Kerala High CourtCounter Petitioner (Tenant) vs Petitioner (Landlord) on 14 February, 2014Author:K.T.SankaranBench:K.T.SankaranIN THE HIGH COURT OF KERALAAT ERNAKULAM

                               PRESENT:

                THE HONOURABLE MR.JUSTICE K.T.SANKARAN
                                    &
                 THE HONOURABLE MR. JUSTICE P.D.RAJAN

       MONDAY, THE 17TH DAYOF NOVEMBER 2014/26TH KARTHIKA, 1936

                      RCRev..No. 287 of 2014 (A)


    AGAINST THE JUDGMENT IN RCA .NO.18/2008 OF ADDL.RENT CONTROL
             APPELLATE AUTHORITY, ALAPPUZHA. DATED 14-02-2014

 AGAINST THE ORDER IN RCP.NO.35/2003 ON THE FILE OF THE RENT CONTROL
                    COURT,ALAPPUZHA DATED 24-08-2007

REVISION PETITIONER:APPELLANT: COUNTER PETITIONER (TENANT)

        SHAMSUDEEN.A.,
        S/O.ABDUL REHMAN,
        AMCW X/1183,
        REHMANIA PHOTO FRAME,
        ZILLA COURT WARD, ALAPPUZHA.

        BY ADV. SRI.A.KRISHNAN

RESPONDENT:RESPONDENT: PETITIONER (LANDLORD)

        NAZAR.A.,
        CHAVADI PARAMBIL
        DARUSSALAM, SANATHANAM WARD,
        ALAPPUZHA - 688 003.


        THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
17-11-2014, THE COURT ON THE SAME DAYPASSED THE FOLLOWING:



                K.T.SANKARAN & P.D.RAJAN, JJ.
               ----------------------------------------------------
                     R.C.R. NO.287 OF 2014 (A)
               ----------------------------------------------------
            Dated this the 17th day of November, 2014


                              O R D E RK.T.Sankaran, J.The respondent filed R.C.P.No.35 of 2003 on the file of the

Rent Control Court, Alappuzha against the revision petitioner underSections 11(2)(b)and11(3)of the Kerala Buildings (Lease and Rent

Control) Act (hereinafter referred to as 'the Act'). The ground underSection 11(2)(b)of the Act was subsequently not pressed. The Rent

Control Court allowed the Rent Control Petition, by the order dated

24.8.2007 underSection 11(3)of the Act. The tenant challenged

that order in R.C.A.No.18 of 2008 on the file of the Rent Control

Appellate Authority, Alappuzha. The Appellate Authority allowed the

appeal and set aside the order of eviction passed by the Rent

Control Court.     The landlord challenged the judgment of the

Appellate Authority in R.C.R.No.236 of 2011 before this Court. This

Court allowed the Revision and remanded the case to the Appellate

Authority to consider the matter afresh regarding the allegation that

R.C.R. NO.287 OF 2014 (A)

                                      :: 2 ::the landlord converted two rooms in the ground floor and two rooms

in the first floor of a building belonging to him as halls after the Rent

Control Petition was filed. This Court while remanding the case to

the Appellate Authority, however, confirmed the finding under the

second proviso toSection 11(3)of the Act against the tenant.

Therefore, after remand, the Appellate Authority was expected to

consider only whether the ground raised by the landlord underSection 11(3)was bona fide and it was not necessary to consider

whether the tenant was entitled to the protection under the second

proviso toSection 11(3)of the Act.2. After remand, the Appellate Authority again rendered a

judgment ordering eviction underSection 11(3)of the Act.           The

appellate judgment was challenged by the tenant in R.C.R.No.91 of

2013. This Court, as per the order dated 5.8.2013, allowed the

Revision and remanded the case to the Appellate Authority on the

ground that the landlord did not adduce evidence after the first

remand to discharge his burden of proof under the first proviso toSection 11(3)of the Act.R.C.R. NO.287 OF 2014 (A)

                                     :: 3 ::3. After the second remand, the Appellate Authority passed a

judgment dated 14.2.2014 dismissing the appeal filed by the tenant,

thereby confirming the order of eviction passed by the Rent Control

Court underSection 11(3)of the Act.        The tenant is before us

challenging the concurrent findings of the Rent Control Court as well

as the Appellate Authority underSection 11(3)of the Act.4.   Originally the landlord as well as his brother were

examined as PW1 and PW2. After the second remand, the landlord

was again examined. A Commissioner was appointed to inspect the

building where the rooms were allegedly converted into halls and he

had submitted reports to the effect that there was no indication of

any demolition of small rooms and conversion of those small rooms

into big halls.5. The petition schedule building was let out to the tenant in

the year 1980 on a monthly rent of 25/-. The landlord is conducting

business in vegetables in another rented building. He stated that his

brother is assisting him in that business. The landlord stated that his

brother (PW2) depends on him for the purpose of getting the petition

R.C.R. NO.287 OF 2014 (A)

                                      :: 4 ::schedule building for conducting a business of his own. Both the

authorities found that the need put forward by the landlord is

genuine. The only other matter which was directed to be considered

while remanding the case was whether the landlord, after getting

eviction of buildings from two tenants, had converted those small

rooms into halls and let out to other tenants and whether the

landlord's brother could have occupied those small rooms for the

purpose of establishing his business. On the basis of the evidence

on record, the Appellate Authority held that there is no evidence to

show that small rooms were converted into halls and let out to other

tenants. On the other hand, the evidence would disclose that the

other buildings in the possession of the landlord, as pointed out by

the tenant, consist of two halls, one in the ground floor and the other

in the first floor, and those floors had been let out for running a hotel

as well as for the occupation of Houseboat Owners' Association.

The Appellate Authority held that the requirement for the brother of

the landlord is only to start a stationery shop and for that purpose it

is not necessary to occupy the big halls which became vacant and

one of which was let out to run the business of hotel and another hall

to the Houseboat Owners' Association.         It is for the landlord to

R.C.R. NO.287 OF 2014 (A)

                                    :: 5 ::decide in what manner he has to use his building.          The tenant

cannot insist that the landlord should allow his brother to occupy big

hall to do a small business. The landlord is entitled to gainfully

utilise the big halls, which came into his possession later, by letting

out to appropriate tenants and thus generate income. The landlord

cannot be compelled to provide those big halls to his brother to

enable his brother to do a small stationery business.         Such a

contention is not available to the tenant under the first proviso toSection 11(3)of the Act. The first proviso toSection 11(3)of the Act

provides that the Rent Control Court shall not give any direction

underSection 11(3)of the Act to the tenant 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 for special

reasons, in any particular case it will be just and proper to do. The

reason stated by the landlord that for accommodating his brother to

run a stationery business in small scale, it is not necessary to forgo

the hall which came into the possession of the landlord subsequently

and it would be sufficient to provide a small room for his brother is a

special reason coming within the purview of the first proviso toSection 11(3)of the Act. The special reason contemplated under the

R.C.R. NO.287 OF 2014 (A)

                                        :: 6 ::first proviso toSection 11(3)can only be construed in a reasonable

manner.        The tenant cannot be allowed to put forward an

unreasonable contention that if the landlord wanted to accommodate

his brother to do business in small scale, it could be achieved by

allotting a larger room to him and thereby depriving the landlord his

right to get better income by leasing out the hall. The Appellate

Authority rightly held that the fact that the landlord came into

possession of two halls and those halls were let out to other tenants

would not deprive his right to get eviction of the tenant in the present

case for the purpose of accommodating the landlord's brother for

running a stationery shop.6.     We do not find any ground to interfere with the well

considered judgment passed by the court below.               There is no

illegality, irregularity or impropriety in the order and judgment passed

by the courts below warranting interference underSection 20of the

Act. The Rent Control Revision is, therefore, dismissed.Lastly, the learned counsel appearing for the petitioner/tenant

submitted that the tenant may be granted a reasonable time to

R.C.R. NO.287 OF 2014 (A)

                                     :: 7 ::vacate the petition schedule building. Taking into account the facts

and circumstances of the case, we grant time till 30.4.2015 to the

tenant to vacate the petition schedule building on condition that he

shall file an affidavit before the Rent Control Court on or before

31.12.2014 unconditionally undertaking to vacate the petition

schedule building and also on condition that the tenant shall deposit

the arrears of rent, if any, before the Rent Control Court on or before

31.12.2014 and continue to deposit the monthly rent on or before

10th of the succeeding months. If the tenant fails to comply with any

of the conditions mentioned above, the order of eviction passed

against him shall be executed forthwith. If the tenant complies with

the conditions, the order of eviction shall not be executed against

him till 30.4.2015.(K.T.SANKARAN)
                                                    Judge



                                               (P.D.RAJAN)
                                                   Judge

ahz/