IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 RCRev..No. 234 of 2006() ------------------------ RCA.33/2005 OF RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT,KOZHIKODE RCP.37/2004 OF RENT CONTROL COURT/ MUNSIFF COURT, NADAPURAM .................... REV.PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------- POOLAKANDI KUMARAN, 58 YERAS, S/O.CHANGARAN, MERCHANT, KUNNUMMAL AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): PETITIONER/LANDLORD ---------------------------------- KULANGARA VEETTIL MATHU, 65 YEARS, D/O.CHANGARAN, SWASTHAM, KUNNUMMAL AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.T.KRISHNAN UNNI (SR.) FOR R1 SRIC.M.MOHAMMED IQUABAL THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22-1-2009 THE COURT ON THE SAME PASSED THE FOLLOWING: PIUS C. KURIAKOSE & M.C.HARI RANI, JJ. ----------------------------------------------- R.C.R. No. 234 OF 2006 ----------------------------------------------- Dated this the 22nd day of January, 2009 O R D E R Pius C.Kuriakose, J. The tenant, who has suffered order of eviction concurrently on the ground mentioned under Sections 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Act 2 of 1965) (hereinafter referred to as 'the Act' )at the hands of the Rent Control Court and the Appellate Authority, has filed this revision petition under Section 20 of the Act. Though the landlady invoked the ground under Section 11 (4)(iii) also, the said ground does not survive any longer since rent control appeal or revision petition were filed by the landlady against the order declining eviction under that ground. The landlord's case in the context of the ground under Section 11(3) was that she requires the petition schedule building bona fide for occupation by her dependent son Sukumaran, so that Sri.Sukumaran can conduct a stationary business therein. It was also averred by the landlady that neither she nor Sukumaran possess any building of their own as to disentitle them to order of eviction RCR. N0. 234/06 -2- under Section 11(3) of the Act. The case was resisted by the revision petitioner/tenant. The bona fides of the need and the claim were disputed. The revision petitioner also claimed protection of the second proviso to Section 11(3) of the Act. The Rent Control Court on an evaluation of the evidence, which consisted of the documents Exts.A1 to A8 and oral evidence of PW1/the de facto claimant, son of the landlady and the counter evidence which consisted of Exts.B1 to B20 and oral testimonies of Rws.1 to 4, apart from Exts.C1 to C3 commissioner's reports and plans would hold that the need of the landlady is bona fide and that the tenant has not been successful in establishing that he satisfies either of the ingredients of the second proviso to Section 11(3) of the Act. Accordingly, order of eviction was passed under Section 11(3) of the Act. The Rent Control Appellate Authority would re-appraise the evidence and concur with all the conclusions of the Rent Control Court and dismiss the appeal. We have heard the submissions of Mr.B.Krishnan, learned counsel for the revision petitioner and Mr.T.Krishnanunni, learned RCR. N0. 234/06 -3- senior counsel for the respondent/landlady. Mr.Krishnan drew our attention to the 5th paragraph of the rent control petition wherein it is averred by the landlady that her son Sukumaran, the de facto claimant, was in possession of another shop room belonging to one Muhammed Haji and that in view of an order of eviction passed against him under Section 11(3) of the Act in favour of Sri. Haji, Sukumaran surrendered possession of that room to Sri.Haji and hence Sri.Sukumaran is without any building other than the petition schedule building for conduct of business. It is further averred that the landlady thus became compelled to file the rent control petition for eviction of the petition schedule building. Mr.Krishnan argued that the above averment in paragraph 5 of the rent control petition is a false and dishonest one. He would draw our attention to Ext.B11 statement filed by Sri Muhammed Haji, Sukumaran's landlord in O.S.No.6/2004. He also referred to the finding of the Rent Control Court in paragraph 35 of its judgment wherein it is found that actual surrender of Muhammed Haji's room by Sukumaran was only on 5-7-2004. Mr.Krishnan submitted that the said RCR. N0. 234/06 -4- finding has not been challenged by anybody and therefore , it is clear that the statement in paragraph 5 of the Rent Control Petition, which was filed on 15-7-2004 is a false one. According to Mr.Krishnan, the authorities under the Rent Control Act are governed by the principles of equity, justice and good conscience and, therefore, the landlady, who came to the Rent Control Court stating an absolutely false case, is not entitled for relief. In this context, Mr.Krishnan also referred to the cross examination of PW1. Mr.Krishnan would further submit that on the terms of the lease deed, Ext.B1, there is a clear contract between the parties that the tenant will be evicted only on the ground of arrears of rent or on ground of sub-letting. Such a contract is permissible in law since non-obstante clause in Section 11(1) can operate only against the landlady and there is nothing illegal in the landlady and the tenant agreeing that a tenant will be evicted only under one or more of the statutory grounds for eviction. The agreement, counsel submitted, at any rate is not opposed to public policy or opposed to the provisions of the statute or any RCR. N0. 234/06 -5- other statute. In this context, Mr.Krishnan drew our attention to Ext.B2 assignment deed executed by the same landlady in favour of the revision petitioner. He would submit that upon the land covered by the B2 deed, a smoke room was constructed by the tenant after demolishing a shed which existed on that land. The intention of the parties in confining the ground for eviction to sub-letting and arrears of rent was because the very purpose for selling and purchasing the property covered by Ext.B2 was to enable the revision petitioner to carry on his business smoothly and uninterruptedly, subject to liability, to be evicted on the grounds specified in the lease agreement only. Mr.Krishnan, then would submit that at any rate the findings of the authorities below, on the tenant's eligibility for the protection of the second proviso to Section 11(3) are erroneous. He pointed out that it was conceded by the landlady in her evidence that the means of livelihood for the revision petitioner/tenant is the business which he carries in the petition schedule building. He argued that the finding that the tenant does not satisfy the first ingredient of the second proviso to RCR. N0. 234/06 -6- Section 11(3) of the Act has been entered with reference to the availability of 50 cents of land with the tenant. The income from 50 cents of land cannot at any rate be substantial, submitted Mr.Krishnan. As regards the second ingredient of the proviso, Mr.Krishnan submitted that the evidence adduced by witnesses, RWs 2 to 4 was convincing. They are independent witnesses who have given convincing oral evidence regarding the non- availability of the buildings in the locality. He also submitted that it is the availability of a suitable building that is necessary in the context of the second proviso to Section 11(3) of the Act. In the nature of the business conducted by the revision petitioner, he requires a smoke room also so that he merchandise very banana and plantain can be ripened. Absolutely, no evidence was there to hold that such a building is available in the locality. All the above submissions of Mr.Krishnan were opposed by Mr.T.Krishnanunni, learned senior counsel for the respondent/landlady. We have considered the submissions, the pleadings and also the evidence to the extent our attention was drawn to the RCR. N0. 234/06 -7- same by learned counsel for the revision petitioner. We are unable to accept the arguments of Mr.B.Krishnan that the landlord is guilty of having approached the Rent Control Court with a false case regarding the surrender of the building belonging to Muhammed Haji in which Mr.Sukumaran, the de facto claimant was conducting business previously. The finding of the Rent Control Court in paragraph 35 of its judgment is obviously based on Ext.B11 statement. We have carefully gone through Exts.B11. Ext.B11 is not a statement filed by Sri.Muhammed Haji in the rent control proceedings which he had initiated against Sri.Sukumaran nor is a statement filed in the proceedings for execution of the eviction which was passed in favour of Muhammed Haji. Instead Ext.B11 is filed in a suit, which Sri.Muhammed Haji filed against Sukumaran, apparently for an injunction restraining Sukumaran from putting up certain additional constructions to the building which was subject matter of the rent control petition. But it is stated in Ext.B11 that all the disputes between the parties have been amicably settled by mediation out of court and that the building which is subject RCR. N0. 234/06 -8- matter of the suit has already been surrendered to Muhammed Haji. According to us, the statement speaks about events which had taken place already. There is no doubt in our mind that actual surrender of the building which was subject matter of O.S.No.6/2004 was prior to 5-7-2004. The evidence of PW1 in cross examination will also indicate that the surrender of the building was made by him much before O.S.No.6/2004 was listed for trial. We, therefore, are unable to accept the argument of Mr.Krishnan that rent control petition was liable to fail on account of the landlady having approached the court with a false version regarding surrender of Muhammed Haji's building by the de facto claimant. According to us, the finding of the Rent Control Court regarding the date of surrender of Muhammed Haji's building has resulted from an erroneous reading of Ext.B11. We will now deal with Mr.Krishnan's argument that there was a contract between the parties that the tenant will not be evicted other than on the grounds under Section 11(2)(b) and 11(4)(iii) of the Act. RCR. N0. 234/06 -9- Xx xxx xx The result is that the R.C.R.fails. However, as a last submission, the learned counsel for the revision petitioner sought for six month's time to vacate the building. Having regard to the circumstances attended in the case, we are inclined to grant six month's time on the following conditions: usual condition The argument of Mr. Krishnan was that Ext.B1 incorporates an agreement between the landlord and the tenant that the tenant will not be evicted other than on the grounds under section 11(4)(1) and 11(2)(b) and that it was in view of that agreement that Ext.B2 sale deed was executed by the landlady in favour of the tenant so as to enable the tenant to continue business in banana and plantain by utilising the property covered by Ext.B2 and the petitioner schedule building as one integral unit. Mr.Krishnan relied on the commissioner's report to argue that as of now a pucca building has been constructed upon the property covered by Ext.B2 and that the same is now used as a smoke room for the artificial ripening of banana and plantain and RCR. N0. 234/06 -10- also that the very sale of B2 property was to enable the tenant to use the schedule room and the smoke room for indefinite periods of time subject to liability for eviction on the two specified grounds. We have gone through Ext.B1. In that agreement we do not find any specific agreement between the parties to the effect that the tenant is liable to be evicted only on the grounds of arrears of rent and subletting. That agreement contains provisions which insist upon prompt payment of monthly rent by the tenant and forbidding the tenant from subletting or transferring the building. The clauses highlighted by Sri.Krishnan have obviously been incorporated in the context of the tenant's liability to pay rent promptly and not to sublet or transfer the building and the clauses are only to the effect that in the event of default of rent or transfer or sublease the tenant shall liable to be evicted. We do not find any clause in the agreement specifically providing that the tenant's liability to be vacated will arise only upon the tenant's violating the clauses insisting on payment of rent and prohibiting sublease or transfer. The rights of landlords and tenants of buildings which are situated in areas where the Rent Control Act has been made applicable are governed by the provisions of the Rent Control Act. We are not impressed by Mr.Krishnan's argument that the non obstante clause in section 11(1) saying that eviction of a tenant shall be only in RCR. N0. 234/06 -11- accordance with the provisions of the Rent Control Act will operate only against the landlord who seeks eviction and does not stand in the way of the tenant availing the benefit of an agreement with the landlord that liability for eviction will be confined to only one or more of the grounds specified in the statute. The non obstante clause under section 11(1) states only eviction of tenants will be regulated by the terms of the Kerala Buildings (Lease & Rent Control) Act. This non obstante clause certainly creates an inroad into a landlord's right to evict his tenant which was almost absolute and regulated by contract in terms of the transfer of the Property Act and the Contract Act. In other words, a landlord who was otherwise entitled to evict his tenant subject to terms of the contract of tenancy without establishing any ground after terminating the tenancy by issuing notice in terms of section 106 of the T.P. Act and the Contract Act, by virtue of section 11(1) is prevented from evicting his tenant unless he establishes any one of the various eviction grounds provided under section 11 of Act 2 of 1965. By now it is trite that Rent Acts are legislations or the welfare of the landlord also in the sense that those Acts assure the landlord that if he establishes any one of the eviction grounds under those Acts he can evict his tenant. Any contract between a landlord and tenant, except contracts envisaged under clause 9 of rule 11 providing for RCR. N0. 234/06 -12- periods for tenancy restricting the landlord's right to evict his tenant on a statutory eviction ground really existing, will amount to contracting out of the statute. As already pointed out there is no contract in Ext.B1 that the tenant is liable to be evicted only on the grounds of arrears of rent and subletting. The ground of own occupation for the landlord himself or for a dependent member of the landlord's family is one of the prominent grounds provided to the landlord under the statute for evicting his tenant and according to us, even if there were a clause excluding that ground in Ext.B1 it would have been difficult for the revision petitioner to rely on that clause to defend the present RCP. No evidence also has been adduced regarding the existence of such an agreement between the parties. The circumstances pointed out by Mr. Krishnan with reference to Ext.B2 also do not appeal to us. B2 sale deed does not reveal the existence of any temporary shed and therefore it is difficult to accept the argument that a temporary shed existed and in its place the present new smoke room was constructed. It is true that a new smoke room was constructed on the land covered by Ext.B1 and that the access to that smoke room is directly through the petition schedule building. If the revision petitioner was unable to foresee the eventuality of being compelled to vacate the petition schedule room at RCR. N0. 234/06 -13- the time when he constructed the smoke room providing an access to the same through the petition schedule building only, himself is to blame for that. So also, we are not at all impressed by the argument raised by Mr.Krishnan's challenging the findings of the authorities below regarding the tenant's eligibility for protection of the second proviso to section 11(3). May be it is true that PW-1 conceded that the only business which the tenant has is the business which he carries on the schedule room. But at the same time, when it becomes evident in the case that the tenant owns and possesses half an acre of land yielding some agricultural income, it was the burden of the tenant to adduce evidence regarding the relative income derived by him from the business and also from the property, and satisfied the courts that income from business is the substantial one. The two ingredients of the second proviso are in the conjunctive and in order that a tenant gets the benefit of the proviso, he will have to satisfy both the ingredients. Once we find that the finding of the court below regarding the first ingredient of the second proviso is correct the tenant will lose the benefit of the second proviso, even if he satisfies the second ingredient of the second proviso to section 11(3). Coming to that ingredient also we are unable to accept the argument that only a RCR. N0. 234/06 -14- building which is exactly identical to the schedule building – a sales room with a separate smoke room will be suitable for the tenant and that it is the availability of such a suitable building which is to be enquired into. The suitability of alternate building for the purpose of second proviso to section 11(3), the availability of which is to be enquired, is to be decided with reference to the building wherefrom the tenant is sought to be evicted. Here again, the law does not insist that the available building should be exactly identical and should have all the conveniences which the building sought to be evicted is enjoying. To insist for an exactly identical building will be to insist for the impossible. According to us, “suitable” in the context of the 2nd ingredient of 2nd proviso to section 11(3) means only reasonably suitable . The result of the above discussion is that the R.C.R fails and the same is dismissed. No costs. (PIUS C.KURIAKOSE, JUDGE) (M.C. HARI RANI, JUDGE) ksv/- RCR. N0. 234/06 -15-