M/S.Quilon Electric Corporation vs C.Yesudevan Nadar on 29 October, 2021

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Kerala High Court

M/S.Quilon Electric Corporation vs C.Yesudevan Nadar on 29 October, 2021

The petitioner is the respondent-tenant in R.C.P.No.4 of 1994 on the file of the Additional Rent Control Court (Additional Munsiff), Kollam, the appellant in R.C.A.No.17 of 1998 on the file of the IInd Additional Rent Control Appellate Authority (District Judge), Kollam; and the petitioner in C.R.P.No.2524 of 2002 before this Court, which was one filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondents herein-landlords filed R.C.P.No.4 of 1994 seeking eviction of the tenant from the petition schedule building under Section 11(3) of the Act. This Court, by the common order dated 16.06.2005, dismissed C.R.P.No.2524 of 2002 and also the connected matter, i.e., C.R.P.No.2523 of 2002. The operative portion of that order reads thus;

"In the result, the revision petitions are dismissed. The respondent/revision petitioner will surrender Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -2- vacant possession of the premises within three months from the date on which the tenant of the upstair room, i.e. the respondent in RCP 3/94 surrender vacant possession of the upstair portion and also on providing a shop room on the first floor in the newly constructed building to the respondent, on fair rent and also on the respondent remitting arrears of rent if any, and continue to remit the rent and files an affidavit within one month before the court below undertaking to comply with the above conditions."

2. The petitioner has filed this interlocutory application under Section 11 (12) of the Act seeking an order directing the respondents-landlords to put the petitioner-tenant back in possession of the petition schedule building in R.C.P.No.4 of 1994 on the file of the Additional Rent Control Court, Kollam on the ground that the original tenant namely, C.Yesudasan Nadar or his legal heirs have no intention to demolish the petition schedule building in terms of the bonafide need set up in the Rent Control Petition.

3. The Registry noted various defects in the interlocutory application and hence, it is listed today as an unnumbered interlocutory application.

4. Heard the learned counsel for the petitioner-tenant. Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -3-

5. The issue that arises for consideration is as to the maintainability of an application under Section 11(12) of the Kerala Buildings (Lease and Rent Control) Act, before this Court, in a revision petition filed under Section 20 of the said Act, which has already been dismissed by the order dated 16.06.2005.

6. Section 11 of the Act deals with eviction of tenants. As per Section 11(3) of the Act, a landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. As per the first proviso to Section 11(3), 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. As per the second proviso to Section 11(3), the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -4- livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business. As per the third proviso to Section 11(3), no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. As per the fourth proviso to Section 11(3), if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.

7. Section 11(10) of the Act provides that claim under sub-section (3), (4), (7) or (8) of Section 11 should be bona fide. As per Section 11(10) The Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-section (3), (4), (7) or sub-section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -5- building on such date as may be specified by the Rent control Court, and if the Court is not so satisfied, it shall make an order rejecting the application. As per the first proviso to Section 11(10), in the case of an application made under sub- section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. As per the second proviso to Section 11(10), the Rent control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.

8. Section 11(12) of the Act deals with restoration of possession of tenant. As per Section 11(12), where a landlord who has obtained possession of a building in pursuance of an order under sub-section (3), does not occupy it without reasonable cause within one month of the date of obtaining possession, or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who has been evicted may apply to the Rent Control Court for an order directing that he shall be restored to possession of Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -6- the building, and the Court shall make an order accordingly notwithstanding anything contained in Section 4.

9. Section 11(13) of the Act deals with failure of tenant to apply under Section 11(12). As per Section 11(13), where a tenant who is entitled to apply for possession under sub-section (12) fails to do so without reasonable cause within one month from the date on which the right to make the application accrued to him, the officer referred to in sub- section (1) of section 4, shall have power, if the building is required for any of the purposes or for occupation by any of the officers or persons specified in sub-section (3) of that Section to give intimation to the landlord that the building is so required, and thereupon the provisions of sub-sections (5) and (8) of section 4 shall apply to the building. As per the proviso to Section 11(13), this sub-section shall not apply to a building the monthly rent of which does not exceed fifteen rupees.

10. In Chaliyadan Mariyam v. Ittappurath Atholintavide Saifuddeen [2014 (2) KHC 759] a Division Bench of this Court held that, the expression 'without Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -7- reasonable cause', occurring in Section 11(12) of the Kerala Buildings (Lease and Rent Control) Act, cannot be interpreted in a restrictive sense. The purpose and intent of Section 11(12) is to restrict the landlord from unjustifiably getting vacant possession of tenanted building under the pretext of bona fide need and after getting possession to restrict the landlord from disposing of the same for other purposes. In such a situation, the court is not powerless. The tenant is given liberty to apply before the court for restoration of possession. That means, a landlord, who gets an order of eviction under Section 11(3) of the Act, cannot deal with the building otherwise than for the bona fide need for which eviction was sought. If he does so, the consequence of the same would be restoration of possession of the building to the tenant, unless the landlord establishes reasonable cause as provided under Section 11(12) of the Act. The burden to establish reasonable cause is certainly on the landlord. The burden of proof in that regard is not a rigid one and 'reasonable cause' cannot be assessed with mathematical precision. There may be a host of situations where a landlord, Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -8- who got vacant possession of the building, may fail to occupy it within one month. All such situations cannot be treated in the same manner in all cases. If a reasonable and true explanation is offered by the landlord for non-occupation of the building within one month from the date of obtaining possession, the court will accept the same, depending on the facts and circumstances of each case. No straight-jacket formula can be adopted to ascertain what is reasonable cause. It varies from case to case and from situation to situation. The normal human conduct and the circumstances under which the landlord could not occupy the building are all relevant factors to be taken note of, to arrive at a conclusion whether the landlord had reasonable cause for non-occupation within a period of one month.

11. In Chaliyadan Mariyam the Division Bench was dealing with a case in which the petitioner-landlady filed the Rent Control Petition against the respondent-tenant, under Section 11(3) of the Act for getting vacant possession of the petition schedule building, for the bona fide need of her son, for the purpose of running a Dental Clinic. Though the Rent Control Court dismissed the Rent Control Petition, it was Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -9- reversed by the Rent Control Appellate Authority and it was confirmed by this Court in revision filed under Section 20 of the Act. The tenant requested for time before this Court to vacate the petition schedule building and time up to 30.09.2006 was granted. Before that date, the tenant surrendered the key of the building before court and the landlady got delivery of the building on 17.10.2006. Alleging that the landlady did not occupy the building within one month from the date of obtaining possession, the tenant filed an application under Section 11(12) of the Act before the Rent Control Court on 10.01.2007. In that Rent Control Petition, an order under Section 11(12) of the Act was passed by the Rent Control Court. The landlord filed Rent Control Appeal before the Rent Control Appellate Authority, under Section 18(1)(b) of the Act. That appeal ended in dismissal, by confirming the order of the Rent Control Court. Challenging that judgment and order the landlady filed Rent Control Revision before this Court, under Section 20 of the Act. This Court found that, the courts below took a hyper-technical view of the matter and erroneously held that the landlady failed to establish Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -10- reasonable cause within the meaning of Section 11(12) of the Act for non-occupation of the building within one month. This Court held that there is patent illegality and impropriety in the order and judgment of the authorities below, warranting interference under Section 20 of the Act. Accordingly, the Division Bench allowed the Rent Control Revision and set aside the order and judgment of the authorities below and dismissed the application filed by the tenant under Section 11(12) of the Act.

12. As held by the Division Bench in Chaliyadan Mariyam, a landlord, who gets an order of eviction under Section 11(3) of the Act, cannot deal with the building otherwise than for the bona fide need for which eviction was sought. If he does so, the consequence of the same would be restoration of possession of the building to the tenant, unless the landlord establishes reasonable cause as provided under Section 11(12) of the Act. The burden to establish reasonable cause is certainly on the landlord.

13. An application under Section 11(12) of the Act has to be filed before the Rent Control Court in which the Rent Control Court shall order restoration of possession unless the Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002 -11- landlord establishes reasonable cause as provided under Section 11(12) of the Act. Such an application cannot be filed as an interlocutory application in a Rent Control Revision filed under Section 20 of the Act, which has already been dismissed vide order dated 16.06.2005.

Therefore, the defect noted by Registry sustained.

Sd/-

ANIL K. NARENDRAN, Judge Sd/-

P.G. AJITHKUMAR, Judge AV/29/10 29-10-2021 /True Copy/ Assistant Registrar

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