Leela (W/o Krishnan) v. A.K. Kunhiraman

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM TUESDAY, THE 17TH DAY OF JANUARY 2012/27TH POUSHA 1933 RCR.No. 21 of 2012 ----------------------RCA.102/2008 of ADDL.D.C., THALASSERY RCP.133/2005 of MUNSIFF COURT/RCC, THALASSERY ------------- REVISION PETITIONER(S)/APPELLANTS/SUPPL. RESPONDENT -------------------------------------------------------------------- LEELA, W/O KRISHNAN, HOUSE WIFE, AGED 73 YEARS, R/A KONGODAN HOUSE, KOTTUR P.O., KADACHIRA AMSOM, KOTTUR DESOM. BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR SMT.SEEMA RESPONDENT(S)/PETITIONER/LANDLORD: --------------------------------------- 1 A.K.KUNHIRAMAN, AGED 63 YEARS, R/A ARAMAM, P.O. MUNDALORE, PERALASSERY, MAKRERI AMSOM, MUNDALORE DESOM - 670573. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. -----------------------------------------------R. C. R. No.21 of 2012 -----------------------------------------------Dated this the 17[th] day of January, 2012 ## **ORDER** ## _Pius C. Kuriakose, J_ Under challenge in this revision filed under Section 20 is the judgment of the Appellate Authority confirming the order of eviction passed against the revision petitioner on the ground under Section 11(4)(iii), the ground that the tenant has in possession of another building which is reasonably sufficient for his requirement in the same city, town or village. The petition schedule room has a plinth area of roughly 145 sq.ft. and the revision petitioner is conducting ice candy business therein. It came out in evidence through the Commissioner's Report and other evidence that the petitioners are in possession of a room having Door Nos.IV/463 and 464 situated just on the opposite side of the petition schedule room. This room has a plinth area of 170 R. C. R. No.21 of 2012 -2- sq. ft. Thus, it is in evidence that the petitioners are in possession of another room which is slightly bigger than the petition schedule room itself. However, the evidence is to the effect that at the time of inspection by the Commissioner the flooring and plastering work of the room having Door Nos.IV/463 and 464 is not completed. In fact, it is reported by the Commissioner that he was informed by the tenants that on account of their financial difficulty they are not in a position to complete the finishing work of this room. The Commissioner concludes his report regarding Door Nos.IV/463 and 464 as follows:- “After making necessary repairs this room will be a good one for conducting any type of business.” 2. It was on the basis of the tenants possessing these two rooms that the Rent Control Court and the Appellate Authority ordered eviction concurrently under Section 11(4) (iii). Relying on a Division Bench decision of this Court in Kunhiraman v. Kumaran (2004(2) KLT 674) it was argued by the learned counsel for the revision petitioner that the initial R. C. R. No.21 of 2012 -3- burden of proof is on the landlord to show that the tenant is in possession of a building reasonably sufficient for his requirements. In the instant case though it has come out in evidence that the tenants are in possession of another room, further evidence is that the said room unlike the petition schedule room is unsuitable for conducting ice candy business which is presently being conducted by the tenants in the petition schedule room. The learned counsel argued that at any rate, the revision petitioner who is mother of the original tenant Sri.K.V.Ratnaraj is not liable to be evicted on the ground under Section 11(4)(iii). The revision petitioner came to have possession of rooms having Door Nos.IV/463 and 464 only when the original tenant's son passed away. At the time of filing of the RCP revision petitioner did not have possession and the event of the revision petitioner coming into possession of the building during the pendency of the Rent Control Petition cannot be made ground for eviction in terms of Section 11(4)(iii). Learned counsel further submitted that before the learned Rent Control Appellate R. C. R. No.21 of 2012 -4- Authority an application for issuance of commission was filed by the revision petitioner for the purpose of getting a report as to what was the present condition of the buildings having Door Nos.IV/463 and 464. The above application was dismissed by the Appellate Authority along with the Rent Control Appeal itself. The counsel lastly requested that the above commission application be allowed and the matter be remitted to the Appellate Authority at least so that revised judgment can be passed by the Appellate Authority taking into account the reports to be submitted by the Commissioner. 3. We have given our anxious consideration to the submissions addressed by the learned counsel for the revision petitioner. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority. The legislative objective underlying Section 11(4) (iii) is that at a time when there is acute accommodation shortage, the tenant should not be allowed the luxury of having more buildings than necessary for his purposes. Such R. C. R. No.21 of 2012 -5- extra buildings possessed by the tenants should be made available for use either by a needy landlord or by a needy dependant family member of the landlord or by other needy tenants. In the instant case, eviction under Section 11(4)(iii) was sought on the basis of Door Nos.IV/463 and 464. It is in evidence that the above building having two door numbers is situated just on the opposite side of the petition schedule building. Plinth area vice building having Door Nos.IV/463 and 464 is slightly bigger. But length vice it is slightly smaller than the petition schedule room. What Section 11(4) (iii) requires is only that the tenant should be in possession of another building which is reasonably sufficient for the tenants requirement. May be as it presently obtains building having Door Nos.IV/463 and 464 are not ready for occupation. Flooring and plastering work was yet to be completed on 26/10/06 when the Advocate Commissioner inspected the above room. There is no material as to what is the present condition of that room. Whatever that be it is clear from the Commissioner's Report that once plastering R. C. R. No.21 of 2012 -6- and flooring work is done, the above room is capable of being used by conduct of any type of business. The version of the tenant to the Commissioner was that it is because of his financial constraints that he is unable to complete the plastering and flooring works. Learned counsel for the revision petitioner submits that plastering and flooring of the above room is not yet completed. This according to the learned counsel is on account of some dispute which arose between the legal heirs of the deceased tenant. Whatever that be, going by the report submitted by the Commissioner the building requires only plastering and flooring for the purpose of completion. Significantly the local authority Kadambur Grama Panchayath has assessed this building to property tax. We are of the view that the two statutory authorities who had occasion to appreciate and reappreciate the evidence were justified in coming to the conclusion that availability of room having Door Nos.IV/463 and 464 with the revision petitioner will entail liability on her to be evicted under Section 11(4)(iii). The judgment of this R. C. R. No.21 of 2012 -7- Court in Kunhiraman v. Kumaran (cited supra) cannot have any application to this case where there is evidence on record in the form of a Commission Report submitted on the basis of inspection conducted in the presence of both the parties that the building in question is slightly bigger in size than the petition schedule building and that the same can be made good for conducting any type of business once the finishing works have completed. According to us, the findings entered by the Rent Control Court and the Appellate Authority are reasonable findings having founded on evidence available on record. We do not find any warrant for interference within our revisional jurisdiction under Section 20. Revision fails and will stand dismissed. 4. After we made our decision known to the learned counsel for the revision petitioner, he requested that at least one year's time be granted to the revision petitioners. We will not be justified in granting so much of time without notice to the landlord. Hence, even as we dismiss the RCR we issue urgent notice by speed post to the respondent for R. C. R. No.21 of 2012 -8- determining the extension of time to be given to the revision petitioner for surrender. Sd/PIUS C. KURIAKOSE JUDGE kns/- //TRUE COPY// Sd/C. K. ABDUL REHIM JUDGE P.A. TO JUDGE