IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R. RAMAN & THE HONOURABLE MR. JUSTICE T.R. RAMACHANDRAN NAIR WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 RCRev..No. 270 of 2004() ------------------------ RCA.17/2003 of ADDL. DISTRICT COURT, PARAVUR RCP.6/2001 of MUNSIFF COURT,ALUVA .................... (S): REVISION PETITIONER/APPELLANT/FIRST RESPONDENT. -------------------------------------------------- ABDUL KADER, S/O.KOCHUNNI, MADATHIL KARUVELIPPARAMBIL, PANAYIKULAM KARA, ALANGAD TALUK. BY ADV. SRI.M.A.ABDUL HAKHIM RESPONDENT(S): RESPONDENTS/PETITIONERS. --------------------------- 1. GEORGE JOSEPH, S/O.GEORGE, MAVELI HOUSE, CHIRAKKAKAM KARA, VARAPPUZHA VILLAGE. 2. SADIK, S/O.KAREEM, CHETTIPARAMBIL, R/A. PEECHINGAPARAMBIL, VETTKUNNAM KARA, THRIKKAKARA NORTH VILLAGE. ADV. SRI.MATHEW JOHN (K) FOR R1 SRI.AJEESH K.SASI FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27/11/2008, ALONG WITH RCR NO. 385 OF 2004 THE COURT ON 10.12.2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN IA 2323/04 IN RCR 270/2004 DISMISSED. 10.12.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R.RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. Nos.270 & 385 of 2004 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2008. O R D E R Ramachandran Nair, J. The premises in question was rented out to the tenant as per lease deed dated 23.9.1969. The tenant is conducting a hotel there. It was owned by a partnership firm named as M/s. M.C. Vareed and Company. The present landlord was one of the erstwhile partners. The monthly rent claimed is at the rate of Rs.225/-. The partnership was dissolved on 16.10.1999 and the schedule building was set apart to the present landlord. The eviction petition was filed raising various grounds under Sections 11 (2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The trial court granted eviction under Section 11(4)(ii) of the Act and rejected the other grounds. Both sides appealed against the said order passed by the Rent Control Court. 2. The Appellate Authority by a common judgment, partly allowed the appeal filed by the landlord in regard to the ground pleaded under Section 11(2)(b) and thus ordered eviction on the ground of arrears of rent. RCR 270 & 385/2004 -2- The order passed by the Rent Control Court rejecting the ground under Section 11(3) and 11(4)(i) was confirmed. As regards the ground under Section 11(4)(ii), accepting the plea of the landlord, the matter stands remanded to the Rent Control Court for fresh consideration. Both sides have come up in revision challenging the above judgment of the Appellate Authority. 3. We have heard Shri Mathew John, learned counsel appearing for the landlord and Shri M.A. Abdul Hakhim who appeared for the tenant. 4. The necessary facts for the disposal of the revision petitions show the following: According to the landlord, on dissolution of the partnership, he has become the absolute owner of the tenanted premises. An amount of Rs.5,275/- remained as arrears of rent for the period 23.9.1969 to March 1987. From April 1987 onwards no amount has been paid towards rent. The premises have been subleased to the second respondent in the Rent Control Petition who is conducting a hotel in the name and style of 'Sagar Hotel'. The bonafide need pleaded is for own occupation by the landlord to conduct business in sanitary items as he has no other avocation in life. It is alleged that the tenant has effected certain alterations which have reduced the value and utility of the building. Two steps leading to the front room RCR 270 & 385/2004 -3- stands demolished, a new wash basin with bricks was constructed by him in one room, a new latrine was constructed in the corner of one of the rooms, another water tank was constructed and a new pipe connection was taken to it. For driving out water from the said water tank a drainage has also been laid. These are the grounds under under Section 11(4)(ii) of the Act. 5. In his objections, the tenant mainly contended that the right, if any of the landlord is only upon dissolution of the partnership on 16.10.1999 and he cannot maintain a petition for eviction for any alleged arrears of rent prior to the said period during which the partnership was owning the building. The original rent was only Rs.200/- and it was agreed that certain constructions mentioned in the lease deed had to be undertaken by the landlord and on completion of the same, the rent will be increased to Rs.225/- and when the father of the present landlord was informed about it, he refused to receive rent from him. The arrears of rent from 16.10.1999 till date of petition was deposited along with the objection. The own occupation for bonafide need of the landlord was disputed by the tenant in his objections. It is stated that the landlord and his wife are doing various businesses in Aluva and Varappuzha. Apart from that, three rooms numbered as 195, 197 and 198 in Ward No.VIII are remaining vacant in the RCR 270 & 385/2004 -4- possession of the landlord and the tenant of one of the rooms was evicted through court by filing R.C.P.No.9/2000. This is an up stair room of the petition schedule building and there is a stair leading to the said room and this is sufficient for doing his proposed business. The allegation that he had effected material alterations was also denied and according to him, the lease deed permits seven items of works for improving the facilities of the building. The Municipality, by a notice, instructed him to do certain works which alone have been attended. He had made this construction as enjoined by the terms of the lease deed and as directed in the notice of the Municipality. The allegation that the value and utility of the building have been reduced by the said alteration, is denied by him. It was also pointed out in para 14 of the objection that the bathroom was already existing which was only repaired by him and the latrine was also there. The allegation of sub-lease was also denied by him. 6. The evidence consists of the oral evidence of P.W.1 and R.Ws.1 and 2 and documentary evidence by way of Exts.A1 to A13 and Exts.B1 to B6. As already noticed, the Rent Control Court found in favour of the tenant on the ground pleaded under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. It was found that the partnership was dissolved only on 16.10.1999 RCR 270 & 385/2004 -5- and relying upon the dictum laid down by this court in Suhara v. Abdul Shukkur (1996 (2) KLT 836) it was held that the landlord is entitled to get arrears of rent only subsequent to the execution of partition deed. As the landlord was only a partner prior to 16.10.1999, he had no exclusive right to collect rent during that period. 7. While examining the ground pleaded under Section 11(3) of the Act, the Rent Control Court found that the landlord is having in his possession building Nos.6/570 and 6/574 and as no special reasons have been proved by the landlord, he is not entitled to get eviction under Section 11(3) of the Act. 8. Regarding the ground under Section 11(4)(ii) of the Act, viz. material alteration made by the tenant, the Rent Control Court, relying upon clause 4 of the lease deed, found that constructions have been effected by the tenant without any permission from the landlord. It was found that even if there is failure on the part of the landlord to carry out improvements as described in clause 13 of Ext.A1 lease deed, the tenant will not get any right to do the same without the consent of the landlord. Relying upon Exts.A4 and A5 which are the reports of the Commissioner in O.S.NO.335/2000 filed by the landlord against the tenant, it was found that RCR 270 & 385/2004 -6- the improvements effected are material alterations. Ultimately, it was found that as the tenant has effected material alterations without the consent of the landlord, it has to be held that the tenant uses the building in such a manner as to destroy and reduce its value and utility materially and permanently. Therefore, eviction was ordered under Section 11(4)(ii) of the Act. The plea of sub-lease was rejected for lack of any evidence on that aspect. 9. Before the Appellate Authority, the contention raised by the tenant that Exts.A4 and A5 cannot be relied upon without examining the Commissioner, was accepted by the Appellate Authority. On the request made by the landlord that the matter may be remanded to adduce fresh evidence on that aspect, the Appellate Authority vacated the order passed by the Rent Control Court and remanded the matter for fresh consideration. The Appellate Authority was of the view that the landlord is entitled to succeed on the plea under Section 11(2)(b). It was held that the landlord being one of the co-owners of the building, is entitled to get an order of eviction on the ground of arrears of rent. 10. The Appellate Authority also confirmed the finding that the landlord is having other buildings in his possession and Ext.B1 certified copy of the relevant pages of the assessment register maintained by the RCR 270 & 385/2004 -7- municipality was relied upon. It was held that the tenant is entitled to get the protection under the first proviso to Section 11(3) of the Act. The Appellate Authority confirmed the finding under Section 11(4) (i) of the Act also. These orders are under challenge in the revision petitions filed by the tenant as well as the landlord. 11. Elaborate arguments were raised by the learned counsel appearing on either side in regard to the ground pleaded under Sections 11 (2)(b), 11(3) and 11(4)(ii) of the Act. Learned counsel for the landlord submitted that as far as the plea under Section 11(4)(ii) is concerned, he is not placing reliance upon Exts.A4 and A5 reports of the Commissioner in the civil suit and therefore the matter need not be remanded back to the Rent Control Court and that the same can be considered in the revision petitions by this court. Accordingly, arguments were raised by either side on the sustainability of the ground under Section 11(4)(ii) of the Act. The finding rendered by the Rent Control Court and the Appellate Authority rejecting the plea of the landlord for eviction under Section 11(3) was also attacked by learned counsel appearing for the landlord. 12. First we will consider the ground pleaded under Section 11(3) of the Act. Herein, the plea raised by the landlord is that he wants to start a RCR 270 & 385/2004 -8- business in sanitary items, as he is not having any avocation in life. In reply, the tenant contended that he has got various businesses like 'Jayasree Hardwares' and 'Cement and Asbestos Shop' very near to the petition schedule building. Apart from that, it is contended that the landlord is having vacant possession of rooms numbered as VIII/195, 197 and 198 of Ward No.XVIII. One of the rooms, viz. room No.198 was evicted through court in R.C.P.No.9/2000. Apart from these rooms, he is having another room, viz. room No.VI/501 and he purchased room Nos.XVIII/429 and XVIII/430 which are godown rooms. It is stated that these facts have been suppressed in the eviction petition. When the landlord was examined as P.W.1, in his proof affidavit it is stated that room No.VIII/195 is not vacant, room No.VIII/197 is not owned by him and room No.VIII/198 is in the upper floor and there is only a stair having a width of 3 ½ ft. leading to the said room. After his cross examination, he was again examined, and he produced Exts.A9 and A9(a) certified copy of the profession tax demand register to show that building No.VIII/195 (new number VI/567) is in the possession of one Muraleedharan as a tenant. 13. We will now advert to the view taken by the authorities below. Both the authorities below concurrently found against the landlord stating RCR 270 & 385/2004 -9- that he is having in his possession vacant rooms and going by the first proviso to Section 11(3) of the Act, in the absence of any special reasons, eviction cannot be ordered. The tenant had produced Ext.B1 copy of building tax assessment register for the period 1999-2000 to 2003-04 of the Aluva Municipality relating to door Nos.VI/567 to VI/580 and going by the same, three vacant rooms pointed out by the tenant are in occupation of the landlord. This was the clinching evidence against the plea raised by the landlord. Learned counsel for the landlord submitted that Ext.A9 will show that building No.VI/567 is in occupation of one Muraleedharan and therefore the findings rendered by the authorities below are vitiated. Ext.A9 is the register showing payment of profession tax for the year 2001-02. This was not accepted by the authorities below in view of the fact that the same is not conclusive in the absence of production of the lease deed in respect of the said room and the non-examination of the alleged tenant. Learned counsel for the petitioner pointed out that the eviction petition itself is dated 11.4.2001. The proof affidavit of the landlord is dated 11.12.2002 and he was further examined on 17.12.2002 and at that point of time only the said document was marked. Further, it is pointed out that the date of remittance of the profession tax is noted as 13.12.2002 and therefore merely on the RCR 270 & 385/2004 -10- basis of Ext.A9, it cannot be conclusively found that the building was occupied by Shri Muraleedharan as a tenant on the date of filing of the eviction petition. We see much force in the submission made by the learned counsel for the tenant that Ext.A9 cannot be relied upon in the light of the above facts as well as due to the non-examination of the alleged tenant and the non production of the lease deed in respect of the said tenancy. Apart from that, Ext.B1 shows that the same is for the period 1999-2000 to 2003-2004 and room Nos.567, 570 and 574 are remaining vacant. In the light of the said document, the contention raised by the landlord was rightly rejected by the court below. Room No.198 was obtained by the landlord by filing R.C.P.No.9/2000. It is in the first floor of the building wherein the petition schedule room is situated. Admittedly, in the pleadings nothing has been mentioned by way of special reasons as to why any of these rooms could not be used by the landlord. Even in the deposition the landlord only says that it cannot be used and no cogent and convincing reasons have been stated as to why it cannot be used for the business proposed to be done by the landlord. Even though learned counsel for the landlord states that the stair to that room is only 3 ½ ft. width, we are unable to accept the same as a special reason because of the fact that it was RCR 270 & 385/2004 -11- already outstanding with a tenant who was evicted by filing R.C.P.No.9/2000. As to why the stair cannot be used or as to its inconvenience, if any, there is no reliable evidence and no Commission was taken out. He has no plea that it cannot be repaired before using the same. Thus, the faint plea raised by the landlord that it cannot be used, was not accepted by the authorities below. In the light of the clear evidence against the landlord by way of Ext.B1 and in the absence of any special reasons pointed out by him worthy of acceptance, we find that the authorities below have not acted perversely in reaching these conclusions. 14. Learned counsel for the landlord, relying upon the decision of a Division Bench of this court in Jerry Joseph v. Selvaraj (2002 (2) KLT 129), contended that even if the landlord failed to mention in the petition, the details of vacant rooms in his possession, that cannot be treated as fatal. In the said decision, this court by relying upon the decision of the Apex Court in M.L. Prabhakar v. Rajiv Singal {(2001) 2 SCC 355} in para 18, held that “even if the landlord failed to mention in the petition for eviction about the other premises belonging to him, if materials about those alternate accommodation have been placed before the court and the matter has been adequately considered by the court without causing any prejudice to the RCR 270 & 385/2004 -12- tenant, the non-disclosure of the availability of buildings in the petition is immaterial.” We fail to appreciate how the said dictum will apply to the facts of this case. Herein, on the evidence it is found by the authorities below that the landlord is having vacant possession of three rooms and no convincing reasons have been pointed out by him for not occupying it. The way in which he has come out with the case now pleaded is also worthy of mention. In the eviction petition nothing was mentioned. The tenant had incorporated sufficient data in para 8 of his objections. No amendment in the pleadings was attempted by the landlord and no replication/reply was filed. In the proof affidavit, it was merely stated that room No.VIII/195 is not vacant, room No.VIII/197 is not owned by him and is not vacant, room No.VIII/198 is in the upper floor and is not suitable for the business and that the stair leading to it is only having a width of 3 ½ ft. After his examination, he was recalled for producing Exts.A9 and A9(a). The tenant was examined as R.W.1 on 7.1.2003. Hence, we are of the view that no effective attempt was made by the landlord to have any cogent and convincing reasons for not occupying the vacant rooms. The authorities below have held against the landlord not for the reason that there were no pleadings, but for the reason that there was no cogent and convincing RCR 270 & 385/2004 -13- evidence on his part. It was further held that building Nos.VI/567, 570 and 574 are outstanding in his possession which is proved by Ext.B1 certified copy of the relevant page of the assessment register of the Municipality. The alternate plea made by the landlord that one building was leased out to Shri Muraleedharan, was not substantiated by proper evidence. Therefore, the court below was of the view that going by the first proviso to Section 11 (3) of the Act, the tenant is entitled to get protection. 15. The first proviso to Section 11(3) states as follows: “11(3)................. Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so.” In fact, in Janatha Drugs v. Maithri Construction (2007 (4) KLT 625) while examining the legal effect of the said provision, it was held by a Division Bench of this court consisting one of us (T.R. Ramachandran Nair, J.), as follows: “It is clear that the special reasons should be germane to the issue in question and should not be evasive reasons shown by the landlord. When the landlord came into possession of rooms which are having RCR 270 & 385/2004 -14- more or less equal space in the very same building, where the tenant also is occupying a similar room, the question is whether the landlord was justified in letting out the rooms for a higher rent while requiring the eviction of the tenant herein....................The burden is on the landlord to plead and prove special reasons when he gets possession of other rooms. The landlord has got a duty to explain the special reasons for not choosing to occupy the premises he has come into possession. We are adverting to the above in the light of the fact that when in a case where the first proviso is attracted, eviction can be ordered only if the court is satisfied that there are special reasons enabling the landlord not to choose to occupy the vacant premises. That the landlord will get more rent if those premises are rented out, rather than occupying one of the rooms for the business proposed to be started, cannot be a special reason for the purpose of the 1st proviso. It prohibits the power of the court to order eviction unless acceptable special reasons exist.” If acceptable reasons are not there, going by the first proviso, the court cannot order eviction. In view of the accepted legal position, we are of opinion that the authorities below have not acted perversely in denying eviction under Section 11(3) of the Act. It cannot be said that the appreciation of evidence is in any way vitiated. Therefore, we reject the said argument raised by the learned counsel for the landlord. 16. The other main ground on which eviction sought for is under RCR 270 & 385/2004 -15- Section 11(4)(ii) of the Act. The respective contentions in the pleadings have been stated by us already. The landlord contends that the works effected amounts to material alterations, and the tenant disputes the same. His case in para 14 of the objection is that already there was a bathroom and a latrine for common use. Only repair works alone have been effected by him. No other independent evidence by way of report of the Commissioner is there. 17. The landlord had filed a suit earlier, seeking for an injunction against the tenant from making out material alterations of the building. Exts.A4 and A5 are the reports of the Advocate Commissioner. The Commissioner was not examined. It is in that view of the matter, the Appellate Authority after setting aside the finding rendered by the Rent Controller, remanded the matter for fresh consideration. Significantly, the Appellate Authority was of the view that if Exts.A4 and A5 are eschewed, there is no material evidence on record to show that there was any alteration or addition to the building. But the learned counsel for the landlord submitted that even without looking into Exts.A4 and A5 it can be concluded that the constructions made are material alterations and therefore the grounds pleaded under Section 11(4)(ii) of the Act have been proved by RCR 270 & 385/2004 -16- him. Reliance was placed on the decision of this court in Seethalakshmi Ammal v. Nabeesa Beevi (2003 (1) KLT 391) to contend that as regards material alterations, the view of the landlord has to be taken and as he has not consented to the alterations and as there is prohibition against the same in the lease deed, the tenant is liable to be evicted. 18. Per contra, learned counsel for the tenant relied upon the decisions of the Apex Court in Om Prakash v. Amar Singh and others {(1987) 1 SCC 458} and Reghunathan v. Varghese (2005 (4) KLT 147 (SC) and the following decisions rendered by this court, viz. Aboobacker v. Nanu (2001 (3) KLT 815) and Lakshmi v. Labbah Kunju Ameer Hamsa (2005 (3) KLT 627) to contend for the position that the alterations, if any, made will not reduce the value and utility of the building materially and permanently. It is submitted that by making improvements in the bathroom, addition of the facility by providing a wash basin and a water tank for storing water to clear the utensils, no damage has been caused to the structure or to the front of the building and therefore no eviction can