisition after the commencement of tenancy. In other words, the identity of the shop room in which the said partnership business is being conducted is not proved in evidence. Admittedly, acquisition of possession under Ext.B1 is an acquisition after the commencement of tenancy. It follows that subsequent acquisition of possession or construction of another building must be by the revision petitioner/tenant himself to attract Section 11(4)(iii) of the Act. We have already held that subsequent acquisition of possession or construction of another building by a partnership firm cannot be treated as an acquisition by the tenant himself falling under Section 11(4)(iii) of the Act. Therefore, in the instant case, unless the identity and actual possessor/owner of the building have come out in evidence, it cannot be held that the building at West Hill as shown in Ext.B1 is one constructed or possessed by the partnership firm in which the respondent is also partner and that partnership firm is conducting business in the building mentioned in Ext.B1. If the said building shown in Ext.B1 is put up or possessed by the partnership firm, certainly he is not liable to be evicted under section 11(4)(iii) of the Act, notwithstanding the fact that he is also a partner. On the other hand, if the building is put up or possessed by the revision/tenant himself as his own, he is liable to be evicted under Section 11(4)(iii) of the Act. 10. However, having regard to the facts and circumstances of the case and in the interest of justice, the respondent is given an opportunity to prove the said disputed fact by remitting the case back to the Rent Control Court. Consequently, the impugned judgment, under challenge, will stand set aside and the rent control petition is remitted back to the Rent Control Court for fresh consideration and disposal, after affording an opportunity to adduce further evidence by both parties. The Rent Control Court shall dispose of the case within a period of three months from the date of receipt of a copy this judgment. The parties shall appear before the Rent Control Court on 17th September, 2018.