Partly allowed

M/S. Breeze Hotel v. Chidambaram Chettiyar Trust

Kerala HC12 Dec 2013RCRev./220/2011

Case brief

AI extract

What is this about?

The High Court allowed the landlord's ₹16,000 rent as insufficient for Trust obligations, upholding eviction under bonafide need. It reversed the lower court on sub-tenancy and material alteration grounds, dismissing those specific eviction claims but granting eviction overall.

What did the court decide?

Eviction ordered with one year's time conditional on payment of arrears and undertaking to vacate.

M/S. Breeze Hotel Vs Chidambaram Chettiyar Trust — Landlord and Tenant | Kerala HC (2013)

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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 T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935

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RCRev..No. 220 of 2011 ( ) ---------------------------

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AGAINST THE JUDGMENT IN RCA 87/2008 of RENT CONTROL APPELLATE AUTHORITY/I ADDL.DISTRICT COURT, ERNAKULAM DATED 12-04-2011 AGAINST THE ORDER IN RCP 145/2006 of RENT CONTROL COURT, ERNAKULAM REVISION PETITIONER(S)/RESPONDENTS/RESPONDENTS:

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M/S. BREEZE HOTEL, SHANMUGHAM ROAD, ERNAKULAM, COCHIN-682 031. 2. C.V.AYSHU, HILL PALACE, NEAR PLAY GROUND, MAHI-633 310. 3. M.RASHID, S/O. C.V.ABOOBACKER, SHARMINAS, P.O.ALIYOOR-663 909. 4. K.ABDULLA, S/O. C.V.ASSAINAR, PARTNER, M/S. BREEZE HOTEL, SHANMUGHAM ROAD ERNAKULAM, COCHIN-682 031. BY ADV. SRI.K.K.JOHN RESPONDENT(S)/APPELLANT/PETITIONER: ---------------------------------------------------------------------

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CHIDAMBARAM CHETTIYAR TRUST, REP. BY ITS MANAGING TRUSTEE, M.C.SWAMYNATHAN CHETTIYAR S/O. P.S.N.M.CHIDAMBARAM CHETTIYAR, RESIDING AT KARITHALA DESOM, ERNAKULAM, C/O. S.SUBRAMANIAN & CO., 1ST FLOOR, 40/8552 KAM R, BY ADV. SRI.P.SANTHALINGAM (SR.) R, BY ADV. SRI.S.SHARAN R,THIRD PARTY BY ADV. SRI.T.B.THANKAPPAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 26.11.2013, THE COURT ON THE 12-12-2013 PASSED THE FOLLOWING:

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T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.

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R.C.R.No.220 of 2011

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DATED THIS THE 12TH DAY OF DECEMBER, 2013

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O R D E R

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Ramachandran Nair, J.

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Divergent findings of two authorities in a rent control proceedings are under challenge in this revision petition filed by the tenants. The Rent Control Court found in favour of the petitioners. The said order has been reversed by the Appellate Authority in the appeal filed by the respondent/landlord. The landlord herein is a Trust represented by its Managing Trustee and the first petitioner is a firm and petitioners 2, 3 and 4 are partners. The parties are referred to as arrayed in this revision petition.

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The Trust owns the petition schedule building which was leased out to the tenants who are doing hotel business in the name and style 'M/s. Breeze Hotel'. The lease deed is dated 28.1.1959. Eviction is sought under Sections 11(3) (bonafide need), 11(4)(i) (sub-letting) and 11(4)(ii) (the tenants have caused alterations to the building which has affected the value and utility materially and permanently), of the Kerala Buildings (Lease & Rent Control Act (for short 'the Act'). All the three grounds were

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disallowed by the Rent Control Court and on all points the Appellate Authority allowed eviction.

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Before us, learned counsel for the petitioners, Shri K.K. John submitted that as far as the ground under Section 11(4)(i) is concerned, the allegations are unfounded and the evidence is also not at all sufficient to support the plea of the landlord. It is submitted that what is objectionable as alleged in the Rent Control Petition is the sale of cigarettes, toffees, etc. in the veranda portion of the same building for which the Corporation has granted licenses to the third petitioner and the son of the fourth petitioner, as evident from Ext.A15. It is not a case where any other person has been inducted to do business in the premises by the tenants, as the entire building is exclusively in the possession of the tenants themselves, and the employees of the petitioners alone are conducting the sale of the items.

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As regards the allegation of material alterations also, it is submitted that none of the allegations, viz. removal of doors and windows to make the room fitted with an air conditioner, dumping of waste and other materials in the top portion of the building causing seepage of water, installation of a coin box with telephone in the front side of the shop, etc.

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will not come within the mischief of Section 11(4)(ii) of the Act.

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Regarding the bonafide need shown by the Trust also, it is submitted that the plea of the landlord that they want to augment their income by conducting business cannot get support from the objects of the Trust. Further, the number of beneficiaries of the Trust are limited and apart from the rental income, they are getting other income from the hoardings placed in the building which is totally sufficient for promoting the objects of the Trust. It is also submitted that Exts.B1 to B4 will show that there were earlier proceedings under the Rent Control Act and the last of the cases, viz. R.C.P.No.95/1995 was compromised and the rent also was enhanced and even now the tenants are prepared to enhance the rent.

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Learned Senior Counsel for the respondent, Shri P. Santhalingam submitted that the evidence in the case will show that the Trust is finding it difficult to meet the demands of the descendants and the beneficiaries in tune with the objects of the Trust and the relevant clauses in the Trust Deed. The rental income now is only ₹16,000/- per month which is not at all sufficient to meet the expenses towards maintenance of descendants of owners and educational expenses of the children. It is therefore submitted

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that the trustees who are also having experience in business, have every right to seek eviction for own occupation. Regarding the other ground of sub-letting and causing material alterations, learned Senior Counsel submitted that the findings by the Appellate Authority are correct.

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The background stated in the eviction petition will show that the tenants are having business of hotel with boarding and lodging and the same is carried out in the name and style of “Breeze Hotel”. It is averred that the rent from the petition schedule building has become insufficient so as to meet the requirements of the beneficiaries of the Trust and therefore the trustees have resolved to conduct lodging business in the petition schedule building so as to meet the financial needs of the beneficiaries and thereby to fulfill the objects of the Trust. One of the objects of the Trust is to meet the due maintenance of Shri Rajendraprasad, an Electronics Engineer aged 55 years. Apart from expenses for his maintenance, he also requires ₹6,000/per month for medical expenses. It is further alleged that the tenants have constructed a shed in the top floor of the petition schedule building without the consent of the landlord and they have put up many structures in the vacant land adjacent to the petition schedule building, without consent.

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They have removed the door and windows of the petition schedule building so as to make the room air conditioned and therefore material alterations have been caused. The employees of the tenants are illegally occupying the top floor of the building and are dumping many substances there causing interruption to the free flow of the rain water resulting in seepage. They have installed a public telephone call booth with coin box system without the consent of the landlord. With regard to the ground of sub letting, it is alleged that the tenants have erected shops on both sides of the entrance on the veranda of the petition schedule building and these have been let out and the sub lessees are carrying on business of selling cigarettes, cool drinks, biscuits and other things.

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Going by the written statement filed by the petitioners herein, they have stated that the Trust deed does not allow the trustees to conduct lodging business in the petition schedule building and the need alleged is not bonafide. The purpose of the Trust was mainly the education of Rajendraprasad, the third son of one Chidambaram Chettiar and his daughters until their marriage. Now the members being limited, the allegation that the Trust wants to augment its income, is not correct and one

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of the turstees, viz. Shri M.C. Muruganathan filed a suit against the trustees and beneficiaries on various grounds. It was also alleged that the members of the landlord Trust have no ability or resource to conduct lodging business. After narrating the details of various cases filed between the parties from time to time, it is finally stated that R.C.P.No.95/1995 filed under Section 11(4)(iv) of the Act was settled by filing a compromise petition whereby rent was enhanced to ₹12,000/- from June, 1997 with a further condition for increase by 10% every three years. Now the rent being paid from June, 2006 is ₹16,000/- and the landlords have not cared to effect periodical maintenance also. The allegation of creation of sub tenancy as well as material alterations have also been denied.

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First we will consider the sufficiency of evidence with regard to the finding under Sections 11(4)(i) and 11(4)(ii) of the Act. The facts of the case show that on both sides of the entrance, on the veranda, two enclosures have been made and items like cigarettes, cool drinks, biscuits, etc. are being sold. The report of the Commissioner will show that one Iqbal and one Shamzeer were in the shop at the time of inspection. The documents relevant for consideration are Exts.A14 and A15. Ext.A14 is the reply

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given by the Public Information Officer of Corporation of Kochi to the landlord stating that the shops in question are functioning as part of Breeze Hotel. Ext.A15 is heavily relied upon by the learned counsel for the petitioners to show that licenses for the two shops are in favour of the third petitioner herein, Shri M. Rashid and one Shri K. Raisee who is the son of the fourth petitioner. It is not the case of the landlord that they are strangers to the partnership and hence there is no sub tenancy at all. We have perused Ext.A15. It will show that the Health Officer of the Corporation has replied to the landlord that licenses have been issued in favour of Shri M. Rashid and Shri K. Raisee for conducting hotel, lodging, cool drinks, tobacco products, matchbox, confectionery, etc. and license fee has been collected. The period mentioned is 2007-2008. It is also stated that the building number is assigned only to the hotel building.

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The question is whether the above will evidence creation of sub tenancy at all. The reason adopted by the Appellate Authority is that the two shops in the veranda of the hotel cannot be treated as part of the hotel business and that the license of the firm cannot be extended to the two persons. But we are of the view that a reading of Ext.A15 itself will show

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that the licenses for the hotel and the two shops in the veranda are seen issued in favour of the third petitioner and the son of the fourth petitioner. Therefore, as rightly pointed out by the learned counsel for the petitioners, the plea of sub lease cannot hold good. We are of the view that evidence on this aspect has not been correctly considered by the Appellate Authority and the view taken is perverse warranting interference.

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Then the next question is whether any material alterations have been made by the tenants to the petition schedule building. Going by the report of the Commissioner which has been referred to in para 11 of the judgment of the Appellate Authority, one of the items of alteration is that two piece doors of the building have been changed as a single piece one and after removing the windows, aluminium windows have been erected. One latrine is put up additionally. There is a tin sheet roofed shed which is used for employees of the hotel to take rest and the Commissioner found some of them sleeping in the top portion. The Commissioner did not report anything being dumped in the top floor which is causing seepage of water. There is a water tank which is in the terrace and learned counsel for the petitioners submits that this is used for the purpose of the hotel.

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Going by the main part of Section 11(4)(ii) of the Act, unless it is proved that alterations have been made which have destroyed or have reduced the value and utility of the building materially and permanently, the landlord cannot succeed. The tenants herein are relying upon Ext.B4 compromise petition wherein there is an agreement for putting up a latrine. Whatever that be, the constructions made herein cannot be said to be alterations of that nature which have destroyed the building or reduced its utility and value materially and permanently. The Appellate Authority has found that unauthorised constructions have been made without the consent of the landlord which have reduced the utility and value of the building. But there is no real evidence for the same. Apart from that, the tenants have got an explanation that the minor alterations made with regard to the doors and windows are for putting up an air conditioner also. Therefore, on an assessment of entire evidence, it cannot be concluded that the elements of Section 11(4)(ii) of the Act are attracted to the facts of the case. Therefore, the said finding also cannot be supported.

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Lastly, we come to the plea under Section 11(3) of the Act.

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Herein, the true object of the Trust may have to be examined to some extent.

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The document relied upon and produced by the landlord is Ext.A2. The said Deed of Trust has been executed on the 1^st day of March, 1957 by Shri Chidambaram Chettiar, his eldest son Swaminatha Chettiar and another son Muruganathan Chettiar who are the trustees. They have been described as first, second and third owners and the property was purchased by the first owner. Going by the terms of the Trust Deed, the following stipulations are evident: (a) 50% of the rent and income derived from letting or otherwise the property, will have to be used for the maintenance of the wife of the first owner, i.e. the mother of second and third owners, the third son of the first owner, i.e. the youngest brother of the second and third owners by name Rajendraprasad and three daughters of the first owner, viz. the younger sisters of the second and third owners till their marriages are over; (b) 25% out of the remaining 50% of the rent and income will have to be used for educating the youngest brother Rajendraprasad and three younger sisters till their marriage; and (c) 25% of the rent and income will have to be utilised to maintain and educate the wife and sons of the first owner's brother. The remaining important object is the following:

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“AND WHEREAS with object of making proper and adequate

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provision for the due maintenance and education of the persons mentioned above and also thereafter for the due maintenance and education of the male and female children of the owners and the youngest Rajendraprasad mentioned above, and thereafter for the due education of the descendants males and females in male line, in future of the owners and Rajendraprasad and also with the object of making proper and adequate provision for the due management, protection, preservation and disposition of the properties mentioned in the schedule hereto, the said owners are desirous of CREATING a Trust in respect of their properties detailed and specified in the Schedule hereto in manner hereinafter appearing.”

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It will show that maintenance and education of male and female children of the owners and youngest Rajendraprasad is contemplated and thereafter the due education of the descendants males and females in male line, in future of the owners and Rajendraprasad is contemplated.

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Clause 4 of the Trust Deed is also important which contains detailed provisions as to how the rent and other income from the Trust property have to be spent and the provision for due maintenance and education of the persons, etc. We extract the same for easy reference:

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“4. The trustees shall spend the rent and other income of the trust

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property as follows and in such manner as the said 1^st owner during his life time may direct and in case he is not able to give directions the said amounts of rent and income shall be spent on the due maintenance and education of the persons as was being done and continued to be done by him when he was able to give directions.

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a) The trustee shall pay 50% of the rent and income of the trust property.

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for the due maintenance of the aforesaid Thavakal, the wife of the 1^st owner, i.e. the mother of the 2^nd and 3^rd owners till her life.

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for the due maintenance of the aforesaid 1. Visalakshi, 2. Pacha Nayaki and 3. Kanchanamala, the three daughters of the 1^st owner, i.e. the three younger sisters of the 2^nd and 3^rd owners till their marriages are over and

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for the due maintenance of the aforesaid Rajendraprasad the youngest son of the 1^st owner i.e. The youngest brother of the 2^nd and 3^rd owners, till the aforesaid THAVAKKAL is alive and till the aforesaid Visalakshi and other daughters are married, whichever is the longer period and thereafter only 1/3 of the 50% of the rent and income of the trust property alone shall be utilised for the due maintenace of the said Rajendraprasad till his life and

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when these specific purposes of due maintenances are fulfilled the trustees shall pay the same for the due maintenances of the children male or female (Female children till their marriages are over) of the owners and of the said Rajendraprasad. Thereafter, the said 50% of amounts of rent and income shall be utilised for the due education of the descendants of the owners and of the said Rajendraprasad in male line provided that (i) not a single individual should be paid more than Rs.720/- Rupees Seven Hundred and Twenty only a year and (ii) that female descendants in male line shall be paid for educational purposes only till they are married.

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b) The trustees shall pay the 25% of the remaining 50% of the rent and income of the trust property for the due education of the aforesaid Rajendraprasad till he is fully educated and for the due education of the aforesaid 1. Visalakshi 2. Pacha Nayaki and 3. Kanchanamala till their marriages are over and thereafter the same shall be utilised for the due education of the male and female (till their marriages are over) children of the owners and of the said Rajendraprasad and thereafter the said 25% of the amounts of rent and income shall be utilised in making purchases of properties immovable yielding good income and thus increase the assets of the trust proved that any first five female descendants in male line of the owners and of the said Rajendraprasad obtain

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an Indian University Degree of M.B.B.S. or any other Degree of equivalent status of foreign University recognised by India Government be paid each a lump sum of Rs.2,000/- Rupees Two Thousand only and if obtain any other degree of the Indian University be paid each Rs.1500/- Rupees One thousand five hundred only as a gift for encouragement to this extent. The purchase of immovable properties mentioned above will be restricted at that time.

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c) The trustees shall spend 25% of the remaining rent and income of the trust property for the due maintenance and education of the wife by name Chembaka Lexmi aged 46, and the three sons by name 1. Vasantha Kumar age 25, 2. Ramalingom aged 19 and 3. Muruganathan aged 16, of Shri Ambalavana Chettiar, the aforesaid brother of the 1^st owner and when the said purpose is fulfilled then the same shall be spent for the due education of the descendants of the said Shri Ambalavana Chettiar in male line (females till they are married).

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d) in all these cases the income shall be calculated to be the net income after all compulsory outgoings of tax, cess and necessary ordinary repair charges that will be required to be done to the trust property every year.”

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Clause 4(a) will show that the same governs the utilisation of

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50% of the rent and income in accordance with the terms therein.

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Provisions have been made for the maintenance of the mother as well as three daughters till their marriage. Clause 4(a)(3) will show that provisions have been made for due maintenance of younger son Rajendraprasad. After the death of the mother and the marriage of the three daughters are over, 1/3^rd of the 50% of the rent and income of the trust property will have to be utilised for the due maintenance of Rajendraprasad till his life and after the above specific purposes of due maintenances are fulfilled, the trustees shall pay the same for the due maintenances of the children male or female (female children till their marriages are over) of the owners and of the said Rajendraprasad. The remaining part of clause 4(a)(3) will show that after these are achieved, then 50% of the amounts of rent and income shall be utilised for the due education of the descendants of the owners and of the said Rajendraprasad in male line. ₹720/- is fixed as the amount payable for one year for one individual and female descendants will have to be paid educational expenses till their marriages are over.

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The next clause, viz. Clause 4(b) is also important. 25% of the remaining 50% of the rent and income will have to be initially utilised for the due education of Rajendraprasad till he is fully educated and for the due

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education of the three daughters till their marriages are over. Thereafter, the same will have to be utilised for the due education of the male and female (till their marriages are over) children of the owners and of the said Rajendraprasad and thereafter the said 25% of the amounts of rent and income shall be utilised in making purchases of properties immovable yielding good income and thus increase the assets of the trust. Thus, from the above clauses, we will get a whole scheme as to how the rent and income will have to be distributed for maintenance and education and other purposes.

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The evidence of P.W.1, according to the learned counsel for the tenants, will show that the income required for the expenditures and maintenance, etc. will come to ₹2 lakhs per year. P.W.1 has stated in the cross examination that apart from the rental income of ₹1,92,000/- per year, for the hoarding erected above the terrace, a sum of ₹50,000/- and for erecting the relay antena of vodafone in the terrace, an amount of Rs.35,000/- are also being obtained as rent. Therefore, it is pointed out that more than ₹2,70,000/- is available as rent from the entire building. It is also stated that there is only one beneficiary, viz. the grand-son of Shri

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Muruhanathan Chettiar, aged 4. Therefore, learned counsel submits that the plea raised that it is for augmenting income for meeting the expenses for maintenance of several members of the family that the eviction petition is filed, cannot be supported. Shri P. Santhalaingam, learned Senior Counsel for the respondent submitted that the evidence will show that Shri Rajendraprasad is residing in Bombay and apart from medical expenses of ₹6,000/- per month, he will have to be given a minimum ₹25,000/- per month. Learned Senior Counsel further submits that there are other members of different families whose expenses for maintenance have to be met by the Trust and merely because more than ₹2,70,000/- is available as rent now, the entire amount will not sufficient for meeting the expenses and maintenances as well as educational expenses which are on a higher side now a days.

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We have considered the rival submissions. In the chief affidavit of P.W.1, what is asserted is that the rent from the petition schedule building has become insufficient so as to meet the requirements of all the beneficiaries of the Trust. In para 11 of the chief affidavit, it is explained that the objects of the Trust have not been accomplished and Mr.

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Rajendraprasad requires maintenance from the income of the Trust, so also the descendants of the male line of the owners of the Trust requires educational expenses. These expenses and maintenance have to be borne

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from the income from the petition schedule building (underlining by us). The next sentence is crucial which is extracted below:

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“This income from the petition schedule building is squarely insufficient to meet the expenses and maintenance as set out in the Trust deed, amounting to more than ₹2 lakhs, per year.”

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Shri K.K. John, learned counsel for the petitioners submits that the said sentence indicates that the expenses will be around ₹2 lakhs and hence the rental income now available being more than that, there are no bonafides in the petition for eviction. But a close reading of the said sentence along with the previous sentence we have underlined, will show that ₹2 lakhs is mentioned in connection with the present income from the petition schedule building and it is not a quantification of all the expenses for maintenance.

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The evidence of P.W.1 will show that the Trust was formed by P.W.1 along with his brother Muruganathan Chettiar and their father. Now the present trustees are P.W.1, Shri Muruganathan Chettiar and the son of

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P.W.1, Subramonyan, who was made as a trustee after the death of the father of P.W.1. He has explained that the descendants of all the three brothers and Rajendraprasad are the beneficiaries at present. After the marriage of the female descendants, the educational expenses of their children will have to be met. P.W.1 has got one son and one daughter and the daughter has been married away. Subramonyan has got one son and a daughter and the daughter has been married away. The son, after completing his C.A., is studying for M.B.A. Muruganathan has got a son and a daughter and the daughter has been married away and son has got a child aged 4. Rajendraprasad (an Electronics Engineer) is not having any job now and he is aged 55 years. He has also got one son and one daughter and the daughter has been married away. The son is employed. To a specific question whether the four year old grand-child of Muruganathan alone is the beneficiary of the Trust now, he has answered in the positive. Shri K.K. John relied upon the same to show that the only beneficiary now available is the said child and educational expenses of the child alone need be met.

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On going through the Trust Deed, it can be seen that educational expenses of beneficiaries and the descendants males and females in male

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line are to be met from the income. As far as Mr. Rajendraprasad and other descendants are concerned, clause 4(a) will show that he Trust will have to meet the expenses for maintenance. Married females alone are excluded from getting maintenance expenses. Therefore, it cannot be said that there is only one beneficiary, viz. the grandson of Muruganathan Chettiar. What is envisaged as the object of the Trust Deed is making proper and adequate provision for the due maintenance and education of the male and female children of the owners and thereafter of the descendants males and females in male line, etc. Therefore, the Trust evidently, will have to meet the various expenses for maintenance as well as education of descendants. We are also of the view that the provision in the Trust Deed, viz. para 4(b) stipulating that 25% of the rent and income shall be utilised in making purchases of properties immovable yielding good income and thus increase the assets of the Trust, is an important one. It will definitely be a case where attempt can be made by the trustees to augment large income for adding to the assets of the Trust by way of immovable properties. When such is the position, it cannot be held, that the trustees cannot do business of their own. Therefore, we are of the definite view that the same will also go

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to strengthen the plea of the landlord of the requirement to augment the income of the Trust. It cannot be that Rajendraprasad or grand-son of Muruganathan Chettiar alone are the beneficiaries.

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On the above point, the Appellate Authority has concluded in para 8 that since it has come out in evidence that the children of the beneficiaries are available, the case of the landlord that the income is not sufficient for the maintenance of the beneficiaries of the Trust could only be considered as a bonafide ground for eviction. It was also held that it is not possible to conclude that the income derived from the building is quite sufficient for the requirement of the beneficiaries of the Trust Deed. It was further held that Rajendraprasad is the main beneficiary, but the descendants of Rajendraprasad's brothers are also beneficiaries of the Trust and their expenses and maintenance have to be met from the income. On this aspect, the evidence of P.W.1 was accepted by the Appellate Authority.

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One of the pleas raised by the learned counsel for the petitioners is that the provision for due education of the descendants of the owners and of Rajendraprasad fix up a limit of ₹720/- per year which factor is important. In fact, the said part of clause 4(a)(3) cannot have greater impact

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for more reasons that one. ₹720/- per year was envisaged in the year 1959 which, on any account, was a handsome amount then.

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As already indicated by us, one will have to go through the various clauses in the trust deed, to get a true picture and true effect of the provisions. Evidently, the father Chidambaram Chettiar and two sons, viz. Swaminathan Chettiar and Muruganathan Chettiar have joined as trustees in the trust deed at that point of time. The true effect of the provisions, according to us, will enable the trustees to utilise the property in a manner which would fetch rent and income for meeting the various demands. It can be seen from clause 4(b) that after the younger brother Rajendraprasad is educated and the three daughters are married, 25% of the remaining 50% shall be utilised for purchase of properties immovable yielding good income and thus increase the assets of the trust. The provision for payment of due maintenance which is part of the object clause for the persons mentioned in the trust deed and also thereafter for the due maintenance and education of male and female children of owners and of Rajendraprasad and thereafter for the due education of the descendants males and females in male line in future of the owners of Rajendraprasad is also important. It can

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be seen therefore that the income that is fetched from the building will have to be spent for such different purposes.

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If the argument of the learned counsel for the tenants is accepted, then, the landlord should be satisfied with the rental income now being obtained and the landlord is not expected to utilise the property for their business purpose also. It is well settled that the tenants cannot dictate as to how a landlord should adjust to his needs. Therefore, the acceptance of the said argument of the learned counsel for the tenants would lead to a situation wherein the landlord Trust cannot be allowed to augment income by utilising the property in a more profitable manner as they desire. Such a consequence will not have any legal support also. The further argument that the total income now obtained being more than ₹2 lakhs, that will be sufficient for the needs of the landlord and the other beneficiaries, etc. cannot also be accepted, as the tenants cannot contend for the position that the landlord should be satisfied with the said income. In that view of the matter, the question is whether the approach made by the Appellate Authority can be said to be perverse.

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We have considered the clauses in the trust deed along wit the

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averments of the landlord in the Rent Control Petition and the oral evidence of P.W.1, to find out whether the view taken by the Appellate Authority can be said to be perverse. According to us, it cannot be said that the view is so perverse warranting interference by this Court. Apart from the same, the evidence of P.W.1 will show that the owners have got experience in conducting various items of business also. The terms of the Trust Deed do not put any restriction to do business by the Trust. Therefore, we confirm the finding by the Appellate Authority under Section 11(3) of the Act.

¶124

then, the further question is whether the tenants are entitled for the benefit of the second proviso to Section 11(3) of the Act. As far as the said benefit is concerned, going by the decisions of this Court, the burden is on the tenants. In the evidence of R.W.1, it is admitted that a new building by name J.K. Constructions has been constructed in the road nearby, close to the petition schedule building. The Appellate Authority observed that R.W.1 has admitted that he has not made any direct enquiries with regard to the availability of other rooms for shifting their business. It was held that on a reading of his evidence it is not possible to conclude that buildings are not available in the nearby locality to shift the business of the tenants.

¶125

RCR No.220/2011

¶126

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¶127

Accordingly, it was held that the tenants are not entitled to the benefit of the second proviso to Section 11(3) of the Act. The evidence also does not indicate that the partners are solely depending upon the income derived from the petition schedule building for their livelihood. Therefore, the said finding is also liable to be accepted.

¶128

Accordingly, we reverse the findings on Sections 11(4)(i) and 11 (4)(ii) of the Act and eviction petition stands dismissed regarding the same. We confirm the finding under Section 11(3) of the Act and the eviction ordered on that score is upheld.

¶129

The revision petition is, therefore, dismissed. We grant one year's time from today to the petitioners to vacate the petition schedule premises on the following conditions:

¶130

i) The entire arrears of rent as on today will be paid/deposited within one month. If such deposit is made, the same will be disbursed to the respondent;

¶131

ii) An affidavit will be filed by the petitioners before the Rent Control Court within one month from today, undertaking to vacate the premises within the time stipulated by this Court.

¶132

RCR No.220/2011

¶133

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¶134

iii) The petitioners will continue to pay at the same monthly rate for

¶135

the use and occupation of the building till vacant peaceful possession is

¶136

handed over to the respondent;

¶137

iv) If the above conditions are not satisfied, the petitioners will not

¶138

get the benefit of this order. No costs.

¶139

(T.R.RAMACHANDRAN NAIR, JUDGE)

¶140

(B. KEMAL PASHA, JUDGE)

¶141

kav/

M/S. Breeze Hotel v. Chidambaram Chettiyar Trust

Case brief

What is this about?

What did the court decide?

M/S. Breeze Hotel v. Chidambaram Chettiyar Trust

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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