K.A. Vimala & Bia Sasi v. R. Anantha Mallan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 RCRev..No. 353 of 2006() -----------------------RCA.23/2004 of DISTRICT COURT, ALAPPUZHA RCP.27/2001 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONERS/APPELLANTS/RESPONDENTS ----------------------------------- 1. K.A.VIMALA, W/O.SASIDHARAN, AGED 46, MADATHIL CHERTHALA NORTH VILLAGE, CHERTHALA NORTH MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. BIA SASI, D/O.SASIDHARAN, AGED 20, DO.DO. BY ADV. DR.V.N.SANKARJEE RESPONDENTS: RESPONDENT/PETITIONER ---------------------------------- R.ANANTHA MALLAN, S/O.RAMA MALLAN, THEKKEKUTTIKKATTU, C.M.C.-4, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT. BY ADV. SRI.K.S.HARIHARAPUTHRAN FOR R1 SRI.GEORGE MATHEW FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCRev..No. 353 of 2006() ## **ORDER ON I.A.NO.2918/2006 IN R.C.R.NO.353/2006** DISMISSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 10/07/2008 \\TRUE COPY// P.A to Judge ## **P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ.** ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.C.R.No.353 of 2006-A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 10[th] day of July, 2008 **==> picture [68 x 10] intentionally omitted <==** **==> picture [84 x 12] intentionally omitted <==** ## **RAMAN, J.** The defeated tenant in a proceeding under the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act'), initiated by the landlord seeking eviction under Section 11(4)(iii) of the Act is before us in this revision. 2. The landlord sought eviction of the tenanted premises on the ground that the tenant has subsequently acquired a building reasonably sufficient for his requirement in the same city, town or village. The petitioners are the legal representatives of the original tenant who died during the pendency of the original petition. There is no dispute in this case that the tenants, the petitioners before us, in fact, after the death of the original tenant, sold away the said building for discharge of the liabilities incurred by him during the pendency of the appeal. This fact was subsequently sought to be placed on record by filing an application under Order 41 Rule 27 of the Code of Civil Procedure read with Section 23 of the Act. The appellate court by the order impugned in this revision found that such events cannot be taken into consideration as a _R.C.R.NO.353/2006-A_ ## _-:2:-_ subsequent event as it is possible for every tenant who acquired possession or put up a building to resist the claim for eviction by creating such a sale deed. The fact that the building put up by the original tenant was sold after the commencement of the rent control proceeding is not a ground for defence available to the tenant to defeat the claim for rejection sought under Section 11(4)(iii). Thus the order of eviction passed by the Rent Control Court was affirmed by the appellate authority while rejecting the appeal filed by the tenant. Hence this revision. 3. We have heard the learned counsel Sri.V.N.Sankarjee appearing on behalf of the petitioners as also the learned counsel Sri.K.S.Hariharaputhran appearing on behalf of the respondents. 4. According to the counsel appearing for the petitioners the court below did not consider the documents sought to be produced along with the petition filed under Order 41 Rule 27 of the C.P.C. and non consideration of such documents produced, has resulted in denial of a fair opportunity and so the order passed by the appellate authority suffers from a patent error. He placed reliance on the decision of the Apex Court in **Harju and others v. Phulari and others [2005(10) SCC 191]** and **M.M.Quasim v.Manohar Lal Sharma and others [1981 SC 1113].** He also contended that the appellate authority ought _R.C.R.NO.353/2006-A_ _-:3:-_ to have considered the subsequent event, namely that the building having been disposed of by the petitioners to wipe out the liabilities incurred by the original tenant and, as on date of passing the order by the appellate authority the building was not in the possession of the petitioners and hence no order under Section 11(4)(iii) of the Act should have been passed affirming the order of the Rent Control Court. He also placed reliance on the decision of a Division Bench of this Court in **Kunhiraman v.Kumaran [2004(2) KLT 674].** Per contra, the learned counsel appearing for the respondent contended that the provision contained in Section 11(4)(iii) of the Act is attracted, once it is shown by the landlord that the tenant 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. According to him, the tenant in this case has acquired a building in the same city, town or village, which is sufficient for his requirement. Once the landlord has discharged his initial burden it is for the tenant to prove that the said building acquired subsequently is not reasonably sufficient for his requirement. There is no case for the petitioners in this case that the building subsequently acquired by the original tenant was not reasonably sufficient for his requirement. On the other hand, the contention was that the said building having been disposed by the _R.C.R.NO.353/2006-A_ ## _-:4:-_ petitioners, the ground under Section 11(4)(iii) of the Act ceased to exist. It is also contended by the learned counsel for the respondent that merely because the tenant sold away the building subsequently in no manner can affect the accrued right of the landlord to get eviction of the tenanted premises and cannot defeat a claim under Section 11(4)(iii) of the Act. He placed reliance on the decision of this Court in **Ramachandran v.Parukutty Amma [1993(2) KLT 42]** . 5. It is true that when an appeal under the Act is preferred, the appellate authority is entitled to take such additional evidence for further enquiry as it deems fit for the proper disposal of the appeal pending before it in view of the specific rule conferring such power to take additional evidence as enjoined under Rule 16(2) of the Kerala Buildings (Lease and Rent Control) Rules, 1979. The appellate authority however did not choose to refer to the documents produced since it thought that the only point sought to be canvassed before the appellate authority was that by virtue of the additional documents produced it would show that the petitioners are no longer in possession of the additionally acquired building and even assuming that such buildings acquired subsequently has been disposed of by the tenant is no reason to defeat the right of the landlord. We, in the absence of any cogent and serious objection on the part of the respondent in allowing the I.A for _R.C.R.NO.353/2006-A_ _-:5:-_ producing certain documents before the appellate authority, proceed to take on record such additional evidence as was placed on record by the petitioners before the appellate authority. According to the learned counsel, those additional documents produced will show that the appellants have sold away the property subsequently acquired by the original tenant towards discharge of the debts incurred by him and substantial amount being thus spent towards such discharge of the debts and, therefore, before the order of the appellate authority was passed, the building which was subsequently acquired by the original tenant no longer continued to be in possession of the appellants. Therefore, we proceed on the premise that the subsequently acquired building has since been disposed of by the appellants. If so, the question would arise as to whether the landlord's right to seek eviction under Section 11(4)(iii) of the Act could in any way be defeated by the subsequent conduct on the part of the tenant in disposing the building subsequently acquired. We have no doubt in our mind that, as held by the Apex Court as well as by this Court in a number of decisions, a subsequent event can be looked into by the court in appropriate cases while moulding the relief. But such subsequent events must be events which were invited by a party against his own interest so as to defeat his own claim raised in the rent control petition. For example a bona fide _R.C.R.NO.353/2006-A_ _-:6:-_ need set up in a pleading by a subsequent event could be shown by a tenant that in view of the changed circumstances, the bona fide need ceased to exist as on the date of passing the order. But a subsequent event by an act of a party normally cannot defeat the claim of the other. In other words, a party by his own act cannot defeat a right already accrued in favour of the party who seeks eviction under one or other provisions of the Act. Here the tenant, by his own act of disposing the subsequently acquired building cannot in any manner take away or defeat the right of the landlord to get eviction under Section 11(4)(iii) of the Act, once the landlord has established his right as on the date of the petition. A Division Bench of this Court, in Ramachandran's case cited above, in such circumstances held that the fact that the tenants have transferred the building which was in their possession and ownership prior to the disposal of the application cannot be put forth for the purpose of negativing the ground under Section 11(4)(iii) of the Act and that the subsequent event that can be taken note of normally cannot be an event or an action engineered by the tenants themselves and which has got an impact on the ground alleged in the application. Therefore, whether the tenant had sold away the building subsequently acquired for sufficient reasons is not a matter which could be looked into to defeat the claim of a landlord seeking eviction under Section 11(4)(iii) of _R.C.R.NO.353/2006-A_ _-:7:-_ the Act. We may in this connection notice that under Section 11(4)(v) of the Act which provides a ground for eviction on cessation of occupation of the building by the tenant, such cessation of occupation for the prescribed period must be “without reasonable cause” as expressly made clear in the provision itself. Therefore, the reason why the tenants ceased to occupy the building could be explained away by the tenant and for sufficient and genuine reasons if the tenants could not occupy the building, then the landlord cannot get eviction. But unlike the words as expressly used in Section 11(4)(v) of the Act, we do not find any such expression permitting the tenant to set up any ground of defence, as justifying the sale of the building later after the eviction petition is filed to thwart the gist of the law to seek eviction under Section 11(4)(iii) of the Act. Even though the Division Bench of this Court in Kunhiraman's case cited above observed that in a given case a tenant can even explain that though he has put up a building the circumstances are such that he cannot occupy the same. That we find is only a passing remark made in the judgment in the course of discussion but which really did not arise for consideration in that case. There the issue was as to whether the building put up was sufficient for the requirement of the tenant. Therefore, in an enquiry as to whether the building acquired subsequently is sufficient to satisfy the requirement of the tenant, the _R.C.R.NO.353/2006-A_ _-:8:-_ tenant can certainly prove by adducing evidence that the place occupied by the tenant the nature of the business he carried on etc. and with comparison to the space available in the acquired building and to show that such subsequently acquired building will not be sufficient for the requirement of the tenant. The adjudication of the question regarding the sufficiency or otherwise of the building so acquired is always in the realm of appreciation and will vary depending on facts and circumstances of each case. Thus the question under consideration neither directly nor indirectly arose for consideration in the aforesaid case. Admittedly, in this case, the question as to whether the subsequently acquired building was sufficient or not was found against the tenant. The acquired building was a double storied building, whereas, the tenanted premises is comparatively a small room and the only contention raised by the appellants was that the subsequently acquired building has since been disposed of and therefore the ground urged under Section 11(4)(iii) of the Act ceased to exist. We, in the circumstances, cannot agree with the contention raised by the appellants that merely by disposing of the acquired building by the tenant, the landlord's right to seek eviction under Section 11(4)(iii) of the Act could be defeated. The question will have to be decided as on the date of filing of the petition. Therefore, the subsequent event or an ## _R.C.R.NO.353/2006-A_ ## _-:9:-_ action engineered by the tenant in no way can take away the right of the landlord seeking eviction especially when such disposal of the building was subsequent to the filing of the petition seeking eviction. 6. In the result, there is no merit in this revision, accordingly, the same is dismissed. 7. Considering the fact that the appellants are continuing business in the tenanted premises, we think it is only appropriate to grant a reasonable time to surrender vacant possession of the building, accordingly, the order of eviction ordered by the authorities below and affirmed by this Court, the execution of which will stand deferred for a period of six months on the following conditions:- - i. That the petitioners herein shall file an undertaking in the form of an affidavit before the Execution Court agreeing to surrender vacant possession of the premises on or before the expiry of six months and such undertaking shall be given within a period of three weeks from today. That they shall also deposit the entire arrears of rent, if any, less whatever that has been deposited within the aforesaid period of three weeks before the Execution Court. ii. That they shall not induct any third party into the premises. _R.C.R.NO.353/2006-A_ ## _-:10:-_ iii.That they shall continue to pay the amount equivalent to the monthly rent for use and occupation, until vacant possession of the premises is surrendered to the landlord. In case of failure to comply with any of the aforesaid conditions, the order of eviction passed by the authorities below shall become enforceable forthwith. **P.R.RAMAN, Judge** **T.R.RAMACHANDRAN NAIR, Judge** ms