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
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.PL 56
R.BHASKARAN & K.T.SANKARAN, JJ.@@
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C.R.P. No. 1905 of 2001@@
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Dated this the 17th day of June, 2005@@
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C.R.P.NO.1905 OF 2001
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.HE 1
Sankaran, J.@@
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.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@@
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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
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stated in Ext.A1 notice is
In our view, the
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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:
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“9. Right of tenant paying rent or@@
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advance to receipt:- (1) Every tenant who@@
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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@@
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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).”
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.SP 2
10. Section 11(2) of the Act is as follows:
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“11. Eviction of tenants:- (1) ..@@
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(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.”
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.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@@
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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@@
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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.@@
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Prakash Thomas). We are of the view that what is@@
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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@@
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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.
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R.BHASKARAN @@
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K.T.SANKARAN @@
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.HE 2
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R.BHASKARAN & K.T.SANKARAN, JJ.@@
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17th June, 2005
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