RadhaKrishnan v. V. Ismail & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936 ## **RCRev..No. 364 of 2013 (B)** AGAINST THE JUDGMENT IN RCA 44/2012 OF THE RENT CONTROL APPELLATE AUTHORITY (1[st] ADDL.DISTRICT COURT), KOZHIKODE DATED 05-08-2013 AGAINST THE ORDER IN RCP.NO.66/2009 OF THE RENT CONTROL COURT (PRINCIPALL MUNSIFF II), KOZHIKODE DATED 09-12-2011 ## REVISION PETITIONER/RESPONDENT/RESPONDENT: RADHAKRISHNAN, AGED 54 YEARS S/O. T. CHANDUKUTTY, RESMI, CHUMKAM KALLITHODI HOUSE, FAROKE AMSOM DESOM KOZHIKODE DISTRICT. BY ADVS. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR ## RESPONDENTS/APPELLANTS 1 AND 3 TO 13/1ST PETITIONER AND LEGAL HEIRS OF 2ND PETITIONER: 1. V.ISMAIL, AGED 70 YEARS S/O. VENGATTU HASSAN HAJI, THALIYIL HOUSE FAROKE AMSOM DESOM, KOZHIKODE DISTRICT. 2. P.K.MOIDEEN KOYA, AGED 71 YEARS, S/O. IMBICHAMINA UMMA. 3. P.K.ASSAN KOYA, AGED 68 YEARS, S/O. IMBICHAMINA UMMA. 4. P.K.BEEVY @ KUNHATHUBI, AGED 67 YEARS, D/O. IMBICHAMINA UMMA. 5. P.K.ABDU RAHIMAN, AGED 65 YEARS, S/O. IMBICHAMINA UMMA. 6. P.K.HARISH, AGED 63 YEARS, S/O. IMBICHAMINA UMMA. 7. P.K.ABDU RAZAK, AGED 61 YEARS, S/O. IMBICHAMINA UMMA. 8. P.K.KHADEEJA, AGED 59 YEARS, D/O. IMBICHAMINA UMMA. 9. P.K.MUHAMMED, AGED 57 YEARS, S/O. IMBICHAMINA UMMA. 10. P.K.ISMAIL, AGED 54 YEARS, S/O. IMBICHAMINA UMMA. 11. P.K.ABDUL JALEEL, AGED 51 YEARS, S/O. IMBICHAMINA UMMA. 12. P.K.RAMLATH, AGED 48 YEARS, D/O. IMBICHAMINA UMMA. - R1 BY ADV. SRI.K.M.FIROZ R1 BY ADV. SMT.M.SHAJNA R1 BY ADV. SRI.S.KANNAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.2672/2013 IN R.C.R.NO.364/2013** DISMISSED SD/- **K.T.SANKARAN, JUDGE** 07/07/2014 SD/- **A.MUHAMED MUSTAQUE, JUDGE** //TRUE COPY// AHZ/ **K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ. ---------------------------------------------------R.C.R. NO. 364 OF 2013 (B) ---------------------------------------------------Dated this the 7[th] day of July, 2014** ## **O R D E R** ## **K.T.Sankaran, J.** The question involved in this Revision is whether a tenant who acquired possession of another building can successfully resist eviction under Section 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, on the ground that the subsequently acquired building by the tenant is used by him for some other business. 2. The revision petitioner is the tenant of the petition schedule building since 1967. He conducts business of hiring goods in the petition schedule building. In or about 1987, the tenant acquired possession of another building, which is situated about 20-25 metres away from the petition schedule building. The subsequently acquired building is situated in the same village. The respondents/ landlords filed the Rent Control Petition under Section 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act ## **R.C.R. NO. 364 OF 2013 (B)** :: 2 :: (hereinafter referred to as 'the Act') against the revision petitioner/ tenant. The Rent Control Court dismissed the Rent Control Petition on both the grounds. On appeal by the landlords, the Appellate Authority confirmed the finding of the Rent Control Court under Section 11(4)(ii) of the Act. The Appellate Authority reversed the finding of the Rent Control Court under Section 11(4)(iii) and ordered eviction under Section 11(4)(iii) of the Act, which is under challenge in this Revision filed by the tenant. 3. According to the Commissioner's report, the petition schedule building has an area of 3.20 x4.65 metres. The dimension of the subsequently acquired building in the possession of the tenant is 4.55 x 4.92 metres. The Commissioner noticed that the tenant has stored bamboos, tables, tarpaulins etc. in the subsequently acquired building as well. It is also reported by the Commissioner that she saw a compressor and a few numbers of cycles in the subsequently acquired building. According to the tenant, the petition schedule building is not sufficient for the purpose of conducting the business of hiring goods and therefore, some of the goods have been stored in the subsequently acquired building as well. ## **R.C.R. NO. 364 OF 2013 (B)** :: 3 :: According to the landlords, the tenant has stage managed things just before the Commissioner inspected the building. 4. The learned counsel for the revision petitioner/tenant submitted that since the tenant is conducting another business in the subsequently acquired building, it cannot be held that the said building is reasonably sufficient for the purpose of his business as contemplated under Section 11(4)(iii) of the Act. The learned counsel also contended that the Commissioner's report would reveal that the petition schedule building is not sufficient for the requirements of the tenant and that was why he had to store the goods relating to the business in the petition schedule building in the subsequently acquired building. 5. The learned counsel appearing for the respondents/ landlords submitted that what is required to be proved by the landlord is that the tenant has acquired possession of another building and the burden to establish whether it is reasonably sufficient for the tenant's requirement is on the tenant. ## **R.C.R. NO. 364 OF 2013 (B)** :: 4 :: ## 6. In **Kanhangad Co-op. M.S.Society Ltd.** v. **Ganapathy** **Kamath (1995 (1) KLT 681)** , a Division Bench of this Court held that when it is shown that the tenant has possession of another building, then the burden is on the tenant to establish that such building is not sufficient for his requirements. A mere plea of insufficiency for his requirements is not enough nor can such a plea be used as a pretext to remain in the tenanted premises. It was also held that the crucial time with reference to the sufficiency of tenant's requirement as envisaged in Section 11(4)(iii) of the Act is the time when the landlord demands vacant possession from his tenant. ## 7. In **Ramachandran** v. **Parukutty Amma (1993 (2) KLT 42)** , the question considered was whether the tenant who had acquired possession of another building could successfully resist the claim under Section 11(4)(iii) on the ground that during the pendency of the Rent Control Petition he has transferred the subsequently acquired building. The Division Bench held that the sale of the building by the tenant cannot be taken as a subsequent event in favour of the tenant and it cannot be a ground to negative the ground for eviction under Section 11(4)(iii) of the Act. ## **R.C.R. NO. 364 OF 2013 (B)** :: 5 :: 8. To resolve the question involved in this Revision, it would be appropriate to extract Section 11(4)(iii) and the first proviso to Section 11(3) of the Act. **“11(4). A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building** ,-xxxxx xxxxx **(iii). If the tenant already 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; or** ” ## “ **11(3)** xxxx xxxx **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:** ” ## **R.C.R. NO. 364 OF 2013 (B)** :: 6 :: 9. Section 11(4)(iii) will apply if any of the following three contingencies occurs. (1) If the tenant already has in his possession a building in the same city, town or village; or (2) if the tenant subsequently acquires possession of a building in the same city, town or village; or (3) if the tenant puts up a building in the same city, town or village. In all these instances, the building should be reasonably sufficient for the tenant's requirements. Even if the tenant makes use of the subsequently acquired building for other purposes, that would not be an answer to a claim by the landlord under Section 11(4)(iii) of the Act. If the landlord who applies for eviction under Section 11(3) has another building of his own in his possession, he has to show special reasons within the meaning of the first proviso to Section 11(3) of the Act. Going by the scheme of Section 11 of the Act, it can be seen that there is no bar for the landlord to apply for eviction, even if he is in possession of another building of his own except as provided in the proviso to sub-section (3) of Section 11. That means, there is no bar under the Act for the landlord to conduct any number of business in any number of buildings, either of his own or tenanted. On the other hand, a ## **R.C.R. NO. 364 OF 2013 (B)** :: 7 :: distinction is drawn when it comes to the case of the tenant. The tenant will lose the protection if he has already in his possession a building or the tenant subsequently acquires possession or puts up a building. To illustrate this, the following examples are noted. (a) 'A' leased out a building to 'B' in 2000. The tenant acquires possession of another building which is reasonably sufficient for his requirements, in 2001 from 'C'. Either 'A' can file a Rent Control Petition against 'B' or 'C' can file a Rent Control Petition against 'B'. If 'A' files a Rent Control Petition, the expression “subsequently acquires possession of” would apply to the case. If 'C' applies for eviction, the expression “the tenant already has in his possession” occurring in clause (iii) of sub-section (4) of Section 11 would apply. In either case, the burden of proving that the other building is not reasonably sufficient for the tenant's requirements is on him. (b) 'A' granted lease of a building to 'B' in 2000. 'A' acquired another building in 2001 and leased it out to 'C'. In 2005, the landlord filed a Rent Control Petition against 'B'. The landlord need not prove the ingredients of the first proviso to Section 11(3). On the other hand, if 'A' has not leased out the subsequently acquired building to 'C', that ## **R.C.R. NO. 364 OF 2013 (B)** :: 8 :: means, 'A' is in possession of that building, and therefore 'A' has to prove the ingredients of the first proviso to Section 11(3) of the Act. 10. In the present case, the subsequently acquired building by the tenant is having more area than the petition schedule building. The subsequently acquired building is situated very near to the petition schedule building in the same village. Going by the materials supplied by the Commissioner, it can be seen that the subsequently acquired building by the tenant is reasonably sufficient for his requirements, that is, to conduct the business which he conducts in the petition schedule building. That the tenant is using a part of the subsequently acquired building for some other purposes is not relevant at all for deciding the issue involved in the case. The Appellate Authority rightly allowed eviction under Section 11(4)(iii) of the Act. There is no ground for exercising the revisional jurisdiction under Section 20 of the Act. The Rent Control Revision is, accordingly, dismissed. Lastly, the learned counsel appearing for the petitioner/tenant submitted that a reasonable time may be granted to the tenant to ## **R.C.R. NO. 364 OF 2013 (B)** :: 9 :: vacate the tenanted premises. Taking into account the facts and circumstances of the case, we are inclined to grant time till 31.12.2014 to the tenant to vacate the premises. Accordingly, time upto 31.12.2014 is granted to the tenant to vacate the petition schedule building on condition that he shall file an affidavit before the Rent Control Court within six weeks from today, unconditionally undertaking to vacate the petition schedule building on or before 31.12.2014 and also on condition that the tenant shall deposit the entire arrears of rent, if any, before the Rent Control Court within six weeks from today. If the tenant fails to comply with any of the conditions mentioned above, the landlords would be entitled to proceed with the execution. If the tenant complies with the conditions, the execution proceedings shall not be commenced/continued till 31.12.2014. ## **(K.T.SANKARAN) Judge** **(A.MUHAMED MUSTAQUE) Judge** ahz/