{"id":119622,"date":"2008-12-10T00:00:00","date_gmt":"2008-12-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abdul-kader-vs-george-joseph-on-10-december-2008"},"modified":"2015-04-18T00:44:20","modified_gmt":"2015-04-17T19:14:20","slug":"abdul-kader-vs-george-joseph-on-10-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abdul-kader-vs-george-joseph-on-10-december-2008","title":{"rendered":"Abdul Kader vs George Joseph on 10 December, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Abdul Kader vs George Joseph on 10 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 270 of 2004()\n\n\n1. ABDUL KADER, S\/O.KOCHUNNI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. GEORGE JOSEPH, S\/O.GEORGE, MAVELI HOUSE,\n                       ...       Respondent\n\n2. SADIK, S\/O.KAREEM, CHETTIPARAMBIL, R\/A.\n\n                For Petitioner  :SRI.M.A.ABDUL HAKHIM\n\n                For Respondent  :SRI.MATHEW JOHN (K)\n\n\n Dated :10\/12\/2008\n\n O R D E R\n                                  P.R.Raman &\n                       T.R. Ramachandran Nair, JJ.\n                   - - - - - - - - - - - - - - - - - - - - - - - -\n                       R.C.R. Nos.270 & 385 of 2004\n                     - - - - -- - - - - - - - - - - - - - - - - - - - -\n                Dated this the 10th day of December, 2008.\n\n                                    O R D E R\n<\/pre>\n
Ramachandran Nair, J.\n<\/p>\n
      The premises in question was rented out to the tenant as per lease<\/p>\n
deed dated 23.9.1969. The tenant is conducting a hotel there. It was owned<\/p>\n
by a partnership firm named as M\/s. M.C. Vareed and Company.               The<\/p>\n
present landlord was one of the erstwhile partners. The monthly rent<\/p>\n
claimed is at the rate of Rs.225\/-. The partnership was dissolved on<\/p>\n
16.10.1999 and the schedule building was set apart to the present landlord.<\/p>\n
The eviction petition was filed raising various grounds under Sections 11<\/p>\n
(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease & Rent<\/p>\n
Control) Act, 1965 (hereinafter referred to as ‘the Act’). The trial court<\/p>\n
granted eviction under Section 11(4)(ii) of the Act and rejected the other<\/p>\n
grounds. Both sides appealed against the said order passed by the Rent<\/p>\n
Control Court.\n<\/p>\n
      2. The Appellate Authority by a common judgment, partly allowed<\/p>\n
the appeal filed by the landlord in regard to the ground pleaded under<\/p>\n
Section 11(2)(b) and thus ordered eviction on the ground of arrears of rent.<\/p>\n
RCR 270 &
\n385\/2004                             -2-<\/span><\/p>\n
The order passed by the Rent Control Court rejecting the ground under<\/p>\n
Section 11(3) and 11(4)(i) was confirmed. As regards the ground under<\/p>\n
Section 11(4)(ii), accepting the plea of the landlord, the matter stands<\/p>\n
remanded to the Rent Control Court for fresh consideration. Both sides<\/p>\n
have come up in revision challenging the above judgment of the Appellate<\/p>\n
Authority.\n<\/p>\n
      3. We have heard Shri Mathew John, learned counsel appearing for<\/p>\n
the landlord and Shri M.A. Abdul Hakhim who appeared for the tenant.<\/p>\n
      4. The necessary facts for the disposal of the revision petitions show<\/p>\n
the following: According to the landlord, on dissolution of the partnership,<\/p>\n
he has become the absolute owner of the tenanted premises. An amount of<\/p>\n
Rs.5,275\/- remained as arrears of rent for the period 23.9.1969 to March<\/p>\n
1987. From April 1987 onwards no amount has been paid towards rent.<\/p>\n
The premises have been subleased to the second respondent in the Rent<\/p>\n
Control Petition who is conducting a hotel in the name and style of ‘Sagar<\/p>\n
Hotel’. The bonafide need pleaded is for own occupation by the landlord to<\/p>\n
conduct business in sanitary items as he has no other avocation in life. It is<\/p>\n
alleged that the tenant has effected certain alterations which have reduced<\/p>\n
the value and utility of the building. Two steps leading to the front room<\/p>\n
RCR 270 &
\n385\/2004                              -3-<\/span><\/p>\n
stands demolished, a new wash basin with bricks was constructed by him in<\/p>\n
one room, a new latrine was constructed in the corner of one of the rooms,<\/p>\n
another water tank was constructed and a new pipe connection was taken to<\/p>\n
it. For driving out water from the said water tank a drainage has also been<\/p>\n
laid. These are the grounds under under Section 11(4)(ii) of the Act.<\/p>\n
      5. In his objections, the tenant mainly contended that the right, if any<\/p>\n
of the landlord is only upon dissolution of the partnership on 16.10.1999<\/p>\n
and he cannot maintain a petition for eviction for any alleged arrears of rent<\/p>\n
prior to the said period during which the partnership was owning the<\/p>\n
building. The original rent was only Rs.200\/- and it was agreed that certain<\/p>\n
constructions mentioned in the lease deed had to be undertaken by the<\/p>\n
landlord and on completion of the same, the rent will be increased to<\/p>\n
Rs.225\/- and when the father of the present landlord was informed about it,<\/p>\n
he refused to receive rent from him. The arrears of rent from 16.10.1999 till<\/p>\n
date of petition was deposited along with the objection.           The own<\/p>\n
occupation for bonafide need of the landlord was disputed by the tenant in<\/p>\n
his objections. It is stated that the landlord and his wife are doing various<\/p>\n
businesses in Aluva and Varappuzha.          Apart from that, three rooms<\/p>\n
numbered as 195, 197 and 198 in Ward No.VIII are remaining vacant in the<\/p>\n
RCR 270 &
\n385\/2004                               -4-<\/span><\/p>\n
possession of the landlord and the tenant of one of the rooms was evicted<\/p>\n
through court by filing R.C.P.No.9\/2000. This is an up stair room of the<\/p>\n
petition schedule building and there is a stair leading to the said room and<\/p>\n
this is sufficient for doing his proposed business. The allegation that he had<\/p>\n
effected material alterations was also denied and according to him, the lease<\/p>\n
deed permits seven items of works for improving the facilities of the<\/p>\n
building. The Municipality, by a notice, instructed him to do certain works<\/p>\n
which alone have been attended. He had made this construction as enjoined<\/p>\n
by the terms of the lease deed and as directed in the notice of the<\/p>\n
Municipality. The allegation that the value and utility of the building have<\/p>\n
been reduced by the said alteration, is denied by him. It was also pointed<\/p>\n
out in para 14 of the objection that the bathroom was already existing<\/p>\n
which was only repaired by him and the latrine was also there.            The<\/p>\n
allegation of sub-lease was also denied by him.\n<\/p>\n
       6. The evidence consists of the oral evidence of P.W.1 and R.Ws.1<\/p>\n
and 2 and documentary evidence by way of Exts.A1 to A13 and Exts.B1 to<\/p>\n
B6. As already noticed, the Rent Control Court found in favour of the<\/p>\n
tenant on the ground pleaded under Sections 11(2)(b), 11(3) and 11(4)(i) of<\/p>\n
the Act. It was found that the partnership was dissolved only on 16.10.1999<\/p>\n
RCR 270 &
\n385\/2004                               -5-<\/span><\/p>\n
and relying upon the dictum laid down by this court in Suhara v. Abdul<\/p>\n
Shukkur (1996 (2) KLT 836) it was held that the landlord is entitled to get<\/p>\n
arrears of rent only subsequent to the execution of partition deed. As the<\/p>\n
landlord was only a partner prior to 16.10.1999, he had no exclusive right to<\/p>\n
collect rent during that period.\n<\/p>\n
      7. While examining the ground pleaded under Section 11(3) of the<\/p>\n
Act, the Rent Control Court found that the landlord is having in his<\/p>\n
possession building Nos.6\/570 and 6\/574 and as no special reasons have<\/p>\n
been proved by the landlord, he is not entitled to get eviction under Section<\/p>\n
11(3) of the Act.\n<\/p>\n
      8. Regarding the ground under Section 11(4)(ii) of the Act, viz.<\/p>\n
material alteration made by the tenant, the Rent Control Court, relying upon<\/p>\n
clause 4 of the lease deed, found that constructions have been effected by<\/p>\n
the tenant without any permission from the landlord.          It was found that<\/p>\n
even if there is failure on the part of the landlord to carry out improvements<\/p>\n
as described in clause 13 of Ext.A1 lease deed, the tenant will not get any<\/p>\n
right to do the same without the consent of the landlord.         Relying upon<\/p>\n
Exts.A4 and A5 which are the reports of the Commissioner in<\/p>\n
O.S.NO.335\/2000 filed by the landlord against the tenant, it was found that<\/p>\n
RCR 270 &
\n385\/2004                               -6-<\/span><\/p>\n
the improvements effected are material alterations. Ultimately, it was found<\/p>\n
that as the tenant has effected material alterations without the consent of the<\/p>\n
landlord, it has to be held that the tenant uses the building in such a manner<\/p>\n
as to destroy and reduce its value and utility materially and permanently.<\/p>\n
Therefore, eviction was ordered under Section 11(4)(ii) of the Act. The plea<\/p>\n
of sub-lease was rejected for lack of any evidence on that aspect.<\/p>\n
      9. Before the Appellate Authority, the contention raised by the tenant<\/p>\n
that Exts.A4 and A5 cannot be relied upon without examining the<\/p>\n
Commissioner, was accepted by the Appellate Authority. On the request<\/p>\n
made by the landlord that the matter may be remanded to adduce fresh<\/p>\n
evidence on that aspect, the Appellate Authority vacated the order passed by<\/p>\n
the Rent Control Court and remanded the matter for fresh consideration.<\/p>\n
The Appellate Authority was of the view that the landlord is entitled to<\/p>\n
succeed on the plea under Section 11(2)(b). It was held that the landlord<\/p>\n
being one of the co-owners of the building, is entitled to get an order of<\/p>\n
eviction on the ground of arrears of rent.\n<\/p>\n
      10.     The Appellate Authority also confirmed the finding that the<\/p>\n
landlord is having other buildings in his possession and Ext.B1 certified<\/p>\n
copy of the relevant pages of the assessment register maintained by the<\/p>\n
RCR 270 &
\n385\/2004                               -7-<\/span><\/p>\n
municipality was relied upon. It was held that the tenant is entitled to get<\/p>\n
the protection under the first proviso to Section 11(3) of the Act. The<\/p>\n
Appellate Authority confirmed the finding under Section 11(4) (i) of the Act<\/p>\n
also. These orders are under challenge in the revision petitions filed by the<\/p>\n
tenant as well as the landlord.\n<\/p>\n
      11.       Elaborate arguments were raised by the learned counsel<\/p>\n
appearing on either side in regard to the ground pleaded under Sections 11<\/p>\n
(2)(b), 11(3) and 11(4)(ii) of the Act. Learned counsel for the landlord<\/p>\n
submitted that as far as the plea under Section 11(4)(ii) is concerned, he is<\/p>\n
not placing reliance upon Exts.A4 and A5 reports of the Commissioner in<\/p>\n
the civil suit and therefore the matter need not be remanded back to the Rent<\/p>\n
Control Court and that the same can be considered in the revision petitions<\/p>\n
by this court. Accordingly, arguments were raised by either side on the<\/p>\n
sustainability of the ground under Section 11(4)(ii) of the Act. The finding<\/p>\n
rendered by the Rent Control Court and the Appellate Authority rejecting<\/p>\n
the plea of the landlord for eviction under Section 11(3) was also attacked<\/p>\n
by learned counsel appearing for the landlord.\n<\/p>\n
      12. First we will consider the ground pleaded under Section 11(3) of<\/p>\n
the Act. Herein, the plea raised by the landlord is that he wants to start a<\/p>\n
RCR 270 &
\n385\/2004                                -8-<\/span><\/p>\n
business in sanitary items, as he is not having any avocation in life. In<\/p>\n
reply, the tenant contended that he has got various businesses like ‘Jayasree<\/p>\n
Hardwares’ and ‘Cement and Asbestos Shop’ very near to the petition<\/p>\n
schedule building. Apart from that, it is contended that the landlord is<\/p>\n
having vacant possession of rooms numbered as VIII\/195, 197 and 198 of<\/p>\n
Ward No.XVIII. One of the rooms, viz. room No.198 was evicted through<\/p>\n
court in R.C.P.No.9\/2000. Apart from these rooms, he is having another<\/p>\n
room, viz. room No.VI\/501 and he purchased room Nos.XVIII\/429 and<\/p>\n
XVIII\/430 which are godown rooms. It is stated that these facts have been<\/p>\n
suppressed in the eviction petition. When the landlord was examined as<\/p>\n
P.W.1, in his proof affidavit it is stated that room No.VIII\/195 is not vacant,<\/p>\n
room No.VIII\/197 is not owned by him and room No.VIII\/198 is in the<\/p>\n
upper floor and there is only a stair having a width of 3 = ft. leading to the<\/p>\n
said room. After his cross examination, he was again examined, and he<\/p>\n
produced Exts.A9 and A9(a) certified copy of the profession tax demand<\/p>\n
register to show that building No.VIII\/195 (new number VI\/567) is in the<\/p>\n
possession of one Muraleedharan as a tenant.\n<\/p>\n
      13. We will now advert to the view taken by the authorities below.<\/p>\n
Both the authorities below concurrently found against the landlord stating<\/p>\n
RCR 270 &
\n385\/2004                             -9-<\/span><\/p>\n
that he is having in his possession vacant rooms and going by the first<\/p>\n
proviso to Section 11(3) of the Act, in the absence of any special reasons,<\/p>\n
eviction cannot be ordered.     The tenant had produced Ext.B1 copy of<\/p>\n
building tax assessment register for the period 1999-2000 to 2003-04 of the<\/p>\n
Aluva Municipality relating to door Nos.VI\/567 to VI\/580 and going by the<\/p>\n
same, three vacant rooms pointed out by the tenant are in occupation of the<\/p>\n
landlord. This was the clinching evidence against the plea raised by the<\/p>\n
landlord. Learned counsel for the landlord submitted that Ext.A9 will show<\/p>\n
that    building No.VI\/567 is in occupation of one Muraleedharan and<\/p>\n
therefore the findings rendered by the authorities below are vitiated. Ext.A9<\/p>\n
is the register showing payment of profession tax for the year 2001-02. This<\/p>\n
was not accepted by the authorities below in view of the fact that the same<\/p>\n
is not conclusive in the absence of production of the lease deed in respect<\/p>\n
of the said room and the non-examination of the alleged tenant. Learned<\/p>\n
counsel for the petitioner pointed out that the eviction petition itself is dated<\/p>\n
11.4.2001. The proof affidavit of the landlord is dated 11.12.2002 and he<\/p>\n
was further examined on 17.12.2002 and at that point of time only the said<\/p>\n
document was marked. Further, it is pointed out that the date of remittance<\/p>\n
of the profession tax is noted as 13.12.2002 and therefore merely on the<\/p>\n
RCR 270 &
\n385\/2004                                -10-<\/span><\/p>\n
basis of Ext.A9, it cannot be conclusively found that the building was<\/p>\n
occupied by Shri Muraleedharan as a tenant on the date of filing of the<\/p>\n
eviction petition.   We see much force in the submission made by the<\/p>\n
learned counsel for the tenant that Ext.A9 cannot be relied upon in the light<\/p>\n
of the above facts as well as due to the non-examination of the alleged<\/p>\n
tenant and the non production of the lease deed in respect of the said<\/p>\n
tenancy. Apart from that, Ext.B1 shows that the same is for the period<\/p>\n
1999-2000 to 2003-2004 and room Nos.567, 570 and 574 are remaining<\/p>\n
vacant. In the light of the said document, the contention raised by the<\/p>\n
landlord was rightly rejected by the court below. Room No.198 was<\/p>\n
obtained by the landlord by filing R.C.P.No.9\/2000. It is in the first floor of<\/p>\n
the building wherein the petition schedule room is situated. Admittedly, in<\/p>\n
the pleadings nothing has been mentioned by way of special reasons as to<\/p>\n
why any of these rooms could not be used by the landlord. Even in the<\/p>\n
deposition the landlord only says that it cannot be used and no cogent and<\/p>\n
convincing reasons have been stated as to why it cannot be used for the<\/p>\n
business proposed to be done by the landlord. Even though learned counsel<\/p>\n
for the landlord states that the stair to that room is only 3 = ft. width, we are<\/p>\n
unable to accept the same as a special reason because of the fact that it was<\/p>\n
RCR 270 &
\n385\/2004                             -11-<\/span><\/p>\n
already outstanding with a tenant who was evicted by filing<\/p>\n
R.C.P.No.9\/2000.      As to why the stair cannot be used or as to its<\/p>\n
inconvenience, if any, there is no reliable evidence and no Commission was<\/p>\n
taken out. He has no plea that it cannot be repaired before using the same.<\/p>\n
Thus, the faint plea raised by the landlord that it cannot be used, was not<\/p>\n
accepted by the authorities below. In the light of the clear evidence against<\/p>\n
the landlord by way of Ext.B1 and in the absence of any special reasons<\/p>\n
pointed out by him worthy of acceptance, we find that the authorities below<\/p>\n
have not acted perversely in reaching these conclusions.<\/p>\n
      14. Learned counsel for the landlord, relying upon the decision of a<\/p>\n
Division Bench of this court in Jerry Joseph v. Selvaraj<\/a> (2002 (2) KLT<\/p>\n
129), contended that even if the landlord failed to mention in the petition,<\/p>\n
the details of vacant rooms in his possession, that cannot be treated as fatal.<\/p>\n
In the said decision, this court by relying upon the decision of the Apex<\/p>\n
Court in M.L. Prabhakar v. Rajiv Singal<\/a> {(2001) 2 SCC 355} in para 18,<\/p>\n
held that “even if the landlord failed to mention in the petition for eviction<\/p>\n
about the other premises belonging to him, if materials about those alternate<\/p>\n
accommodation have been placed before the court and the matter has been<\/p>\n
adequately considered by the court without causing any prejudice to the<\/p>\n
RCR 270 &
\n385\/2004                             -12-<\/span><\/p>\n
tenant, the non-disclosure of the availability of buildings in the petition is<\/p>\n
immaterial.” We fail to appreciate how the said dictum will apply to the<\/p>\n
facts of this case. Herein, on the evidence it is found by the authorities<\/p>\n
below that the landlord is having vacant possession of three rooms and no<\/p>\n
convincing reasons have been pointed out by him for not occupying it. The<\/p>\n
way in which he has come out with the case now pleaded is also worthy of<\/p>\n
mention. In the eviction petition nothing was mentioned. The tenant had<\/p>\n
incorporated sufficient data in para 8 of his objections. No amendment in<\/p>\n
the pleadings was attempted by the landlord and no replication\/reply was<\/p>\n
filed. In the proof affidavit, it was merely stated that room No.VIII\/195 is<\/p>\n
not vacant, room No.VIII\/197 is not owned by him and is not vacant, room<\/p>\n
No.VIII\/198 is in the upper floor and is not suitable for the business and that<\/p>\n
the stair leading to it is only having a width of 3 = ft.           After his<\/p>\n
examination, he was recalled for producing Exts.A9 and A9(a). The tenant<\/p>\n
was examined as R.W.1 on 7.1.2003. Hence, we are of the view that no<\/p>\n
effective attempt was made by the landlord to have any cogent and<\/p>\n
convincing reasons for not occupying the vacant rooms. The authorities<\/p>\n
below have held against the landlord not for the reason that there were no<\/p>\n
pleadings, but for the reason that there was no cogent and convincing<\/p>\n
RCR 270 &
\n385\/2004                                -13-<\/span><\/p>\n
evidence on his part. It was further held that building Nos.VI\/567, 570 and<\/p>\n
574 are outstanding in his possession which is proved by Ext.B1 certified<\/p>\n
copy of the relevant page of the assessment register of the Municipality.<\/p>\n
The alternate plea made by the landlord that one building was leased out to<\/p>\n
Shri Muraleedharan, was not substantiated by proper evidence. Therefore,<\/p>\n
the court below was of the view that going by the first proviso to Section 11<\/p>\n
(3) of the Act, the tenant is entitled to get protection.<\/p>\n
       15. The first proviso to Section 11(3) states as follows:<\/p>\n
       “11(3)……………..\n<\/p>\n
              Provided that the Rent Control Court shall not give any such<\/p>\n
       direction if the landlord has another building of his own in his<\/p>\n
       possession in the same city, town or village except where the Rent<\/p>\n
       Control Court is satisfied that for special reasons, in any particular<\/p>\n
       case it will be just and proper to do so.”\n<\/p>\n
In fact, in Janatha Drugs v. Maithri Construction (2007 (4) KLT 625)<\/p>\n
while examining the legal effect of the said provision, it was held by a<\/p>\n
Division Bench of this court consisting one of us (T.R. Ramachandran<\/p>\n
Nair, J.), as follows:\n<\/p>\n
         “It is clear that the special reasons should be germane to the issue in<\/p>\n
         question and should not be evasive reasons shown by the landlord.<\/p><\/blockquote>\n
         When the landlord came into possession of rooms which are having<\/p>\n
RCR 270 &
\n385\/2004                             -14-<\/span><\/p>\n
        more or less equal space in the very same building, where the tenant<\/p>\n
        also is occupying a similar room, the question is whether the<\/p>\n
        landlord was justified in letting out the rooms for a higher rent<\/p>\n
        while requiring the eviction of the tenant herein………………..The<\/p>\n
        burden is on the landlord to plead and prove special reasons when<\/p>\n
        he gets possession of other rooms. The landlord has got a duty to<\/p>\n
        explain the special reasons for not choosing to occupy the premises<\/p>\n
        he has come into possession. We are adverting to the above in the<\/p>\n
        light of the fact that when in a case where the first proviso is<\/p>\n
        attracted, eviction can be ordered only if the court is satisfied that<\/p>\n
        there are special reasons enabling the landlord not to choose to<\/p>\n
        occupy the vacant premises. That the landlord will get more rent if<\/p>\n
        those premises are rented out, rather than occupying one of the<\/p>\n
        rooms for the business proposed to be started, cannot be a special<\/p>\n
        reason for the purpose of the 1st proviso. It prohibits the power of<\/p>\n
        the court to order eviction unless acceptable special reasons exist.”<\/p>\n
If acceptable reasons are not there, going by the first proviso, the court<\/p>\n
cannot order eviction. In view of the accepted legal position, we are of<\/p>\n
opinion that the authorities below have not acted perversely in denying<\/p>\n
eviction under Section 11(3) of the Act.        It cannot be said that the<\/p>\n
appreciation of evidence is in any way vitiated. Therefore, we reject the<\/p>\n
said argument raised by the learned counsel for the landlord.<\/p>\n
      16. The other main ground on which eviction sought for is under<\/p>\n
RCR 270 &
\n385\/2004                             -15-<\/span><\/p>\n
Section 11(4)(ii) of the Act. The respective contentions in the pleadings<\/p>\n
have been stated by us already. The landlord contends that the works<\/p>\n
effected amounts to material alterations, and the tenant disputes the same.<\/p>\n
His case in para 14 of the objection is that already there was a bathroom and<\/p>\n
a latrine for common use. Only repair works alone have been effected by<\/p>\n
him. No other independent evidence by way of report of the Commissioner<\/p>\n
is there.\n<\/p>\n
       17. The landlord had filed a suit earlier, seeking for an injunction<\/p>\n
against the tenant from making out material alterations of the building.<\/p>\n
Exts.A4 and A5 are the reports of the Advocate Commissioner.             The<\/p>\n
Commissioner was not examined. It is in that view of the matter, the<\/p>\n
Appellate Authority after setting aside the finding rendered by the Rent<\/p>\n
Controller, remanded the matter for fresh consideration. Significantly, the<\/p>\n
Appellate Authority was of the view that if Exts.A4 and A5 are eschewed,<\/p>\n
there is no material evidence on record to show that there was any alteration<\/p>\n
or addition to the building.     But the learned counsel for the landlord<\/p>\n
submitted that even without looking into Exts.A4 and A5 it can be<\/p>\n
concluded that the constructions made are material alterations and therefore<\/p>\n
the grounds pleaded under Section 11(4)(ii) of the Act have been proved by<\/p>\n
RCR 270 &
\n385\/2004                               -16-<\/span><\/p>\n
him. Reliance was placed on the decision of this court in Seethalakshmi<\/p>\n
Ammal v. Nabeesa Beevi<\/a> (2003 (1) KLT 391) to contend that as regards<\/p>\n
material alterations, the view of the landlord has to be taken and as he has<\/p>\n
not consented to the alterations and as there is prohibition against the same<\/p>\n
in the lease deed, the tenant is liable to be evicted.<\/p>\n
       18.   Per contra, learned counsel for the tenant relied upon the<\/p>\n
decisions of the Apex Court in Om Prakash v. Amar Singh and others<\/a><\/p>\n
{(1987) 1 SCC 458} and Reghunathan v. Varghese<\/a> (2005 (4) KLT 147<\/p>\n
(SC) and the following decisions rendered by this court, viz. Aboobacker v.<\/p>\n
Nanu (2001 (3) KLT 815) and Lakshmi v. Labbah Kunju Ameer Hamsa<\/a><\/p>\n
(2005 (3) KLT 627) to contend for the position that the alterations, if any,<\/p>\n
made will not reduce the value and utility of the building materially and<\/p>\n
permanently.     It is submitted that by making         improvements in the<\/p>\n
bathroom, addition of the facility by providing a wash basin and a water<\/p>\n
tank for storing water to clear the utensils, no damage has been caused to<\/p>\n
the structure or to the front of the building and therefore no eviction can be<\/p>\n
ordered.\n<\/p>\n
       19. Going by Section 11(4)(ii) of the Act, the requirement will be<\/p>\n
satisfied only if the tenant has used the building in such a manner as to<\/p>\n
RCR 270 &
\n385\/2004                               -17-<\/span><\/p>\n
cause damage or has reduced its value and utility materially and<\/p>\n
permanently. Going by the decision of this court the words ‘materially’ and<\/p>\n
‘permanently’ are not disjunctive.\n<\/p>\n
      20. Before going into the contentions raised by the parties, we will<\/p>\n
refer to the legal position declared by the Apex Court in Om Prakash’s<\/p>\n
case {(1987) 1 SCC 458} and Reghunathan’s case (2005 (4) KLT 147<\/p>\n
SC).   In the former case, after considering the meaning of the word<\/p>\n
‘materially’ and ‘alter’, their Lordships laid down in para 6 the legal position<\/p>\n
thus:\n<\/p>\n
       “In determining the question the court must address itself to the<\/p>\n
       nature, character of the constructions and the extent to which they<\/p>\n
       make changes in the front and structure of the accommodation,<\/p>\n
       having regard to the purpose for which the accommodation may have<\/p>\n
       been let out to the tenant. The legislature intended that only those<\/p>\n
       constructions which bring about substantial change in the front and<\/p>\n
       structure of the building should provide a ground for tenants’<\/p>\n
       eviction, it took care to use the word “materially altered the<\/p>\n
       accommodation”. The material alterations contemplate change of<\/p>\n
       substantial nature affecting the form and character of the building.<\/p><\/blockquote>\n
       Many a time tenants make minor constructions and alterations for<\/p>\n
       the convenient use of the tenanted accommodation. The legislature<\/p>\n
       does not provide for their eviction instead the construction so made<\/p>\n
RCR 270 &
\n385\/2004                              -18-<\/span><\/p>\n
        would furnish ground for eviction only when they bring about<\/p>\n
        substantial change in the front and structure of the building.<\/p>\n
        Construction of a chabutra, almirah, opening a window or closing a<\/p>\n
        verandah by temporary structure or replacing of a damaged roof<\/p>\n
        which may be leading or placing partition in a room or making<\/p>\n
        similar   minor    alterations  for   the  convenient    use   of  the<\/p>\n
        accommodation do not materially alter the building as in spite of<\/p>\n
        such constructions the front and structure of the building may remain<\/p>\n
        unaffected. The essential element which needs consideration is as to<\/p>\n
        whether the constructions are substantial in nature and they alter the<\/p>\n
        form, front and structure of the accommodation. It is not possible to<\/p>\n
        give exhaustive list of constructions which do not constitute material<\/p>\n
        alterations, as the determination of this question depends on the facts<\/p>\n
        of each case.”\n<\/p>\n
       21. In Reghunathan’s case (2005 (4) KLT 147(SC)), the Apex Court<\/p>\n
considered the various aspects concerning the interpretation of Section 11<\/p>\n
(4)(ii) in detail. It was held that “the question depends on the facts of the<\/p>\n
case. The nature of the building, the purpose of the letting, the terms of the<\/p>\n
contract and the nature of the interference with the structure by the tenant,<\/p>\n
are all relevant. The destruction or damage has to be adjudged from the<\/p>\n
stand point of the landlord.”         After referring to the nature of the<\/p>\n
constructions made by the tenant, viz. bricking up of the western wall and<\/p>\n
RCR 270 &
\n385\/2004                              -19-<\/span><\/p>\n
the door and windows on the northern, western and eastern walls, it was<\/p>\n
held that the bricked up portions can be removed and the doors and<\/p>\n
windows restored without weakening the structure.            Referring to the<\/p>\n
construction, viz. fixing up a rolling shutter, it was held that the same<\/p>\n
provides more security to the premises. Ultimately, while referring to the<\/p>\n
meaning of the words “material and permanent”, it was held that “the words<\/p>\n
are not disjunctive, like in some other Acts. Here, the landlord has not<\/p>\n
proved the material and permanent impairment in value or utility. One<\/p>\n
suspects that the value and utility are enhanced. The landlord has failed to<\/p>\n
prove that the acts of the tenant constitute the user of the building in such a<\/p>\n
manner as to destroy or reduce the value or utility of the building materially<\/p>\n
and permanently.” The order of eviction was set aside by the Apex Court.<\/p>\n
      22. In Aboobacker’s case (2001 (3) KLT 815), a Division Bench of<\/p>\n
this court approved the decision reported in Shanmugam v. Rao Saheb<\/p>\n
(1988 (1) KLT 86).      In that decision it was held that “the expression<\/p>\n
“materially and permanently” in clause (ii) of sub-section (4) of the Act<\/p>\n
would certainly indicate that a landlord cannot get an order of eviction on<\/p>\n
that ground by mere proof of minor a destruction, or alteration, even if it<\/p>\n
results in marginal reduction of value or utility.     As the expression was<\/p>\n
RCR 270 &
\n385\/2004                             -20-<\/span><\/p>\n
used conjunctively the legislature has indicated that even material<\/p>\n
alterations of a temporary nature would not help the landlord in getting an<\/p>\n
order of eviction. The destruction or reduction of utility or value of the<\/p>\n
building must be of a reasonably substantial magnitude.”<\/p>\n
       23. In Lakshmi’s case (2005 (3) KLT 627), after referring to the<\/p>\n
evidence available in the case, it was held that “minor alterations, even if<\/p>\n
made by the tenant to suit his hotel business is no ground for ordering<\/p>\n
eviction.” The Division Bench relied on the decision of the Apex Court in<\/p>\n
Om Prakash’s case {(1987) 1 SCC 458). Learned counsel for the tenant<\/p>\n
relied upon the said decision to contend that in this case also the tenant is<\/p>\n
conducting a hotel business and the constructions, if any, will amount to<\/p>\n
minor alterations only for the convenient conduct of the hotel business.<\/p>\n
       24. Bearing in mind the principles discussed above, we will now<\/p>\n
advert to the allegations in the eviction petition and the evidence adduced<\/p>\n
by the parties, to consider whether the alleged constructions amount to<\/p>\n
material alterations which reduce the very utility and value of the building.<\/p>\n
As we have noted already, the allegations are mainly that the tenant has<\/p>\n
constructed a new latrine in one of the rooms, a water tank for storing water<\/p>\n
was made and a drain has been put obviously to drain out water from the<\/p>\n
RCR 270 &
\n385\/2004                            -21-<\/span><\/p>\n
tank, a new wash basin with bricks has been put in one room and a pipe<\/p>\n
connection was also taken to the water tank. The tenant did not admit that<\/p>\n
he had made all such constructions. According to him, he had only repaired<\/p>\n
the existing bathroom and latrine and no new constructions have been made<\/p>\n
in that regard. Except the oral evidence of P.W.1, the landlord, there is no<\/p>\n
other independent evidence in support of these allegations, as he is not<\/p>\n
relying upon Exts.A4 and A5. In the proof affidavit in para 2 he has<\/p>\n
reiterated the same.\n<\/p>\n
      25. Even if the allegations are accepted in its entirety, there is no<\/p>\n
allegation that the tenant has made any structural alterations. No walls have<\/p>\n
been demolished, no construction affecting the roof or altering the front and<\/p>\n
structure of the building has been made. Going by the principles stated by<\/p>\n
the Apex Court in Om Prakash’s case {(1987) 1 SCC 458) and in<\/p>\n
Reghunathan’s case (2005 (4) KLT 147), what is important is to see<\/p>\n
whether any interference has been made by the tenant with the structure.<\/p>\n
The nature of the building and the nature of the purpose for which it was let<\/p>\n
out, have also to be considered. Herein, the building has been let out for<\/p>\n
conducting a hotel. A bathroom, a wash basin and a water tank, obviously<\/p>\n
for storing water to clean the utensils will provide necessary convenience<\/p>\n
RCR 270 &
\n385\/2004                              -22-<\/span><\/p>\n
for the conduct of the hotel. It cannot be said that these constructions will<\/p>\n
interfere with the structure of the building itself or as a result of which, any<\/p>\n
damage has been caused to the building. As held by the Apex Court, the<\/p>\n
nature and character of the constructions and the extent to which they make<\/p>\n
changes in the front and structure of the accommodation, having regard to<\/p>\n
the purpose for which the accommodation may have been let out to the<\/p>\n
tenant, have to be considered. We are of the view that substantial change in<\/p>\n
the front and structure of the building have not been resulted by the<\/p>\n
constructions made by the tenant in this case. The nature and character of<\/p>\n
the building have not been changed substantially. The construction cannot,<\/p>\n
therefore, be characterised as material alteration which has resulted in<\/p>\n
reducing the value and utility of the building as such. Of course, the tenant<\/p>\n
was not successful in his plea that there was consent of the landlord and<\/p>\n
there was a permission as per the terms of the lease deed. Even though<\/p>\n
going by the terms of the lease deed the landlord had agreed to make certain<\/p>\n
constructions listed therein, obviously he cannot raise a contention that such<\/p>\n
improvements will amount to material alteration. Herein, going by the case<\/p>\n
pleaded by the tenant, he had only repaired the existing bathroom and<\/p>\n
latrine and cement plastering was made. That will not, at any rate, amount<\/p>\n
RCR 270 &
\n385\/2004                              -23-<\/span><\/p>\n
to any structural alterations of a substantial nature. Apart from that, there is<\/p>\n
no evidence to show that the constructions made have resulted in reducing<\/p>\n
the value and utility of the building materially and permanently. How the<\/p>\n
utility and value has been reduced, are not explained by the landlord in his<\/p>\n
proof affidavit also. Actually, a bathroom and a wash basin can only be<\/p>\n
termed as amenity and the water tank is obviously for storing water for the<\/p>\n
use of the hotel. There is no evidence to show that a drain that is made to<\/p>\n
drive of water from the water tank has been constructed by destroying any<\/p>\n
portion of the wall of the building also. As evidence is lacking in all these<\/p>\n
respects, we are of the view that either due to the construction or in case of<\/p>\n
removal of the same, no damage will be caused to the structure and the<\/p>\n
utility and value of the building cannot be said to be reduced by the<\/p>\n
construction. As held by this court in Shanmugam v. Rao Saheb (1988<\/p>\n
(1) KLT 86), the destruction or reduction of utility or value of the building<\/p>\n
must be of a reasonably substantial magnitude.         Since the expressions<\/p>\n
“materially and permanently” are used conjunctively, the legislature has<\/p>\n
indicated that even material alterations of a temporary nature would not help<\/p>\n
the landlord in getting an order of eviction. Since we are of the view that no<\/p>\n
interference has been caused to the structure and that the alteration, if any,<\/p>\n
RCR 270 &
\n385\/2004                              -24-<\/span><\/p>\n
effected has not affected its utility or value, the landlord is not entitled for<\/p>\n
eviction under Section 11(4)(ii) of the Act. Therefore, the view taken by the<\/p>\n
Rent Control Court in that regard cannot be sustained. These aspects have<\/p>\n
not been considered in the correct legal perspective by the Rent Control<\/p>\n
Court and the Appellate Authority. They have jumped into the conclusion<\/p>\n
that the improvements will automatically amount to material alterations<\/p>\n
resulting in reduction in value and utility of the building, in the absence of<\/p>\n
any consent or permission granted by the landlord expressly or by the terms<\/p>\n
of the lease deed. That not being the sole test, we are of the opinion that the<\/p>\n
view taken by the authorities in that respect is perverse and we set aside the<\/p>\n
same.\n<\/p>\n
                     26.  The other question is regarding the claim for<\/p>\n
eviction under Section 11(2)(b) of the Act. Here, the Rent Control Court<\/p>\n
found in favour of the tenant and the said view has been reversed by the<\/p>\n
Appellate Authority. The arrears claimed, going by the averments in the<\/p>\n
petition for eviction, have occurred between 23.9.1969 till April, 1987, i.e.<\/p>\n
an amount of Rs. 5,725\/- after adjusting the amount paid, along with its<\/p>\n
interest and the rent accrued from April, 1987. The objection raised by the<\/p>\n
tenant is that admittedly the partnership was dissolved only on 16.10.1999<\/p>\n
RCR 270 &
\n385\/2004                             -25-<\/span><\/p>\n
and the landlord cannot claim the arrears, if any, prior to the said date.<\/p>\n
Reliance is placed on the dictum laid down in Suhara’s case (1996 (2) KLT<\/p>\n
936). Learned counsel for the tenant submitted that the said dictum does<\/p>\n
not apply herein, as here there is no assignment. The learned counsel for<\/p>\n
the landlord relied upon the decisions of the Apex Court in Shri Ram<\/p>\n
Pasricha v. Jagannath and others (AIR<\/a> 1976 SC 2335) and Smt. Kanta<\/p>\n
Goel v. B.P. Pathak and others (AIR<\/a> 1977 SC 1599). Learned counsel for<\/p>\n
the tenant relied upon the decision of the Apex Court in N.M. Engineer<\/p>\n
and others v. Narendra Singh Virdi and<\/a> another (AIR 1995 SC 448) to<\/p>\n
argue for the position that rent due before assignment do not constitute<\/p>\n
arrears of rent and it was merely an actionable claim.<\/p>\n
      27. The Rent Control Court took the view that as the partnership was<\/p>\n
dissolved only on 16.10.1999 and as the landlord became the owner of the<\/p>\n
property only by the said dissolution, the claim raised for eviction under<\/p>\n
Section 11(2)(b) cannot be sustained. The Appellate Authority took the<\/p>\n
view that even prior to 16.10.1999 the landlord being one of the co-owners<\/p>\n
of the building, is entitled to get an order of eviction on the ground of<\/p>\n
arrears of rent, since there is no evidence to show that the tenant has paid<\/p>\n
rent to other co-owners also. In Suhara’s case (1996 (2) KLT 936), a<\/p>\n
RCR 270 &
\n385\/2004                               -26-<\/span><\/p>\n
Division Bench of this court held that “a petition for eviction under Section<\/p>\n
11(2)(b) of the Act cannot be filed by an assignee landlord alleging<\/p>\n
existence of arrears of rent which fell due prior to the assignment of the<\/p>\n
building in his favour even if the right to recover such prior arrears of rent<\/p>\n
was later assigned to him by a separate assignment deed.” Their Lordships<\/p>\n
have referred to the provisions of Section 109 of the Transfer of Property<\/p>\n
Act and its proviso. The proviso to Section 109 of the T.P. Act reads thus:<\/p>\n
      ”    Provided that the transferee is not entitled to arrears of rent due<\/p>\n
      before the transfer, and that, if the lessee, not having reason to believe<\/p>\n
      that such transfer has been made, pays rent to the lessor, the lessee<\/p>\n
      shall not be liable to pay such rent over again to the transferee.”<\/p><\/blockquote>\n
      28. The plea raised by the learned counsel for the landlord is that<\/p>\n
even prior to 16.10.1999 the landlord was a co-owner and as a co-owner, he<\/p>\n
was entitled to maintain an application for the defaulted rent and that right<\/p>\n
survives after the dissolution of the partnership when he has acquired the<\/p>\n
ownership of the entire property and therefore the claim under Section 11(2)<\/p>\n
(b) can be sustained. It was argued that as a partner, he was a co-owner on<\/p>\n
the assets of the partnership.    Learned counsel referred to para 28 of the<\/p>\n
decision of the Apex Court in Shri Ram Pasricha’s case (AIR 1976 SC<\/p>\n
2335) in support of the above plea. We extract para 28 below:<\/p>\n
RCR 270 &
\n385\/2004                             -27-<\/span><\/p>\n
      “Mr. V.S. Desai reads to us from ‘Salmond in Jurisprudence’ (13th<\/p>\n
      edition) and relies on the following passage in Chapter 8<\/p>\n
      (Ownership), paragraph 46 at page 254:\n<\/p>\n
            “As a general rule a thing is owned by one person only at a<\/p>\n
      time, but duplicate ownership is perfectly possible. Two or more<\/p>\n
      persons may at the same time have ownership of the same thing<\/p>\n
      vested in them. This may happen in several distinct ways, but the<\/p>\n
      simplest and most obvious case is that of co-ownership. Partners, for<\/p>\n
      example, are co-owners of the chattels which constitute their stock-<\/p>\n
      in-trade, of the lease of the premises on which their business is<\/p>\n
      conducted, and of the debts owing to them by their customers. It is<\/p>\n
      not correct to say that property owned by co-owners is divided<\/p>\n
      between them, each of them owning a separate part.           It is an<\/p>\n
      undivided unity, which is vested at the same time in more than one<\/p>\n
      person ………. The several ownership of a part is a different thing<\/p>\n
      from the co-ownership of the whole. So soon as each of two co-<\/p>\n
      owners begins to own a part of the thing instead of the whole of it,<\/p>\n
      the co-ownership has been dissolved into sole ownership by the<\/p>\n
      process known as partition. Co-ownership involves the undivided<\/p>\n
      integrity of what is owned.”\n<\/p>\n
In that case the question which came up for consideration is whether a<\/p>\n
landlord who is a co-owner of the premises with others is the ‘owner’ within<\/p>\n
the meaning of Section 13 of the West Bengal Premises Tenancy Act, 1956.<\/p>\n
The contention raised by learned counsel for the landlord, relying upon the<\/p>\n
RCR 270 &
\n385\/2004                            -28-<\/span><\/p>\n
above quoted para, is that a partner is also a co-owner and the same<\/p>\n
principle will apply. We propose to consider it in the light of certain<\/p>\n
aspects considered in other decisions.\n<\/p>\n
      29.   The Apex Court in Champaran Cane Concern (dissolved) v.<\/p>\n
State of Bihar and another (AIR 1963 SC 1737) considered the difference<\/p>\n
between a partnership and co-ownership and laid down the legal position in<\/p>\n
para 8 thus:\n<\/p>\n
      “The main differences between a partnership and co-ownership are:<\/p>\n
      (1) co-ownership is    not necessarily the result of an agreement,<\/p>\n
      whereas partnership is; (2) co-ownership does not necessarily involve<\/p>\n
      community of profit or loss, but partnership does; (3) one co-owner<\/p>\n
      can, without the consent of the other, transfer his interest etc. to a<\/p>\n
      stranger, a partner cannot do this; and lastly but prominently, (4)<\/p>\n
      while in a partnership each partner acts as an agent of the other, in a<\/p>\n
      co-ownership one co-owner is not as such the agent, implied or real,<\/p>\n
      of the other, Lindley on Partnership, 12th Edn; page 57, Rel. on.”<\/p>\n<\/blockquote>\n
In Keshavji Ravji and Co. etc. etc. v. Commissioner of Income-tax (AIR<\/p>\n
1991 SC 1806), the Apex Court, after referring to an earlier decision of the<\/p>\n
Apex Court in Narayanappa v. Krishtappa (AIR 1966 SC 1300),<\/p>\n
considered the nature of interest of a partner of a firm and held in para 8<\/p>\n
that “a firm under the general law is not a distinct legal entity and has no<\/p>\n
RCR 270 &
\n385\/2004                              -29-<\/span><\/p>\n
legal existence of its own. The partnership property vests in all the partners<\/p>\n
and in that sense every partner has an interest in assets of the partnership.<\/p>\n
However, during the subsistence of the partnership no partner can deal with<\/p>\n
any portion of the property as his own.” The following is the relevant<\/p>\n
extract from the decision in Narayanappa’s case (AIR 1966 SC 1300):<\/p>\n
        “…………. The whole concept of partnership is to embark upon a<\/p>\n
        joint venture and for that purpose to bring in as capital money or<\/p>\n
        even property including immovable property. Once that is done<\/p>\n
        whatever is brought in would cease to be the exclusive property of<\/p>\n
        the person who brought it in. It would be the trading asset of the<\/p>\n
        partnership in which all the partners would have interest in<\/p>\n
        proportion to their share in the joint venture of the business of the<\/p>\n
        partnership. The person who brought it in would, therefore, not be<\/p>\n
        able to claim or exercise any exclusive right over any property<\/p>\n
        which he has brought in, much less over any other partnership<\/p>\n
        property. He would not be also to exercise his right even to the<\/p>\n
        extent of his share in the business of the partnership…………………..”<\/p>\n<\/blockquote>\n
We are, therefore, of the view that the concept that a co-owner can maintain<\/p>\n
an application for eviction of the premises, cannot apply on all fours in the<\/p>\n
case of a partner.\n<\/p>\n
      30. The question to be considered here is whether on the dissolution<\/p>\n
of the partnership, the arrears of rent prior to 16.10.1999 still enables the<\/p>\n
RCR 270 &
\n385\/2004                             -30-<\/span><\/p>\n
landlord to seek eviction under Section 11(2)(b) of the Act.<\/p>\n
      31. The point at issue is not res-integra in the light of the exposition<\/p>\n
of law in N.M. Engineer’s case (AIR 1995 SC 448).              Regarding the<\/p>\n
question whether the rent due before the assignment should constitute<\/p>\n
arrears of rent or it is only a debt, the Apex Court in the above decision,<\/p>\n
after considering various aspects, held that “the rent is merely a debt.<\/p>\n
Therefore, whatever might have been due prior to deed of lease dated<\/p>\n
8.6.67, could not constitute arrears of rent. It was mere actionable claim.<\/p>\n
That being so, the notice does not satisfy the requirements of Section 12(3)<\/p>\n
(a).” We are of the view that the said legal position applies to the facts of<\/p>\n
this case and the question whether the landlord was a co-owner in the<\/p>\n
partnership and whether he can maintain an application for eviction, is not<\/p>\n
the real test. The rent claimed as due prior to 16.10.1999 is a mere debt. It<\/p>\n
cannot constitute arrears of rent after that date for an action under Section<\/p>\n
11(2)(b). It was mere actionable claim as held by the Apex Court in N.M.<\/p>\n
Engineer’s case (supra). The provisions of Section 11(2)(b) shows that a<\/p>\n
landlord can seek eviction on the ground of arrears of rent. If the amount<\/p>\n
that is due prior to 16.10.1999 cannot be termed as arrears of rent,<\/p>\n
automatically a petition seeking eviction under Section 11(2)(b) cannot be<\/p>\n
RCR 270 &
\n385\/2004                                -31-<\/span><\/p>\n
maintained.     Ext.A13 is the deed of dissolution of partnership dated<\/p>\n
6.1.2001. It shows that a separate deed of settlement was executed by the<\/p>\n
partners on 16.10.1999, wherein the shop rooms have been partitioned<\/p>\n
among the partners. Therefore, it is clear that there was a partition on<\/p>\n
16.10.1999. We notice that in Ext.A13 the relevant clause states that “the<\/p>\n
first, third and fourth parts, their survivors, representatives, assignees and or<\/p>\n
attorneys are hereby authorised to realise by suit or otherwise the entire<\/p>\n
arrears of rent due from the tenants of their respective holdings and to give<\/p>\n
effectual receipts and discharge for the same in their individual names.” As<\/p>\n
rightly pointed by the learned counsel for the tenant, it can be considered<\/p>\n
only as a debt, going by the implications of the above term. Going by<\/p>\n
Section 6(a) of the Transfer of Property Act, a mere right to sue cannot be<\/p>\n
transferred. Whatever was the position of the landlord as a partner before<\/p>\n
16.10.1999, after dissolution of the partnership with effect from that date,<\/p>\n
his rights have been crystallised by the above noted clause in Ext.A13.<\/p>\n
Hence, even if for argument’s sake it can be taken that he was entitled to<\/p>\n
seek for eviction, on the ground of arrears of rent prior to 16.10.1999 on<\/p>\n
behalf of the firm, after 16.10.1999 his right to claim arrears of rent is<\/p>\n
controlled by the specific terms in Ext.A13. In that view of the matter, we<\/p>\n
RCR 270 &
\n385\/2004                              -32-<\/span><\/p>\n
find that the landlord is not entitled to seek eviction under Section 11(2)(b)<\/p>\n
of the Act for the alleged arrears of rent due prior to 16.10.1999. The rent<\/p>\n
subsequent to 16.10.1999 have been deposited by the tenant during the<\/p>\n
pendency of the proceedings. We, therefore, set aside the order of eviction<\/p>\n
granted by the Appellate Authority under Section 11(2)(b) of the Act.<\/p>\n
      We,      therefore,    allow     R.C.R.No.270\/2004       and    dismiss<\/p>\n
R.C.R.No.385\/2004. The petition for eviction stands dismissed.<\/p>\n
                                            ( P.R.Raman, Judge.)<\/p>\n
                                      (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Abdul Kader vs George Joseph on 10 December, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-119622","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAbdul Kader vs George Joseph on 10 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abdul-kader-vs-george-joseph-on-10-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abdul Kader vs George Joseph on 10 December, 2008 - 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