Kerala High Court
George vs K.B.Abdul Rahimankutty on 2 December, 2008
Equivalent citations: AIR 2009 (NOC) 991 (KER.)
Author: T.R. Ramachandran Nair
Bench: P.R.Raman, T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 205 of 2008()
1. GEORGE, AGED 52,
... Petitioner
Vs
1. K.B.ABDUL RAHIMANKUTTY, AGED 70 YEARS,
... Respondent
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent :SRI.P.S.USUPH
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :02/12/2008
O R D E R
P.R.Raman & T.R. Ramachandran Nair, JJ.
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R.C.R. No.205 of 2008
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Dated this the 2nd day of December, 2008.
Ramachandran Nair, J.
The tenant is the revision petitioner. The respondent/landlord sought eviction under Sections 11(3), 11(4)(iii), 11(4)(v) and 11(8) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court allowed eviction under Sections 11(4)(iii) and 11(8) of the Act. In appeal filed by the tenant, the Appellate Authority upheld the order.
2. The short facts leading to the dispute are the following: The petition schedule building is a room in the first floor of a large building situated on the western side of Broadway in Ernakulam. The landlord is conducting business in the name and style "Bavas" as a partnership along with his son in the ground floor of the building. They are dealing in ready made garments. The upper floor of the said room is the petition schedule room numbered as 40/2845 of Cochin Corporation. The tenant is the owner of shop No.40/2840 in the ground floor which is next adjacent to the room on the north of the landlord's room, wherein he is doing business in ready RCR 205/2008 -2- made dresses in the name and style "Boney Dresses". He is using the tenanted premises as a godown and office. The rental arrangement started in the year 1991 and the monthly rent is Rs.500/-. According to the averments in the Rent Control Petition, the tenant is liable to be evicted on various grounds like cessation of occupation without reasonable cause ( Section 11(4)(v) of the Act), additional accommodation required for the landlord (Section 11(8) of the Act) in view of the fact that the business of the landlord is expanding day by day and the space available in his shop is insufficient. It was further contended that the respondent has got three other buildings, first one being building No.40/2849 in Penta Menaka building complex which is about 15 feet away from the petition schedule building, another building in D.D. Vasthra Mahal in Post Office Link Road, Ernakulam at a distance of about 150 meters away from the schedule building and third one in M.G. Road, Ernakulam and hence the ground under Section 11(4)(iii) is also attracted.
3. Before the Rent Control Court, on the side of the landlord the oral testimony consists of P.Ws.1 and 2 and Exts.A1 to A6 were marked. Exts.C1 and C2 are the reports of the Advocate Commissioner. P.W.2 is the Advocate Commissioner who filed Exts.C1 and C2 reports. The tenant was examined as R.W.1.
4. On these pleadings and evidence, the Rent Control Court found RCR 205/2008 -3- that the additional accommodation required by the landlord is justified. Reliance was placed on the reports of the Commissioner, Exts.C1 and C2 as well as the evidence of P.W.2. As regards the grounds under Section 11(4)
(iii) of the Act are concerned, it was found by the Rent Control Court that the tenant is having possession of own buildings in Penta Menaka Shopping Complex and D.D. Vasthra Mahal and hence he is liable to be evicted from the premises in question. These findings have been upheld by the Appellate Authority.
5. We heard Shri C. Varghese Kuriakose, learned counsel appearing for the petitioner and Shri P.S. Usuph, learned counsel who appeared for the respondent. Learned counsel for the petitioner mainly raised three contentions. Firstly, that the ingredients of Section 11(8) are not attracted here, since the schedule room is part of a building of which the landlord is not the sole owner. It consists of several rooms owned by different parties and hence Section 11(8) is not attracted and he can seek eviction only under Section 11(3) of the Act. Secondly, it was contended that going by the averments in the eviction petition, in the ground floor a partnership is doing business in the premises of the landlord and as per Section 11(8) of the Act, additional accommodation can be sought only for personal use of the landlord. As a partnership is in occupation of the premises, the said limb of Section 11(8) is not attracted. Lastly, it was contended that the findings RCR 205/2008 -4- rendered by the authorities below regarding the grounds under Section 11(4)
(iii) are not correct. It is contended that the room in Penta Menaka complex is not owned by the tenant, but it is owned by his son and the room in D.D. Vasthra Mahal is being used for conducting a wholesale business and it cannot be used as a godown and hence it is not reasonably sufficient for the business purpose of the tenant. Learned counsel for the landlord opposed these arguments based on the pleadings and evidence in the case and the findings rendered by the authorities below.
6. We may first examine whether the authorities were right in ordering eviction under Section 11(8) of the Act. For convenience, we extract Section 11(8) of the Act which reads as follows:
"11(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use."
The evidence shows that the landlord and the tenant are owners of adjacent rooms where they are respectively conducting business in the ground floor. The deposition of the landlord shows that his father was having five rooms in the ground floor and five rooms in the upper floor and the landlord obtained the two rooms in family partition. The room occupied by the tenant was allotted to the share of his brother and he was a tenant under RCR 205/2008 -5- him and subsequently he purchased the said premises. Actually, the business that is being run by the landlord was started by his father and the landlord succeeded the said business on his death. For a short period he stopped the business and the premises was rented out and after getting surrender of it, it was restarted. His son also joined him and later they formed a partnership evidenced by Ext.A3. The evidence shows that the licence and the sales tax registration stand in the name of the landlord himself. The plea raised by the learned counsel for the petitioner is that the entire building is not owned by the landlord, he is only occupying a portion of the building and in that view of the matter, he cannot seek eviction on the ground of additional accommodation under Section 11(8) and actually he could have moved only under Section 11(3) of the Act.
7. The building is having a common roof and the structure consists of different rooms. In the ground floor adjacent rooms are owned by the landlord and the tenant and the landlord owns the upper floor of his room which is rented out to the tenant. The definition of term 'building' in Section 2(1) of the Act is apposite here and we extract the same below:
"2(1) "Building" means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes and includes-
(a) to (c) x x x x x x x x x "RCR 205/2008 -6-
Bearing in mind the above facts, we will now refer to the dictum laid down in various cases by the Apex Court and this Court in practically similar situations. The Apex Court in Shri Balagenasan Metals v. M.N. Shanmugham Chetty and others (AIR 1987 SC 1668) considered almost an identical argument. The provision considered therein is Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Therein, the landlady was occupying the first floor for residence and the tenant was using the ground floor as a godown. Eviction was sought of the portion occupied by the tenant under Section 10(3)(c) of the Act on the plea that the landlord requires the said area bonafide for additional accommodation for residential purposes. It was argued that since the ground floor constitutes a building by itself, by the definition of the term 'building' in Section 2(2) of the Act, eviction can be sought only under Section 10(3)(a)(i) of the Act for own occupation and not under Section 10(3)(c) for additional accommodation. After considering the definition of the term 'building' in Section 2(2), their Lordships held in para 8 as follows:
"It is no doubt true that under Section 2(2), a building has been defined as not only a building or hut but also part of a building or hut let separately for residential or non-residential purpose. That would, however, only mean that a part of a building which has been let out or which is to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not RCR 205/2008 -7- necessary to treat the entire building as one whole and inseparable unit. A limitation on the definition has been placed by the Legislature itself by providing that the application of the definition is subject to the contextual position. Therefore, it follows hat where the context warrants the entire building being construed as one integral unit, it would be inappropriate to view the building as consisting of several disintegrated units and not as one integrated structure. ................................ If as contended by the appellant each portion of a building let out separately should always be construed as an independent unit by itself then there is no scope for a landlord occupying "a part of a building" seeking eviction of a tenant "occupying the whole or any portion of the remaining part of the building". It is, therefore, obvious that in so far as Section 10 (3)(c) is concerned, the Legislature has intended that the entire building, irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not as different entities. To import the expansive definition of the word "building" in Section 2(2) into Section 10(3)(c) would result in rendering meaningless the words "part of a building" occupied by the landlord and a tenant "occupying the whole or any portion of the remaining part of the building". The third factor militating against the contention of the appellant is that if a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then Section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since Section 10(3)(a) does not provide for eviction of tenants on the ground of additional accommodation RCR 205/2008 -8- for the landlord either for residential or non-residential purposes. It is a well settled rule of interpretation of statutes that the provisions of an Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency."
In the light of the above dictum, herein also we will have to consider the whole building as an inseparable unit and not to treat the portions in occupation of the owner as well as the tenant as different buildings.
8. This court in similar cases has considered the true interpretation of Section 11(8) of the Act. Firstly, we will refer to the decision of this court in Shaji Varghese v. Cherian (1993 (1) KLT 133), wherein after referring to the provisions of Section 11(8) of the Act, Viswanatha Iyer, J. (as he then was) explained the legal position pithily in the following words:
"So far as the Kerala Act is concerned, what is made relevant is a whole building and the occupation of a portion thereof by the landlord. If the construction adumbrated by the petitioner were to be accepted, it may as well lead to the startling result of S.11(8) being rendered otiose and purposeless, for it is unlikely that the landlord will be in possession of any area, which is not completely cut off from the portion in the possession of the tenant. A building of the nature, we have in this case, constructed and intended to be used as one, integral unit, different portions of which are occupied either by the tenant or by the landlord, cannot be treated as different buildings to preclude the operation of Section 11(8). The upstairs and downstairs portions constitute but parts of a whole building, which RCR 205/2008 -9- cannot be split up into different buildings for purposes of S.11(8). The building in question is one for which the normal access is through a staircase situate inside the building which stands closed only temporarily. In the absence of pleadings, and in the absence of anything to indicate that the two portions were intended to be used to the exclusion of the other, it is not possible for us to accept the petitioner's contention that they are different buildings, and not portions of the same building to which S.11(8) will apply."
Therefore, what is relevant is to consider whether the whole building is an integral unit and the occupation of a portion thereof by the landlord and another by the tenant. In Punjab National Bank v. Dr.A.K. Sabhapathy (2001 (1) KLJ 86) Hariharan Nair, J. speaking for the Bench, reiterated the said legal position by stating that:
"The term 'building' referred to in Sec.11(8) has to be given a wider meaning. The question is whether the two portions form part and parcel of one and the same larger structure with a common roof. It was found that as far as Act 2 of 1965 is concerned, what is made relevant is a whole building and the occupation of a portion thereof by the landlord. If the restricted meaning pleaded by the tenant is accepted, it was found , the startling result would be that Sec.11(8) would be rendered otiose and purposeless. A building constructed and intended to be used as one integral unit of which portions are occupied by the tenant and the landlord respectively cannot be treated as different buildings to preclude the operation of Sec.11(8)."
Again, the same question came up for consideration in John v. Manuel (2004 (3) KLT 318). The facts of the case show that the landlord was in RCR 205/2008 -10- occupation of one of the rooms and the tenant, another room in the same building. Eviction was sought for additional accommodation. The tenant argued that a petition can be maintained only under Section 11(3) of the Act and not under Section 11(8) of the Act. It was mainly contended that Section 11(8) would not apply since the tenanted premises is not part of a single building. After referring to the definition of building in Section 2(1) of the Act, K.S. Radhakrishnan, J. (as he then was), laid down the legal position thus:
"The mere fact that the rooms in that compact block could be sold separately does not mean that oneness has been lost. Further the mere fact that tenanted premise is three rooms away from the room occupied by the landlord would not mean that S.11(8) is not attracted. The question is whether all the rooms form part of one block and therefore part of a building. Under S.11(8) it is not necessary that the room should be adjacent, but the test is whether tenanted building forms part of the same building though separated by a few shop rooms. If all the rooms including the rooms occupied by the tenant and the landlord form part of a single building, though separated by two or three rooms, would not lose its oneness and therefore S.11(8) could be attracted. Under S.11(8) the nature of additional requirement should have some nexus with the existing need. Going by the structure of the building, we are of the view tenanted premises as well as the portion in the occupation of the landlord forms part of the same building and the purpose is also supplementary. S.11(8) therefore would squarely apply." RCR 205/2008 -11-
Later, another Division Bench of this court in Bonny v. Koshy P. John (2005 (1) KLT SN 114 (Case No.145) has held that "portions occupied by the landlord and tenant of the same building used as an integral unit cannot be treated as different buildings in the context of a claim under Section 11 (8) of the Act." The Division Bench profitably referred to the earlier decision of this court in Shaji Varghese's case (1993 (1) KLT 133).
9. Therefore, the only question to be looked into is whether the tenanted premises forms part of the same building, a portion of which is in occupation of the landlord. The building herein is under the same roof and forms part of the the same structure. Both the landlord and the tenant own separate floors in the very same building and the schedule room, as noted above, is in the upper floor. Therefore, the occupation by the landlord of part of the building for the purpose of Section 11(8) is there and the tenant is also occupying another room on the remaining part. It is an integral unit. A restrictive interpretation as sought for by the learned counsel for the petitioner is not warranted, especially in the light of the clear definition of the term 'building' in Section 2(1) of the Act. Otherwise, if the construction as sought for by the petitioner's counsel is adopted, then the provision will become unworkable and otiose. What is necessary under Section 11(8) is only occupation by the landlord of a part of the building in which the tenanted premises forms another part. It does not speak of exclusive RCR 205/2008 -12- ownership of the entire structure. Even if some of the rooms of the whole building are owned by other persons, that cannot defeat the right of the landlord to seek eviction under Section 11(8) of the Act. Only thing to be considered is whether the landlord and the tenant are occupying part of the same building. Therefore, the statutory requirements cannot be curtailed by any interpretive process. The plain terms of the statute does not warrant such an interpretation. Therefore, we reject the said argument raised by learned counsel for the petitioner and we find that a petition for eviction under Section 11(8) of the Act is maintainable on the facts of this case and the plea that it is maintainable only under Section 11(3) is not correct.
10. The next question is whether eviction can be ordered as sought for by the landlord, who is conducting a business in partnership with his son, as according to the learned counsel, only if additional accommodation is required for "personal use" of the landlord, he can seek eviction. Learned counsel for the petitioner relied upon the principles stated in Lieya v. Kaliappa Chettiar Sons (1995 (2) KLT 783) and Abdussalam v. Bhaskaran (2005 (3) KLT 71) in support of the above argument. It was contended that even though in Rajkumar Chadda and another v. V.P. Abdulrahiman and others (1987 KLJ 677) a learned Single Judge of this court has taken the view that Section 11(8) of the Act is attracted even if the landlord is conducting a partnership business, the later decisions above RCR 205/2008 -13- quoted will require a re-look of the legal position declared in the said decision. Our attention was invited to the eviction petition, wherein in para 1 it is stated that the landlord is doing business along with his son in partnership in building No.40/2839. It is submitted that as the firm is in occupation of the premises, by no stretch of imagination it can be contended that the use of the premises by the firm can be termed as occupation of the premises by the landlord, so that additional accommodation required cannot be termed as for his personal use also.
11. Before going into the pleadings and evidence, we will refer to the dictum laid down in Rajkumar Chadda's case (1987 KLJ 677). U.L. Bhat, J. (as he then was) laid down the legal position in the following words:
"In the case of a partner who is actively concerned with running partnership business, he must be deemed to be in occupation of the business premises and when accommodation is required for running a partnership business it is treated as being required for his own occupation. Section 11(8) does not contain the words "his own occupation". What section 11(8) contemplates is requirement of additional accommodation for his personal use. It is significant to note that the expression 'own' is absent in section 11(8). Additional accommodation must be required for his personal use and not for his exclusive personal use. When a partnership is running a business, at least so far as the active partners are concerned (it is unnecessary to consider the case of dormant partners since there is no case that the RCR 205/2008 -14- landlord herein is only a dormant partner) they are personally using the premises. The landlord in this case as an active partner of the business is personally using the premises and when additional accommodation is required for the business of the partnership the requirement is for his personal use. It may be that it is for the personal use of other active partners also. But as long as the provision does not insist on the requirement for exclusive personal use, the court will not be justified in putting such a narrow construction to the provision."
12. We will now refer to the pleadings and evidence available in the case. In the objections the contention raised by the tenant is that actually the landlord is not doing business in the ground floor, but his son alone is doing business. The landlord was examined as P.W.1. In the proof affidavit the details as to the business that is conducted and the formation of partnership have been stated. According to him, in the room in the ground floor he is conducting business in ready made garments in the name and style "Bavas" and his son Faizal is also a partner. Ext.A2 is the lease deed executed by the tenant. Ext.A3 is the deed of partnership executed on 9.11.2000 between the landlord and his son. Ext.A4 is the certificate showing the particulars of registration under the Sales Tax Act and Ext.A5 is the application submitted under the Kerala Value Added Tax Rules. In the cross examination he has stated that the business in the name and style "Bavas" was started 3 to 4 years before and the father and son are jointly RCR 205/2008 -15- doing the business. Originally the shop "Bavas" was being conducted by his father and after his demise the landlord continued the same. For some period it was rented out to another person and thereafter he re-started it. He has stated that the licence of the business as well as the registration under the Sales Tax Act are in his name. He denied the suggestion that the deed of partnership was executed only to get the licence and sales tax registration in his name. In the cross examination various details of the business including its turnover have been answered by the landlord. Thus, it is clear that the landlord is not a silent partner of the business. He is actively involved in its conduct. In the cross examination of R.W.1, the tenant, he has clearly stated that he is conducting the business in the name and style of "Boney Dresses" in the adjoining room where the petitioner/landlord is doing business in the name and style of 'Bavas". The fact that the landlord is conducting business is not at all denied by the tenant even though the attempt was to show that his son alone is doing business. In Ext.C1 report also, after examining the room owned by the landlord the absence of sufficient space has been reported by the Commissioner which fact was explained by him when examined as P.W.2. It is clearly stated in the chief examination itself that the details noted in Ext.C1(c) is that of the room where the landlord is conducting business. In cross examination no specific question is asked to P.W.2 as to whether the landlord himself is RCR 205/2008 -16- doing business or his son alone is doing business in the ground floor in the name and style of "Bavas". Therefore, the legal position argued by the learned counsel on either side has to be assessed in the light of the pleadings and evidence in this case.
13. Relying upon the decision reported in Lieya's case (1995 (2) KLT 783 wherein it was held that a Rent Control Petition is maintainable against a partnership firm without individual partners in the array of parties, it is contended by the learned counsel for the petitioner that when a partnership is doing business, the concept is that it is in occupation of the premises and when it is held that an eviction petition can be maintained against a partnership firm without individual partners in the array of parties, it is clear that the partners individually are not in occupation of the premises. Therefore, it is contended that once the firm is doing business, the particular limb of Section 11(8), by which additional accommodation could be sought for the personal use of the landlord is not at all attracted. In Abdussalam's case (2005(3) KLT 71), while considering a plea regarding acquisition of another premises by the tenant, it was held by this court that the ingredients of Section 11(4)(iii) are not satisfied in a case where there is acquisition of vacant possession of a building by the partnership firm of which the tenant is a partner. The following is the dictum laid down therein:
RCR 205/2008 -17-
"Simply by the acquisition of vacant possession of a building by the partnership firm of which the tenant may be a partner, the tenant does not become liable to be evicted. It cannot be held that the tenant has a building reasonably sufficient for his business, thereby the ingredients under Section 11(4)(iii) of the Act are not satisfied in this case. The petition schedule premises is only used for binding whereas the printing works is dealt with in the premises, where the partnership business is conducted. Therefore, the tenant cannot continue the present business by shifting it to the partnership business premises. In that view also, S.11(4)(iii) is not attracted."
(para 2)
14. Going by the facts in Lieya's case (1995 (2) KLT 783, the eviction petition was filed under Section 11(3) of the Act against a registered partnership firm and objection was filed by the Managing Partner stating that there is no provision of law under which a Rent Control Petition can be filed against a partnership firm, without all its partners in the array of parties. After examining the legal position in the light of various decisions of this court and Apex Court, this court explained the legal position in para 6 in the following words:
"It is pertinent to note that the word 'tenant' has been defined to mean 'any person by whom' or 'on whose account' rent is payable for a building and includes, etc. etc. This shows that any person by whom or on whose account rent is payable is also a tenant. In a case where a firm is made a party to the rent control proceedings, and no objection has been filed by the firm stating that the firm is not paying RCR 205/2008 -18- rent on behalf of its partners, it cannot be said that the firm is not the tenant within the meaning of Section 2(6) of the Act. Therefore, even if all partners of the firm is represented by the managing partner, as a person by whom rent is payable to the landlord, the petition under the Act making the firm alone as a respondent is maintainable. No other interpretation can be placed on Section 2(6) of the Act. In that view of the matter also, we are of opinion that rent control petition filed under the Kerala Act is maintainable against the respondent - firm even without making other partners in the array of parties. It has also come in evidence in the instant case that the firm is a family concern consisting of the father and three children, the father being the managing partner." (underlining ours) The meaning of the term "tenant" in the definition clause was mainly relied upon while rendering the above dictum. Therefore, going by the facts of the case it was clear that the firm was paying rent and therefore it was held that it cannot be said that the firm is not a tenant. It is in that context it was held that the other partners need not be arrayed as parties. We fail to see how the said dictum will help the argument raised by the petitioner herein. Even if it is true that herein the father and son have later formed a partnership, merely because of that it cannot be said that the premises is not used by the father who is the landlord. Going by Section 11(8), what is necessary to attract the provision is that the landlord should be in occupation of a part of the building, so that he can seek eviction of the other part occupied by the tenant. It is well settled that the position of a partnership qua the firm is one RCR 205/2008 -19- of equality. He is not an employee, even though he may be in receipt of any remuneration. (See Regional Director, Employees' State Insurance Corporatioon, Trichur v. Ramanuja Match Industries - {1985 (1) SCC 218}). The Apex Court has held in various decisions that the firm is only a compendious description of the individuals who compose the firm. In this case, eviction petition is filed by the landlord himself and not in the name of the partnership. The tenant has not succeeded in proving that the petitioner/landlord is not using the premises for any purpose even though in the objections it was contended that the son alone is doing business. Even going by the terms of Ext.A3 partnership deed we find that the petitioner/landlord is also a working partner of the business (clause 8). It is clearly stated therein that the father and son will be working partners and shall be responsible for the day today function of the partnership firm and they are entitled to draw salary from the firm. Therefore, it is clear that the petitioner/landlord is not a silent partner. The oral evidence shows that the licence and the sales tax registration are in the name of the landlord. In that view of the matter, it cannot be said that he is not personally involved in the conduct of the business. Thus, it can be clearly held that he is in occupation of the premises for doing the business in the name and style of "Bavas" and is using the premises in that capacity.
15. We fail to see how the dictum laid down in Abdussalam's case RCR 205/2008 -20- (2005 (3) KLT 71) will support the plea raised by the learned counsel for the petitioner. Therein, the tenant was doing binding works in the schedule building. The contention was that he is a partner of another business in another building where printing and binding works are being done. It was contended by the tenant that the business that is being run exclusively by him cannot be shifted to the building where the partnership is doing business. While considering the question whether the tenant is in possession of a building reasonably sufficient for his requirements, it was held that the tenanted premises is only used for binding whereas the printing works is dealt with in the premises where the partnership business is conducted and therefore the tenant cannot continue the present business by shifting it to the partnership business premises. Accordingly, it was held that Section 11(4)(iii) is not attracted to the facts of the case. According to the learned counsel for the tenant, the said dictum will show that the facts herein clearly gives a contra situation and hence the said dictum could be applied for interpretation of Section 11(8) also. If the tenant cannot be asked to shift his business to the premises of a firm wherein he is a partner; the presumption drawn is on the basis that he is not in exclusive use of the premises where the partnership is doing business. If that be so, when the landlord is doing business in a partnership firm, it cannot be held that he is using the premises exclusively for his personal use. As we have noted RCR 205/2008 -21- already, the learned Single Judge in Rajkumar Chadda's case (1987 KLJ
677) held that while considering the term "occupy" in Section 11(8) of the Act, a partner who is actively concerned with the running of the business should be deemed to be in occupation of the business premises and hence it can be treated as being required for his own occupation. In the last limb of the section, the requirement is that the accommodation sought is for his personal use and the absence of the expression "own" in Section 11(8) was noted by the learned Single Judge to arrive at the conclusion that the additional accommodation must be required for his personal use and not for his exclusive personal use. Therefore, when a partnership is conducting a business, at least so far as the active partners are concerned, they are personally using the premises. We agree with the above view taken by the learned Judge. It cannot be said that merely because a partnership was formed, the landlord is not in occupation of the premises. A Firm is only a compendious description of the individuals who compose the firm. We fail to see how it can be held that the firm goes out of the scheme of Section 11 (8) itself. The matter will have to be decided on the basis of facts and evidence available in a case. When the landlord himself is a partner and he is actively involved in the business, it cannot be said that he is not using the premises for his use. There is nothing in the section to import that it should be for his exclusive personal use. The legislature has not used any such RCR 205/2008 -22- expression in the body of the section and therefore this court will not be justified in adding words to the provisions. The section speaks of occupation by the landlord and it is well settled that the expression occupation and possession are different concepts. As occupation alone is sufficient, we are of the view that the contention as raised by the learned counsel do not deserve any merit. The requirement will be satisfied if it is shown that the landlord is occupying a part of the building so that he can seek eviction of the other part which is in occupation of the tenant.
Therefore, we reject the said argument also.
16. Then the other ground is regarding the plea under Section 11(4)
(iii) of the Act. The fact that the tenant has acquired two rooms, one in Penta Menaka Shopping Complex and the other in D.D. Vasthra Mahal, has been found concurrently by the authorities below. Learned counsel for the petitioner submitted that these findings are wrong. As far as the room in Penta Menaka Shopping Complex is concerned, it is owned by his son, and it was purchased by the father-in-law of the tenant for the grandson. It cannot therefore be said that the tenant has any interest in the said room. The Rent Control Court was of the view that the purchase was made when the son was a minor and therefore it was held that the tenant himself has acquired the building. The Appellate Authority also agreed with the view further observing that the son is an Electrical Engineer and therefore he will RCR 205/2008 -23- pursue only the profession as an Engineer rather than engaging himself as a qualified vendor. Learned counsel for the respondent argued in support of the above finding. But going by the evidence, it is clear that the premises is owned by the son and the tenant has nothing to do with the ownership of the premises. The requirement of the provision is satisfied only if it is shown that the tenant either is already in possession of a building or subsequently acquires possession of or puts up a building. The evidence is not clinching to find that as far as the room in Penta Menaka Complex is concerned, the tenant acquired possession of it. Therefore, as far as the said room is concerned, we are of the view that the authorities below have erred in finding that the tenant has acquired the building in Penta Menaka Shopping Complex.
17. The next building is the one in D.D. Vasthra Mahal. According to the tenant, he wanted to start a branch of Boney Dresses there. The plea raised is that it cannot be used as a godown or office, and therefore, Section 11((4)(iii) is not attracted. What is required under Section 11(4)(iii) is that the tenant should have acquired possession of a building which is reasonably sufficient for his purpose. That building is also close by, going by Ext.C1 report of the Commissioner. Learned counsel for the landlord submitted that at the time when the eviction petition was filed, it was lying vacant and in the objection, even though the tenant stated that he wants to RCR 205/2008 -24- start a branch of Boney Dresses, at the time of evidence it is stated that he has opened a wholesale business there one month back. (He was cross- examined on 5.6.2006 whereas the eviction petition is filed on 24.6.2005) The plea raised by the tenant that it cannot be used as a godown, going by the present use of the said room by the tenant, cannot be accepted. To attract the provision, what is required is only to show that the said space is reasonably sufficient for his occupation. The Commission Report shows that in that shopping complex the tenant is doing wholesale business in shirts, t-shirts, etc. There is no indication that it cannot be used as a godown or office. We find no reason as to why it cannot be used as a godown and offices. It cannot be the mere ipse dixit of the tenant. It is also within the close proximity of the petition schedule building, as is clear from Ext.C2 report that there is only six minutes walk to reach that building. In that view of the matter, we are of the view that the ingredients of Section 11(4)
(iii) are satisfied. Further, the said premises was lying vacant on the date of filing of the eviction petition. Merely because the tenant has subsequently chosen to use the said room for wholesale business and not for a godown, it cannot be said that the room is not available to the tenant. The landlord is justified in contending that the acquisition of such alternate building by the tenant will satisfy the provisions of Section 11(4)(iii) of the Act.
18. As regards the hardship that may be caused to the tenant and the RCR 205/2008 -25- advantage available to the landlord is concerned, both the authorities below found that the hardship that is caused to the tenant by ordering eviction will not outweigh the advantage to the landlord. The Rent Control Court after referring to Ext.C1 report, found that the landlord is not having sufficient space to do his business and the requirement of additional accommodation is bonafide. It was held hat the comparative hardship that may be caused to the tenant in the event of granting of eviction will be much lesser than the advantage gained by the landlord. This finding was upheld by the Appellate Authority. We are not persuaded to take a different view in regard to the said aspect.
19. Therefore, we confirm the order of eviction passed under Sections 11(4)(iii) and 11(8) of the Act. Learned counsel for the petitioner alternatively contended that in case of eviction, the tenant may be granted nine months' time to vacate the premises. After considering all aspects, we find it is just and reasonable to grant six months time from today to the tenant to vacate the premises on the following conditions:
i) That the entire arrears of rent, if any, shall be deposited before the Execution Court within a period of three weeks from today and the petitioner shall also file an affidavit within the said time undertaking to give vacant possession of the tenanted premises on or before the expiry of the period of six months' from today, i.e. on or before RCR 205/2008 -26- 2.6.2009.
ii) that the tenant shall not induct any third party into the premises;
iii) that an amount equivalent to the rent towards use and occupation of the building shall be regularly paid by the tenant until vacant possession is given; and
iv) that if for any reason the tenant fails to comply with any of the aforesaid conditions, the order of eviction passed by the court below will forthwith become enforceable.
( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/