Annamma @ Anna vs M.J.Augusty on 12 April, 2024

[Cites 8, Cited by 0]

Kerala High Court

Annamma @ Anna vs M.J.Augusty on 12 April, 2024

1. The present petition is directed at the instance of the landlord against the judgment of the Rent Controller and Appellate Authority. Petitioner - landlord, vide Rent Control Petition No.03/2016 dated 13.04.2018 of the Court of the Rent Controller (Munsiff-Magistrate) sought the eviction of the respondent - tenant on the following grounds:

i) Respondent - tenant was leased out the property with effect from 01.04.1982 at the rate of Rs.60/- (Rupees sixty only) per month. However, on 01.06.2006 fresh rent agreement was executed and the rate of rent was enhanced to Rs.720/- (Rupees seven hundred twenty only). During all these period, the son of the petitioner - landlord had the managing authority but unfortunately he died on 13.07.2013 leaving behind his wife and the children. With effect from August, 2013, rent was enhanced but, thereafter, respondent - tenant defaulted in the RCREV. NO. 121 OF 2020 4 payment of rent from 01.10.2013 onwards and had been arrears of rent to the tune of Rs.87,000/-

(Rupees eighty seven thousand only) till 31.01.2016.

ii) The petitioner - landlord as well as daughter- in-law and grandchildren bonafide requires the petition schedule property for the livelihood. Daughter-in-law is experienced in textile business and premises in question are suitable to conduct textile business.

iii) Respondent-tenant owns another building to conduct the business and therefore, cannot claim the hardship by raising plea of dependent upon the business in the schedule premises.

2. Before institution of the rent petition, a legal notice was served which was duly replied but of no avail. Respondent - tenant in the reply, denied the arrears of rent and enhancement as set up in ground No.1 vis-a-vis the bonafide need. It was stated that the need was rather malafide for, both landlord and daughter-in-law have many RCREV. NO. 121 OF 2020 5 other buildings in Pulpally town and other places deriving rent from landed property and therefore, the eviction is hit by proviso to sub-section 3 of Section 11 of the Kerala Buildings (Lease and Rent Control) Act. As regards the averments of owning another building in the same town, it was stated that the respondent is doing business of kids dress under the name and style ' Kids World' and denied the ownership of the property situated in Padichira Village. Receipt of legal notice was not denied. Though the petitioner - landlord had sought eviction on three grounds, for the reason best known, learned Rent Controller framed following issues which did not contain the issue provided in sub clause (iii) of sub section 4 of Section 11:

(i) Is the petitioner entitled to an order for eviction of the respondent u/s 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act of 1965?

(ii) Is the petitioner entitled to an order for eviction of the respondent u/s 11(3) of the Kerala Buildings (Lease and Rent Control) Act of 1965 ?

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(iii) What orders to be passed ?

3. In support of the respective pleadings, both the parties examined following witnesses and documents :

Petitioner's Witness:

PW1 - 30.01.2018-        Thankamma Babu
PW2 - 24.02.2018-        Noufeeque

Petitioner's Exhibits:

A1           -12.10.2017-    Power of Attorney
A2           -27.01.2016-    Copy of Legal notice
A3           -06.02.2016-    Reply notice
A4(a)        -30.01.2011-    Rent Receipt
A4(b)        -28.02.2011-    Rent Receipt
A4(c)        -30.03.2011-    Rent Receipt
A4(d)        -30.04.2011-    Rent Receipt
A4(e)        -30.05.2011-    Rent Receipt
A4(f)        -30.06.2011-    Rent Receipt
A4(g)        -30.07.2011-    Rent Receipt
A4(h)        -30.08.2011-    Rent Receipt
A4(i)        -30.09.2011-    Rent Receipt
A4(j)        -30.10.2011-    Rent Receipt
A4(k)        -30.11.2011-    Rent Receipt
A4(l)        -31.12.2011-    Rent Receipt
A4(m)        -30.01.2012-    Rent Receipt
A4(n)        -29.02.2012-    Rent Receipt
A4(0)        -29.03.2012-    Rent Receipt
A4(p)        -30.04.2012-    Rent Receipt
A4(q)        -30.05.2012-    Rent Receipt
A4(r)        -30.06.2012-    Rent Receipt
A4(s)        -30.07.2012-    Rent Receipt
A4(t)        -30.08.2012-    Rent Receipt
A4(u)        -30.09.2012-    Rent Receipt
A4(v)        -30.10.2012-    Rent Receipt
A4(w)        -30.11.2012-    Rent Receipt
A4(x)        -30.12.2012-    Rent Receipt
 RCREV. NO. 121 OF 2020
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A4(y)     -30.01.2013-       Rent Receipt
A4(z)     -27.02.2013-       Rent Receipt
A4(aa)    -30.03.2013-       Rent Receipt
A4(ab)    -30.04.2013-       Rent Receipt
A4(ac)    -30.05.2013-       Rent Receipt
A4(ad)    - 30.06.2013-      Rent Receipt
A4(ae)    -30.07.2013-       Rent Receipt
A4(af)    -31.08.2013-       Rent Receipt
A4(ag)    -30.09.2013-       Rent Receipt
A5(a)     -    -             Photograph
A5(b)     -    -             Photograph
A5(c)     -    -             Photograph
A5(d)     -    -             Photograph
A5(e)     -    -             Photograph
A5(f) -        -             Photograph
A5(g)     -    -             Compact Disk
A5(h)     -05.02.2018-       Receipt

Respondent's Witness:

RW1       -27.02.2018 -      M.J.Augusty

Respondent's Exhibits:

B1        -30.05.2013-       Rent Receipt
B2        -28.06.2013-       Rent Receipt
B3        -30.07.2013-       Rent Receipt
B4        -09.10.2013-       Tapal Receipt
B5        -09.10.2013-       Tapal Slip
B6        -31.10.2013-       Tapal Receipt
B7        -31.10.2013-       Tapal Slip
B8        -01.06.2016-       Receipt from Pulpally Grama
                             Panchayath
B9(a)     -    -         -   Certified copy of Building Tax
                             assessment Register of Pulpally
                             Grama Panchayath
B9(b)     -    -     -       Certified copy of Building Tax
                             assessment Register of Pulpally
                             Grama Panchayath
B9(c)     -    -         -   Certified copy of Building Tax
                             assessment Register of Pulpally
 RCREV. NO. 121 OF 2020
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                           Grama Panchayath.
B9(d)     -     -      -   Certified copy of Building Tax
                           assessment Register of
                           Pulpally Grama Panchayath.

4. Learned Rent Controller rejected the rent petition.

Appellate Authority reversed the findings on arrears of rent which has now been cleared in view of provisions of Clause

5. Adv.A.T.Renju, learned counsel appearing on behalf of the petitioner - landlord submitted that learned Rent Controller and Appellate Authority committed illegality and perversity in not framing the proper issues, but in the absence of issues if the parties have been on a particular pleadings and lead an evidence, the finding can always be arrived at in the absence of issues or framing the issue at any point of time. Moreover, strict principles of Code of Civil Procedure are not applicable in respect of pleadings before a rent controller. The tenant who appeared as RW1 in cross examination spilled the beans regarding the owning of property in Padichira Village and therefore, petitioner - landlord is entitled to eviction on the ground specified in RCREV. NO. 121 OF 2020 9 Clause (iii) of Sub-section 4 of Section 11. Both Courts below have gravely erred in not noticing the fact that the tenant has failed to place on record any material for bringing out the case under the exception carved out in proviso to sub- section 3 of Section 11 for rejecting the plea of bonafide need. Except for bald assertions there is no categoric or specific evidence.

6. On the other hand, Mr.M.M.Monaye, learned counsel appearing on behalf of the respondent countered the arguments and submitted that landlord had not approached the Rent Controller with clean hands and bonafide need, but with rather a malafide need in as much as that during the pendency of the rent petition before the Rent Controller, on 08.02.2018 transferred disputed property/schedule property by gift deed to a grandson where the rent petition has been decided on 13.04.2018. The ground of necessity no longer existed in the absence of the evidence of grandson much less any plea for requiring the premises for him.

7. Tenant has been deprived of countering the evidence with regard to the ground of eviction under clause

(iii) of sub-section 4 of Section 11 and therefore, the matter RCREV. NO. 121 OF 2020 10 be remanded to the Lower Appellate Authority for seeking a report by giving opportunity of parties as per the provisions of Order 41 Rule 25 of the Code of Civil Procedure. Courts below are required to see the evidence cumulatively in seeking the eviction but not in isolation.

8. Landlord failed to examine himself and had appeared through power of attorney which do not suffice the requirement of bonafide in view of the ratio decidendi culled out in Supreme Court in Mushir Mohammed Khan (dead) by LRs v. Smt.Sajeda Bano & Others AIR 1999 SC 1441.

9. We have heard the learned counsel for the parties and appraised the paper book.

10. Kerala Buildings (Lease and Rent Control) Act, 1965, envisages various grounds of eviction, arrears of rent, bonafide, value and utility, cease to occupy for demolition and raising of the fresh construction, etc., but all those aforementioned grounds particularly commencing from bonafide need, the legislature has carved out an exception by providing the proviso. It is therefore, appropriate to extract RCREV. NO. 121 OF 2020 11 the provisions of Sections 11(3) and 11(4) along with proviso:

"11 (3) 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 bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him:

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:

Provided further that 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 livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available m the locality for such person to carry on such trade or business.

Provided further that 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;

Provided further that 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 m possession unless he proves that he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him. RCREV. NO. 121 OF 2020 12 11 (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,--

(i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub- lets the entire building or any portion thereof if the lease does not confer on him any right to do so; or

(ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; or '

(iii) if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or

(iv) if the building is in such a condition that it needs reconstruction and"if the landlord requires bona fide to reconstruct the same and if. he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction:

Provided that the landlord who evicts a tenant and docs not reconstruct completely the building within a time which may be fixed -* or extended by the Rent Control Court, shall on a petition before that Court be liable to a fine of rupees five hundred, if it is proved that he has willfully neglected to reconstruct completely the building within such time:

Provided further that the Court shall have power at any time to issue directions regarding the reconstruction of the building and on failure of compliance by the landlord, to give effect to the order in any manner the Court deems fit and in RCREV. NO. 121 OF 2020 13 appropriate cases to put the tenant back in possession or award to the evicted tenant damages equal to the excess rent he has to pay for another building that he is occupying in consequence of such eviction:

Provided further that the tenant who was evicted shall have the first option to have the reconstructed building allotted to him with liability to pay its fair rent; or (») if the tenant ceases to occupy the building continuously for six months without reasonable cause."

11. We need not dwell on the ground of arrears of rent, for, respondent - tenant within the timeline granted by the Appellate Authority has already deposited the arrears and therefore is protected by the provisions of sub clause (c) of sub-section (2) of Section 11 of the Act, but would be failing in our duty in not extracting the categoric averments in the rent petition seeking eviction on the ground of bonafide need.

The same reads as under:

"3. The petitioner is in bonafide need of the petition scheduled premises for the livelihood of the petitioner as well as the daughter in law and grant children of the petitioner. The son of the petitioner was died in 2013 and the daughter in law and grant children are under the control of the petitioner and the responsibility of the petitioner is to accommodate the daughter in law and children of son, hence the premises is bonafide need of the petitioner. The adjacent premises are owned by daughter in law and same also RCREV. NO. 121 OF 2020 14 demanded for the purpose of textile business. The daughter in law is experienced in textile business and the premises are suitable for textile business. The son of the petitioner was the main bread winner of the family and after the premature demise of the son, the burden of the family is on the shoulder of the daughter in law of the petitioner. Petitioner and dependent of petitioner has no other means to meet the expenses for their studies and other requirements and the need of petition scheduled premises is bonafide for the purpose of accommodating the daughter in law of the petitioner. The respondent is well aware the need of the petitioner, but the respondent protracting the surrendering the vacant possession of the petition schedule property. The petitioner has no other option, except to get the vacant possession of the scheduled room for accommodating her daughter in law for their livelihood."

12. The need was mentioned not only for the landlord but for the daughter-in-law and the children and the children for the landlord would be the grand son. Even if the gift deed has been executed the need remained the same. During the pendency of the revision petition, landlord unfortunately expired and application has been filed for impleadment of grandson as legal representative in view of the gift deed.

13. It is settled law that the Trial Court or Rent Controller in the present case failed to frame a proper issue RCREV. NO. 121 OF 2020 15 particularly when the pleadings and evidence are on record. Paragraph 4 of the rent petition whereby the petitioner landlord has sought the eviction on a ground specified in Clause (iii) of sub-section 4 of Section 11 of the Act. Paragraph 4 of the rent petition reads as under:

"4. The respondent has own building to conduct the business and not depending the business in the preemies scheduled in the petition for his livelihood. Apart from own buildings, there are sufficient vacant premises in pulpally town. Moreover the respondent is having landed properties in pulpally and padichira villages."

14. It is settled law that even if the parties have been in specific pleadings and lead an evidence in the absence of the issue any Court including Trial Court or appellate court or this Court while exercising the power of revision can adjudicate the said controversy.

15. Tenant when appeared as RW1 was put a specific question with regard to owning of the building in the Pulpally Village and he answered in the following manner:

"I have a building in Pulpally. I have rented out the said building. I have not stated in the affidavit as well as in my written objections that I do not owned any building. I have RCREV. NO. 121 OF 2020 16 four rooms and the same is rented out.

Q. The statement that I don't owned any building for doing business is incorrect?

Ans: I have my own building and the same is rented out. I have seventeen rooms.

Document present to the witnesses Mr.Varghese, Joseph Jopez, Ulahannan Memattu, K.M.Sivadas, the building owned by me are in the possession of the above named persons."

16. Once the pleadings and evidence is already on record, tenant cannot be permitted to take a plea that he has been prevented to lead evidence on the point and there was no occasion for us also to seek report from the Appellate Authority in terms of the provisions of Rule 25 of Order 41 of Code of Civil Procedure. The Courts below have abdicated in not rendering the findings despite the fact there had been specific pleadings and evidence on record. It is settled law that if the landlord had taken various grounds and succeed to seek eviction on one of the grounds, would be sufficient for the tenant to surrender the possession.

17. Though Sri.M.M.Monaye had buttressed his argument by relying upon provisions of Order 41 Rule 33 to contend that even in the absence of any findings with regard RCREV. NO. 121 OF 2020 17 to eviction on the ground referred to in Clause (iii) of sub- section 4 of Section 11, he cannot be prevented from raising the argument. We are in agreement of the same but the fact remains and for the sake of repetition that, to the specific pleadings taken in the rent petition, the defence has been a vague. There could not have been an occasion for the tenant to lead further evidence once the cat was out of the bag during or after the cross examination of the landlord. We are in agreement with the argument of learned counsel representing the tenant with regard to the denial of eviction on the ground of bonafide in the absence of appearance of landlord particularly when the landlord expressed the need through the testimony of power of attorney. It is settled law that the power of attorney cannot explain the bonafide need. The aforementioned view of ours is derived from the ratio decidendi culled out in Supreme Court in Mushir Mohammed Khan (supra). But the said ratio would not be applicable in the present case for the reason that the need was not set up only by the landlord himself but for grandson as well as daughter-in-law.

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18. Be that as it may one of the grounds is sufficient to allow the eviction of the tenant. We are in agreement with the arguments of petitioner- landlord vis-a-vis the ground of eviction available under sub-clause (iii) of the sub-section 4 of Section 11 of the Act as the tenant failed to belie the said contention. For the reason aforementioned, revision petition is allowed by allowing the eviction petition on the ground mentioned in the sections 11(2)(b) and 11(3), we order the eviction of respondent - tenant on 11(4)(iii) and direct him to vacate the premises within one month from the date of preparation of copy of this judgment.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE nak/03.05.2024 RCREV. NO. 121 OF 2020 19 APPENDIX OF RCREV. 121/2020 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE GIFT DEED NO.275/2017 DATED 8/2/2018 OF THE SRO PULPALLY Annexure A4 THE TRUE COPY OF THE APPLICATION DATED 06.06.2023 FILED UNDER THE RIGHT TO INFORMATION ACT Annexure A5 THE TRUE COPY OF THE REPLY ISSUED BY THE SUB TREASURY OFFICER TO ME DATED08/06/2023 Annexure A2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE PULPALLY GRAMA PANCHAYAT DATED 18.05.2023 Annexure A3 TRUE COPY OF THE PROPERTY TAX ASSESSMENT REGISTER RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE ORDER OF RENT CONTROLLER COURT (MUNSIFF/MAGISTRATE) DATED 16.03.2021 Exhibit R1(b) TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NUMBER 6023/23 (ID-

P27923236) OF PULPPALLY SUB REGISTRAR OFFICE DATED 04.10.2023 Exhibit R1(c) TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NUMBER 6024/23 (ID-

P27923054) OF PULPPALLY SUB REGISTRAR OFFICE DATED 04.10.2023 Exhibit R1(d) TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NUMBER 6026/23 (ID-

P27923359) OF PULPPALLY SUB REGISTRAR OFFICE DATED 04.10.2023

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