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2022 DIGILAW 849 (KER)

Irvin John Jayarajan S/o. Karunakaran v. Madhavi Alias Narayani Amma, W/o. Late Anandan Nair

2022-10-07

C.S.SUDHA, P.B.SURESH KUMAR

body2022
ORDER : P.B.Suresh Kumar, J. The tenant in a proceedings for eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), is the petitioner in this revision petition instituted under Section 20 of the Act. The respondents are the landlords in the proceedings. 2. The subject matter of the proceedings is a residential premises belonging to the landlords which was let out to the tenant. The eviction of the tenant was sought under the provisions aforesaid alleging that the rent of the premises is in arrears from February 1993 and that the premises is required for the residence of the fifth petitioner, Hariram and his family who is residing in the family house of the landlords with others. The tenant objected the claim of the landlords for eviction under Section 11 (3) of the Act on the ground that Hariram and his family own a separate building for their residence and the claim is therefore not bona fide. The Rent Control Court accepted the claim of the landlords holding that the rent of the premises is in arrears since February 1993 and that Hariram and his family need bona fide the premises for their residence. Consequently, the petition for eviction was allowed both under Sections 11(2)(b) as also 11(3) of the Act. In the matter of accepting the claim under Section 11 (3) of the Act, the Rent Control Court found that the tenant has not established that Hariram and his family own any other building which could be used for their residence. In appeal, the Appellate Authority affirmed the decision of the Rent Control Court. 3. The decision of the Appellate Authority was however challenged by the tenant before this Court in R.C.R. No.538 of 2005 mainly on grounds that there is no arrears of rent inasmuch as he has already deposited the arrears and that I.A.No.1761 of 1998 filed by him before the Appellate Authority to accept in evidence the certified copy of the property tax assessment register in respect of a building owned by Hariram has been improperly rejected by the Appellate Authority. 4. This Court did not go into the question as to whether the finding of the Rent Control Court that there is arrears of rent is correct. 4. This Court did not go into the question as to whether the finding of the Rent Control Court that there is arrears of rent is correct. Instead, this Court took the view that the order of eviction under Section 11(2)(b) being a tentative one, the same can be confirmed by granting to the tenant a month's time for depositing the arrears, if any, and an opportunity to prefer an application under Section 11(2)(c) to vacate the order of eviction under Section 11(2)(b), and disposed of the claim under Section 11(2)(b) accordingly. As far as the claim under Section 11(3) is concerned, this Court took the view that in the light of the provisions contained in Sections 18(3) and 23 of the Act, the Appellate Authority ought to have accepted the additional evidence produced by the tenant. Even though it was contended by the landlords that since the eviction proceedings instituted in the year 1993 was dragged indefinitely by the tenant, Hariram who was in dire need of a building for his own occupation had no option but to put up another building for his residence near his family house and that the said subsequent event does not in any manner affect the right of the landlords to seek eviction of the tenant from the premises under Section 11(3) and further that Hariram would certainly occupy the tenanted premises upon getting eviction, this Court took the view that insofar as I.A.No.1761 of 1998 was dismissed, the matter needs to be reconsidered by the Appellate Authority. Consequently, the matter was remitted for fresh consideration to the Appellate Authority. In terms of the order passed in this regard, this Court directed the Appellate Authority to receive in evidence the certified copy of the property tax assessment register relating to the building bearing door No.9/395A produced by the tenant along with I.A.No.1761 of 1998. This Court also, in terms of the said order, permitted the landlords to file an affidavit explaining the circumstances under which Hariram put up the new building and undertaking to occupy the premises upon getting eviction of the tenant. 5. Pursuant to the order in R.C.R. No.538 of 2005, the Appellate Authority allowed I.A.No.1761 of 1998 and admitted the certified copy of the property tax assessment register relating to the building bearing door No.9/395A, in evidence in the petition for eviction as Ext.B1 on the side of the tenant. 5. Pursuant to the order in R.C.R. No.538 of 2005, the Appellate Authority allowed I.A.No.1761 of 1998 and admitted the certified copy of the property tax assessment register relating to the building bearing door No.9/395A, in evidence in the petition for eviction as Ext.B1 on the side of the tenant. As directed by this Court in R.C.R. No.538 of 2005, Hariram filed an affidavit before the Appellate Authority stating inter alia that since the proceedings for eviction was being dragged by the tenant for one or the other reasons indefinitely, he had to put up a small house near his family house as he was in dire need of a separate accommodation on account of the difficulties faced in the family house where he was residing with his family. He also undertook in the said affidavit that he will shift his residence with his family to the tenanted premises upon eviction of the tenant. The Appellate Authority admitted the said affidavit as well in evidence in the petition for eviction on the side of the landlords as Ext.A6. 6. The Appellate Authority thereupon proceeded to consider the questions, viz, whether the need set up by the landlords for eviction is bona fide and whether the claim of the landlords for eviction on the ground of their bona fide need is hit by the first proviso to Section 11(3) of the Act. On an appraisal of the materials on record, the Appellate Authority found that the need put forward by the landlords is bona fide. The Appellate Authority also found that construction of the new building by Hariram being an event subsequent to the institution of the proceedings, it cannot be said that the application for eviction is hit by the first proviso to Section 11(3) of the Act. Consequently, the Appellate Authority affirmed the order of eviction passed under Section 11(3) of the Act again and dismissed the appeal. The tenant is aggrieved by the concurrent orders of eviction. 7. Heard the learned counsel for the revision petitioner/tenant as also the learned counsel for the respondents/landlords. 8. The learned counsel for the tenant contended that in the light of the admission made by Hariram in Ext.A6 affidavit, the Appellate Authority ought to have held that the petition for eviction is hit by the first proviso to Section 11(3) of the Act. 8. The learned counsel for the tenant contended that in the light of the admission made by Hariram in Ext.A6 affidavit, the Appellate Authority ought to have held that the petition for eviction is hit by the first proviso to Section 11(3) of the Act. It was asserted by the learned counsel that the building bearing door No.9/395A is a building that was in existence even at the time when the petition for eviction was instituted and the finding rendered by the Appellate Authority that the same is a building constructed by Hariram only after the institution of the petition for eviction is incorrect. It was conceded by the learned counsel that there is nothing on record to indicate that the said building was in existence of the time when the petition for eviction was instituted. It was, however, contended by the learned counsel that before admitting the affidavit filed by Hariram in evidence, the Appellate Authority ought to have permitted the tenant to cross-examine Hariram and had he been given an opportunity to cross-examine Hariram, he would have certainly established that the building is one that was in existence even at the time of institution of the petition for eviction. 9. Per contra, the learned counsel for the landlords reiterated their stand that the building bearing door No.9/395A being one constructed after the institution of the petition for eviction, the same will not, in any manner, affect the right of the landlords to seek eviction of the tenant under Section 11(3). 10. We have examined the contentions raised by the learned counsel for the parties on either side and perused the records of the proceedings which have been called for. 11. At the outset, it has to be noted that even though it was contended by the tenant that Hariram, for whose need the eviction of the premises was sought for by the landlords, owns another building of his own in his possession in the same town and that the petition for eviction is therefore hit by the first proviso to Section 11(3) of the Act, neither the Rent Control Court nor the Appellate Authority which considered the appeal preferred against the order of eviction at the first instance, has accepted the same. As noted, it is at the appellate stage that the tenant has attempted to produce the certified copy of the Building Tax Assessment Register relating to the building bearing door No.9/395A, in order to establish his case that the application is hit by the first proviso to Section 11(3) of the Act. It is seen that it is having regard to the prejudice that would be caused to the landlords, if such a document is accepted in evidence at the appellate stage, that the Appellate Authority chose to reject the application preferred by the tenant in this regard. It was since the application preferred by the tenant to accept the document aforesaid in evidence was rejected by the Appellate Authority that this Court in R.C.R. No.538 of 2005 interfered with the decision of the Appellate Authority and remitted the appeal for fresh disposal, after accepting the said document in evidence. There cannot be any doubt to the fact that it is with a view to avoid any prejudice to the landlords on account of the admission of the additional evidence at the appellate stage that this Court permitted the landlords to file an affidavit explaining the circumstances under which Hariram has put up the new building and also to make an undertaking to occupy the tenanted premises upon getting eviction as contended before this Court. The operative portion of the order in R.C.R. No.538 of 2005 reads thus: “The result therefore is that the judgment of the rent control court and the appellate authority as well as the order in IA 1761/1998 are set aside. The appeal RCA 92/1998 is remanded to the Rent Control Appellate Authority. The Rent Control Appellate Authority is directed to receive as evidence certified copy of the property tax assessment register relating to the building having door No.9/395A. If the landlord files an affidavit explaining the circumstances under which he put up the new building and undertaking to occupy the petition schedule building upon getting eviction for a reasonably long period of time, that affidavit also shall be received as evidence in the appeal. The appellate authority will take a fresh decision after hearing both sides taking into account the property tax assessment register as well as the affidavit to be filed by the appellant. The appellate authority will take a fresh decision after hearing both sides taking into account the property tax assessment register as well as the affidavit to be filed by the appellant. Needless to mention that the principles of law as emerging from the judgment of the Supreme Court in Gaya Prasad v. Pradeep Srivastava ( AIR 2001 SC 803 ) will be kept in mind by the learned appellate authority. The parties will appear before the rent control appellate authority on 22.7.2009. Being a very old matter, the appellate authority will give top priority to the RCA and take fresh decision at the earliest and, at any rate, within one month of the parties entering appearance.” It is seen that insofar as the tenant has been once given a full fledged opportunity to adduce evidence in the proceedings, this Court chose not to give any further opportunity to the tenant to adduce evidence or to cross-examine Hariram on the affidavit permitted to be filed by him. As the order in R.C.R. No.538 of 2005 has become final, we do not think that the tenant can be heard to contend that he should have been given an opportunity by the Appellate Authority to cross-examine Hariram on the affidavit filed by him. The contention raised by the learned counsel for the tenant that the Appellate Authority ought to have permitted the tenant to cross-examine Hariram on the affidavit filed by him, in the circumstances, is only to be rejected and we do so. Needless to say, building bearing door No.9/395A put up by Hariram can be considered only as a building put up after the institution of the petition for eviction. 12. The question remaining to be considered is whether the construction of building bearing door No.9/395A by Hariram for whose need the tenanted premises was sought to be evicted would, in any manner, affect the right of the landlords to seek eviction of the tenant under Section 11(3) of the Act. The contention raised by the tenant in this regard is based on the first proviso to Section 11(3) of the Act. The contention raised by the tenant in this regard is based on the first proviso to Section 11(3) of the Act. The said proviso reads thus: “Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reason, in any particular case it will be just and proper to do so:” The proviso aforesaid does not impose an absolute interdiction on the right of the landlord in seeking eviction of his tenant, and a landlord who holds another building of his own in his possession in the same locality would still be entitled to seek eviction of the tenant, if the Rent Control Court is satisfied that it is only just and proper to order eviction for special reasons. In other words, the scheme of the Act is that even if a landlord owns a building in the same locality, he is still entitled to an order of eviction, provided there exists special reasons for seeking eviction. Reverting to the facts, the relevant portion of Ext.A6 affidavit reads thus: “The R.C.P was filed in the year 1993. After service of the notice to the respondent he entered appearance and filed a counter contenting that the petition schedule building is a hut and so he is having kudikidappa right over the same. The petition schedule building is a big one and under no stretch of imagination it will be come with in the definition of hut. Knowing fully well of this an unsustainable contention was taken by the respondent just to drag the matter for years. Since such a contention was taken court was bound to refer the matter to the Land Tribunal for a finding on Kudikidappa and accordingly it was referred to Land Tribunal Kuthuparamba. By raising such a contention the intention of the respondent was only to drag the matter indefinitely and he was successful also in dragging the matter. I was told by my advocate also that to end the litigation it will take years since such contentions are taken by the tenant. By the time the situation in the family house became very worse and I and my family were not in a position to continue the residence in the family house. I was told by my advocate also that to end the litigation it will take years since such contentions are taken by the tenant. By the time the situation in the family house became very worse and I and my family were not in a position to continue the residence in the family house. So I was constrained to construct a new house near the family house. I was compelled to construct a new house since the situation in the house was very worst and it was seriously affecting the character and education of my children and I was told that to get vacant possession of the petition schedule building it will take many more years. Since we were not in a position to continue the residence in the family house with any peace of mind I constructed a small house and shifted my residence to that house. Even though we shifted the residence our peril is still continuing. The new house constructed by me is very near to the family house just few yards away. Even now my wife and children are abused by the inmates in the family house. Almost all days they will be creating some problems. So we have even started thinking of shifting our residence to a rented house far away from the family house. If I get the petition schedule building I will be able to shift the residence to this building. Petition schedule building is far away from the family house and so we will be able to lead a happy life without any disturbance from my relatives. I undertake that I will shift my residence with family to the petition schedule building if the tenant is evicted from the building. Petition schedule building is far away from the family house and so we will be able to lead a happy life without any disturbance from my relatives. I undertake that I will shift my residence with family to the petition schedule building if the tenant is evicted from the building. I also feel that I will be able to lead a happy life in the petition schedule building free from the troubles now I and my family are facing now.” As evident from the extracted affidavit, the stand taken by Hariram in the affidavit is that since he was not in a position to continue his residence in the family house and as he was advised that he may not be able to evict the tenant within a reasonable time having regard to the nature of the contentions raised by the tenant in the proceedings, he had no option but to construct a small house near the family house for his residence along with his family and that he intends to occupy the tenanted premises upon eviction of the tenant. There is nothing on record to indicate that the statement made by Hariram in the affidavit that the premises presently occupied by him is a small one when compared to the tenanted premises, is incorrect. There is no impediment for a landlord who is residing in a smaller premises owned by him in seeking eviction of the tenant in a larger premises owned by him, if he intends to reside in the larger premises upon eviction of the tenant. In other words, even if the building presently occupied by Hariram was in existence at the time of institution of the petition for eviction, there would not have been any impediment in law for the landlords in seeking eviction, as the convenience of the landlords would certainly be a special reason falling within the scope of the first proviso to Section 11(3) of the Act. We are, therefore, in complete agreement with the view taken by the Appellate Authority. The revision petition, in the circumstances, is without merits and the same is accordingly, dismissed. 13. Before parting with this order, it is necessary to mention a few disturbing facts concerning the management of the proceedings under the Act in the State. We are, therefore, in complete agreement with the view taken by the Appellate Authority. The revision petition, in the circumstances, is without merits and the same is accordingly, dismissed. 13. Before parting with this order, it is necessary to mention a few disturbing facts concerning the management of the proceedings under the Act in the State. As is well known, the Act is one introduced in the year 1965 taking a cue from similar enactments introduced in other States, following the “Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915”. The said statute was introduced in the United Kingdom to address scarcity of accommodations caused by the First World War, with a view to prevent landlords from profiteering and exploiting tenants when housing demands exceeded supply. The object of the Act, however, was not only for preventing landlords from exploiting tenants, but also for encouraging a fair return on investments made in buildings. Although the object of such enactments was as aforesaid, having regard to the provisions contained therein, they have been mostly tenant friendly. Even though there has been a considerable change in course of time in the circumstances that prevailed at the time of introduction of the Act as regards the supply and demand of accommodation, a study of the nature of litigations in the field would show that the Act is one among the statutes which has been grossly abused by the tenants to cling on to the premises indefinitely for years by depriving the landlords of their premises even for their genuine use. The root cause for the abuse appears to us to be the inordinate delay in disposing of the proceedings initiated under the Act. To explain the seriousness of the issue, it is not necessary to refer to any other case, as one in hand is suffice for the purpose. 14. As noticed, the petition for eviction from which this revision petition arose, was one instituted in the year 1993, and the same is yet to be finally over. The tenant who is occupying a residential premises was sought to be evicted 30 years ago on the ground that he is not paying rent and that one among the landlords needs the premises for his residence. The tenant who is occupying a residential premises was sought to be evicted 30 years ago on the ground that he is not paying rent and that one among the landlords needs the premises for his residence. The materials reveal that without any basis, the tenant has raised a contention, among others, that he is a kudikidappukaran, with a view to have the matter referred to the Land Tribunal and although the Land Tribunal negatived the said claim, by adopting the said course of action, the tenant could successfully drag the proceedings for several years. As noticed, it is thereafter that the Rent Control Court ordered eviction. The tenant who availed a full fledged opportunity to adduce evidence in the matter did not adduce any evidence in support of his contention that Hariram, one of the landlords, for whose need the premises was sought to be evicted, owns another building. Instead, he has attempted to adduce evidence to prove the said case in appeal. When the Appellate Authority turned down the said attempt, he challenged the decision of the Appellate Authority in revision before this Court and obtained an order of remand. Since the tenant could not succeed even after the order of remand, he took up the matter yet again before this Court in revision and obtained an order staying the order of eviction. The revision petition has come up in the regular course for hearing only now, in the year 2022. As seen from the preceding paragraphs where the facts of the case are discussed, a revision petition which does not even deserve a second look, has been languishing in this court for almost 12 years. The fifth petitioner who was in his late thirties when the eviction petition was instituted for his need, is now in his late sixties. Even now, he is yet to get the residential building which he required for his use. In short, no one can dispute the fact that the provisions of the Act would work out to be a mockery in cases of this nature. 15. In this context, it is relevant to note that Section 24 of the Act provides categorically that the Rent Control Court shall, as far as may be practicable, pass final orders in any proceedings before it, within four months from the date of appearance of the parties. 15. In this context, it is relevant to note that Section 24 of the Act provides categorically that the Rent Control Court shall, as far as may be practicable, pass final orders in any proceedings before it, within four months from the date of appearance of the parties. Of course, there is no prescription in the Act as to the time limit within which the appeals and revisions are to be disposed of. But, having regard to the scheme of the Act, there cannot be any doubt to the fact that the timelines prescribed in Section 24 must apply equally to appeals and revisions as well. True, the courts in this country of overcrowded dockets cannot normally be blamed for the delay in litigations. At the same time, the courts have a duty to ensure that there is no judicial contribution to the delay. 16. The data of the proceedings pending before the courts which have been called for by us from the Registry indicates that there are altogether 97 notified Rent Control Courts in the State, of which, 3 are exclusive Rent Control Courts, and the total pendency of the rent control petitions is 5106. The pendency of the rent control petitions is nil in 2 courts, less than 25 in 33 courts, between 25 and 50 in 16 courts, between 50 and 100 in 16 Courts, between 100 and 150 in 4 courts and above 150 in 9 courts, of which 3 are exclusive Rent Control Courts. Rent control petitions have not been assigned to 17 notified courts. The data reveals that the average disposal per month of rent control petitions in exclusive courts is 10 and in other courts, it is only less than 2. The data also reveals that the average disposal per month in some of the notified courts where other work is also available, is more than the monthly average of the exclusive courts. In addition, 1100 petitions are pending in various courts for execution of the orders of eviction already issued and the pendency per court on an average is only around 12. As regards appeals, the data reveals that 67 courts in the State are exercising the powers of the Appellate Authority and the total pendency of appeals is 1488. In addition, 1100 petitions are pending in various courts for execution of the orders of eviction already issued and the pendency per court on an average is only around 12. As regards appeals, the data reveals that 67 courts in the State are exercising the powers of the Appellate Authority and the total pendency of appeals is 1488. Among the said courts, the pendency of appeals is nil in 4 courts, less than 10 in 33 courts, between 10 and 30 in 23 courts, between 30 and 50 in 2 courts and above 100 in 5 courts. The average disposal of the appeals per month is less than 1. It is thus evident that lack of initiative on the part of the courts in following the timeline prescribed under Section 24, is one of the main causes for the inordinate delay. Even though the Union Government has approved and recently circulated a Model Tenancy Act to all States to bring in legislations, with a view to improve the business of rental housing in India, the said directive is yet to be implemented in our State. Even if the same is implemented, the courts have to tackle the pending disputes. In the aforesaid circumstances, having regard to the provision contained in Section 24 of the Act, the following general directions are issued : 1. The notified Rent Control Courts in the State shall dispose of all eviction petitions pending as on today in which there is appearance and the trial of which is not stayed, within three months where the pendency is less than 25, within six months where the pendency is between 25 and 50 and within nine months where pendency is between 50 and 100. The said courts shall, within the said outer limits bring down the pendency of eviction petitions to such a level in order to comply with the requirements of Section 24 in future. 2. The Principal District Judges in the State shall transfer appropriate number of eviction petitions from courts where the pendency is more than 100 to other notified Rent Control Courts in the same centre wherever possible or in nearby centres, so as to enable the notified courts to dispose of the pending eviction petitions within an outer time limit of nine months. While doing so, it shall be ensured that the inconvenience caused thereby to the parties and lawyers is minimal. 3. While doing so, it shall be ensured that the inconvenience caused thereby to the parties and lawyers is minimal. 3. The courts empowered to execute orders of eviction shall make all endeavours to ensure that the Execution Petitions which are ripe, and the further proceedings of which are not stayed, are disposed of within three months from today. The courts concerned would be free to advance the postings of Execution Petitions, if necessary, for compliance of the said direction, with notice to the lawyers. 4. The Appellate Authorities exercising powers under Section 18 shall dispose of all pending appeals in which there is appearance and the further proceedings of which are not stayed, within one month, where the pendency is less than 10, within three months, where pendency is between 10 and 30 and within six months, where pendency is between 30 and 50. The said courts shall also, within the said outer timelines, bring down its pendency in relation to appeals to such a level so as to comply with the requirements of Section 24. 5. The Principal District Judges in the State shall transfer the rent control appeals in courts where the pendency is more than 100 to other courts in the same centre wherever possible or in the nearby centres, so as to enable the former to dispose of the pending appeals within an outer timeline of six months. As in the case of eviction petitions, while doing so, it shall be ensured that the inconvenience caused thereby to the parties and lawyers is minimal. 6. The Principal District Judges in the State shall monitor compliance of directions 1 to 5 herein above on a monthly basis, and the lack of initiative, if any, on the part of the officers shall be reported to this Court, until the pendency is brought down within the timeline prescribed under Section 24. 7. The Registry shall communicate copy of this order to all the Rent Control Courts, Appellate Authorities as also to all Principal District Judges forthwith, for compliance. 8. The Registry shall, with the concurrence of the learned Judges dealing with revision petitions under Section 20 of the Act, make appropriate changes in the listing procedure so as to enable this Court to comply with the requirements under Section 24. The Registry shall also place a copy of this judgment before the Honourable the Chief Justice for information. 9. The Registry shall, with the concurrence of the learned Judges dealing with revision petitions under Section 20 of the Act, make appropriate changes in the listing procedure so as to enable this Court to comply with the requirements under Section 24. The Registry shall also place a copy of this judgment before the Honourable the Chief Justice for information. 9. The Registry shall place before this court, a report after three months and in every three months thereafter, indicating the pendency particulars of the original petitions and appeals under the Act. This revision petition should be treated as pending for the said limited purpose.