Allowed

Dr.Mrs. D. Vijayalakshmi v. Saira Stephen

Kerala HC18 Jun 2008RCRev./145/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a revision petition challenging an eviction order under Section 11(8) granted to a landlord requiring space for business expansion. The court held the floors were not separate buildings despite independent metering and dismissed the appeal, though deferred eviction for five months with conditions.

What did the court decide?

The petition was dismissed, but the eviction order was deferred for five months pending surrender of vacant possession on specified conditions regarding rent deposit and non-induction of third parties

Dr.Mrs. D. Vijayalakshmi Vs Saira Stephen — Landlord and Tenant | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930

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RCRev..No. 145 of 2008()

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-----------------------RCA.38/2005 of II ADDL. DISTRICT COURT (RENT CONTROL APPELLATE AUTHORITY), TRIVANDRUM RCP.37/2004 of I ADDL.M.C.(RENT CONTROL COURT),TRIVANDRUM ....................

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REVISION PETITIONER/APPELLANT/COUNTER PETITIONER

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DR.MRS.D.VIJAYALAKSHMI, T.C.27/2289/GENERAL HOSPITAL JUNCTION, TRIVANDRUM.

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BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KVP.JAYALEKSHMY SRI.M.AJAY (IRUMPANAM) SMT.M.C.SHIJIMOL

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RESPONDENT: RESPONDENT/PETITIONER

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SAIRA STEPHEN, D/O.SMT.HAZEL STEPHEN, AGED 40 YEARS, RESIDING AT T.C. 27/2287, 'PRATHIBHA' GENERAL HOSPITAL JUNCTION, TRIVANDRUM.

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THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ.

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R.C.R.NO.145 OF 2008

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Dated this the 18th day of June, 2008

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O R D E R

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Raman,J.

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This is a revision at the instance of a tenant, who is faced with an order of eviction passed by the Rent Control Court in R.C.P.No.7/2004 and confirmed in appeal R.C.A.No.38/2005. The building consists of two floors. Ground floor of the building is occupied by the landlord and the first floor is occupied by the petitioner/tenant. The petitioner/tenant is using the first floor as Homoeo Dispensary and the landlord is conducting stationery business in the ground floor. The grounds urged in the petition for eviction is that the landlord requires the upstair portion for expansion of her business and sought eviction under Section 11(8) of the Kerala Buildings (Lease and Rent Control) Act. No other room was found to be with the landlord. So after considering the evidence adduced in the matter both by the Rent Control Court as well as by the Appellate Authority ordered eviction.

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The learned counsel for the petitioner Sri R.S.Kalkura

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contended that eviction ought to have been ordered under Section 11

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R.C.R.No.145/2008

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(3) and not under Section 11(8) of the Act. According to him, the upstair portion of the building is independent and separate and there is no access to the upstair portion from inside the ground floor and there is separate electric meter for both the floors and both floors are separately numbered by the Corporation. For all practical purposes both the ground floor and upstair portion were treated as separate buildings. So, according to him, Section 11(8) is not attracted. If it is to be considered under Section 11(3), necessarily whether the petitioner is entitled to the benefit of the proviso ought to have been considered. Therefore, according to him, the order suffers from an illegality.

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We consider this submission. It is true that for attracting Section 11(8) the landlord should be in occupation of a part of the building and she seeks the other part of the building for expansion of her business carried on in a portion occupied by her. It may be for better enjoyment of the occupation. According to the petitioner, both the ground floor and first floor should be treated as separate building. The specific contention raised was considered by the Rent Control Court in paragraph 12 of its judgment. In Ext.C1 report of the Commissioner it is stated that the petition schedule building is the first floor of the double storied building,

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R.C.R.No.145/2008

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the ground floor of which is occupied by the landlord. The entrance to the first floor is through a staircase adjacent to the room of the petitioner and built in a small room. Ext.A11 series also shows that the staircase is attached to the room of the petitioner and is enclosed in a small room. The entrance to the petition schedule room and the room of the petitioner is common. Hence the fact that both floors are separately numbered with separate electric meters, water meters is not a ground to consider that the two portions are independent and separate. Reference is made to the decision of this Court in S. Sivasubramania Iyer v. S.H. Krishnaswamy (AIR 1981 Kerala 57) and also Shaji Varghese v. Cherian (1993 KLT 133). The ground floor and the upstair portion of the building should be treated as separate buildings or as part of the same building is a question of fact and may have to appreciate in the light of the evidence adduced. It may so in one thing and it may not be so in another thing. But the factual matrix in the case, in the light of the Commission report, shows that staircase is enclosed in a room in possession of the petitioner. Therefore, both the floors can be conveniently enjoyed. True that for the purpose of letting out a building, it may be separately numbered and electric meter may also be separately provided, which however does not show that the

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R.C.R.No.145/2008

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building should be treated as separate. The over all consideration in the factual situation available in the present case have been appreciated by the Rent Control Court and re-appreciated by the Appellate Authority and both of them have agreed that both the floors not to be treated as separate building. We do not find in such situation that the finding of the authorities below is in any way perverse. It is a reasonable conclusion reached on the basis of the evidence adduced by the parties. We do not find any reason to interfere with the order passed by the authorities below. The revision lacks merits and it is accordingly dismissed.

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At this stage, the learned counsel appearing for the petitioner sought a reasonable time for surrendering vacant possession of the building. Considering the fact that the petitioner was occupying the building and running a Homoeo Dispensary, we think that a reasonable time can be granted for finding out an alternative accommodation. In the circumstances, the order of eviction passed by the courts below will stand deferred for a period of five months on the following conditions:

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1. The petitioner shall give an undertaking in the form of an affidavit to surrender the vacant possession of the tenanted premises on or before the expiry of five

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R.C.R.No.145/2008

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months' period from today, within a period of three

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weeks from today.

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She shall pay/deposit the entire arrears of rent, if any, within three weeks and continue to pay the amount equivalent to the rent due for use and occupation until the vacant possession

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1. He shall not induct any thirty party to the premises.

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1. In case she commits default in compliance of the conditions as aforesaid, the order of eviction will

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become enforcible forthwith.

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P.R.RAMAN,

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T.R.RAMACHANDRAN NAIR, Judge.

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kcv.

Dr.Mrs. D. Vijayalakshmi v. Saira Stephen

Case brief

What is this about?

What did the court decide?

Dr.Mrs. D. Vijayalakshmi v. Saira Stephen

Case brief

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What did the court decide?

What the court decided

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