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P. BALANANDAN versus P.K. KOYAKUTTY

High Court of Kerala

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P. BALANANDAN v. P.K. KOYAKUTTY - CRP No. 1905 of 2001 [2005] RD-KL 63 (17 June 2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 1905 of 2001

1. P.BALANANDAN
... Petitioner

Vs

1. P.K.KOYAKUTTY
... Respondent

For Petitioner :SRI.P.S.SREEDHARAN PILLAI

For Respondent :SRI.JACOB ABRAHAM [CAVEATOR]

The Hon'ble MR. Justice R.BHASKARAN The Hon'ble MR. Justice K.T.SANKARAN

Dated : 17/06/2005

O R D E R

.PL 56

R.BHASKARAN & K.T.SANKARAN, JJ.

j C.R.P. No. 1905 of 2001 j

Dated this the 17th day of June, 2005

j

O R D E R

j ((HDR 0 C.R.P.NO.1905 OF 2001 :: # :: j )) .HE 1

Sankaran, J.

.SP 2 This revision is filed by the legal heirs of the original tenant who was sought to be evicted from the petition schedule building under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act. While the Rent Control Court dismissed the application on both the grounds, the Appellate Authority allowed the appeal and held that the landlord has established sufficient grounds for eviction under S.11(2)(b) and 11(3) of the Act. Challenging the judgment of the Appellate Authority, the C.R.P. is filed.

2. It is contended by the landlord in the application for eviction that the petition schedule shed belonged to the petitioner's father Alavi Haji and it was entrusted to the tenant Balanandan on a monthly rent of Rs.225/on 6-3-1981. After the death of Alavi, the property belonged to his legal heirs of whom the petitioner is the head of the family. The tenant has paid rent up to March, 1994 and thereafter he has kept rent in arrears. The shed is required for the bona fide use of the petitioner's brother Samad. A notice was sent on 17-8-1996 requiring the tenant to surrender the shed for which he has sent a reply raising untenable contentions.

3. In the objections filed by the tenant, it was contended that the shed was in the possession of the tenant for 22 years and the rent payable was Rs.150/-. When it was increased to Rs.225/-, a rent deed was executed on 6-3-1981 and the previous possession by the tenant was mentioned in the rent deed itself. The petitioner used to come to the work shop to collect rent. No receipt was issued for certain payments. The rent up to September, 1996 was thus paid. Subsequent rent was not paid since the landlord did not come to collect the same. There is no bona fide need for the landlord as alleged in the petition. On 17-8-1996 the landlord has sent Ext.B2 lawyer notice demanding increase of rent from Rs.225/- to Rs.2,000/- failing which, it was threatened, action would be taken against the tenant. The tenant sent a reply agreeing to increase the rent to Rs.250/-. Thereafter, the Rent Control Petition was filed. The tenant was not willing to enhance the rent to Rs.2,000/-. Even if the brother of the landlord wanted to conduct business, there are other rooms available with the landlord for that purpose, situate adjacent to the petition schedule shed. One room which was obtained on eviction was closed for several months and it was given to another tenant a few months prior to the filing of the Rent Control Petition. If there was any bona fide need, that room could have been used by the petitioner's brother. The tenant is depending for his livelihood on the income derived from the business conducted in the petition schedule shed and no other suitable building is available to the tenant.

4. Before the Rent Control Court, the petitioner was examined as PW.1 and the brother of the petitioner for whose benefit eviction was sought was examined as PW.2. According to the Rent Control Court, there was neither pleadings nor proof to show that PW.2 was a dependent of the petitioner. It was also found that on the date on which Ext.A1 notice was issued by the landlord, another notice, Ext.B2, was also issued through the same lawyer demanding Rs.2,000/-- per month as rent. The Rent Control Court found that even if the brother wanted to do business, there are other rooms available with the landlord. It was found that the tenant is depending for his livelihood mainly on the income derived from the business carried on in the petition schedule shed and that no suitable building is available in the locality. The Rent Control Court therefore found against the bona fide need alleged by the landlord.

5. On the question of arrears of rent, it was found that the landlord did not specify the period for which the rent was in arrears and on the basis of Ext.A1 the tenant was incapable of complying with the demand made in it. Therefore, the eviction sought for under S.11(2)(b) was also denied by the Rent Control Court.

6. On appeal, the Appellate Authority found that Ext.B1 series rent receipts would prove payment of rent only up to 31.8.1995 and therefore there was nothing wrong in passing an order of eviction under S.11(2)(b) on the ground of arrears of rent. If any rent was paid, the tenant was bound to obtain receipt and in the absence of any receipt, the contention of the tenant that even after March, 1995 rent was paid could not be accepted. Therefore, the Appellate Authority reversed the finding of the Rent Control Court under S.11(2)(b) of the Act.

7. With regard to the question of bona fide need, the Appellate Authority found that issue of Ext.B2 notice demanding higher rent on the same day on which Ext.A1 notice for eviction was also sent, is not a sufficient reason to dismiss the Rent Control Petition on the ground that there was no bona fide in the claim for eviction. The Appellate Authority found that the case of the tenant that there is another shop available with the landlord and therefore there is no necessity for evicting the tenant is incorrect. It was held that Pw.2 is also a co-owner of the property and there is nothing wrong in granting an order of eviction if PW2, the brother of the petitioner wanted to start a business of his own. It was found that such a desire cannot be termed as irrational and there was nothing to doubt the bona fides of the landlord. The Appellate Authority also found that the tenant failed to establish the second limb of the second proviso to S.11(3) of the Act. The Appellate Authority also took the view that since the tenant had no case in evidence that his son was helping him in running the business, the legal heirs would not be entitled to the protection of the second proviso to Section 11(3) of the Act. In view of the above, the Appellate Authority allowed the appeal and directed eviction of the legal heirs of the original tenant from the petition schedule shed.

8. The points arising for consideration in this revision are (1) whether the order of eviction under S.11(2)(b) of the Act is sustainable, (2) whether the landlord has established the bona fide need, and (3) whether the tenant has proved the ingredients of the second proviso to Section 11(3) of the Act.

9. Point No.1: The Rent Control Court held that the landlord is not entitled to an order under Section 11(2)(b) of the Act on the ground that in Ext.A1 notice, the quantum of arrears of rent or the period from which the rent was due was not specified. It was further held that it would not be possible for the tenant to gather from Ext.A1 notice as to what exactly was the arrears of rent. The Appellate Authority reversed this finding and held that the landlord is entitled to an order of eviction under Section 11(2)(b) of the Act.What is .JN stated in Ext.A1 notice is In our view, the Rent Control Court was not justified in denying the relief to the landlord under Section 11(2)(b) of the Act. The landlord--tenant relationship is not disputed. The rate of rent is also not in dispute. The burden of proving discharge of the arrears of rent is certainly on the tenant. The tenant is expected to pay the rent regularly to the landlord. Therefore, there is no meaning in saying that the tenant was not put to the knowledge as to what exactly was the arrears of rent. It was not just in denying the relief under Section 11(2)(b) on that ground. The tenant had produced Ext.B1 series rent receipts which would show that the rent was paid only up to 31.3.1994. Therefore, there was no reason for the tenant to think that rent was not in arrears thereafter. Section 9 of the Kerala Buildings (Lease and Rent Control) Act provides that every tenant who makes payment on account of rent shall be entitled to obtain receipt in the prescribed form for the amount paid, duly signed by the landlord or his authorised agent. Section 9 also provides for the remedy available to a tenant if the landlord refuses to accept or evades receipt of rent from the tenant. Section 9 of the Act reads thus: .SP 1

"9. Right of tenant paying rent or advance to receipt:- (1) Every tenant who makes a payment on account of rent or advance shall be entitled to obtain a receipt in the prescribed form for the amount paid, duly signed by the landlord or his authorised agent. (2) Where a landlord refuses to accept, or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant may either remit the rent to the landlord by money order after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or may by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord: Provided that such bank, if specified as aforesaid, shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within three miles of the limits thereof. Explanation:- It shall be open to the landlord to specify, from time to time, by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section. (3) If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building. (4) If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of sub-section (2)." .SP 2

10. Section 11(2) of the Act is as follows: .SP 1 "11. Eviction of tenants:- (1) ..

(2) (a) A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction that behalf.

(b) If the Rent Control Court, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is not satisfied it shall make an order rejecting the application thereof by him: Provided that an application under this sub-section shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the notice within fifteen days of the receipt of the notice or of the refusal thereof.

(c) The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow; and if the tenant deposits the arrears of rent wit interest and cost of proceedings within the said period of one month or such further period, as the case may be, it shall vacate that order." .SP 2

11. The proviso to Section 11(2)(b) of the Act mandates that an application under Section 11(2)(b) shall be made only if the landlord has sent a registered notice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest and postal charges within fifteen days of the receipt of the notice or of the refusal thereof. This proviso requires only sending of a registered notice intimating that default has been committed by the tenant in payment of rent. The proviso does not say that the exact amount due or the period from which the rent fell due should be stated in the notice. There is no such requirement as per the proviso to Section 11(2)(b) of the Act. Such a requirement which is not provided in the Act cannot be imported into the proviso to Section 11(2)(b) of the Act. The proviso to Section 11(2)(b) cannot be read in isolation. The proviso should be read along with Section 11(2)(b) and 11(2)(c). The thrust in Section 11(2)(b) is that the tenant shall pay the rent regularly. If the rent is not paid within fifteen days after the expiry of the time fixed in the agreement of tenancy, the Rent Control Court shall pass an order of eviction. Section 11(2)(b) also provides for fixing the last date for payment, where there is no stipulation in that regard in the agreement of tenancy. A notice contemplated in the proviso to Section 11(2)(b) is intended only to alert the tenant that he has kept rent in arrears. Such a notice is not intended to intimate the tenant about the exact amount of arrears of rent and interest. Such an interpretation would defeat the provision for eviction on the ground of arrears of rent. Suppose the landlord says in the notice that rent for two years is in arrears; and suppose the tenant says that only one year's rent is in arrears. The Rent Control Court finds that the case put forward by the tenant is true. Does it mean that the Rent Control Petition is liable to be dismissed? If it to be held so, it would be against, and would defeat, the provisions of Section 11(2)(b). In a given case, there may be arithmetical or other mistakes in calculation of the arrears of rent and/or interest in the notice. Does it mean that the Rent Control Petition is liable to be dismissed on that ground? Certainly not. If there is a dispute regarding the arrears, the Rent Control Court shall decide that dispute and arrive at a finding whether the landlord is entitled to get an order of eviction on the ground of arrears of rent. Even after an order is passed under Section 11(2)(b), the tenant can deposit the arrears of rent and apply under Section 11(2)(c) to set aside the order of eviction. The scheme of Section 11(2) is such that, unlike the other provisions for eviction, it is flexible and a tenant would not be deprived of his right to continue as a tenant even after a final order under Section 11(2)(b), provided the arrears of rent is paid by the tenant within one month from the date of the order. In view of Section 11(15) of the Act, even after rejection of an application under Section 11(2), 11(3), 11(4), 11(5), 11(7) and 11(8), the tenancy shall be deemed to continue. If a Rent Control Petition is to be dismissed on the ground that the notice does not mention the exact quantum of arrears of rent, it would lead to multiplicity of proceedings as well. Since the tenancy continues, nothing prevents the landlord from issuing another notice and initiating fresh proceedings for eviction. Section 15 of the Act would not be a bar for filing such a Rent Control Petition. An interpretation which would lead to multiplicity of proceedings is not liable to be accepted. The landlord and tenant are expected to be aware of the payment of rent and arrears. There is no chance of putting the other party to surprise and consequent prejudice, if the quantum of arrears of rent is omitted to be mentioned in the notice. Though it is always desirable that the landlord may mention all the relevant details in the notice to be issued under the proviso to Section 11(2)(b), it would not be desirable to dismiss the Rent Control Petition on the failure of the landlord to do so. Unlike in a petition under sub-section (3), (4), (7) or (8) of Section 11, the landlord need not prove any bonafides in a petition under Section 11(2)(b), in view of the conspicuous absence of Section 11(2) in Section 11(10) of the Act. For the aforesaid reasons, we hold that the Rent Control Court was not justified in dismissing the Rent Control Petition under Section 11(2)(b) and the Appellate Authority rightly reversed that finding.

12. Point Nos.2 and 3: One of the grounds on which the Rent Control Court found that the bonafide need is not established is that there is no averment in the Rent Control Petition that PW2 Samad, the brother of the petitioner in the Rent Control Petition, is a dependent on him. It was also held that there is no evidence on that aspect. Samad is one of the co-owners of the property along with the petitioner in the Rent Control Petition. Dependency on the landlord of the building arises only in a case where the building exclusively belongs to the petitioner/landlord and when the person for whose occupation the building is required is a member of the family depending on the landlord. A co-owner need not prove that he is dependent on the petitioner in the Rent Control Petition. The bonafide need under Section 11(3) contemplates the need for own occupation of the landlord or for the occupation of any member of his family dependent on him. The member of the family should be a person who has no rights in the building; but he wants to occupy the building. The Rent Control Court was not justified in holding that the landlord should have proved that his brother was dependent on him. The Appellate Authority has rightly reversed this finding.

13. It has come out in evidence that Alavi Haji had three wives and fifteen children. The petitioner in the Rent Control Petition is the son of Alavi Haji in his first wife. PW2 Samad is the son of Alavi Haji in his third wife. The landlord and his family members are doing business in iron scrap. PW2 Samad is a young man and he desires to start a business in the petition schedule building. The case of the tenant that the landlord had let out another building before filing the Rent Control Petition was not accepted by the Appellate Authority. The Appellate Authority, on evidence, found that the need put forward is genuine. We do not find any infirmity in that finding.

14. The tenant contended that Ext.B2 notice was issued by the landlord demanding enhancement of rent up to Rs.2,000/- and this would prove that the need urged is not bonafide. Ext.B2 notice demanding higher rent was issued on the same date on which Ext.A1 notice was issued demanding the tenant to vacate the building on the ground of bonafide need. Merely because higher rent was demanded, it cannot be held that the need put forward by the landlord is not bonafide. The question of bonafide need depends on the facts and circumstances of each case. On going through the evidence and considering the facts and circumstances of the case, it cannot be said that the need urged by the landlord is a ruse for eviction.

15. The Rent Control Court and the Appellate Authority held that the tenant has established that he was depending for his livelihood mainly on the income derived from the business carried on in the petition schedule building. The first limb of the second proviso to Section 11(3) is thus established, according to the authorities below. In so far as the second limb of the second proviso to Section 11(3) is concerned, the Rent Control Court found that the tenant has proved that there is no other suitable building available in the locality for him to carry on such trade or business. The Appellate Authority held that there is no proper pleading or evidence on this aspect. The Appellate Authority also noticed that the landlord has not stated in evidence that any other building is available in the locality. What is stated by the tenant in the counter statement is: In his evidence the tenant stated: The Appellate Authority held that the tenant has no case that no other buildings are available in the locality for him to carry on the business. We are of the view that on a fair reading of the objections and the evidence, the Appellate Authority was not justified in arriving at this conclusion. Both parties understood what respective contentions they put forth. The petitioner/landlord was not put to surprise by any lack of pleadings. The oral evidence adduced by both the parties lack several details and materials. We have stressed the need for proper pleadings, in 2005 (2) KLT 400 (Mohammed Sageer v. Prakash Thomas). We are of the view that what is intended by the tenant and understood by the landlord is that no other suitable building is available in the locality for the tenant to carry on the business which he was conducting in the petition schedule building. It is only fair to afford an opportunity to both parties to adduce evidence on the question of the availability of the second proviso to Section 11(3). A remand of the case to the Rent Control Court is necessary for that purpose. Both parties are allowed to suitably amend their pleadings and to adduce evidence in the case.

16. The Appellate Authority held, while dealing with the case under the second proviso to Section 11(3), that the tenant had no case in evidence that any of his children were engaged in the business conducted in the petition schedule building. The tenant died during the pendency of the Rent Control Appeal. The Appellate Authority took the view that in the absence of evidence that any of the legal representatives of the tenant was helping the tenant in the business, it cannot be said that legal heirs are entitled to get the protection under the second proviso to Section 11(3) of the Act. In 2005 (2) KLT 365 (Prasannan v. Haris) this Court held that whether all subsequent events after filing the Rent Control Petition are relevant, especially when the proceedings are pending for a long time in Court, is a question to be considered on the facts of each case. The nature of the subsequent events, pleadings of the parties, time lag to dispose of the petition for eviction etc. are relevant and a straight jacket formula cannot be given. In the case on hand, the tenant died, not during the pendency of the Rent Control Petition, but after the disposal of the same by the Rent Control Court. There was no occasion for the legal representatives of the tenant to prove the subsequent events. A tenant cannot be expected to give evidence taking into account future events as well. The tenant cannot be faulted for not adducing evidence as to whether his son was also helping him in the business. That was quite irrelevant at the time of disposal of the Rent Control Petition. Since we are remanding the case to the Rent Control Court, we think it is not proper to arrive at any final conclusion on this point. Both the parties are allowed to adduce such other evidence as they think fit and proper. In the result, we allow the Civil Revision Petition, set aside the judgment of the Appellate Authority and the order of the Rent Control Court as to the availability of the second proviso to Section 11(3) and remand the case to the Rent Control Court for a decision afresh on this point. In all other respects, the judgment of the Appellate Authority shall stand confirmed. The parties shall appear before the Rent Control Court on 25.7.2005. .SP 1 .JN R.BHASKARAN (Judge) K.T.SANKARAN (Judge) ahz/ .PA ((HDR 0 )) .HE 2 .JN .SP 2

R.BHASKARAN & K.T.SANKARAN, JJ.

C.R.P. No.1905 of 2001 E

O R D E R

17th June, 2005


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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