IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 RCRev..No. 602 of 2005() ------------------------ RCA.99/2001 OF THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.4/1998 OF THE RENT CONTROL COURT, KUTHUPARAMBA .................... REVISION PETITIONERS/RESPONDENT NOS. 2 & 5 IN RCA/ RESPONDENT NOS. 2 & 5 IN RCP: 1. A.T. IBRAHIM, S/O. LATE KADER, AGED 49 YEARS, BUSINESS, RESIDING AT SAREENA MANZIL, KUTHUPARAMBA AMSOM, AMBILAD DESOM, P.O. KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT. 2. A.T. MUSTAFFA, S/O. LATE KADER, AGED 37 YEARS, BUSINESS, RESIDING AT SAREENA MANZIL, KUTHUPARAMBA AMSOM, AMBILAD DESOM, P.O. KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT/APPELLANT IN THE RCA/PETITIONER IN RCP: KALLARAKKAL IBRAHIM, S/O. KUNHI KUTTYALI AGED 62 YEARS, BUSINESS, RESIDING AT KUTHUPARAMBA AMSOM NARAVOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADVOCATE SRI. T.P. SAJID, ADV. SRI.C.KHALID ADV. SRI.N.GOPINATHA PANICKER ADV. SRI.R.O.MUHAMED SHEMEEM THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 2.11.2010, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.C.R. NO. 602 OF 2005 = = = = = = = = = = = = = = = = DATED THIS, THE 2ND DAY OF NOVEMBER, 2010. O R D E R Pius C. Kuriakose, J. Under challenge in this revision filed by the tenants (respondent Nos. 2 and 5 in the Rent Control Petition) is the judgment of the Rent Control Appellate Authority, Thalassery, ordering eviction against the revision petitioners for the first time, under Clause (iii) of sub-section (4) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act. (The parties are referred to as 'the tenants and landlord'.) The landlord sought to evict the tenants on the grounds of arrears of rent, bona fide need for own occupation and on the ground under Section 11(4)(iii) of the Act ( tenant's acquisition of other building reasonably sufficient for his requirement in the same city, town or village). The statutory authorities have concurrently declined orders under Section 11(2)(b) and 11(3) of the Act and it is submitted by both sides that in this revision we need be concerned only with the ground under Section 11(4)(iii). The landlord's case in the context of Section 11 (4)(iii) was that the tenant is in possession of buildings having Door Nos. RCR 602/2005 2 82, 83, 84, 85, 86, 87 and 88 in Ward No. 17 of Kuthuparamba Municipality and that those buildings are reasonably sufficient for the tenants' requirements. The tenants' defence to the above ground was one of total denial. It was contended that the tenants are not in possession of any other building as alleged and also that the only building in the possession of the tenants is the petition schedule building. The Rent Control Court enquired into the matter and at trial evidence pertaining to the ground under Section 11(4)(iii) consisted, apart from the oral evidence adduced by the parties, of Ext.A14 property tax assessment register and two commissioner's reports Exts.C1 and C3 and Ext.C2 plan. Ext. A14 is the property tax assessment register maintained by the Kuthuparamba Municipality in respect of building having Door No. 119 in Division No. 19. Ext. A14 is to the effect that the above building is in ownership and possession of the respondents in the R.C.P. including the revision petitioners. Exts. C1, C2, C3 and C4 were to the effect that the building covered by Ext.A14 is smaller in size than the petition schedule building and also that the above building is in a dilapidated condition and also that no business whatsoever is presently being conducted in that buildings. The RCR 602/2005 3 Rent Control Court, on appreciating the above evidence, would accept the tenants' defence that Ext.A14 building is not reasonably sufficient for the tenants' requirement for conducting a grocery shop. The appellate Authority, however, reversed the above finding and concluded that the building covered by Ext.A14 is reasonably sufficient for the tenant's requirements. Accordingly, the Appellate Authority ordered eviction under Section 11(4) (iii). 2. In this revision under Section 20 of the Act various grounds are raised assailing the order of eviction. We heard the learned counsel Mr.R.Surendran for the petitioners and Sri.T.P. Sajid, appearing for the respondent. Drawing our attention to the evidence on record in the case, especially, the oral evidence adduced by RW.1, Ext.A14 and Exts.C1,C2, C3 and C4, Mr. Surendran, learned counsel appearing for the revision petitioners submitted that the building covered by Ext.A14 cannot even be construed as a building as the same is in a highly dilapidated and unhabitable condition. Learned counsel drew our attention to the term "building" and argued that only a building which is worthy of being rented out will qualify as 'building' for the purpose of Act 2/65. RCR 602/2005 4 Mr.Surendran argued that even going by Ext.A14, the revision petitioners have only fractional interest in the building covered by Ext.A14. What is contemplated under Section 11(4)(iii) is absolute and exclusive possession by the tenant which is lacking in this case. Drawing our attention again to the statutory provision, Mr. Surendran argued that the evidence in this case is to the effect that Ext.A14 building belonged to Khader, the predecessor in interest of the revision petitioners and that the same devolved upon the legal heirs of Khader, including the revision petitioners only when Khader died. Acquisition of possession, if at all has taken place, only at that point of time and therefore, it cannot be said that the tenants are already in possession of another building. Substantiating the above argument, Mr. Surendran further submitted that acquisition by inheritance will not be acquisition for the purpose of Section 11(4)(iii). Mr. Surendran would still more rigorously argue that there is no comparison between Ext.A14 building and the petition schedule building. According to him, Ext.A14 building can ever be said to be a building reasonably sufficient for conducting the business which is being presently conducted in the petition schedule building. In this context, learned counsel highlighted the RCR 602/2005 5 commissioner's report and submitted that Ext.A14 building is in a very dilapidated condition. Counsel even placed before us a recently taken photograph of the building. 3. All the submissions of Sri. Surendran were resisted by Sri. Sajid. He argued that the legislature does not insist upon exactitude in the matter of sufficiency of the building acquired. What is required is only that the building acquired should be reasonably sufficient. Learned counsel submitted on the basis of the commissioner's report that Ext.A14 building, in size, would be 60% of the petition schedule building. According to Mr. Sajid, the revision petitioners themselves are responsible for the present deplorable condition of Ext.A14 building. According to him, the revision petitioners willfully neglected to repair and maintain the building properly with the object of avoiding an order of eviction under Section 11(4)(iii) so that they can cling on to the petition schedule building. They should not be allowed to take advantage of their own misdeeds or omissions. Mr. Sajid concluded by reminding us of the limits of the jurisdiction under Section 20 of the Act, which according to him, will not enable us to reappraise the evidence. RCR 602/2005 6 4. We have very anxiously considered the submissions addressed at the bar. We have also made a survey of the evidence, particularly, of those items in evidence to which our attention was drawn by the learned counsel on either side. In order that grounds for eviction under Section 11(4)(iii) is established, it is necessary firstly that the tenant has even at the time of commencement of the lease, another building in his possession, reasonably sufficient for his requirements or secondly, that the tenant puts up a building; and thirdly that the tenant has subsequently acquired possession of a building reasonably sufficient for his purpose. Ext.A14 is a document coming within the scope of Section 26 of the Act. Going by the express terms of Ext.A14, the building mentioned therein belongs in common to the respondents in the Rent Control Petition including the revision petitioners. The column for showing the identity of the person in possession is left blank. It can be inferred that the owners are in possession. But the survey of evidence made by us reveal that actually physical possession of the building is with the second revision petitioner herein. Thus, it could be concluded on the basis of the evidence on record that the possession of Ext. A14 building is with the revision petitioners. We are convinced on a perusal of the RCR 602/2005 7 evidence that size-wise Ext.A14 building is only 60% of the petition schedule building. We are also convinced that the condition of Ext.A14 building is steadily deteriorating and as of now, it would have become worse than what it was when the rent Control Court passed its order. It is very clear in our mind that on the facts of the present case, the difference in size cannot be a factor for determining the sufficiency of the tenants' requirements. This view we are taking, as we have noticed that it is only a small time grocery business that is being conducted in the petition schedule building. Then the question is whether the deplorable nature of the condition of the building can be taken into account for determining the sufficiency of building for the tenants' requirement. This question can be answered against the revision petitioners, as in our view, the revision petitioners themselves are to blame for such deplorable condition. There is nothing in evidence to suggest that the revision petitioners kept Ext.A14 building in proper repairs. Even now, by incurring some expenditure it would be possible for the revision petitioners to repair Ext.A14 building to a satisfactory condition. The legislative intendment underlying under Section 11(4)(iii) is that in a situation where there is acute accommodation RCR 602/2005 8 shortage, the tenants should not be allowed the luxury of having more buildings than what is necessary for his purpose. 5. In that view of the matter, it has to be held that the building covered by Ext.A14 was reasonably sufficient for the tenants requirements at least when the lease commenced. Though the condition of Ext.A14 building is unsatisfactory as of now, it is possible for the revision petitioners to restore the same to a satisfactory condition by expending necessary amounts. The result of the above discussions is that the revision will have to fail and the judgment of the Appellate Authority will have to be sustained. 6. Accordingly, the revision petition is dismissed; however, without any order as to costs. After we pronounced the order, Mr. Surendran requested that the revision petitioners be granted at least 11/2 years time to surrender the petition schedule premises. According to him, much money and time will be required for restoring Ext.A14 building to a satisfactory condition or for identifying another building for shifting the business. We think that on the totality of the circumstances, there is justification for granting RCR 602/2005 9 reasonably long period for surrendering the petition schedule premises. Hence, we direct the execution petition be kept in abeyance till 1st November, 2011, subject to the following conditions: The revision petitioners will file an affidavit before the executing court within three weeks from today, undertaking to give peaceful surrender of the building on 1.11.2011 and undertaking further to pay occupational charges for the petition schedule buildings at the rate of Rs. 250/- (Rupees two hundred and fifty) per month till actual surrender is made. We make it clear that the revision petitioners will get the benefit of the time granted as above only if they file the affidavit and honour the undertaking as above. On proof of breach of the above conditions, the respondents are at liberty to let the order of eviction executed at once. PIUS C KURIAKOSE, (JUDGE) P.S. GOPINATHAN, (JUDGE)