Allowed

K.v.Dineshan v. Jayasree R

Kerala HC17 Dec 2013RCRev./294/2013

Case brief

AI extract

What is this about?

Revision petitions filed by tenants challenging eviction orders were dismissed. The court upheld the landlords' bona fide need to establish a new auto-spares business under genuine ground, rejecting the argument that existing occupation in the building negated the claim or required separate proof of bona fides under Section 11(10).

What did the court decide?

Revision petitions dismissed; tenants granted time to vacate subject to payment of arrears and use and occupation charges within prescribed conditions.

K.v.Dineshan Vs Jayasree R — 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

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935

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RCRev..No. 294 of 2013 ()

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AGAINST THE JUDGMENT IN RCA 3/2012 of RENT CONTROL APPELLATE AUTHORITY, KASARAGOD

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AGAINST THE ORDER IN RCP 2/2010 of RENT CONTROL COURT, HOSDRUG

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REVISION PETITIONER/RESPONDENT/RESPONDENT:

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K.V.DINESHAN, AGED 42 YEARS S/O.KUTTYAN, KIZHAKKUMKARA, AJANOOR VILLAGE HOSDURG TALUK.

BY ADVS.SRI.M.V.BOSE

SRI.VINOD MADHAVAN

SMT.NISHA BOSE

RESPONDENTS/APPELLANTS/PETITIONERS:

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JAYASREE R.,, AGED 26 YEARS

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D/O.LATE V.KUNHIRAMAN AND LATE THAMBI RESIDING AT GEETHALAYAM, MAVUNGAL, ANANDASRAM P.O. AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.

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GEETHA R.,, AGED 23 YEARS D/O.LATE V.KUNHIRAMAN AND LATE THAMBI RESIDING AT GEETHALAYAM, MAVUNGAL, ANANDASRAM P.O. AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.

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R1&2 BY ADV. SRI.SURESH KUMAR KODOTH

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17-12-2013, ALONG WITH RCR.355/2012 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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T.R.RAMACHANDRAN NAIR &

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B.KEMAL PASHA, JJ.

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R.C.R. Nos.355 of 2012 & 294 of 2013

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Dated this the 17^th day of December, 2013

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O R D E R

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~ ~ ~ ~ ~ ~

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Ramachandran Nair, J.

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Both these revision petitions are filed by the

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tenants. The eviction petitions were filed by the respondents under Sections 11(2)(b), 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The ground under Section 11(8) of the Act was given up in the course of the proceedings.

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RCP Nos.1/2010 and 2/2010 are the petitions for

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eviction. The Rent Control Court allowed eviction on the

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RCR.355/12 & 294/13

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: 2 :

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ground of arrears of rent in RCP No.1/2010. As far as RCR No.294/2013 arising from RCP No.2/2010 is concerned, it is seen that the Rent Control Court did not grant an order of eviction and pleas under Sections 11(2)(b) and 11(3) of the Act were rejected. In appeal, the Rent Control Appellate Authority found that the bona fide need is genuine and accordingly, the eviction petition was allowed. As far as RCP No.1/2010 (RCR No.355/2012) is concerned, the Rent Control Court allowed eviction only under Section 11(2)(b) of the Act and petition under Section 11(3) of the Act has been dismissed, which was reversed by the Appellate Authority.

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The landladies sought eviction by pleading that they are educated and both of them are engineering graduates and they together wanted to start a business of automobile spare parts and other engineering works in the petition schedule rooms and there are no other rooms owned by the petitioners to start their intended business. It

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RCR.355/12 & 294/13

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was stated that they have no other avocation or job and they wanted to have their livelihood from the business carried on by themselves. In both eviction petitions, they have stated that the rooms occupied by the tenants are needed for doing the business.

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A reference to the order passed by the Rent Controller will show that the main reason pointed out for denying eviction under Section 11(3) of the Act is that the first among the landladies is residing at Chennai and the second one is studying at Thiruvananthapuram and if that be so, the second one had to start the business in the petition schedule rooms. It is also observed that the first among the sisters has no case that she is returning back to their native place for starting their intended business and there is no evidence to show that the landladies have made any preparation for doing their intended business.

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The Appellate Authority in paragraph 17, after referring the oral evidence, found that PW1 in her deposition

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RCR.355/12 & 294/13

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stated that she is having partnership in Durga Industries, which is a workshop. Both the sisters are having partnership in the business. It was also observed that nothing is in evidence to show that the need put forward by PW1 to start a business of her own along with her sister is malafide . After finding that PW1 is an engineering graduate and is interested in running the business and also due to the fact that they are already in the business line, it was found that the bona fide need is genuine.

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While attacking the findings of the Appellate Authority, the learned counsel for the petitioners Sri.Vinod Madhavan submitted that going by the pleadings in the eviction petition, it is clear that the landladies are having business in partnership by them and they wanted to start a business in automobile spare parts in the petition schedule rooms. If that be so, they are bound to satisfy the court that the rooms in their possession are not sufficient for starting their business. It is submitted that when the plea under

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RCR.355/12 & 294/13

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Section 11(8) of the Act has been put forward initially by them, the burden is on them to prove the details of the claim that they have pointed out in paragraph 4 of the eviction petition. It is also the contention of the learned counsel for the petitioners that the fact that the landladies are doing business in one room will really cut the root of the bona fide need pleaded.

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We have perused the objections filed by the tenants before the Rent Control Court. The only objection raised in paragraph 1 is that the plea raised by the landladies is false. Therefore, there is no effective denial of the averments in the eviction petition with regard to the need

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projected. In the chief affidavit, PW1 has stated that the landladies together wanted to start a business in automobile spare parts and other engineering works in the petition schedule rooms. The learned counsel for the landladies pointed out that in paragraph 4 of the affidavit it has been clearly stated that the landladies are in possession of one

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RCR.355/12 & 294/13

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room where Durga Industries is being run now. On going through the cross examination of PW1, it is seen that no specific question is asked as to the details of the business in the room, which is in their possession or as to whether the space therein is sufficient to do the proposed business also. A reading of the eviction petition will show that they have not pleaded that it is for expanding their existing business that the eviction is sought. Therefore, elements of Section 11(8) of the Act for additional accommodation are not there and petition is well laid under Section 11(3) of the Act. When the landladies are seeking eviction of the tenants for starting a new business, even though the landladies are occupying a part of the same building, the need can only be under Section 11(3) of the Act and not under Section 11(8) of the Act, which is a settled legal position going by the various decisions of this Court. Apart from the same, the tenants have not succeeded in demolishing the genuineness of the plea raised by the landladies. The evidence of PW1 is

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RCR.355/12 & 294/13

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convincing. Therefore, we reject the said contention.

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Even though it is submitted by the learned

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counsel for the petitioners that there is no likelihood of the landladies doing the business, we are of the view that since there is evidence to show that they are already doing a partnership business, the said plea is also not correct. There is no restriction that a person already in the business line cannot have another business by way of fresh ventures.

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Learned counsel for the petitioners further submitted that going by the first proviso to Section 11(3) of the Act, when the landladies are in possession of a room, they are not entitled to evict the tenants. Herein, according to the respondents, the applicability of that proviso does not arise since the room which they own apart from the tenanted premises is the one wherein already Durga Industries is being conducted. Hence, we cannot appreciate the said argument also.

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The next contention is one regarding the benefit

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RCR.355/12 & 294/13

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of second proviso to Section 11(3) of the Act. According to the learned counsel for the petitioners, when the landladies have a case that the tenants are trying to sublease the rooms in question, it can be implied that no other rooms are available in the locality and the court can proceed on the basis that other rooms are not available in the locality for the tenants to shift the business. We fail to understand as to how such a contention could be advanced. It is well settled by various decisions of this Court that the burden is on the tenant to prove the two limbs of second proviso to Section 11(3) of the Act. Herein, the Appellate Authority in paragraph 19 of the judgment has analysed the evidence in the matter. It is found that the tenants have failed to prove both the ingredients of the second proviso by adducing evidence on the income derived from the business from the tenanted premises and that there are no other rooms available in the locality to shift their business. Therefore, we find no reason to accept the argument of the learned

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RCR.355/12 & 294/13

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counsel for the tenants so as to interfere with the findings on that score also.

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Lastly, the learned counsel for the petitioners submitted by relying upon a reference order which is reported in Smitha Vs. Krishnan [2011 (4) KLT 697] that the landlord should separately prove that the claim is also bona fide . In fact, two later decisions of this Court have explained that such a burden is no there on the landlord. In Abdulkhader Vs. Naseema [2013 (1) KLT 827] by one of us (B.Kemal Pasha, J.), in paragraph 9 it has explained the legal position thus:-

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“ As far as the grounds under clauses (i), (ii), (iii) and (v) of sub-section (4) of S.11 are concerned, those circumstances deal with the entitlement of the landlord to get an order directing the tenant to put the landlord in possession when the ingredients of those provisions are satisfied. As far as those provisions are concerned, there cannot be any application of S.11(10). Similar is the case with

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RCR.355/12 & 294/13

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the ground contained in S.11(2)(b) also. When the landlord needs bona fide the building for his own occupation or for the occupation of any member of his family dependent on him, it does not create an entitlement, whereas, it merely entitles the landlord to forward a claim under Section 11(3) of the Act before the Rent Control Court. Similarly when the landlord requires the building bona fide to reconstruct the same, the same also does not create an entitlement, whereas, it merely entitles the landlord to forward a claim under Section 11(4)(iv) of the Act before the Rent Control Court. In construing a particular section of a statute, the Court should always endeavour to construe the language of the statute in such a way as to avoid contradictions. A construction most agreeable to justice and reason should be adopted. In incorporating S.11(10) in the statute, the legislature has created two legal obligations on the part of the Rent Control Court, (1) when it is satisfied that the claim of the landlord under Sections 11(3), 11(4), 11(7) and 11(8) is bona fide, to make an order directing the tenant to put the landlord in possession of the building, and

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RCR.355/12 & 294/13

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(2) to make an order rejecting the application if the Court is not so satisfied. S.11(10) makes it clear that it deals with the claims of the landlord under Sections 11(3), 11(4), 11(7) and 11(8). The claim of the landlord under Section 11(4) is confined only to S.11(4)(iv). When the need urged by the landlord under Sections 11(3) and 11(4)(iv) is bona fide, it constitutes an opportunity for him to forward a claim under Sections 11(3) and 11(4)(iv) before the Rent Control Court. The ingredients of Ss.11(3) and 11(4)(iv) merely constitute grounds for raising a claim. When the Rent Control Court is satisfied that the said claim of the landlord is bona fide, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not so satisfied, the Rent Control Court shall make an order rejecting the application containing the claim. Any further significance need not be attributed to the term “bona fide” occurring in Ss. 11(3), 11(4)(iv) and S.11(10) of the Act.”

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12. A later Division Bench in Sampath S. Pawar Vs.

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Ibrahim [2013 (3) KLT 722] has also held that apart from

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RCR.355/12 & 294/13

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proving bona fide need under Section 11(3) of the Act, it is not necessary for the landlord to prove that the claim is bona fide under Section 11(10) of the Act. The view taken is that the bona fide need under sub-section 3 of Section 11 of the Act is the same as the proof of the claim being bona fide under sub-section 10 of Section 11 of the Act. We notice from the reference order that the Bench has clarified that till the Full Bench answered the question, the view taken by this Court in Aboobacker Vs. Sahithya P.S. Sangham Ltd. [2004 (2) KLT 947] and Ganesh Vs. Varghese [2005 (1) KLT 282] shall continue to hold the field, subject to the decision by the Full Bench. In both these decisions, the Division Benches have held that it is not the requirement that the landlord should further establish a claim under Section 11(10) of the Act. Therefore, we reject the said contention also.

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Lastly, the learned counsel for the petitioners sought for a larger time to vacate the premises for enabling

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RCR.355/12 & 294/13

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the petitioners to find out suitable premises.

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In the result,

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(a) These revision petitions are dismissed.

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(b) The tenants are granted time up to 31.8.2014, to

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vacate the premises and deliver possession to the landladies on the following conditions:-

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(i) They remit the entire arrears of rent as

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on today before the executing court within one month from today and file an affidavit before the executing court within one month from today, unconditionally undertaking to surrender vacant possession of the premises to the landladies on or before 31.8.2014.

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(ii) They pay charges towards use and occupation of the building at the current rent rate from today till they give vacant possession of the premises to the landladies.

RCR.355/12 & 294/13

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the executing court shall be kept in abeyance up to 31.8.2014, if the aforesaid conditions are satisfied.

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(d) If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenants as per this order will stand recalled automatically and the executing court shall effect delivery forthwith.

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(e) No costs.

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Sd/- (T.R.RAMACHANDRAN NAIR, JUDGE)

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/18/12

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// True Copy //

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PA to Judge

K.v.Dineshan v. Jayasree R

Case brief

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K.v.Dineshan v. Jayasree R

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