Kerala High Court · 2009

PIUS C. KURIAKOSE & M.C.HARI RANI, JJ.-----------------------------------------------R.C.R. No. 234 OF 2006-----------------------------------------------Dated this the 22nd day of January, 2009O R D E RPius C.Kuriakose, J.The tenant, who has suffered order of evictionconcurrently on the ground mentioned under Sections 11(3) ofthe Kerala Buildings (Lease & Rent Control) Act, 1965 (Act 2 of1965) (hereinafter referred to as 'the Act' )at the hands of theRent Control Court and the Appellate Authority, has filed thisrevision petition under Section 20 of the Act. Though thelandlady invoked the ground under Section 11 (4)(iii) also, thesaid ground does not survive any longer since rent controlappeal or revision petition were filed by the landlady against theorder declining eviction under that ground. The landlord's case inthe context of the ground under Section 11(3) was that sherequires the petition schedule building bona fide for occupationby her dependent son Sukumaran, so that Sri.Sukumaran canconduct a stationary business therein. It was also averred bythe landlady that neither she nor Sukumaran possess anybuilding of their own as to disentitle them to order of eviction RCR. N0. 234/06-2-under Section 11(3) of the Act. The case was resisted by therevision petitioner/tenant. The bona fides of the need and theclaim were disputed. The revision petitioner also claimedprotection of the second proviso to Section 11(3) of the Act. TheRent Control Court on an evaluation of the evidence, whichconsisted of the documents Exts.A1 to A8 and oral evidence ofPW1/the de facto claimant, son of the landlady and the counterevidence which consisted of Exts.B1 to B20 and oral testimoniesof Rws.1 to 4, apart from Exts.C1 to C3 commissioner's reportsand plans would hold that the need of the landlady is bona fideand that the tenant has not been successful in establishing thathe satisfies either of the ingredients of the second proviso toSection 11(3) of the Act. Accordingly, order of eviction waspassed under Section 11(3) of the Act. The Rent ControlAppellate Authority would re-appraise the evidence and concurwith all the conclusions of the Rent Control Court and dismiss theappeal.We have heard the submissions of Mr.B.Krishnan, learnedcounsel for the revision petitioner and Mr.T.Krishnanunni, learned RCR. N0. 234/06-3-senior counsel for the respondent/landlady. Mr.Krishnan drewour attention to the 5th paragraph of the rent control petitionwherein it is averred by the landlady that her son Sukumaran,the de facto claimant, was in possession of another shop roombelonging to one Muhammed Haji and that in view of an order ofeviction passed against him under Section 11(3) of the Act infavour of Sri. Haji, Sukumaran surrendered possession of thatroom to Sri.Haji and hence Sri.Sukumaran is without anybuilding other than the petition schedule building for conduct ofbusiness. It is further averred that the landlady thus becamecompelled to file the rent control petition for eviction of thepetition schedule building. Mr.Krishnan argued that the aboveaverment in paragraph 5 of the rent control petition is a false anddishonest one. He would draw our attention to Ext.B11statement filed by Sri Muhammed Haji, Sukumaran's landlord inO.S.No.6/2004. He also referred to the finding of the RentControl Court in paragraph 35 of its judgment wherein it is foundthat actual surrender of Muhammed Haji's room by Sukumaranwas only on 5-7-2004. Mr.Krishnan submitted that the said RCR. N0. 234/06-4-finding has not been challenged by anybody and therefore , it isclear that the statement in paragraph 5 of the Rent ControlPetition, which was filed on 15-7-2004 is a false one. Accordingto Mr.Krishnan, the authorities under the Rent Control Act aregoverned by the principles of equity, justice and good conscienceand, therefore, the landlady, who came to the Rent Control Courtstating an absolutely false case, is not entitled for relief. In thiscontext, Mr.Krishnan also referred to the cross examination ofPW1. Mr.Krishnan would further submit that on the terms of thelease deed, Ext.B1, there is a clear contract between the partiesthat the tenant will be evicted only on the ground of arrears ofrent or on ground of sub-letting. Such a contract is permissiblein law since non-obstante clause in Section 11(1) can operateonly against the landlady and there is nothing illegal in thelandlady and the tenant agreeing that a tenant will be evictedonly under one or more of the statutory grounds for eviction.The agreement, counsel submitted, at any rate is not opposed topublic policy or opposed to the provisions of the statute or any RCR. N0. 234/06-5-other statute. In this context, Mr.Krishnan drew our attention toExt.B2 assignment deed executed by the same landlady in favourof the revision petitioner. He would submit that upon the landcovered by the B2 deed, a smoke room was constructed by thetenant after demolishing a shed which existed on that land. Theintention of the parties in confining the ground for eviction tosub-letting and arrears of rent was because the very purpose forselling and purchasing the property covered by Ext.B2 was toenable the revision petitioner to carry on his business smoothlyand uninterruptedly, subject to liability, to be evicted on thegrounds specified in the lease agreement only. Mr.Krishnan, then would submit that at any rate thefindings of the authorities below, on the tenant's eligibility for theprotection of the second proviso to Section 11(3) are erroneous.He pointed out that it was conceded by the landlady in herevidence that the means of livelihood for the revisionpetitioner/tenant is the business which he carries in the petitionschedule building. He argued that the finding that the tenantdoes not satisfy the first ingredient of the second proviso to RCR. N0. 234/06-6-Section 11(3) of the Act has been entered with reference to theavailability of 50 cents of land with the tenant. The income from50 cents of land cannot at any rate be substantial, submittedMr.Krishnan. As regards the second ingredient of the proviso,Mr.Krishnan submitted that the evidence adduced by witnesses,RWs 2 to 4 was convincing. They are independent witnesseswho have given convincing oral evidence regarding the non-availability of the buildings in the locality. He also submitted thatit is the availability of a suitable building that is necessary in thecontext of the second proviso to Section 11(3) of the Act. In thenature of the business conducted by the revision petitioner, herequires a smoke room also so that he merchandise very bananaand plantain can be ripened. Absolutely, no evidence was thereto hold that such a building is available in the locality. All the above submissions of Mr.Krishnan were opposed byMr.T.Krishnanunni, learned senior counsel for therespondent/landlady. We have considered the submissions, the pleadings andalso the evidence to the extent our attention was drawn to the RCR. N0. 234/06-7-same by learned counsel for the revision petitioner. We areunable to accept the arguments of Mr.B.Krishnan that thelandlord is guilty of having approached the Rent Control Courtwith a false case regarding the surrender of the buildingbelonging to Muhammed Haji in which Mr.Sukumaran, the defacto claimant was conducting business previously. The findingof the Rent Control Court in paragraph 35 of its judgment isobviously based on Ext.B11 statement. We have carefully gonethrough Exts.B11. Ext.B11 is not a statement filed bySri.Muhammed Haji in the rent control proceedings which he hadinitiated against Sri.Sukumaran nor is a statement filed in theproceedings for execution of the eviction which was passed infavour of Muhammed Haji. Instead Ext.B11 is filed in a suit,which Sri.Muhammed Haji filed against Sukumaran, apparentlyfor an injunction restraining Sukumaran from putting up certainadditional constructions to the building which was subject matterof the rent control petition. But it is stated in Ext.B11 that allthe disputes between the parties have been amicably settled bymediation out of court and that the building which is subject RCR. N0. 234/06-8-matter of the suit has already been surrendered to MuhammedHaji. According to us, the statement speaks about events whichhad taken place already. There is no doubt in our mind thatactual surrender of the building which was subject matter ofO.S.No.6/2004 was prior to 5-7-2004. The evidence of PW1 incross examination will also indicate that the surrender of thebuilding was made by him much before O.S.No.6/2004 was listedfor trial. We, therefore, are unable to accept the argument ofMr.Krishnan that rent control petition was liable to fail onaccount of the landlady having approached the court with a falseversion regarding surrender of Muhammed Haji's building by thede facto claimant. According to us, the finding of the RentControl Court regarding the date of surrender of MuhammedHaji's building has resulted from an erroneous reading ofExt.B11. We will now deal with Mr.Krishnan's argument that therewas a contract between the parties that the tenant will not beevicted other than on the grounds under Section 11(2)(b) and11(4)(iii) of the Act. RCR. N0. 234/06-9-XxxxxxxThe result is that the R.C.R.fails. However, as a lastsubmission, the learned counsel for the revision petitioner soughtfor six month's time to vacate the building. Having regard to thecircumstances attended in the case, we are inclined to grant sixmonth's time on the following conditions:usual conditionThe argument of Mr. Krishnan was that Ext.B1 incorporates anagreement between the landlord and the tenant that the tenant willnot be evicted other than on the grounds under section 11(4)(1) and11(2)(b) and that it was in view of that agreement that Ext.B2 saledeed was executed by the landlady in favour of the tenant so as toenable the tenant to continue business in banana and plantain byutilising the property covered by Ext.B2 and the petitioner schedulebuilding as one integral unit. Mr.Krishnan relied on the commissioner'sreport to argue that as of now a pucca building has been constructedupon the property covered by Ext.B2 and that the same is now used asa smoke room for the artificial ripening of banana and plantain and RCR. N0. 234/06-10-also that the very sale of B2 property was to enable the tenant to usethe schedule room and the smoke room for indefinite periods of timesubject to liability for eviction on the two specified grounds. We havegone through Ext.B1. In that agreement we do not find any specificagreement between the parties to the effect that the tenant is liable tobe evicted only on the grounds of arrears of rent and subletting. Thatagreement contains provisions which insist upon prompt payment ofmonthly rent by the tenant and forbidding the tenant from sublettingor transferring the building. The clauses highlighted by Sri.Krishnanhave obviously been incorporated in the context of the tenant's liabilityto pay rent promptly and not to sublet or transfer the building and theclauses are only to the effect that in the event of default of rent ortransfer or sublease the tenant shall liable to be evicted. We do notfind any clause in the agreement specifically providing that thetenant's liability to be vacated will arise only upon the tenant'sviolating the clauses insisting on payment of rent and prohibitingsublease or transfer. The rights of landlords and tenants of buildingswhich are situated in areas where the Rent Control Act has been madeapplicable are governed by the provisions of the Rent Control Act. Weare not impressed by Mr.Krishnan's argument that the non obstanteclause in section 11(1) saying that eviction of a tenant shall be only in RCR. N0. 234/06-11-accordance with the provisions of the Rent Control Act will operateonly against the landlord who seeks eviction and does not stand in theway of the tenant availing the benefit of an agreement with thelandlord that liability for eviction will be confined to only one or moreof the grounds specified in the statute. The non obstante clauseunder section 11(1) states only eviction of tenants will be regulated bythe terms of the Kerala Buildings (Lease & Rent Control) Act. This nonobstante clause certainly creates an inroad into a landlord's right toevict his tenant which was almost absolute and regulated by contractin terms of the transfer of the Property Act and the Contract Act. Inother words, a landlord who was otherwise entitled to evict his tenantsubject to terms of the contract of tenancy without establishing anyground after terminating the tenancy by issuing notice in terms ofsection 106 of the T.P. Act and the Contract Act, by virtue of section11(1) is prevented from evicting his tenant unless he establishes anyone of the various eviction grounds provided under section 11 of Act 2of 1965. By now it is trite that Rent Acts are legislations or the welfareof the landlord also in the sense that those Acts assure the landlordthat if he establishes any one of the eviction grounds under those Actshe can evict his tenant. Any contract between a landlord and tenant,except contracts envisaged under clause 9 of rule 11 providing for RCR. N0. 234/06-12-periods for tenancy restricting the landlord's right to evict his tenanton a statutory eviction ground really existing, will amount tocontracting out of the statute. As already pointed out there is nocontract in Ext.B1 that the tenant is liable to be evicted only on thegrounds of arrears of rent and subletting. The ground of ownoccupation for the landlord himself or for a dependent member of thelandlord's family is one of the prominent grounds provided to thelandlord under the statute for evicting his tenant and according to us,even if there were a clause excluding that ground in Ext.B1 it wouldhave been difficult for the revision petitioner to rely on that clause todefend the present RCP. No evidence also has been adducedregarding the existence of such an agreement between the parties.The circumstances pointed out by Mr. Krishnan with reference toExt.B2 also do not appeal to us. B2 sale deed does not reveal theexistence of any temporary shed and therefore it is difficult to acceptthe argument that a temporary shed existed and in its place thepresent new smoke room was constructed. It is true that a newsmoke room was constructed on the land covered by Ext.B1 and thatthe access to that smoke room is directly through the petition schedulebuilding. If the revision petitioner was unable to foresee theeventuality of being compelled to vacate the petition schedule room at RCR. N0. 234/06-13-the time when he constructed the smoke room providing an access tothe same through the petition schedule building only, himself is toblame for that.So also, we are not at all impressed by the argument raised byMr.Krishnan's challenging the findings of the authorities belowregarding the tenant's eligibility for protection of the second proviso tosection 11(3). May be it is true that PW-1 conceded that the onlybusiness which the tenant has is the business which he carries on theschedule room. But at the same time, when it becomes evident in thecase that the tenant owns and possesses half an acre of land yieldingsome agricultural income, it was the burden of the tenant to adduceevidence regarding the relative income derived by him from thebusiness and also from the property, and satisfied the courts thatincome from business is the substantial one. The two ingredients ofthe second proviso are in the conjunctive and in order that a tenantgets the benefit of the proviso, he will have to satisfy both theingredients. Once we find that the finding of the court below regardingthe first ingredient of the second proviso is correct the tenant will losethe benefit of the second proviso, even if he satisfies the secondingredient of the second proviso to section 11(3). Coming to thatingredient also we are unable to accept the argument that only a RCR. N0. 234/06-14-building which is exactly identical to the schedule building – a salesroom with a separate smoke room will be suitable for the tenant andthat it is the availability of such a suitable building which is to beenquired into. The suitability of alternate building for the purpose ofsecond proviso to section 11(3), the availability of which is to beenquired, is to be decided with reference to the building wherefrom thetenant is sought to be evicted. Here again, the law does not insistthat the available building should be exactly identical and should haveall the conveniences which the building sought to be evicted isenjoying. To insist for an exactly identical building will be to insist forthe impossible. According to us, “suitable” in the context of the 2ndingredient of 2nd proviso to section 11(3) means only reasonablysuitable . The result of the above discussion is that the R.C.R fails and thesame is dismissed. No costs. (PIUS C.KURIAKOSE, JUDGE)(M.C. HARI RANI, JUDGE)ksv/- RCR. N0. 234/06-15-