{"id":230291,"date":"2007-10-05T00:00:00","date_gmt":"2007-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-s-parvathy-krishnan-vs-joseph-alias-jose-on-5-october-2007"},"modified":"2018-03-18T23:48:07","modified_gmt":"2018-03-18T18:18:07","slug":"a-s-parvathy-krishnan-vs-joseph-alias-jose-on-5-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-s-parvathy-krishnan-vs-joseph-alias-jose-on-5-october-2007","title":{"rendered":"A.S.Parvathy Krishnan vs Joseph Alias Jose on 5 October, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
A.S.Parvathy Krishnan vs Joseph Alias Jose on 5 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP No. 3348 of 2001()\n\n\n\n1. A.S.PARVATHY KRISHNAN\n                      ...  Petitioner\n\n                        Vs\n\n1. JOSEPH ALIAS JOSE\n                       ...       Respondent\n\n                For Petitioner  :SRI.D.KRISHNA PRASAD\n\n                For Respondent  :SRI.N.P.SAMUEL\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice K.T.SANKARAN\n\n Dated :05\/10\/2007\n\n O R D E R\n                         K.BALAKRISHNAN NAIR &\n                              K.T.SANKARAN,JJ.\n                    ----------------------------------------------------\n                        C.R.P.NO. 3348 OF 2001\n                    ----------------------------------------------------\n                      Dated this the 5th October, 2007\n\n                                    O R D E R\n<\/pre>\n
SANKARAN, J.\n<\/p>\n
       The landlord is the revision petitioner. She filed the Rent Control<\/p>\n
Petition before the Rent Control Court, Thrissur under Sections 11(2)(b), 11<\/p>\n
(3), 11 (4) (iii) and 11(8) of the Kerala Buildings (Lease and Rent Control)<\/p>\n
Act. The Rent Control Court allowed the petition under Section 11(4)(iii)<\/p>\n
and dismissed the petition under Sections 11(2)(b), 11(3) and 11(8) of the<\/p>\n
Act. The tenant filed an appeal before the Appellate Authority challenging<\/p>\n
the order under Section 11(4)(iii).          The landlord filed a Memorandum of<\/p>\n
Cross Objection challenging the findings of the Rent Control Court under<\/p>\n
Sections 11(2)(b), 11(3) and 11(8). The Appellate Authority allowed the<\/p>\n
appeal filed by the tenant and dismissed the Memorandum of Cross<\/p>\n
Objection filed by the landlord.           Thus the Rent Control Petition stood<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
       2. The parties are referred to in the rank in which they are arraigned<\/p>\n
in the Rent Control Petition. The petition schedule building was let out to<\/p>\n
one Mathew, the predecessor-in-interest of the respondents.                 The first<\/p>\n
respondent is his widow and respondents 2 to 8 are the children of Mathew.<\/p>\n
The lease was in the year 1968 fixing a monthly rent of Rs.30\/-. The rate of<\/p>\n
rent was enhanced to Rs.75\/- as per the order in R.C.P.No.181 of 1978.<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                        :: 2 ::\n<\/p>\n
       3. According to the petitioner, tenants failed in payment of rent from<\/p>\n
December, 1996 onwards. The petition schedule building consisting of<\/p>\n
several rooms faces the public road on the eastern side.         The petition<\/p>\n
schedule building is room No.29\/670. Room on the northern side of the<\/p>\n
petition schedule building is in possession of the petitioner where an STD<\/p>\n
booth is being run. The room on the further north is occupied by the<\/p>\n
petitioner’s husband, who is a retired Engineer. On the rear side of the<\/p>\n
petition schedule building, there is a two storeyed residential building, which<\/p>\n
was reconstructed in the year 1994. That residential building was let out to<\/p>\n
tenants. The way leading to the said residential building was provided<\/p>\n
towards the northern side and thereafter, towards east leading to the public<\/p>\n
road on the eastern side. On the northern side of the said residential<\/p>\n
building, the house of the petitioner is situated, in which, she is residing.<\/p>\n
The tenants in the residential building on the southern side used the way in<\/p>\n
front of the house of the petitioner so as to reach the public road. It is<\/p>\n
stated that this causes much difficulty to the petitioner.      She wants to<\/p>\n
provide a separate way to the tenants of the residential building. She bona<\/p>\n
fide requires the petition schedule building for providing a passage to the<\/p>\n
tenanted residential building situated on the rear side of the petition<\/p>\n
schedule building. On demand by the petitioner, the tenants agreed to<\/p>\n
vacate, but later, resiled from the promise. The bona fide requirement<\/p>\n
projected by the petitioner is to remove the shutter on the eastern side and<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                        :: 3 ::\n<\/p>\n
wall on the western side of the petition schedule building so that a passage<\/p>\n
could be formed to the rear side of the building.\n<\/p>\n<\/p>\n
       4. The petitioner also stated that the respondents are in possession<\/p>\n
of several other buildings and therefore, she is entitled to an order of<\/p>\n
eviction under Section 11(4)(iii). It was pointed out that several buildings<\/p>\n
belonging to the respondents are available for them for conducting the<\/p>\n
business run in the petition schedule building. The ground urged under<\/p>\n
Section 11(8) is to the effect that the petitioner is conducting an STD booth<\/p>\n
in the room on the northern side of the petition schedule room.          The<\/p>\n
petitioner needs additional accommodation for expanding the business run<\/p>\n
by her.\n<\/p>\n<\/p>\n
       5. The respondents contested the case and denied the bona fide<\/p>\n
need urged by the petitioner. It was also contended that the other grounds<\/p>\n
raised by the petitioner are also not available in her favour. It was stated<\/p>\n
that after the death of Mathew in 1968, the second respondent continued to<\/p>\n
run the business in the petition schedule building in the name and style<\/p>\n
“Mercantile Fund”. The rent fell due only because of the refusal of the<\/p>\n
petitioner to receive the rent.        However, the arrears of rent was<\/p>\n
subsequently paid. The residential building situated on the rear side of the<\/p>\n
petition schedule building is an old one and it was reconstructed in the year<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 4 ::\n<\/p>\n
1994. The access to that building was through the space which is now<\/p>\n
occupied by the room in the possession of the petitioner. The petitioner<\/p>\n
closed that pathway and converted it into a room wherein she is conducting<\/p>\n
the STD booth.       It was contended that the bona fide requirement is,<\/p>\n
therefore, not genuine.     Having closed the direct access and having<\/p>\n
provided another way to the tenants of the residential building, it was<\/p>\n
contended that the petitioner is not entitled to put forward a bona fide need<\/p>\n
to demolish the petition schedule building and to provide a direct access to<\/p>\n
the tenants of the residential building.    It was also contended that the<\/p>\n
respondents are not in possession of any other building suitable for<\/p>\n
conducting their business in the petition schedule room. The petitioner has<\/p>\n
filed a suit claiming enhancement of rent and the same is pending.<\/p>\n
       6. Before the Rent Control Court, the husband of the petitioner was<\/p>\n
examined as PW1 and Exts.A1 to A18 were marked. On the side of the<\/p>\n
respondents, RWs.1 and 2 were examined and Exts.B1 to B6 were<\/p>\n
marked.\n<\/p>\n
       7. We shall deal with the ground under Section 11(3) at first. It is<\/p>\n
not in dispute that the main building of which the petition schedule building<\/p>\n
forms part faces the Thrissur-Shornur road on the eastern side. On the<\/p>\n
rear side of the building, the residential house of the petitioner is situated.<\/p>\n
On the southern side of the residential building and on the rear side of the<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 5 ::\n<\/p>\n
petition schedule building, another residential building belonging to the<\/p>\n
landlord, which has been let out to the tenants, is situated. The bona fide<\/p>\n
need put forward is to demolish the petition schedule room so as to provide<\/p>\n
a passage to the tenanted residential building on the rear side.         The<\/p>\n
petitioner stated that the pathway presently being used by the tenants of<\/p>\n
the residential building passes through the court-yard of the petitioner’s<\/p>\n
residence and this causes great inconvenience to the petitioner and her<\/p>\n
family. It is also stated that the tenants of the petitioner made a request to<\/p>\n
the petitioner to provide a separate way for them.          The courts below<\/p>\n
rejected the case of the petitioner under Section 11(3) on the ground that<\/p>\n
the petitioner could demolish the room in her possession so as to provide a<\/p>\n
way to the rear side.\n<\/p>\n<\/p>\n
       8. The petitioner’s husband appeared and argued the case on her<\/p>\n
behalf with the permission of the court. He submitted that the findings and<\/p>\n
conclusions arrived at by the authorities below under Section 11(3) are<\/p>\n
illegal and perverse warranting interference under Section 20 of the Act.<\/p>\n
He also submitted that it is for the landlord to decide which room is to be<\/p>\n
demolished in order to provide a passage to the building on the rear side.<\/p>\n
       9. Sri.N.P.Samuel, learned counsel appearing for the respondents<\/p>\n
contended that in order to attract Section 11(3), the need must be the need<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                        :: 6 ::\n<\/p>\n
of the landlord for his own occupation or for the occupation by any member<\/p>\n
of his family dependant on him. In the instant case, even if the case put<\/p>\n
forward by the petitioner is accepted as true, the need for occupation is not<\/p>\n
for herself or for any member of her family depending on her as provided in<\/p>\n
Section 11(3). The counsel submits that the need for the use of the tenants<\/p>\n
of the landlord does not constitute a bona fide need under Section 11(3) of<\/p>\n
the Act.\n<\/p>\n<\/p>\n
       10. In Kunhamma v. Akkali Purushothaman<\/a> (2007 (3) KLT 599<\/p>\n
(SC)), the Supreme Court dealt with the contention raised by the tenant that<\/p>\n
the bona fide need visualized under Section 11(3) should be equated with<\/p>\n
physical occupation of the premises by the landlord after ejectment and<\/p>\n
would not therefore not include its demolition for the purpose of widening a<\/p>\n
passage to another property belonging to the landlord. It was held as<\/p>\n
follows:\n<\/p>\n
              “It is virtually the accepted position since long that the
\n       personal necessity envisaged under the Act would include
\n       repossession of the demised premises by the landlord for the
\n       purposes of its demolition so as to widen the entrance to
\n       another building belonging to the landlord in the immediate
\n       vicinity.”\n<\/p><\/blockquote>\n
The Supreme Court relied on the decisions in Ramniklal Pitambardas<\/p>\n
Mehta v. Indradaman Amratlal Sheth (AIR<\/a> 1964 SC 1676); Sarada and<\/p>\n
others v. M.K.Kumaran (1969 KLT 133) and Krishna Menon v. District<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 7 ::\n<\/p>\n
Judge (1988 (1) KLT 131).\n<\/p>\n<\/p>\n
       11. In Sarada and others v. M.K.Kumaran (1969 KLT 133 = 1968<\/p>\n
KLJ 839), eviction was sought in order to provide a direct approach from<\/p>\n
the road to the backyard of the building where the landlord proposed to<\/p>\n
construct a lodging house. Dealing with that contention it was held:<\/p>\n
              “‘Occupation’ does not necessarily refer to residence.
\n       An owner can occupy a place by making use of it in any
\n       manner.     The fact that the pathway is intended for the
\n       customers of the respondent to go to the lodging house and
\n       the Komalavilas Restaurant does not mean that the
\n       respondent will not be in occupation of the same. …… The
\n       respondent for the purpose of the pathway is only going to
\n       demolish the superstructure or the edifice enclosing the
\n       space. The pathway will be enclosed on the sides by the
\n       walls and the pathway which was part of the original building
\n       will become part of the lodging houses to be constructed by
\n       the respondent. Thus it will be a building itself as defined by
\n       S.2(1) of the Act. The conversion of the existing building into
\n       a pathway for the use of the respondent is a need covered by
\n       S.11(3) of the Act and the plea of the revision petitioners is
\n       therefore without any substance.      ….. When Section 11(3)
\n       allows a landlord to recover the building from the tenant for
\n       his bona fide need and when there is nothing in the said
\n       provision to restrict the use to which the landlord can put the
\n       building after recovery I do not find any principle of law under
\n       which a liberal interpretation in favour of the tenant is
\n       possible…”<\/p><\/blockquote>\n
       12. In Krishna Menon v. District Judge (1988 (1) KLT 131), the<\/p>\n
landlord required the landed space covered by the tenanted building to be<\/p>\n
used as a passage to the newly constructed multi-storeyed building<\/p>\n
belonging to the landlord and for that purpose, wanted to demolish the<\/p>\n
tenanted building. Dealing with that need put forward by the landlord, it<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                        :: 8 ::\n<\/p>\n
was held thus:\n<\/p>\n
               “5. The legislature while framing S.11(3) of the Act did
\n       not say that the occupation must be of the building as such.
\n       Though the need is of the building, the occupation is not
\n       confined to the building as such. The definition of “building”
\n       contained in S.2(1) of the Act includes the garden, grounds
\n       etc., which are appurtenant to the building. It is important to
\n       note that the definition includes any building also besides
\n       part of a building. The controlling words in S.2 direct that the
\n       definition is not meant to be exhaustive nor restrictive
\n       because even the items enumerated and included are subject
\n       to variations if “the context otherwise requires”. The definition
\n       provides sufficient play at the joints while fixing the
\n       parameters of the scope of the expression “building” in
\n       different situations. It enables the Rent Control Authorities to
\n       mould the reliefs in accordance with the exigency in each
\n       case. The contextual flexibility permitted in S.2(1) is meant to
\n       be used according to the particular need in different
\n       situations.   If S.11(3) of the Act is to be given a narrow
\n       interpretation that it could be applied only if the building is
\n       kept up as such even after the eviction such an interpretation
\n       is likely to bring about unjust consequences. Eg: A person
\n       owning large vacant area behind an old or outmoded building
\n       abutting a main road in a commercially important locality of
\n       the town, is desirous of utilising the remaining vacant area for
\n       construction of a storeyed building complex or a big hotel or a
\n       cinema theatre. Can he not use the space occupied by the
\n       old building as car park, or as passage to the new building? If
\n       he cannot do so, the entire rear portion may become
\n       practically useless.      This would be one of the hard
\n       consequences if S.11(3) of the Act is given a narrow or strict
\n       interpretation. Such consequences can be averted if S.11(3)
\n       is   given   a    wider   interpretation, as   was    done     by
\n       Krishnamoorthy Iyer, J. in Sarada’s case. Legislative concern
\n       for common sense and Justice must be presumed while
\n       interpreting statutes.,,,”<\/p><\/blockquote>\n
       13.   In Narayanankutty v. Abiida Abdul Kareem<\/a> (2002(2) KLT<\/p>\n
507), the question which came up for consideration was whether eviction<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 9 ::\n<\/p>\n
sought for by the landlord so as to convert the building as a pathway for the<\/p>\n
proposed multi-storeyed building would come within the scope of Section<\/p>\n
11(3) or 11(4)(iv) of the Act. The Division Bench held as follows:<\/p>\n
              “8.  S.11(3) also uses the expression, “for his own
\n       occupation”. Contention was raised by the counsel for the
\n       tenant that the expression “for his own occupation” would
\n       mean that the landlord himself should occupy the tenanted
\n       premises or building      newly constructed in the tenanted
\n       premises after demolition. We are of the view, the expression
\n       “occupation” has to be given a wider meaning. It is true that
\n       after the tenanted premises is vacated, landlord if bona fide
\n       needs the building he can occupy it or a person depending
\n       upon him as the case may be. The question is whether he
\n       can occupy the same tenanted premises once the premises is
\n       required for a passage to the newly constructed building. It is
\n       physically impossible to occupy the tenanted premises on its
\n       demolition since the area is to be used as a passage.
\n       Passage to newly constructed building could be used not only
\n       by the landlord but the public at large who come to the newly
\n       constructed building.    One cannot expect the landlord or
\n       dependent alone is in occupation of the area left as a
\n       passage after demolition of the tenanted premises. The word
\n       “occupation” has got different shades of meaning. Chambers
\n       20th Century Dictionary gives the meaning of “occupation” as
\n       the act of occupying, state of being employed or occupied,
\n       that which occupies or takes up one’s attention. Landlord can
\n       also occupy passage leading to the building which is
\n       appurtenant.     The purpose projected in this case by the
\n       landlord is bona fide. What is required is demolition of the
\n       tenanted premises so as to use it as a passage to the newly
\n       constructed building.      That means, on demolition the
\n       premises is not in exclusive occupation of the landlord but
\n       could be used by others as well.”<\/p><\/blockquote>\n
       14. It is true that the open space which would be available after<\/p>\n
demolition of the petition schedule building, would not be exclusively<\/p>\n
occupied by the petitioner for access to any building exclusively occupied<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                      :: 10 ::\n<\/p>\n
by her. The pathway proposed to be provided would lead to the residential<\/p>\n
building belonging to the petitioner, which is in the occupation of her<\/p>\n
tenants. The question is whether such a requirement would satisfy the<\/p>\n
bona fide need of the landlord “for his own occupation” under Section 11<\/p>\n
(3). The contention raised by the tenant is that Section 11(3) restricts the<\/p>\n
bona fide need for own occupation by the landlord or for the occupation by<\/p>\n
any member of his family depended on him. In other words, the contention<\/p>\n
put forward by the tenant is that user of the pathway, provided after<\/p>\n
demolition of the tenanted building, by another set of tenants of the same<\/p>\n
landlord for the convenient enjoyment of another tenanted building would<\/p>\n
not be the requirement of the landlord under Section 11(3). We are not<\/p>\n
inclined to accept this contention put forward by the tenant in view of the<\/p>\n
Division Bench decision in 2002 (2) KLT 507 and 1988(1) KLT 131. The<\/p>\n
word “occupation” requires a liberal construction. It cannot be restricted to<\/p>\n
the user of the building alone. User of the land after demolition of the<\/p>\n
tenanted building would also come within the scope of “occupation” under<\/p>\n
Section 11(3) of the Act. Occupation of a building by the landlord for his<\/p>\n
own use after eviction of the tenant under Section 11(3), is to be<\/p>\n
distinguished from the user of the land after demolition of that building.<\/p>\n
After demolition what is available is the land. The occupation would be of<\/p>\n
such land thereafter. In such cases, the question to be enquired into is<\/p>\n
whether the need put forward by the landlord is bona fide. If the need put<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 11 ::\n<\/p>\n
forward is bona fide, the mere fact that the pathway made after demolition<\/p>\n
of the building would used by several persons including the landlord or by<\/p>\n
his tenants would not take the need out of the purview of Section 11(3).<\/p>\n
       15. It is for the landlord to decide through which portion he is to<\/p>\n
provide a way to the rear side of the building. The tenant cannot dictate to<\/p>\n
the landlord that the pathway should be through another portion.           Of<\/p>\n
course, to ascertain whether the need put forward is bona fide, the court<\/p>\n
would be justified in considering all the facts and circumstances of the case<\/p>\n
and in that process the Court could also take into account the contention<\/p>\n
put forward by the tenant. The mere fact that the landlord is in occupation<\/p>\n
of the northern room and on demolition of that room a way could be<\/p>\n
provided to the rear side is not a ground to deny an order under Section 11<\/p>\n
(3) to the landlord. The question to be enquired into is whether the need<\/p>\n
put forward is genuine, and not whether the need could be achieved by<\/p>\n
other modes. If the need is bona fide, an order could not be denied to the<\/p>\n
landlord    on the ground that the same object could be achieved by<\/p>\n
demolishing another room.\n<\/p>\n<\/p>\n
       16. On a consideration of the facts and circumstances of the case<\/p>\n
and the contentions put forward by the parties, we are of the view that the<\/p>\n
courts below were not justified in denying an order to the landlord under<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                     :: 12 ::\n<\/p>\n
Section 11(3).       The courts below did not properly comprehend the<\/p>\n
principles of law and therefore, interference under Section 20 of the Act is<\/p>\n
warranted.\n<\/p>\n<\/p>\n
       17. The next question involved in the case is regarding the point of<\/p>\n
time with reference to which an application under Section 11(4)(iii) is to be<\/p>\n
considered. It is also necessary to consider the question whether to attract<\/p>\n
Section 11(4)(iii), all the legal representatives of one of the deceased<\/p>\n
tenants should be in possession of another building or whether it is<\/p>\n
sufficient if some of them occupy such building.    In the instant case, one<\/p>\n
Mathew was the tenant. The Rent Control Petition was filed against his<\/p>\n
legal representatives including his widow Rosily.     Rosily died during the<\/p>\n
pendency of the Rent Control Appeal. She owned other buildings which on<\/p>\n
her death were inherited by her children, who are the rest of the<\/p>\n
respondents in the Rent Control Petition. The Rent Control Court, after<\/p>\n
considering the oral and documentary evidence in the case, held that the<\/p>\n
tenants are in possession of other buildings in the same town, reasonably<\/p>\n
sufficient for their requirements. Two of those buildings belonged to Rosily;<\/p>\n
one building (Chiramel building) situated on the opposite side of the petition<\/p>\n
schedule building and another one consisting of two rooms after vacating<\/p>\n
the tenant therefrom. It has also come out in evidence that the second<\/p>\n
respondent C.M.Joseph is conducting another business under the name<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                     :: 13 ::\n<\/p>\n
and style “St.Francis Furniture” in Door No.29\/581 and Angana Jewellery<\/p>\n
in a building belonging to the Cochin Devaswom Board. A Commissioner<\/p>\n
was appointed to ascertain the nature and possession of the other buildings<\/p>\n
allegedly in the possession of the tenants. On the evidence available in the<\/p>\n
case, the Rent Control Court came to the conclusion that though Chiramel<\/p>\n
building stands in the name of Rosily, her children Joseph and David were<\/p>\n
collecting rent from the tenant and some of the rooms in that building are<\/p>\n
lying vacant.    As far as the other building in the name of Rosily is<\/p>\n
concerned, the Rent Control Court held that after evicting V.K.Narayanan<\/p>\n
Namboodiripad, the said two storeyed building is in the possession of the<\/p>\n
respondents\/ tenants.\n<\/p>\n<\/p>\n
       18. The Appellate Authority reversed the finding of the Rent Control<\/p>\n
Court under Section 11(4)(iii) on the ground that the two buildings<\/p>\n
exclusively belonged to Rosily and it is not established that it is possessed<\/p>\n
by the second respondent Joseph.        This reasoning was made by the<\/p>\n
Appellate Authority on the basis that the petition schedule building is<\/p>\n
occupied by the second respondent Joseph and unless it is established that<\/p>\n
Joseph is in occupation of the building owned by Rosily, an order under<\/p>\n
Section 11(4)(iii) could not be passed in favour of the landlord. As far as<\/p>\n
the building belonging to Cochin Devaswom Board is concerned, the<\/p>\n
Appellate Authority held that it is not established that C.M.Joseph and<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 14 ::\n<\/p>\n
C.M.Davis who conducted business therein are the same C.M.Joseph and<\/p>\n
C.M.Davis who are respondents 2 and 3 herein, though it is noted that at<\/p>\n
the time of visit of the Commissioner, the fourth respondent was found in<\/p>\n
the helm of arrairs in respect of the business conducted in that building.<\/p>\n
       19. Section 11(4)(iii) provides that if the tenant already has in his<\/p>\n
possession a building or subsequently acquires possession of or put up a<\/p>\n
building reasonably sufficient for his requirements, in the same city, town or<\/p>\n
village, the landlord would be entitled to an order of eviction. It is not<\/p>\n
necessary that the tenant should own an alternate building. It is sufficient if<\/p>\n
he has already in his possession another building or subsequently acquires<\/p>\n
possession of another building. In the instant case, on the death of the<\/p>\n
tenant, the tenancy right devolved on all the respondents including Rosily.<\/p>\n
On the death of Rosily, her rights devolved on the other respondents. If the<\/p>\n
respondents are in possession of another building satisfying the other<\/p>\n
requirements of Section 11(4)(iii), it would enable the landlord to get an<\/p>\n
order of eviction. The question is whether all the legal representatives of<\/p>\n
the deceased tenant should acquire possession or own such alternate<\/p>\n
accommodation jointly or whether it is sufficient if some of them acquire<\/p>\n
possession or own such building. The decision on this point would rest on<\/p>\n
the facts and circumstances of each case. For example,         a tenant dies<\/p>\n
and he is survived by his widow and children ; one of them constructs a<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 15 ::\n<\/p>\n
building for his own use with his own funds. If it is established that the<\/p>\n
alternate building was constructed or occupied by one of the legal<\/p>\n
representatives in his individual capacity, it would be very harsh to pass an<\/p>\n
order under Section 11(4)(iii), which would have the effect of depriving the<\/p>\n
other legal representatives of the tenant of the right to continue to enjoy<\/p>\n
the tenancy right. It is also possible that in order to defeat the rights of the<\/p>\n
landlord, instead of acquiring possession of another building in the name of<\/p>\n
all the legal representatives of the deceased tenant, one or some of them<\/p>\n
may acquire possession of another building in their name though really<\/p>\n
such acquisition may be for the benefit of all the legal representatives. In<\/p>\n
such cases, on the facts of the case, if the Court comes to the conclusion<\/p>\n
that if the other building is really possessed or owned by all the legal<\/p>\n
representatives, an order could be passed under Section 11(4)(iii). Section<\/p>\n
2(b) of the Act defines tenant. The definition includes “the heir or heirs of a<\/p>\n
deceased tenant”.      The contention of the respondents that the petition<\/p>\n
schedule building is occupied and possessed by the second respondent<\/p>\n
Joseph alone after the death of the original tenant is not relevant in<\/p>\n
deciding whether possession of the other buildings could be reckoned for<\/p>\n
the purpose of Section 11(4)(iii), since on the death of the original tenant<\/p>\n
the tenancy right devolves on all his legal representatives including second<\/p>\n
respondent Joseph. Running of business in the petition schedule building<\/p>\n
by Joseph alone, even if it is true, is an internal arrangement among the<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 16 ::\n<\/p>\n
legal representatives of the original tenant. That should not alter or affect<\/p>\n
the right of the landlord to collect rent or to file an appropriate application<\/p>\n
under the relevant provisions of the Rent Control Act.          The Appellate<\/p>\n
Authority was clearly in error in declining to grant relief under Section 11(4)<\/p>\n
(iii) on the ground that the petition schedule building is occupied by the<\/p>\n
second respondent Joseph and that the other building is not possessed by<\/p>\n
him but by some other legal representatives of the tenant.<\/p>\n
        20. Section 11(4)(iii) does not make any fetter on the right of the<\/p>\n
landlord to get an order of eviction if the tenant acquires possession of<\/p>\n
another building, no matter whether such acquisition is made by all the<\/p>\n
legal representatives of the deceased tenant or whether it is by one among<\/p>\n
them. At the same time, court should not be forgetful to the fact that one or<\/p>\n
some of the legal representatives of the tenant could legally acquire and<\/p>\n
possess properties of his own or their own unconnected with and unrelated<\/p>\n
to the occupation of the tenanted building by some other legal<\/p>\n
representatives of their predecessor.      The various eventualities on the<\/p>\n
death of a tenant, as to how the legal representatives of the tenant would<\/p>\n
continue to run the business, whether some of the legal representatives<\/p>\n
would prefer to dissociate themselves with the business conducted therein<\/p>\n
or whether some of them would stand apart from the affairs of the family<\/p>\n
and acquire properties in their own name or for their own benefit, are all<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 17 ::\n<\/p>\n
matters peculiar to the fact situation in each case and would depend on the<\/p>\n
arrangement entered into among the legal representatives of the tenant.<\/p>\n
A principle of universal application cannot be evolved to meet all such<\/p>\n
contingencies at all points of time. Facts and circumstances of each case<\/p>\n
have to be taken into account and analysed to come to a conclusion<\/p>\n
whether the legal representatives of the tenant have acquired possession<\/p>\n
of another building within the meaning of Section 11(4)(iii) and whether the<\/p>\n
landlord is entitled to an order of eviction on that ground. If the Court<\/p>\n
comes to the conclusion that the other building is acquired by one or some<\/p>\n
of the legal representatives for their own benefit with their own funds and<\/p>\n
that such person or persons are unconnected with or unrelated to the<\/p>\n
occupation of the tenanted premises, the Court could rightly deny relief to<\/p>\n
the landlord under Section 11(4)(iii). On the other hand, if the court comes<\/p>\n
to the conclusion that acquisition of possession of another building in the<\/p>\n
name of one or some of the legal representatives of the tenant was made<\/p>\n
deliberately to defeat the rights of the landlord to claim eviction under<\/p>\n
Section 11(4)(iii), and that the tenanted building and the other building are<\/p>\n
really occupied by the legal representatives including the person or persons<\/p>\n
in whose name possession or title of the other building is acquired, the<\/p>\n
Court would be justified in passing an order of eviction under Section 11(4)<\/p>\n
(iii).\n<\/p>\n
       21. We hasten to add that in cases where this question arise, the<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                      :: 18 ::\n<\/p>\n
burden of proof would be on the tenants resisting the Rent Control Petition<\/p>\n
to establish that the other building was acquired or possession of the same<\/p>\n
was acquired by one or some of the legal representatives alone and that<\/p>\n
they have no connection or no right in the business being conducted in the<\/p>\n
tenanted premises or that they do not occupy the tenanted premises. The<\/p>\n
landlord cannot be expected to establish the arrangement among the legal<\/p>\n
representatives of the tenant in the matter of occupation of the tenanted<\/p>\n
building and in the matter of acquisition of possession of other buildings.<\/p>\n
Such matters are exclusively within the knowledge of the tenants and<\/p>\n
naturally, the burden of proof should be on them. In the case on hand, the<\/p>\n
tenants have not established that the other buildings possessed by some of<\/p>\n
the respondents are in exclusion of the other legal representatives of the<\/p>\n
original tenant. The respondents have also not established that on the<\/p>\n
death of Rosily all of them did not inherit her rights in the buildings owned<\/p>\n
by Rosily. What is the arrangement among the legal representatives of the<\/p>\n
original tenant in so far as the petition schedule building is concerned is<\/p>\n
also not established so as to come to a definite conclusion that all other<\/p>\n
legal representatives other than Joseph are not in occupation of the petition<\/p>\n
schedule building.\n<\/p>\n<\/p>\n
       22. The point of time with reference to which a relief under Section<\/p>\n
11(4)(iii) is to be granted is the next question to be considered. It is well<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                        :: 19 ::\n<\/p>\n
settled by the decisions of the Supreme Court that while granting relief,<\/p>\n
subsequent events also can be taken note of. Vide: Ram Kumar Barnwal<\/p>\n
V. Ram Lakhan<\/a>: (2007) 5 SCC 660 = 2007 (3) KLT 945 (SC); Psupuleti<\/p>\n
Venkateswaralu V. Motor & General Traders: (1975) 1 S.C.C. 770 =<\/p>\n
A.I.R. 1975 S.C. 1409; Rameshwar and others V. Jot Ram and others<\/a>:<\/p>\n
A.I.R. 1976 S.C. 49; Om Prakash Gupta V. Ranbir B. Goyal<\/a>: (2002) 2<\/p>\n
S.C.C. 256. In Rameshwar and others V. Jot Ram<\/a> (supra), it was held<\/p>\n
that “where a cause of action is deficient but later events have made up the<\/p>\n
deficiency, the court may, in order to avoid multiplicity of litigation, permit<\/p>\n
amendment and continue the proceeding, provided no prejudice is caused<\/p>\n
to the other side.”    In Om Prakash Gupta’s case (supra), the conditions<\/p>\n
for taking note of subsequent events and moulding the relief are stated,<\/p>\n
thus: ” (i) That the relief, as claimed originally has, by reason of subsequent<\/p>\n
events, become inappropriate or cannot be granted; (ii) that taking note of<\/p>\n
such subsequent event or changed circumstances would shorten litigation<\/p>\n
and enable complete justice being done to the parties ; and (iii) that such<\/p>\n
subsequent event is brought to notice of the court promptly and in<\/p>\n
accordance with the rules of procedural law so that the opposite party is not<\/p>\n
taken by surprise.”\n<\/p>\n<\/p>\n
       23. In the present case, Rosily died during the pendency of the<\/p>\n
appeal.     She owned two buildings.          It is inherited by all the other<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                        :: 20 ::\n<\/p>\n
respondents. There is no evidence to indicate that it is inherited by one or<\/p>\n
some of her children. The legal representatives of Rosily and the original<\/p>\n
tenant Mathew are the same persons.          The Rent Control Court accepted<\/p>\n
the case of the landlord that the buildings belonging to Rosily are really<\/p>\n
possessed and managed by her children. It is also in evidence that one<\/p>\n
such building is lying vacant and vacant rooms are available in the other<\/p>\n
building.    At present, the building which belonged to Rosily are owned by<\/p>\n
all the other respondents.       This subsequent event, in our opinion, is<\/p>\n
relevant and can be taken note of by the court dealing with an application<\/p>\n
under Section 11(4)(iii). The expression used in Section 11(4)(iii) is “the<\/p>\n
tenant already has in his possession a building or subsequently acquires<\/p>\n
possession of or puts up a building”.      Past as well as the present events<\/p>\n
come within the purview of Section 11(4)(iii). There is nothing to indicate<\/p>\n
that the present event is to be restricted till the filing of the Rent Control<\/p>\n
Petition. Subsequent events also would come within the scope of Section<\/p>\n
11(4)(iii). In Kanhangad Co-op. M.S.Society Ltd. v. Ganapathy Kamath<\/p>\n
(1995(1) KLT 681), a Division Bench of this Court has taken the view that<\/p>\n
the time with reference to which the sufficiency of the tenants’ requirements<\/p>\n
as envisaged in Section 11(4)(iii) is the time when the landlord demands<\/p>\n
vacant possession from his tenant. This conclusion was arrived at on the<\/p>\n
following reasoning:\n<\/p>\n
               “10.  The legislative intention in providing a ground
\n       such as 11(4)(iii) is to restrict the tenant’s right to continue in<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 21 ::\n<\/p>\n
       the tenants premises.      This restriction is based on public
\n       policy. One of the objects of the enactment of this Act was to
\n       prevent unreasonable eviction of the tenants from rented
\n       buildings in places where accommodation problem could not
\n       be solved (vide Standard Cashew Industries v. N.Krishnan,
\n       AIR<\/a> 1981 Ker.24). Yet the Act is so schemed as to disarm a
\n       tenant who is not genuinely interested in using the tenanted
\n       premises, or one who clings on unreasonably to such
\n       premises. The enactment has sought to keep the genuine
\n       interest of a tenant within the protected walls of the statute.
\n       So when a tenant comes into possession of a building the
\n       landlord can inform the tenant to move into that building after
\n       vacating his building. In such a case all what the rent control
\n       court is to examine is whether that building of the tenant is
\n       sufficient for his requirements.”\n<\/p>\n
\nUnless the sufficiency or otherwise of the requirement is tested with<\/p>\n
reference to a state of affairs as on the date of the Rent Control Petition,<\/p>\n
the ground available to the landlord under Section 11 (4) (iii) could be<\/p>\n
defeated by the tenant by his deliberate acts.    The tenant could very well<\/p>\n
defeat an application under Section 11(4) (iii) by altering the status quo<\/p>\n
available as on the date of the petition.        The interpretation made in<\/p>\n
Kanhangad Co-operative M.S.Society’s case is taken to meet such a<\/p>\n
contingency.    The contingency and factual situation are quite different in<\/p>\n
the present case. In the case on hand, the subsequent event enables the<\/p>\n
landlord to get an order of eviction, and that subsequent event occurs<\/p>\n
during the pendency of the proceedings.         Should he file another Rent<\/p>\n
Control Petition under Section 11(4)(iii) or could he claim that relief in the<\/p>\n
pending petition on the same ground is a question involved herein. We are<\/p>\n
of the view that multiplicity of proceedings is certainly not the intention of<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 22 ::\n<\/p>\n
the law makers. If by acquiring possession of another building the tenant<\/p>\n
loses protection and the landlord gets a right, nothing prevents the landlord<\/p>\n
from claiming that benefit in a pending proceeding initiated by him for<\/p>\n
eviction, on the same ground, namely, Section 11(4)(iii).           Such an<\/p>\n
interpretation would avoid multiplicity of proceedings and also would check<\/p>\n
subsequent deliberate acts tending to defeat the right of the landlord under<\/p>\n
Section 11(4)(iii).    No prejudice would be caused to the tenants if the<\/p>\n
subsequent events are also taken note of. Taking note of the subsequent<\/p>\n
events, alongwith the facts established in the case with reference to the<\/p>\n
state of affairs as on the date of the Rent Control Petition, we are of the<\/p>\n
view that the landlord is entitled to get an order under Section 11 (4) (iii) of<\/p>\n
the Act.\n<\/p>\n<\/p>\n
       24.    It is well settled that when the landlord establishes the<\/p>\n
ingredients of Section 11 (4) (iii), the burden shifts to the tenant to prove<\/p>\n
that the alternate building is not reasonably sufficient for his requirements.<\/p>\n
See Ahmed V. Krishna Lal (2005 (3) K.L.T. 1004); Kanhangad Milk<\/p>\n
Supply Society Ltd. V. Ganapathy Bhat (1995 (1) K.L.T. 681);<\/p>\n
Kunhiraman V. Kumaran<\/a> (2004 (2) K.L.T. 674). The tenants have not<\/p>\n
discharged the burden of proof cast on them.\n<\/p>\n<\/p>\n
       25. As rightly held by the courts below, Section 11(8) would apply<\/p>\n
C.R.P. NO.3348 OF 2001<\/p>\n
                                       :: 23 ::\n<\/p>\n
only if the building is required for the personal use of the landlord. The<\/p>\n
facts pleaded and the requirements projected would not justify the grant of<\/p>\n
an order under Section 11(8).\n<\/p>\n<\/p>\n
       26. For the aforesaid reasons, we set aside the judgment passed<\/p>\n
by the Appellate Authority and allow the Rent Control Petition under<\/p>\n
Section 11(3) and 11(4)(iii). In the facts and circumstances of the case,<\/p>\n
three months’ time is granted to the respondents to vacate the premises,<\/p>\n
provided an affidavit is filed by the respondents before the Rent Control<\/p>\n
Court within a period of three weeks from today undertaking to vacate the<\/p>\n
premises on or before the expiry of three months from today and also on<\/p>\n
condition that the respondents shall pay the arrears of rent, if any, within<\/p>\n
one month and continue to pay the rent to the landlord till they vacate the<\/p>\n
premises.\n<\/p>\n
       The Civil Revision Petition is allowed as above.\n<\/p>\n<\/p>\n
                                                 (K.BALAKRISHNAN NAIR)
\n                                                           Judge<\/p>\n
                                                       (K.T.SANKARAN)
\n                                                             Judge
\nahz\/<\/p>\n
   K.BALAKRISHNAN NAIR &
\n        K.T.SANKARAN, JJ.\n<\/p>\n
———————————————<\/p>\n
———————————————<\/p>\n
   C.R.P.NO. 3348 OF 2001<\/p>\n
               O R D E R<\/p>\n
          5th October, 2007\n<\/p>\n
———————————————<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court A.S.Parvathy Krishnan vs Joseph Alias Jose on 5 October, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP No. 3348 of 2001() 1. A.S.PARVATHY KRISHNAN … Petitioner Vs 1. JOSEPH ALIAS JOSE … Respondent For Petitioner :SRI.D.KRISHNA PRASAD For Respondent :SRI.N.P.SAMUEL The Hon’ble MR. Justice K.BALAKRISHNAN NAIR The Hon’ble MR. Justice […]<\/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-230291","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nA.S.Parvathy Krishnan vs Joseph Alias Jose on 5 October, 2007 - 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\/a-s-parvathy-krishnan-vs-joseph-alias-jose-on-5-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.S.Parvathy Krishnan vs Joseph Alias Jose on 5 October, 2007 - 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