IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 RCRev..No. 174 of 2011() ------------------------ RCA.18/2010 of RENT CONTROL APPELLATE AUTHORITY, KASARAGOD RCP.12/2009 of RENT CONTROL COURT , KASARAGOD .................... REV. PETITIONER/APPELLANT/RESPONDENT. --------------------------------------------------------- K.A.NAFEESATHUL MISSIRIYA, AGED 30 YEARS, S/O. M.H.MOHAMMED, MUSLIM, BUSINESS, R/AT VIDYANAGAR, KASARAGOD KASABA VILLAGE, VIDYANAGER P.O., KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): RESPONDENTS/PETITIONER. ------------------------------------- 1. MOHAMMED KUNHI, AGED 48 YEARS, S/O. ABDUL KHADER, R/AT THALANGARA CLUSTER, MARXIST BHAVAN, NULLIPPADY, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN - 671 512. 2. REMEESA MOHAMMED KUNHI, W/O. M.MOHAMMED KUNHI, THALANGARA CLUSTER, MARXIST BHAVAN, NULLIPPADY, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN - 671 512. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No.174 OF 2011 ------------------------ Dated this the 31st day of May, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant under Section 20 is the judgment of the Rent Control Appellate Authority, Kasaragod confirming an order of eviction passed under sub section (3) of Section 11. The need projected by the landlords was that they need the petition schedule building, which is second and third floor of a three storied building belonging to the landlords wherein the tenant is presently conducting furniture and allied business, for the purpose of accommodating his dependent son so that the dependent son can conduct furniture business therein. 2. The bona fides of the need was stiffly disputed by the tenant who claimed protection under the second proviso to section 11(3) of the Act. More importantly, the tenant contended that the rent control petition was not maintainable in law as the lease was a ' fixed term lease' providing for initial period of 11 months and on exipry further periods of six years each from RCR.No.174/2011 2 the expiry of 11 months. The Rent Control Court enquired into the matter and at trial the evidence consisted of Exts.A1 to A9, oral evidence of PW1. Significantly there was no counter oral evidence on the side of the revision petitioner. On appreciating the evidence, the Rent Control Court would conclude that the rent control petition was maintainable and that the need is bona fide and that the tenant is entitled for the protection of the second proviso of sub section (3) of Section 11. Accordingly, the order of eviction was passed. Though the tenant preferred an appeal, the Appellate Authority after making reappraisal of the evidence would concur with all the findings entered by the Rent Control Court. Accordingly, the appeal was dismissed. 3. In this revision filed under section 20 various grounds are raised and Sri.Kodoth Sreedharan, learned counsel for the revision petitioner addressed arguments based on all those grounds. Though the learned counsel addressed arguments based on the various grounds, he would give more thrust to his argument that the Rent Control Petition was not maintainable. The learned counsel placed before us a copy of the rental agreement dated 10/4/2008 which governs the lease in RCR.No.174/2011 3 question. He drew our attention to one of the clauses in the above lease which we extract hereunder; “IN CASE, the said premises is required by the Lessee on rent even after the expiry of the said period of eleven months, then the Lessee may continue possession of the said premises on the same monthly rent, terms and conditions of this Agreement upto a period of six years from the 1st day of June 2008 and thereafter the Lessee is liable to continue possession of the said premises by paying the monthly rent enhanced by 15% for the next three years period and this enhancement in monthly rent shall be in force at the expiry of every three years period thereafter.” 4. According to Mr.Sreedharan, though in the rental agreement, it is stated that the period of lease was 11 months, the clause quoted above will show that it is fixed term lease. RCR.No.174/2011 4 Being a “fixed term lease”, sub section (9) of Section 11 will apply and the Rent Control Petition will have to be rejected as being premature. very strong reliance was placed by Mr.Sreedharan on the judgment of this court Laxmidas Bapudas Darbar v. Rudravva(2001 (3) KLT 324 (SC), wherein after referring to Section 21 of the Karnataka Rent Act, the Supreme Court has held that Section 21 of the Karnataka Rent Control Act, which almost corresponds to Section 11(1) of the Kerala Rent Control Act, does not obliterate “ contract of fixed term tenancy” in totality. According to Mr.Sreedharan, the rental agreement between the parties to the present proceedings provides for a fixed term lease which does not stand obliterated by Section 11(1) of the Kerala Act. 5. We have given our anxious consideration to the submissions addressed by Sri.Sreedharan. We have gone through the order of the Rent Control Court and the Judgment of the Rent Control Appellate Authority. As for the finding entered by the Rent Control Court and the Appellate Authority that eviction ground under Section 11(3) is established and that the tenant is not entitled for the protection of the second proviso RCR.No.174/2011 5 to sub section (3) of Section 11, we find that those findings are based on evidence adduced by the landlords to which there is absolutely no counter evidence is adduced by the tenant. Those findings are unassailable. 6. Now we shall consider whether the argument of Mr.Sreedharan that the Rent Control Petition is not maintainable in view of what is described as the “fixed term lease” entered into between the parties is sustainable. We may note now that the expression “fixed term lease” has been used by the Supreme Court in Laxmidas Bapudas Darbar v. Rudravva 's case to mean leases providing for long fixed terms. We have gone through the deed of rental agreement very carefully. The second clause at page No. 2 of the above deed providing for period of the lease reads as follows; “AND WHEREAS in pursuance of the same, the Lessee has today possession of the said premises with its electric wiring, meter, locks and keys from the Lessors on the said period of eleven months and the Lessee shall RCR.No.174/2011 6 pay the said total monthly rent of Rs.30,000/- (Rupees Thirty thousand only ) to the Lessors, therefor on or before the end of each English Calendar month commencing from the 1st day of June 2008, as referred to above and shall receive proper receipt from the LESSORS and on the expiry of the said period of eleven months, ie on the 30th day of April 2009, the LESSEE shall surrender vacant possession of the said premises with locks and keys back to the LESSORS without raising any kind of objections or claims for repair charges etc. 7. What is seen from the document is that the same has been stamped as a lease providing for 11 months and was not registered since the period provided was only 11 months. The question is whether the clause, which we have quoted earlier at para 3, will make this lease a “fixed term lease”. The lease in question can be construed as a “ fixed term lease” only if we hold that notwithstanding the period of 11 months provided RCR.No.174/2011 7 under the agreement, the clause which provides that at the option of the tenant the same can be extended for six years initially and thereafter for three years at the end of every three years is legal and enforcible. We are unable to hold so, in view of Section 107 of the T.P.Act and Section 17(1)(d) and Section 49 of the Registration Act. Section 107 of T.P.Act and Section 17 (1)(d) and Section 49 of the Registration Act mandates that any lease providing for a period of more than one year can be created so as to affect the property covered by the same only by means of registered instrument. The rental agreement which has been got executed between the parties is an unregistered agreement. The above agreement providing for a period exceeding one year offends Section 17(1)(d) of the Registration Act and cannot be relied on for declaring the duration of the lease. The decision cited by Mr.Sreedharan does not have any application to the issue involved in this case. That decision interprets Section 21 of Karnataka Rent Act which corresponds to Section 11 (1) of the Kerala Rent Control Act and has nothing to do with the argument that the fixed term lease can be created even by unregistered agreement. RCR.No.174/2011 8 Our above view will lead to the inevitable conclusion that the Rent Control Petition will fail and will stand dismissed. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk