IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 270 of 2004()
1. ABDUL KADER, S/O.KOCHUNNI,
... Petitioner
Vs
1. GEORGE JOSEPH, S/O.GEORGE, MAVELI HOUSE,
... Respondent
2. SADIK, S/O.KAREEM, CHETTIPARAMBIL, R/A.
For Petitioner :SRI.M.A.ABDUL HAKHIM
For Respondent :SRI.MATHEW JOHN (K)
Dated :10/12/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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R.C.R. Nos.270 & 385 of 2004
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Dated this the 10th day of December, 2008.
O R D E R
Ramachandran Nair, J.
The premises in question was rented out to the tenant as per lease
deed dated 23.9.1969. The tenant is conducting a hotel there. It was owned
by a partnership firm named as M/s. M.C. Vareed and Company. The
present landlord was one of the erstwhile partners. The monthly rent
claimed is at the rate of Rs.225/-. The partnership was dissolved on
16.10.1999 and the schedule building was set apart to the present landlord.
The eviction petition was filed raising various grounds under Sections 11
(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease & Rent
Control) Act, 1965 (hereinafter referred to as ‘the Act’). The trial court
granted eviction under Section 11(4)(ii) of the Act and rejected the other
grounds. Both sides appealed against the said order passed by the Rent
Control Court.
2. The Appellate Authority by a common judgment, partly allowed
the appeal filed by the landlord in regard to the ground pleaded under
Section 11(2)(b) and thus ordered eviction on the ground of arrears of rent.
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The order passed by the Rent Control Court rejecting the ground under
Section 11(3) and 11(4)(i) was confirmed. As regards the ground under
Section 11(4)(ii), accepting the plea of the landlord, the matter stands
remanded to the Rent Control Court for fresh consideration. Both sides
have come up in revision challenging the above judgment of the Appellate
Authority.
3. We have heard Shri Mathew John, learned counsel appearing for
the landlord and Shri M.A. Abdul Hakhim who appeared for the tenant.
4. The necessary facts for the disposal of the revision petitions show
the following: According to the landlord, on dissolution of the partnership,
he has become the absolute owner of the tenanted premises. An amount of
Rs.5,275/- remained as arrears of rent for the period 23.9.1969 to March
1987. From April 1987 onwards no amount has been paid towards rent.
The premises have been subleased to the second respondent in the Rent
Control Petition who is conducting a hotel in the name and style of ‘Sagar
Hotel’. The bonafide need pleaded is for own occupation by the landlord to
conduct business in sanitary items as he has no other avocation in life. It is
alleged that the tenant has effected certain alterations which have reduced
the value and utility of the building. Two steps leading to the front room
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stands demolished, a new wash basin with bricks was constructed by him in
one room, a new latrine was constructed in the corner of one of the rooms,
another water tank was constructed and a new pipe connection was taken to
it. For driving out water from the said water tank a drainage has also been
laid. These are the grounds under under Section 11(4)(ii) of the Act.
5. In his objections, the tenant mainly contended that the right, if any
of the landlord is only upon dissolution of the partnership on 16.10.1999
and he cannot maintain a petition for eviction for any alleged arrears of rent
prior to the said period during which the partnership was owning the
building. The original rent was only Rs.200/- and it was agreed that certain
constructions mentioned in the lease deed had to be undertaken by the
landlord and on completion of the same, the rent will be increased to
Rs.225/- and when the father of the present landlord was informed about it,
he refused to receive rent from him. The arrears of rent from 16.10.1999 till
date of petition was deposited along with the objection. The own
occupation for bonafide need of the landlord was disputed by the tenant in
his objections. It is stated that the landlord and his wife are doing various
businesses in Aluva and Varappuzha. Apart from that, three rooms
numbered as 195, 197 and 198 in Ward No.VIII are remaining vacant in the
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possession of the landlord and the tenant of one of the rooms was evicted
through court by filing R.C.P.No.9/2000. This is an up stair room of the
petition schedule building and there is a stair leading to the said room and
this is sufficient for doing his proposed business. The allegation that he had
effected material alterations was also denied and according to him, the lease
deed permits seven items of works for improving the facilities of the
building. The Municipality, by a notice, instructed him to do certain works
which alone have been attended. He had made this construction as enjoined
by the terms of the lease deed and as directed in the notice of the
Municipality. The allegation that the value and utility of the building have
been reduced by the said alteration, is denied by him. It was also pointed
out in para 14 of the objection that the bathroom was already existing
which was only repaired by him and the latrine was also there. The
allegation of sub-lease was also denied by him.
6. The evidence consists of the oral evidence of P.W.1 and R.Ws.1
and 2 and documentary evidence by way of Exts.A1 to A13 and Exts.B1 to
B6. As already noticed, the Rent Control Court found in favour of the
tenant on the ground pleaded under Sections 11(2)(b), 11(3) and 11(4)(i) of
the Act. It was found that the partnership was dissolved only on 16.10.1999
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and relying upon the dictum laid down by this court in Suhara v. Abdul
Shukkur (1996 (2) KLT 836) it was held that the landlord is entitled to get
arrears of rent only subsequent to the execution of partition deed. As the
landlord was only a partner prior to 16.10.1999, he had no exclusive right to
collect rent during that period.
7. While examining the ground pleaded under Section 11(3) of the
Act, the Rent Control Court found that the landlord is having in his
possession building Nos.6/570 and 6/574 and as no special reasons have
been proved by the landlord, he is not entitled to get eviction under Section
11(3) of the Act.
8. Regarding the ground under Section 11(4)(ii) of the Act, viz.
material alteration made by the tenant, the Rent Control Court, relying upon
clause 4 of the lease deed, found that constructions have been effected by
the tenant without any permission from the landlord. It was found that
even if there is failure on the part of the landlord to carry out improvements
as described in clause 13 of Ext.A1 lease deed, the tenant will not get any
right to do the same without the consent of the landlord. Relying upon
Exts.A4 and A5 which are the reports of the Commissioner in
O.S.NO.335/2000 filed by the landlord against the tenant, it was found that
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the improvements effected are material alterations. Ultimately, it was found
that as the tenant has effected material alterations without the consent of the
landlord, it has to be held that the tenant uses the building in such a manner
as to destroy and reduce its value and utility materially and permanently.
Therefore, eviction was ordered under Section 11(4)(ii) of the Act. The plea
of sub-lease was rejected for lack of any evidence on that aspect.
9. Before the Appellate Authority, the contention raised by the tenant
that Exts.A4 and A5 cannot be relied upon without examining the
Commissioner, was accepted by the Appellate Authority. On the request
made by the landlord that the matter may be remanded to adduce fresh
evidence on that aspect, the Appellate Authority vacated the order passed by
the Rent Control Court and remanded the matter for fresh consideration.
The Appellate Authority was of the view that the landlord is entitled to
succeed on the plea under Section 11(2)(b). It was held that the landlord
being one of the co-owners of the building, is entitled to get an order of
eviction on the ground of arrears of rent.
10. The Appellate Authority also confirmed the finding that the
landlord is having other buildings in his possession and Ext.B1 certified
copy of the relevant pages of the assessment register maintained by the
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municipality was relied upon. It was held that the tenant is entitled to get
the protection under the first proviso to Section 11(3) of the Act. The
Appellate Authority confirmed the finding under Section 11(4) (i) of the Act
also. These orders are under challenge in the revision petitions filed by the
tenant as well as the landlord.
11. Elaborate arguments were raised by the learned counsel
appearing on either side in regard to the ground pleaded under Sections 11
(2)(b), 11(3) and 11(4)(ii) of the Act. Learned counsel for the landlord
submitted that as far as the plea under Section 11(4)(ii) is concerned, he is
not placing reliance upon Exts.A4 and A5 reports of the Commissioner in
the civil suit and therefore the matter need not be remanded back to the Rent
Control Court and that the same can be considered in the revision petitions
by this court. Accordingly, arguments were raised by either side on the
sustainability of the ground under Section 11(4)(ii) of the Act. The finding
rendered by the Rent Control Court and the Appellate Authority rejecting
the plea of the landlord for eviction under Section 11(3) was also attacked
by learned counsel appearing for the landlord.
12. First we will consider the ground pleaded under Section 11(3) of
the Act. Herein, the plea raised by the landlord is that he wants to start a
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business in sanitary items, as he is not having any avocation in life. In
reply, the tenant contended that he has got various businesses like ‘Jayasree
Hardwares’ and ‘Cement and Asbestos Shop’ very near to the petition
schedule building. Apart from that, it is contended that the landlord is
having vacant possession of rooms numbered as VIII/195, 197 and 198 of
Ward No.XVIII. One of the rooms, viz. room No.198 was evicted through
court in R.C.P.No.9/2000. Apart from these rooms, he is having another
room, viz. room No.VI/501 and he purchased room Nos.XVIII/429 and
XVIII/430 which are godown rooms. It is stated that these facts have been
suppressed in the eviction petition. When the landlord was examined as
P.W.1, in his proof affidavit it is stated that room No.VIII/195 is not vacant,
room No.VIII/197 is not owned by him and room No.VIII/198 is in the
upper floor and there is only a stair having a width of 3 = ft. leading to the
said room. After his cross examination, he was again examined, and he
produced Exts.A9 and A9(a) certified copy of the profession tax demand
register to show that building No.VIII/195 (new number VI/567) is in the
possession of one Muraleedharan as a tenant.
13. We will now advert to the view taken by the authorities below.
Both the authorities below concurrently found against the landlord stating
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that he is having in his possession vacant rooms and going by the first
proviso to Section 11(3) of the Act, in the absence of any special reasons,
eviction cannot be ordered. The tenant had produced Ext.B1 copy of
building tax assessment register for the period 1999-2000 to 2003-04 of the
Aluva Municipality relating to door Nos.VI/567 to VI/580 and going by the
same, three vacant rooms pointed out by the tenant are in occupation of the
landlord. This was the clinching evidence against the plea raised by the
landlord. Learned counsel for the landlord submitted that Ext.A9 will show
that building No.VI/567 is in occupation of one Muraleedharan and
therefore the findings rendered by the authorities below are vitiated. Ext.A9
is the register showing payment of profession tax for the year 2001-02. This
was not accepted by the authorities below in view of the fact that the same
is not conclusive in the absence of production of the lease deed in respect
of the said room and the non-examination of the alleged tenant. Learned
counsel for the petitioner pointed out that the eviction petition itself is dated
11.4.2001. The proof affidavit of the landlord is dated 11.12.2002 and he
was further examined on 17.12.2002 and at that point of time only the said
document was marked. Further, it is pointed out that the date of remittance
of the profession tax is noted as 13.12.2002 and therefore merely on the
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basis of Ext.A9, it cannot be conclusively found that the building was
occupied by Shri Muraleedharan as a tenant on the date of filing of the
eviction petition. We see much force in the submission made by the
learned counsel for the tenant that Ext.A9 cannot be relied upon in the light
of the above facts as well as due to the non-examination of the alleged
tenant and the non production of the lease deed in respect of the said
tenancy. Apart from that, Ext.B1 shows that the same is for the period
1999-2000 to 2003-2004 and room Nos.567, 570 and 574 are remaining
vacant. In the light of the said document, the contention raised by the
landlord was rightly rejected by the court below. Room No.198 was
obtained by the landlord by filing R.C.P.No.9/2000. It is in the first floor of
the building wherein the petition schedule room is situated. Admittedly, in
the pleadings nothing has been mentioned by way of special reasons as to
why any of these rooms could not be used by the landlord. Even in the
deposition the landlord only says that it cannot be used and no cogent and
convincing reasons have been stated as to why it cannot be used for the
business proposed to be done by the landlord. Even though learned counsel
for the landlord states that the stair to that room is only 3 = ft. width, we are
unable to accept the same as a special reason because of the fact that it was
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already outstanding with a tenant who was evicted by filing
R.C.P.No.9/2000. As to why the stair cannot be used or as to its
inconvenience, if any, there is no reliable evidence and no Commission was
taken out. He has no plea that it cannot be repaired before using the same.
Thus, the faint plea raised by the landlord that it cannot be used, was not
accepted by the authorities below. In the light of the clear evidence against
the landlord by way of Ext.B1 and in the absence of any special reasons
pointed out by him worthy of acceptance, we find that the authorities below
have not acted perversely in reaching these conclusions.
14. Learned counsel for the landlord, relying upon the decision of a
Division Bench of this court in Jerry Joseph v. Selvaraj (2002 (2) KLT
129), contended that even if the landlord failed to mention in the petition,
the details of vacant rooms in his possession, that cannot be treated as fatal.
In the said decision, this court by relying upon the decision of the Apex
Court in M.L. Prabhakar v. Rajiv Singal {(2001) 2 SCC 355} in para 18,
held that “even if the landlord failed to mention in the petition for eviction
about the other premises belonging to him, if materials about those alternate
accommodation have been placed before the court and the matter has been
adequately considered by the court without causing any prejudice to the
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tenant, the non-disclosure of the availability of buildings in the petition is
immaterial.” We fail to appreciate how the said dictum will apply to the
facts of this case. Herein, on the evidence it is found by the authorities
below that the landlord is having vacant possession of three rooms and no
convincing reasons have been pointed out by him for not occupying it. The
way in which he has come out with the case now pleaded is also worthy of
mention. In the eviction petition nothing was mentioned. The tenant had
incorporated sufficient data in para 8 of his objections. No amendment in
the pleadings was attempted by the landlord and no replication/reply was
filed. In the proof affidavit, it was merely stated that room No.VIII/195 is
not vacant, room No.VIII/197 is not owned by him and is not vacant, room
No.VIII/198 is in the upper floor and is not suitable for the business and that
the stair leading to it is only having a width of 3 = ft. After his
examination, he was recalled for producing Exts.A9 and A9(a). The tenant
was examined as R.W.1 on 7.1.2003. Hence, we are of the view that no
effective attempt was made by the landlord to have any cogent and
convincing reasons for not occupying the vacant rooms. The authorities
below have held against the landlord not for the reason that there were no
pleadings, but for the reason that there was no cogent and convincing
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evidence on his part. It was further held that building Nos.VI/567, 570 and
574 are outstanding in his possession which is proved by Ext.B1 certified
copy of the relevant page of the assessment register of the Municipality.
The alternate plea made by the landlord that one building was leased out to
Shri Muraleedharan, was not substantiated by proper evidence. Therefore,
the court below was of the view that going by the first proviso to Section 11
(3) of the Act, the tenant is entitled to get protection.
15. The first proviso to Section 11(3) states as follows:
“11(3)……………..
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.”
In fact, in Janatha Drugs v. Maithri Construction (2007 (4) KLT 625)
while examining the legal effect of the said provision, it was held by a
Division Bench of this court consisting one of us (T.R. Ramachandran
Nair, J.), as follows:
“It is clear that the special reasons should be germane to the issue in
question and should not be evasive reasons shown by the landlord.
When the landlord came into possession of rooms which are having
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more or less equal space in the very same building, where the tenant
also is occupying a similar room, the question is whether the
landlord was justified in letting out the rooms for a higher rent
while requiring the eviction of the tenant herein………………..The
burden is on the landlord to plead and prove special reasons when
he gets possession of other rooms. The landlord has got a duty to
explain the special reasons for not choosing to occupy the premises
he has come into possession. We are adverting to the above in the
light of the fact that when in a case where the first proviso is
attracted, eviction can be ordered only if the court is satisfied that
there are special reasons enabling the landlord not to choose to
occupy the vacant premises. That the landlord will get more rent if
those premises are rented out, rather than occupying one of the
rooms for the business proposed to be started, cannot be a special
reason for the purpose of the 1st proviso. It prohibits the power of
the court to order eviction unless acceptable special reasons exist.”
If acceptable reasons are not there, going by the first proviso, the court
cannot order eviction. In view of the accepted legal position, we are of
opinion that the authorities below have not acted perversely in denying
eviction under Section 11(3) of the Act. It cannot be said that the
appreciation of evidence is in any way vitiated. Therefore, we reject the
said argument raised by the learned counsel for the landlord.
16. The other main ground on which eviction sought for is under
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Section 11(4)(ii) of the Act. The respective contentions in the pleadings
have been stated by us already. The landlord contends that the works
effected amounts to material alterations, and the tenant disputes the same.
His case in para 14 of the objection is that already there was a bathroom and
a latrine for common use. Only repair works alone have been effected by
him. No other independent evidence by way of report of the Commissioner
is there.
17. The landlord had filed a suit earlier, seeking for an injunction
against the tenant from making out material alterations of the building.
Exts.A4 and A5 are the reports of the Advocate Commissioner. The
Commissioner was not examined. It is in that view of the matter, the
Appellate Authority after setting aside the finding rendered by the Rent
Controller, remanded the matter for fresh consideration. Significantly, the
Appellate Authority was of the view that if Exts.A4 and A5 are eschewed,
there is no material evidence on record to show that there was any alteration
or addition to the building. But the learned counsel for the landlord
submitted that even without looking into Exts.A4 and A5 it can be
concluded that the constructions made are material alterations and therefore
the grounds pleaded under Section 11(4)(ii) of the Act have been proved by
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him. Reliance was placed on the decision of this court in Seethalakshmi
Ammal v. Nabeesa Beevi (2003 (1) KLT 391) to contend that as regards
material alterations, the view of the landlord has to be taken and as he has
not consented to the alterations and as there is prohibition against the same
in the lease deed, the tenant is liable to be evicted.
18. Per contra, learned counsel for the tenant relied upon the
decisions of the Apex Court in Om Prakash v. Amar Singh and others
{(1987) 1 SCC 458} and Reghunathan v. Varghese (2005 (4) KLT 147
(SC) and the following decisions rendered by this court, viz. Aboobacker v.
Nanu (2001 (3) KLT 815) and Lakshmi v. Labbah Kunju Ameer Hamsa
(2005 (3) KLT 627) to contend for the position that the alterations, if any,
made will not reduce the value and utility of the building materially and
permanently. It is submitted that by making improvements in the
bathroom, addition of the facility by providing a wash basin and a water
tank for storing water to clear the utensils, no damage has been caused to
the structure or to the front of the building and therefore no eviction can be
ordered.
19. Going by Section 11(4)(ii) of the Act, the requirement will be
satisfied only if the tenant has used the building in such a manner as to
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cause damage or has reduced its value and utility materially and
permanently. Going by the decision of this court the words ‘materially’ and
‘permanently’ are not disjunctive.
20. Before going into the contentions raised by the parties, we will
refer to the legal position declared by the Apex Court in Om Prakash’s
case {(1987) 1 SCC 458} and Reghunathan’s case (2005 (4) KLT 147
SC). In the former case, after considering the meaning of the word
‘materially’ and ‘alter’, their Lordships laid down in para 6 the legal position
thus:
“In determining the question the court must address itself to the
nature, character of the constructions and the extent to which they
make changes in the front and structure of the accommodation,
having regard to the purpose for which the accommodation may have
been let out to the tenant. The legislature intended that only those
constructions which bring about substantial change in the front and
structure of the building should provide a ground for tenants’
eviction, it took care to use the word “materially altered the
accommodation”. The material alterations contemplate change of
substantial nature affecting the form and character of the building.
Many a time tenants make minor constructions and alterations for
the convenient use of the tenanted accommodation. The legislature
does not provide for their eviction instead the construction so made
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would furnish ground for eviction only when they bring about
substantial change in the front and structure of the building.
Construction of a chabutra, almirah, opening a window or closing a
verandah by temporary structure or replacing of a damaged roof
which may be leading or placing partition in a room or making
similar minor alterations for the convenient use of the
accommodation do not materially alter the building as in spite of
such constructions the front and structure of the building may remain
unaffected. The essential element which needs consideration is as to
whether the constructions are substantial in nature and they alter the
form, front and structure of the accommodation. It is not possible to
give exhaustive list of constructions which do not constitute material
alterations, as the determination of this question depends on the facts
of each case.”
21. In Reghunathan’s case (2005 (4) KLT 147(SC)), the Apex Court
considered the various aspects concerning the interpretation of Section 11
(4)(ii) in detail. It was held that “the question depends on the facts of the
case. The nature of the building, the purpose of the letting, the terms of the
contract and the nature of the interference with the structure by the tenant,
are all relevant. The destruction or damage has to be adjudged from the
stand point of the landlord.” After referring to the nature of the
constructions made by the tenant, viz. bricking up of the western wall and
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the door and windows on the northern, western and eastern walls, it was
held that the bricked up portions can be removed and the doors and
windows restored without weakening the structure. Referring to the
construction, viz. fixing up a rolling shutter, it was held that the same
provides more security to the premises. Ultimately, while referring to the
meaning of the words “material and permanent”, it was held that “the words
are not disjunctive, like in some other Acts. Here, the landlord has not
proved the material and permanent impairment in value or utility. One
suspects that the value and utility are enhanced. The landlord has failed to
prove that the acts of the tenant constitute the user of the building in such a
manner as to destroy or reduce the value or utility of the building materially
and permanently.” The order of eviction was set aside by the Apex Court.
22. In Aboobacker’s case (2001 (3) KLT 815), a Division Bench of
this court approved the decision reported in Shanmugam v. Rao Saheb
(1988 (1) KLT 86). In that decision it was held that “the expression
“materially and permanently” in clause (ii) of sub-section (4) of the Act
would certainly indicate that a landlord cannot get an order of eviction on
that ground by mere proof of minor a destruction, or alteration, even if it
results in marginal reduction of value or utility. As the expression was
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used conjunctively the legislature has indicated that even material
alterations of a temporary nature would not help the landlord in getting an
order of eviction. The destruction or reduction of utility or value of the
building must be of a reasonably substantial magnitude.”
23. In Lakshmi’s case (2005 (3) KLT 627), after referring to the
evidence available in the case, it was held that “minor alterations, even if
made by the tenant to suit his hotel business is no ground for ordering
eviction.” The Division Bench relied on the decision of the Apex Court in
Om Prakash’s case {(1987) 1 SCC 458). Learned counsel for the tenant
relied upon the said decision to contend that in this case also the tenant is
conducting a hotel business and the constructions, if any, will amount to
minor alterations only for the convenient conduct of the hotel business.
24. Bearing in mind the principles discussed above, we will now
advert to the allegations in the eviction petition and the evidence adduced
by the parties, to consider whether the alleged constructions amount to
material alterations which reduce the very utility and value of the building.
As we have noted already, the allegations are mainly that the tenant has
constructed a new latrine in one of the rooms, a water tank for storing water
was made and a drain has been put obviously to drain out water from the
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tank, a new wash basin with bricks has been put in one room and a pipe
connection was also taken to the water tank. The tenant did not admit that
he had made all such constructions. According to him, he had only repaired
the existing bathroom and latrine and no new constructions have been made
in that regard. Except the oral evidence of P.W.1, the landlord, there is no
other independent evidence in support of these allegations, as he is not
relying upon Exts.A4 and A5. In the proof affidavit in para 2 he has
reiterated the same.
25. Even if the allegations are accepted in its entirety, there is no
allegation that the tenant has made any structural alterations. No walls have
been demolished, no construction affecting the roof or altering the front and
structure of the building has been made. Going by the principles stated by
the Apex Court in Om Prakash’s case {(1987) 1 SCC 458) and in
Reghunathan’s case (2005 (4) KLT 147), what is important is to see
whether any interference has been made by the tenant with the structure.
The nature of the building and the nature of the purpose for which it was let
out, have also to be considered. Herein, the building has been let out for
conducting a hotel. A bathroom, a wash basin and a water tank, obviously
for storing water to clean the utensils will provide necessary convenience
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for the conduct of the hotel. It cannot be said that these constructions will
interfere with the structure of the building itself or as a result of which, any
damage has been caused to the building. As held by the Apex Court, the
nature and character of the constructions and the extent to which they make
changes in the front and structure of the accommodation, having regard to
the purpose for which the accommodation may have been let out to the
tenant, have to be considered. We are of the view that substantial change in
the front and structure of the building have not been resulted by the
constructions made by the tenant in this case. The nature and character of
the building have not been changed substantially. The construction cannot,
therefore, be characterised as material alteration which has resulted in
reducing the value and utility of the building as such. Of course, the tenant
was not successful in his plea that there was consent of the landlord and
there was a permission as per the terms of the lease deed. Even though
going by the terms of the lease deed the landlord had agreed to make certain
constructions listed therein, obviously he cannot raise a contention that such
improvements will amount to material alteration. Herein, going by the case
pleaded by the tenant, he had only repaired the existing bathroom and
latrine and cement plastering was made. That will not, at any rate, amount
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to any structural alterations of a substantial nature. Apart from that, there is
no evidence to show that the constructions made have resulted in reducing
the value and utility of the building materially and permanently. How the
utility and value has been reduced, are not explained by the landlord in his
proof affidavit also. Actually, a bathroom and a wash basin can only be
termed as amenity and the water tank is obviously for storing water for the
use of the hotel. There is no evidence to show that a drain that is made to
drive of water from the water tank has been constructed by destroying any
portion of the wall of the building also. As evidence is lacking in all these
respects, we are of the view that either due to the construction or in case of
removal of the same, no damage will be caused to the structure and the
utility and value of the building cannot be said to be reduced by the
construction. As held by this court in Shanmugam v. Rao Saheb (1988
(1) KLT 86), the destruction or reduction of utility or value of the building
must be of a reasonably substantial magnitude. Since the expressions
“materially and permanently” are used conjunctively, the legislature has
indicated that even material alterations of a temporary nature would not help
the landlord in getting an order of eviction. Since we are of the view that no
interference has been caused to the structure and that the alteration, if any,
RCR 270 &
385/2004 -24-
effected has not affected its utility or value, the landlord is not entitled for
eviction under Section 11(4)(ii) of the Act. Therefore, the view taken by the
Rent Control Court in that regard cannot be sustained. These aspects have
not been considered in the correct legal perspective by the Rent Control
Court and the Appellate Authority. They have jumped into the conclusion
that the improvements will automatically amount to material alterations
resulting in reduction in value and utility of the building, in the absence of
any consent or permission granted by the landlord expressly or by the terms
of the lease deed. That not being the sole test, we are of the opinion that the
view taken by the authorities in that respect is perverse and we set aside the
same.
26. The other question is regarding the claim for
eviction under Section 11(2)(b) of the Act. Here, the Rent Control Court
found in favour of the tenant and the said view has been reversed by the
Appellate Authority. The arrears claimed, going by the averments in the
petition for eviction, have occurred between 23.9.1969 till April, 1987, i.e.
an amount of Rs. 5,725/- after adjusting the amount paid, along with its
interest and the rent accrued from April, 1987. The objection raised by the
tenant is that admittedly the partnership was dissolved only on 16.10.1999
RCR 270 &
385/2004 -25-
and the landlord cannot claim the arrears, if any, prior to the said date.
Reliance is placed on the dictum laid down in Suhara’s case (1996 (2) KLT
936). Learned counsel for the tenant submitted that the said dictum does
not apply herein, as here there is no assignment. The learned counsel for
the landlord relied upon the decisions of the Apex Court in Shri Ram
Pasricha v. Jagannath and others (AIR 1976 SC 2335) and Smt. Kanta
Goel v. B.P. Pathak and others (AIR 1977 SC 1599). Learned counsel for
the tenant relied upon the decision of the Apex Court in N.M. Engineer
and others v. Narendra Singh Virdi and another (AIR 1995 SC 448) to
argue for the position that rent due before assignment do not constitute
arrears of rent and it was merely an actionable claim.
27. The Rent Control Court took the view that as the partnership was
dissolved only on 16.10.1999 and as the landlord became the owner of the
property only by the said dissolution, the claim raised for eviction under
Section 11(2)(b) cannot be sustained. The Appellate Authority took the
view that even prior to 16.10.1999 the landlord being one of the co-owners
of the building, is entitled to get an order of eviction on the ground of
arrears of rent, since there is no evidence to show that the tenant has paid
rent to other co-owners also. In Suhara’s case (1996 (2) KLT 936), a
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385/2004 -26-
Division Bench of this court held that “a petition for eviction under Section
11(2)(b) of the Act cannot be filed by an assignee landlord alleging
existence of arrears of rent which fell due prior to the assignment of the
building in his favour even if the right to recover such prior arrears of rent
was later assigned to him by a separate assignment deed.” Their Lordships
have referred to the provisions of Section 109 of the Transfer of Property
Act and its proviso. The proviso to Section 109 of the T.P. Act reads thus:
” Provided that the transferee is not entitled to arrears of rent due
before the transfer, and that, if the lessee, not having reason to believe
that such transfer has been made, pays rent to the lessor, the lessee
shall not be liable to pay such rent over again to the transferee.”
28. The plea raised by the learned counsel for the landlord is that
even prior to 16.10.1999 the landlord was a co-owner and as a co-owner, he
was entitled to maintain an application for the defaulted rent and that right
survives after the dissolution of the partnership when he has acquired the
ownership of the entire property and therefore the claim under Section 11(2)
(b) can be sustained. It was argued that as a partner, he was a co-owner on
the assets of the partnership. Learned counsel referred to para 28 of the
decision of the Apex Court in Shri Ram Pasricha’s case (AIR 1976 SC
2335) in support of the above plea. We extract para 28 below:
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385/2004 -27-
“Mr. V.S. Desai reads to us from ‘Salmond in Jurisprudence’ (13th
edition) and relies on the following passage in Chapter 8
(Ownership), paragraph 46 at page 254:
“As a general rule a thing is owned by one person only at a
time, but duplicate ownership is perfectly possible. Two or more
persons may at the same time have ownership of the same thing
vested in them. This may happen in several distinct ways, but the
simplest and most obvious case is that of co-ownership. Partners, for
example, are co-owners of the chattels which constitute their stock-
in-trade, of the lease of the premises on which their business is
conducted, and of the debts owing to them by their customers. It is
not correct to say that property owned by co-owners is divided
between them, each of them owning a separate part. It is an
undivided unity, which is vested at the same time in more than one
person ………. The several ownership of a part is a different thing
from the co-ownership of the whole. So soon as each of two co-
owners begins to own a part of the thing instead of the whole of it,
the co-ownership has been dissolved into sole ownership by the
process known as partition. Co-ownership involves the undivided
integrity of what is owned.”
In that case the question which came up for consideration is whether a
landlord who is a co-owner of the premises with others is the ‘owner’ within
the meaning of Section 13 of the West Bengal Premises Tenancy Act, 1956.
The contention raised by learned counsel for the landlord, relying upon the
RCR 270 &
385/2004 -28-
above quoted para, is that a partner is also a co-owner and the same
principle will apply. We propose to consider it in the light of certain
aspects considered in other decisions.
29. The Apex Court in Champaran Cane Concern (dissolved) v.
State of Bihar and another (AIR 1963 SC 1737) considered the difference
between a partnership and co-ownership and laid down the legal position in
para 8 thus:
“The main differences between a partnership and co-ownership are:
(1) co-ownership is not necessarily the result of an agreement,
whereas partnership is; (2) co-ownership does not necessarily involve
community of profit or loss, but partnership does; (3) one co-owner
can, without the consent of the other, transfer his interest etc. to a
stranger, a partner cannot do this; and lastly but prominently, (4)
while in a partnership each partner acts as an agent of the other, in a
co-ownership one co-owner is not as such the agent, implied or real,
of the other, Lindley on Partnership, 12th Edn; page 57, Rel. on.”
In Keshavji Ravji and Co. etc. etc. v. Commissioner of Income-tax (AIR
1991 SC 1806), the Apex Court, after referring to an earlier decision of the
Apex Court in Narayanappa v. Krishtappa (AIR 1966 SC 1300),
considered the nature of interest of a partner of a firm and held in para 8
that “a firm under the general law is not a distinct legal entity and has no
RCR 270 &
385/2004 -29-
legal existence of its own. The partnership property vests in all the partners
and in that sense every partner has an interest in assets of the partnership.
However, during the subsistence of the partnership no partner can deal with
any portion of the property as his own.” The following is the relevant
extract from the decision in Narayanappa’s case (AIR 1966 SC 1300):
“…………. The whole concept of partnership is to embark upon a
joint venture and for that purpose to bring in as capital money or
even property including immovable property. Once that is done
whatever is brought in would cease to be the exclusive property of
the person who brought it in. It would be the trading asset of the
partnership in which all the partners would have interest in
proportion to their share in the joint venture of the business of the
partnership. The person who brought it in would, therefore, not be
able to claim or exercise any exclusive right over any property
which he has brought in, much less over any other partnership
property. He would not be also to exercise his right even to the
extent of his share in the business of the partnership…………………..”
We are, therefore, of the view that the concept that a co-owner can maintain
an application for eviction of the premises, cannot apply on all fours in the
case of a partner.
30. The question to be considered here is whether on the dissolution
of the partnership, the arrears of rent prior to 16.10.1999 still enables the
RCR 270 &
385/2004 -30-
landlord to seek eviction under Section 11(2)(b) of the Act.
31. The point at issue is not res-integra in the light of the exposition
of law in N.M. Engineer’s case (AIR 1995 SC 448). Regarding the
question whether the rent due before the assignment should constitute
arrears of rent or it is only a debt, the Apex Court in the above decision,
after considering various aspects, held that “the rent is merely a debt.
Therefore, whatever might have been due prior to deed of lease dated
8.6.67, could not constitute arrears of rent. It was mere actionable claim.
That being so, the notice does not satisfy the requirements of Section 12(3)
(a).” We are of the view that the said legal position applies to the facts of
this case and the question whether the landlord was a co-owner in the
partnership and whether he can maintain an application for eviction, is not
the real test. The rent claimed as due prior to 16.10.1999 is a mere debt. It
cannot constitute arrears of rent after that date for an action under Section
11(2)(b). It was mere actionable claim as held by the Apex Court in N.M.
Engineer’s case (supra). The provisions of Section 11(2)(b) shows that a
landlord can seek eviction on the ground of arrears of rent. If the amount
that is due prior to 16.10.1999 cannot be termed as arrears of rent,
automatically a petition seeking eviction under Section 11(2)(b) cannot be
RCR 270 &
385/2004 -31-
maintained. Ext.A13 is the deed of dissolution of partnership dated
6.1.2001. It shows that a separate deed of settlement was executed by the
partners on 16.10.1999, wherein the shop rooms have been partitioned
among the partners. Therefore, it is clear that there was a partition on
16.10.1999. We notice that in Ext.A13 the relevant clause states that “the
first, third and fourth parts, their survivors, representatives, assignees and or
attorneys are hereby authorised to realise by suit or otherwise the entire
arrears of rent due from the tenants of their respective holdings and to give
effectual receipts and discharge for the same in their individual names.” As
rightly pointed by the learned counsel for the tenant, it can be considered
only as a debt, going by the implications of the above term. Going by
Section 6(a) of the Transfer of Property Act, a mere right to sue cannot be
transferred. Whatever was the position of the landlord as a partner before
16.10.1999, after dissolution of the partnership with effect from that date,
his rights have been crystallised by the above noted clause in Ext.A13.
Hence, even if for argument’s sake it can be taken that he was entitled to
seek for eviction, on the ground of arrears of rent prior to 16.10.1999 on
behalf of the firm, after 16.10.1999 his right to claim arrears of rent is
controlled by the specific terms in Ext.A13. In that view of the matter, we
RCR 270 &
385/2004 -32-
find that the landlord is not entitled to seek eviction under Section 11(2)(b)
of the Act for the alleged arrears of rent due prior to 16.10.1999. The rent
subsequent to 16.10.1999 have been deposited by the tenant during the
pendency of the proceedings. We, therefore, set aside the order of eviction
granted by the Appellate Authority under Section 11(2)(b) of the Act.
We, therefore, allow R.C.R.No.270/2004 and dismiss
R.C.R.No.385/2004. The petition for eviction stands dismissed.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/