Somakumar vs Nazar on 10 September, 2007

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Kerala High Court
Somakumar vs Nazar on 10 September, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev No. 155 of 2007()


1. SOMAKUMAR, S/O.SOMARAJAN,MERCHANT,
                      ...  Petitioner
2. HAREENDRAN, S/O.SADANANDAN PILLAI,

                        Vs



1. NAZAR,S/O.ALIYARKUNJU, COMPANY EMPLOYEE
                       ...       Respondent

                For Petitioner  :SRI.P.B.SURESH KUMAR

                For Respondent  :SRI.G.S.REGHUNATH

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :10/09/2007

 O R D E R
                         K.BALAKRISHNAN NAIR &

                      T.R.RAMACHANDRAN NAIR, JJ.

                      -----------------------------------------

                          R.C.R. NO. 155 OF 2007-C

                      -----------------------------------------

                         Dated 10th September, 2007.

                                     ORDER

Balakrishnan Nair, J.

The tenants are the revision petitioners. The landlord is the

respondent. The landlord moved the Rent Controller, claiming eviction of

the tenants under Sections 11(2)(b) and 11(3) of the Kerala Buildings

(Lease and Rent Control) Act (hereinafter referred to as “the Act”). The

landlord owned about 25 cents of land. It is bounded on two sides by roads.

On the northern side is the national highway and on the southern side, the

palace road. A line building consisting of five rooms is covering the entire

southern boundary of the landlord’s plot. The said building abut the palace

road, as stated earlier. Out of the five rooms, four belonged to the landlord.

He moved and obtained building permit for construction of a large

commercial complex in the said plot. As per the approved plan attached to

the building permit, the line building owned by him has to be demolished,

so that there is access from the palace road and area is available for parking

Rcr 155/2007 2

vehicles. After obtaining the permit the landlord started construction and

simultaneously he filed the Rent Control Petition to evict the four tenants

occupying his rooms. Out of the five rooms, one belongs to a third party.

During the pendency of the rent control proceedings, two of the tenants

surrendered the premises in their possession.

2. The petitioners herein alone contested the matter. The need

projected was to get the tenanted rooms and demolish them for the above

mentioned purpose. Thus, the petition was laid under Section 11(3). The

tenants contended that the building has got sufficient parking area and also

access from the northern side from the national highway. Therefore, the

need projected is without any bona fides. They also contended that since

one of the rooms belongs to a third party, it is not possible to demolish the

entire building. Further, they denied the claim made under Section 11(2)(b).

Apart from the above grounds, an objection to the maintainability of the

Rent Control Petition was also raised. According to them, the landlord

should have filed four separate Rent Control Petitions. The learned counsel

for the landlord pointed out that there was no such specific contention

raised in the written objection, except the bald statement that the R.C.P is

not maintainable. Whatever be that, the Rent Controller considered the

point and held the same in favour of the landlord. The claim under Section

Rcr 155/2007 3

11(2)(b) was rejected and the prayer under Section 11(3) was allowed. The

tenants appealed. During the pendency of the rent control proceedings, two

of the rooms, which were surrendered by the tenants, were demolished and

access was provided to the said building from the palace road also. So, they

pointed out that the need of the landlord is already satisfied. The

contentions raised before the Rent Controller were also reiterated before the

appellate authority. The appellate authority affirmed the finding under

Section 11(3). Hence this revision.

3. The learned counsel for the revision petitioners raised three points

in this revision. The first point is regarding the mis-joinder of parties. The

learned counsel pointed out that this point was specifically raised before the

appellate authority. But, it was not considered by the said authority.

Further, relying on the decision of the Full Bench of this Court in Jamal v.

Safia Beevi [2005(2) KLT 359 FB], it is submitted that for the reason that a

single R.C.P was filed for the eviction of four tenants, the same was liable

to be dismissed. The learned counsel for the respondent also relied on the

very same decision to say that the joint petition was maintainable. Going by

the principles laid down by the Full Bench of this Court in the said decision

and also the provisions under Section 99 of the C.P.C., we feel that unless

Rcr 155/2007 4

prejudice is shown, mis-joinder cannot be a ground to interfere with the

orders of the appellate authority. Going by the revision petition, we find

that there is no pleading regarding any prejudice caused to the petitioners.

On a perusal of the materials on record, we find that in all the cases the

grounds for eviction were the same. The defence of the tenants was also

identical. The Rent Controller as well as the appellate authority considered

the common defence put forward by the tenants. Both the authorities

separately considered the protection claimed by the petitioners under the

second proviso to Section 11(3) also. Therefore, no prejudice was caused to

the petitioners herein by the filing of a single petition. So, we are not

inclined to interfere with the impugned judgment of the appellate authority,

on the ground of mis-joinder of parties.

4. The second point urged by the learned counsel for the revision

petitioners was concerning the bona fides of the claim of the landlord.

Under the said ground, the learned counsel raised three points. Firstly, it is

submitted that even without the area covered by the tenanted premises, the

landlord has got sufficient parking space. Secondly, it is pointed out that

though from the approved building plan it would appear that the entire

building on the southern side has to be demolished, the same cannot be

demolished, as a portion of the same belongs to a third party. Lastly, it is

Rcr 155/2007 5

pointed out that during the pendency of the rent control proceedings two of

the rooms were surrendered and they were demolished, providing access to

the road on the southern side. So, the need of the landlord stood satisfied

substantially, it is submitted.

5. The landlord is bound to provide the statutory parking space, as

provided under the plan attached to the building permit. Even otherwise, if

the landlord feels that some more parking space is necessary for a huge

commercial complex, the same can only be treated as a bona fide

requirement. Even if the landlord cannot demolish the entire building, he is

bound to demolish that part of the building which belongs to him. So, the

contention that if he cannot demolish the entire building, he need not

demolish anything, cannot be accepted. The tenants cannot dictate that the

landlord should be satisfied with the passage and parking area available

with the demolition of the two rooms. If he wants the remaining portion of

his building also, the same will definitely constitute a bona fide need.

Therefore, the contentions raised by the revision petitioners against the

need of the landlord are repelled.

6. The third point urged by the learned counsel for the revision

petitioners is that the ground raised by the landlord will more appropriately

lie under Section 11(4)(iv) instead of Section 11(3) of the Act. We think,

Rcr 155/2007 6

this is not a ground taken in this Rent Control Revision. The learned

counsel pointed out that it is specifically pleaded in this revision that the

need urged by the landlord will not come under Section 11(3). But, the

requirement of a building for demolition and its use for other purposes has

been held to be a need under Section 11(3), by several decisions of this

Court (See Krishna Menon v. District Judge – 1988(1) KLT 131 and

Narayanankutty v. Abiida Abdul Kareem – 2002(2) KLT 507). See also

the recent decision of this Court in R.C.R. No.227/2004 dated 7.9.2007. In

view of the above position, the Rent Control Revision fails and it is

accordingly dismissed. No costs.

7. The learned counsel for the revision petitioners prayed for some

time to vacate the premises. Having regard to the facts of the case three

months’ time from today is granted, on condition the petitioners file an

affidavit before the executing court, unconditionally undertaking to vacate

the premises within three months from today and also agreeing to pay the

rent till the rooms are vacated. The affidavit in this regard shall be filed

Rcr 155/2007 7

within three weeks from today.

K.BALAKRISHNAN NAIR, JUDGE.

T.R.RAMACHANDRAN NAIR, JUDGE.

Nm/

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