T.P.Kunju v. Fathima and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936 R.C.R.No. 132 of 2014 () -------------------------- RCA 7/2011 of RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT), TIRUR RCP 36/2006 of RENT CONTROL COURT,PONNANI REVISION PETITIONER/APPELLANT/RESPONDENT: -------------------------------------------- T.P.KUNJU, AGED 48 YEARS, S/O.THOROPARAMBIL BAVA, CHERUKUDANGAD, PARUTHURU DESOM OTTAPPALAM TALUK, (FRIENDS FOOT WEAR, PALAKKAD ROAD EDAPPAL CHUNGAM, MALAPPURAM DISTRICT). BY ADVS.SRI.V.PREMCHAND SRI.V.TEKCHAND RESPONDENTS/RESPONDENTS/PETITIONERS: ---------------------------------------- 1. FATHIMA,, AGED 54 YEARS W/O.LATE KOLAKKAD KUZHIMANA MUHAMMED VATTAKULAM AMSOM, UDINIKKARA DESOM PONNANI TALUK-679321. R.C.R.No. 132 of 2014 2. MUFASHID,, AGED 32 YEARS S/O.LATE KOLAKKAD KUZHIMANA MUHAMMED VATTAKULAM AMSOM, UDINIKKARA DESOM PONNANI TALUK-679321. 3. ABOOBAKER, AGED 30 YEARS S/O.LATE KOLAKKAD KUZHIMANA MUHAMMED VATTAKULAM AMSOM, UDINIKKARA DESOM PONNANI TALUK-679321. 4. MUFASHIR,29 YEARS, S/O.LATE KOLAKKAD KUZHIMANA MUHAMMED VATTAKULAM AMSOM, UDINIKKARA DESOM PONNANI TALUK-679321. 5. NOOR SALIM,, AGED 25 YEARS S/O.LATE KOLAKKAD KUZHIMANA MUHAMMED VATTAKULAM AMSOM, UDINIKKARA DESOM PONNANI TALUK-679321. R1, R3 AND R5 BY ADV. SRI.C.M.MOHAMMED IQUBAL (CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23.06.2014, THE COURT ON 27.06.2014 PASSED THE FOLLOWING: C.R. ## **THOTTATHIL B.RADHAKRISHNAN & P.B.SURESH KUMAR, JJ.** **---------------------------------------------------Rent Control Revision No.132 of 2014 --------------------------------------------------Dated 27[th] June, 2014.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The tenant, in a proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as ‘the Act’, for short), is the petitioner in this Rent Control Revision. The decision, by which, the Appellate Authority under the Act, confirmed an order of eviction is impugned in this Revision. 2. The subject matter of the proceedings is a shop room. Eviction was sought by the landlords under Section 11 (3) of the Act, alleging that the third petitioner needs the shop room to start a footwear and fancy store, by utilizing the said room with the adjoining shop room, which is in the occupation of another tenant. R.C.R.No.132/14 2 3. The tenant contested the petition for eviction, contending, inter alia, that the need projected for eviction is not a bonafide one and that the landlords have other buildings and rooms in their possession, where the third petitioner can start the proposed business. According to the tenant, the landlords are running a Tourist Home in a building, situated near the petition schedule room; that the hall on the ground floor of the said building is lying vacant and that the same can be converted and used by them for the need of the third petitioner. It was also contended by the tenant that the availability of the said vacant premises was not pleaded by the landlords in the petition for eviction and therefore, the petition for eviction was liable to be dismissed on that ground also. 4. During the pendency of the proceedings before the Rent Control Court, the tenant in the adjoining room has vacated the premises and the landlords have come into possession of the said room. 5. The Rent Control Court, on an evaluation of the materials on record, found that the need set up by the landlords for eviction is bonafide and that the space available in the R.C.R.No.132/14 3 Tourist Home is not suitable for the proposed business. The Rent Control Court also found that the tenant is not entitled to the benefit of the second proviso to Section 11(3) of the Act. Accordingly, eviction was ordered, as claimed in the petition for eviction. 6. The tenant challenged the decision of the Rent Control Court in appeal. The Appellate Authority also on facts found that the need set up by the landlords for eviction is bonafide. The appellate authority further found that there are justifiable reasons for the landlords for non-occupation of the vacant premises in the building of the Tourist Home. Consequently, the appeal was dismissed. 7. We have heard Adv. Sri.V. Premchand, for the revision petitioner and Sri. C.M. Mohammed Iqbal, who was appearing on caveat, for the respondents. 8. The learned counsel for the revision petitioner contended that the landlord is bound to plead and prove special reasons for not occupying other buildings of his own in his possession; that there is no pleading in the Rent Control Petition as to the special reason for the non-occupation of the R.C.R.No.132/14 4 vacant space in the building of the Tourist Home owned by them and therefore, the Rent Control Petition is liable to be dismissed. He has also relied on the decisions of this Court in **Janatha Drugs v. Maithri Construction** (2007(4) KLT 625) and in **Abdul Salam v. Sebastian** [2013(4) KLT 592]. 9. A copy of the Rent Control Petition and a copy of the report of the advocate Commissioner appointed by the Rent Control Court were made available to us by the counsel for the parties. It is pleaded in the Petition that the petition schedule shop room is situated in a commercially important place and that the same is the most suitable premises for the proposed business under the ownership of the petitioners. The report of the Advocate Commissioner indicates that the petition schedule shop room is situated, facing the Edappal- Pattambi public road and the Tourist Home building is situated almost 185 feet away from the said road, facing a side road. The report indicates that the width of the side road is only 9 feet. PW1 has given categorical evidence that the vacant space in the Tourist Home does not have direct road frontage. It is thus clear that the petition schedule room is more suitable than the vacant hall in R.C.R.No.132/14 5 the Tourist Home, for the proposed business. The contention raised is that, in view of the provision contained in the first proviso to Section 11(3) of the Act, special reasons for nonoccupation of the said vacant premises should have been disclosed in the petition and that the non-disclosure is fatal to the case of the landlords. 10. It cannot be understood from the first proviso to Section 11(3) of the Act that the landlords need to plead the particulars of all the premises under their ownership and possession to claim an order of eviction. The proviso only recites that the Rent Control Court shall not order eviction, if the landlord has another building of his own in his possession, without satisfying the special reasons for not occupying the vacant premises. The function of the proviso is to except something out of the enactment or qualify something enacted, which, but for the proviso, would come within the purview of the enactment. The scope of the first proviso to Section 11(3) of the Act, in the circumstances, is to be understood in the context of the provision in Section 11(3) of the Act. Section 11 (3) of the Act, confers authority on the Rent Control Court to R.C.R.No.132/14 6 pass an order, directing the tenant to put the landlord in possession of the building, if he bonafide needs the building for his occupation and the proviso carves out an exception to the authority of the Rent Control Court to order eviction, when the landlord has another building of his own in his possession and there are no special reasons for not occupying the same for the proposed need. A combined reading of the provision and the proviso would indicate beyond doubt that it is only when it is established that the landlord has another building of his own in his possession for his occupation for the proposed need, he need satisfy the Rent Control Court the special reasons for not occupying the said premises. In other words, to non-suit the landlord, the vacant building should be of such a character, which would meet the requirements of the landlord. Any other interpretation of the proviso would lead to absurdity and cannot be accepted. 11. As far as the present case is concerned, it is categorically pleaded by the petitioners in the Rent Control Petition that the petition schedule shop room is the most suitable premises under their ownership, where the third R.C.R.No.132/14 7 petitioner can start the proposed business. The tenant has no case that the vacant room in the building of the Tourist Home is suitable or more suitable than the petition schedule building, for the need of the third petitioner. His case is only that the tenant can start the proposed business in the vacant premises also. It is settled that the tenant cannot dictate the landlord, where he should or should not do the proposed business. In **Janatha Drugs v. Maithri Construction** (2007 (4) KLT 625), the Rent Control Court, on the facts, found that the landlords in that case had in their possession, a more suitable premises, than the tenanted premises, while instituting the proceedings for eviction. **Abdul Salam v. Sebastian** [2013(4) KLT 592] is also a case where, the landlord sought eviction of a room on the ground floor of a building, when three other rooms in the ground floor of the same building were lying vacant. The said judgments, in our view, cannot have any application to the facts of the present case. Therefore, there is no merit in the contention raised by the learned counsel for the revision petitioner and the Revision Petition is liable to be dismissed. 12. The learned counsel for the tenant, R.C.R.No.132/14 8 alternatively, pleaded for time to surrender vacant possession of the premises. In the peculiar facts of the present case, we are of the view that a reasonable time can be granted to the tenant to surrender vacant possession of the premises to the landlords. In the result, - (a) This revision is dismissed. - (b) The tenant is granted six months' time from today to vacate the premises and deliver possession to the landlords on the following conditions: - i. He remits the entire arrears of rent as on today before the executing court within four weeks from today and files an affidavit before the executing court within four weeks from today, unconditionally undertaking to surrender vacant possession of the premises to the landlords within six months from today. - ii. He pays charges towards use and occupation R.C.R.No.132/14 9 of the building at the current rent rate from today till he gives vacant possession of the premises to the landlords. - (c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance for a period of six months. - (d) If there is default in performing any of the conditions imposed in clause(b) above, the benefit given to the tenant as per this order will stand recalled automatically and the executing court shall effect delivery forthwith. Sd/- ## **THOTTATHIL B.RADHAKRISHNAN, JUDGE.** Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)