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
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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
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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
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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
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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,
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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
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within three weeks from today.
K.BALAKRISHNAN NAIR, JUDGE.
T.R.RAMACHANDRAN NAIR, JUDGE.
Nm/