P.K. Rajan v. Mohanraj, Muthu Swami & Nidheesh Mohan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939 ## RCRev..No. 168 of 2014 (A) AGAINST THE JUDGMENT IN RCA NO.211/2012 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE), VATAKARA DATED 31-05-2014. AGAINST THE ORDER IN RCP NO.93/2011 ON THE FILE OF THE RENT CONTROL COURT (MUNSIFF'S COURT), VATAKARA DATED 03-09-2012. ## REVISION PETITIONER/RESPONDENT/RESPONDENT: P.K.RAJAN, S/O KANNAN, AGED 62 YEARS, TRADER, RESIDING AT “SANGEETH”, VATAKARA AMSOM DESOM, POST NUT STREET, VATAKARA TALUK, KOSHIKODE DISTRICT, KERALA STATE. ## BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY ## RESPONDENTS/APPELLANTS/PETITIONERS: 1. MOHANRAJ, S/O CHERIYA KANNAN, AGED 61 YEARS, TRADER, RESIDING AT “SARIKA”, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. MUTHU SWAMI, S/O VELU SWAMI, AGED 37 YEARS, TRADER, RESIDING AT “VARUN NIVAS”, CHUDIKKOTTIL DESOM, MAHE, KANNUR, PONDICHERRY STATE – 673 525. 3. NIDHEESH MOHAN,S/O MOHANRAJ, AGED 31 YEARS, RESIDING AT “SARIKA”, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 101, KERALA STATE. R1,R3 BY ADV. SRI.NIRMAL. S THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08.06.2017, ALONG WITH RCR. 204/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1599/2014 IN R.C.R.NO.168/2014** CLOSED 08/06/2017 SD/- **K.HARILAL, JUDGE** SD/- **P.SOMARAJAN, JUDGE** //TRUE COPY// AHZ/ **“C.R.”** ## **K. Harilal & P. Somarajan, JJ.** **---------------------------------------------------R.C.R. Nos.168 & 204 of 2014** **---------------------------------------------------Dated this the 8[th] day of June, 2017** ## **O R D E R** ## **Somarajan, J.** The tenants, who suffered an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’), came up with these Revisions challenging the findings of the Rent Control Appellate Authority (for short ‘Appellate Authority), especially to the first proviso to Section 11 (3) of the Act. 2. The short facts of the case is that the landlords initiated eviction proceedings against two tenants by two different applications, which were fought up to the Appellate Authority. The Appellate Authority upheld the contention raised by the petitioners regarding Section 11(3) of the Act and ordered eviction, which is under challenge in these two Revisions. 3. The orders passed by the Appellate Authority are challenged ## **R.C.R. Nos.168 & 204 of 2014** :: 2 :: mainly on the legal question whether it would be permissible to grant an order of eviction under Section 11(3) of the Act when there is evidence to show that the landlords have got a building of their own sufficient to meet the need projected in the applications. It is submitted that the first petitioner is having only a fractional interest over the petition schedule building as it is devolved upon him along with his siblings on the death of his father. The need advanced is for his son, who is a dependent on him for starting a glass mart. The tenants sought for protection under the first proviso to Section 11(3) of the Act under the premise that two shop rooms are lying vacant, which, according to them, ‘D’ and ‘E’ shop rooms in the series of five shop rooms, named as A,B,C,D,E, situated in the property which was devolved upon the first petitioner along with his siblings on the death of their father. D and E shop rooms also form part of the assets left out by the father in the hands of the first petitioner along with his siblings. If that be so, even if it is found that D and E schedule shop rooms are lying vacant, the question to be considered is whether it would attract the first proviso to Section 11(3) of the Act. The said question came up for consideration before a Division Bench of this Court in **Asher** v. **Hassankutty Hajee (2004 (2) KLT 446)** . The ## **R.C.R. Nos.168 & 204 of 2014** :: 3 :: learned counsel for the tenants/revision petitioners submitted that the Honourable Supreme Court had taken a different view in the matter of the expression “his own” in the decision in **Super Forgings & Steels (Sales) Pvt. Ltd.** v. **Thyabally Rasuljee (Dead) through LRs** . **((1995) 1 SCC 410)** . One of the contentions raised by the learned counsel for the revision petitioners is that in that decision, the Apex Court held that the expression “his own” would take in the owner of the property and a co-owner as well for the purpose of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act is not pari meteria with Section 11(3) or the first proviso to Section 11(3) of the Act. 4. Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act are extracted below for reference: “10.(3)(a) xxx xxx (i) xxx xxx (ii) xxx xxx (iii) in case it is any other non-residential building, if the landlord or (any member of his family) is not ## **R.C.R. Nos.168 & 204 of 2014** :: 4 :: occupying for purposes of a business which he or (any member of his family) is carrying on, a nonresidential building in the city, town or village concerned which is his own.” “11. Eviction of tenants. -- (1) xxx (2) xxx xxx (3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: 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 reasons, in any particular case it will be just and proper to do so: xxxx xxxx” (emphasis supplied) 5. The requirement under the first proviso to Section 11(3) of the Act is availability of a vacant building with the landlord and the expression used is “if the landlord has another building of his own in his possession”. But the expression used in Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act is “if the landlord or (any member of his family) is not occupying for purposes ## **R.C.R. Nos.168 & 204 of 2014** :: 5 :: of a business”. It stands on a different context. Occupation of a coownership property by one of the co-owners is good enough as “owner in occupation” for the purpose of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act irrespective of whether he was having only a fractional interest or exclusive ownership. It is not pari materia with Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The difference in the usage is availability of building for occupation. If it is a co-ownership property, a co-owner cannot occupy the same unless consented by the other co-owners. But, if a co-owner is in possession and occupation of the tenanted premises, it is equally good as possession of the building by the owner. So, the decision drawn in **Super Forgings & Steels (Sales) Pvt. Ltd.'s case** (supra) stands on a different context and is not applicable to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. 6. Since the first petitioner is having only fractional interest over the room which is available, it is not available for him for his occupation and the legal proposition is settled in **Asher** v. **Hassankutty Hajee** (supra). Hence there is no reason for any ## **R.C.R. Nos.168 & 204 of 2014** :: 6 :: interference by this revisional court. Hence the revision is devoid of merits, deserves only dismissal and we do so. 7. The learned counsel for the revision petitioners/tenants sought time to vacate the petition schedule building; but the learned counsel for the respondents/landlords opposed the same and submits that a reasonable time alone can be granted to vacate the premises. Having regard to the entire facts and circumstances of the case and the submissions made at the Bar, we are inclined to grant six months' time from today to vacate the petition schedule building on the following conditions: - (i) The revision petitioners/tenants shall pay the entire arrears of rent, if any, within one month from today and shall continue to pay the rent, without default; - (ii) The revision petitioners/tenants shall file an undertaking in the form of an affidavit before the Rent Control Court, within two weeks from the date of receipt of a copy of this order, that they would peacefully surrender the petition schedule building within six months from today. - (iii) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the ## **R.C.R. Nos.168 & 204 of 2014** :: 7 :: premises would stand vacated and the respondents/ landlords will be at liberty to proceed with the execution on expiry of two weeks or from the date of violation of the conditions, if any, happened subsequently. These Rent Control Revisions are dismissed accordingly. ## **K. Harilal Judge** **P. Somarajan Judge** ahz/