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R.C.R. No. 132 of 2004 - K. Chellappan Vs. B. Sarojini Amma, (2012) 251 KLR 949 : 2012 (2) KLT 849

posted Jun 12, 2012 2:18 AM by Law Kerala   [ updated Jun 12, 2012 2:19 AM ]
(2012) 251 KLR 949
IN THE HIGH COURT OF KERALA AT ERNAKULAM

 
PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI 
THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933 
RCRev..No. 132 of 2004 ( ) 
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RCA.43/1998 of III ADDL. DISTRICT COURT, TRIVANDRUM RCP.52/1996 of ADDL. MUNSIFF (RENT CONTROL) COURT, TRIVANDRUM 

REVISION PETITIONER(S)/REVISION PETITIONER/RESPONDENT/COUNTER P: 
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K. CHELLAPPAN, T.C. 22/923, TAILOR SHOP, ATTUKAL, MANACAUD VILLAGE, THIRUVANANTHAPURAM. 
BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN 
RESPONDENT(S)/APPELLANT/PETITIONER:: 
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B. SAROJINI AMMA, D/O. BHAGEERATHI AMMA, GIRIJA VILASOM, ATTUKAL, MANACAUD VILLAGE THIRUVANANTHAPURAM. 
*(DIED ADDL.R2 IMPLEADED). 
ADDL.R2. SHEELA DEVI, W/o.MOHANAN NAIR, GIRIJA VILASOM, T.C.22/920, MEDAMUKKU, ATTUKAL, MANACAUD (P.0), THIRUVANANTHAPURAM. 
IMPLEADED AS ADDL.R2 VIDE ORDER DATED 11/10/2010 IN I.A.2494/10 IN RCR.132/04 
BY ADV. SRI.T.MADHU BY ADV. SRI.S.LALEEDHARAN BY ADV. SRI.B.K.RAJAGOPAL 
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02-02-2012, ALONG WITH RCR. 133/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 

PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ. 
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RCR. Nos. 132 & 133 of 2004 
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Dated this the 2nd day of February, 2012 
Head Note:-
Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(8) - Additional accommodation for personal use - The expression "additional accommodation" takes in both residential as well as non-residential accommodation. Sub-section (8) of Section 11 is attracted where the landlord who is in residential occupation of a portion of the larger building, needs the tenanted building for conducting business. 
O R D E R 

Pius C.Kuriakose, J. 

These revisions are filed by tenants who challenge the order of eviction passed against them by the Rent Control Appellate Authority on the ground of additional accommodation under sub-section (8) of Section 11. 

2. RCR.133/04 corresponds to RCP.53/96 is in respect of two rooms in the ground floor of a two storied tiled building belonging to the landlady who is residing in the building portion situated on the back side of the above two storied tiled building. The revision petitioner in RCR.133/04 is conducting Bakery business in rooms in his possession. RCR.132/04 corresponds to RCP.52/96 is in respect of another room in the ground floor of the two storied tiled building adjacent to the rooms which are subject matter of RCP.53/96. The revision petitioner in RCR.132/04 is conducting tailoring business in that room. For the two rooms possessed by him, the revision petitioner in RCR.133/04 is paying a consolidated monthly rent of Rs. 500/- which was re-fixed at that rate in the year 1995. The revision petitioner in RCR.132/04 is paying monthly rent of Rs. 300/- which was also re-fixed to that rate in the year 1995. 

3. The original landlady sought to evict the revision petitioners on the grounds of arrears of rent under Section 11(2)(b); bona fide need for own occupation under Section 11(3); user of the building in such a manner as to reduce utility of the building materially and permanently under Section 11(4)(ii) and also additional accommodation for personal use under Section 11(8). The Rent Control Petition was dismissed completely by the Rent Control Court. The Appellate Authority under the impugned judgment has ordered eviction only on the ground under Section 11(8) and hence, the other grounds do not survive for consideration. 

4. Therefore, in these revisions filed by the tenants we need be concerned only with the legality, regularity or propriety of the order of eviction passed by the Rent Control Appellate Authority under Section 11(8). The need projected by the landlady was that she wants to conduct textile business with the assistance of daughter and son-in-law in the petition schedule rooms situated on the front side of the building portion where she is residing along with the daughter and son-in-law. The bona fides of the need for additional accommodation was disputed. The tenants contended that the advantage which the landlady may gain by getting eviction will not outweigh the hardships which will have to be suffered by the tenants if they are ordered to be evicted. 

5. In the enquiry, the landlady, her daughter and son- in-law gave evidence respectively as PWs.1 to 3. Counter evidence was adduced by the revision petitioners. It is on appreciating the evidence that the Rent Control Appellate Authority held that the need for additional accommodation is bona fide and also that the advantages which will be gained by the landlady by getting eviction will outweigh the hardship which may be sustained by the tenants. 

6. Sri.Nagaraj Narayanan, the learned counsel for the petitioner at the very outset raised two legal questions. The first was that the need for additional accommodation projected by the landlady and upheld by the Appellate Authority cannot be sustained in law in view of the explicit provisions of Section 11(8). The argument was that sub- section (8) of Section 11 contemplates only situations where the landlord needed the tenanted premises by way of "additional accommodation" i.e accommodation for the purpose for which the building portion already in the possession of the landlord are being utilised. According to  Sri.Nagaraj, as the building portion in the possession of the landlady are being utilised by the landlady for residential purposes and as the claim under Section 11(8) presently projected is that the tenanted premises will be utilised by the landlady for conducting textile business, the claim is not maintainable under sub-section (8) of Section 11. Sri.Nagaraj submitted that the judgment of the Full Bench of this Court in Moidootty Haji v. Abdul Jaleel (2007(4) KLT 15 FB) which purports to take contrary view cannot be applicable in this case where the building portion already in the possession of the landlady and the tenanted premises are going to be used for entirely different purposes ie. residential and commercial. 

7. We cannot agree. The Full Bench of this Court in Moidootty Haji v. Abdul Jaleel (cited supra) held in the following terms:- 
"It cannot be said that Section 11(8) is not attracted when the business proposed to be conducted in the additional accommodation sought to be gained is different from the business which the landlords at present carrying on in a part of the building". 
We notice that the Full Bench in Moidootty Haji's case (supra) relied on the judgment of the Supreme Court in Davis v. Sebastian, 1999 (3) KLT 225 (SC). In Davis v. Sebastian, the expression "personal use" in sub-section (8) of Section 11 and also the further expression "additional accommodation" used in the same sub-section came up for interpretation by the Supreme Court. After observing that it is a fundamental principle of interpretation of statutes that words in the statutes shall be given their ordinary meaning and that nothing should be added to them, nor should any word be treated as otiose, their Lordships held that the expression "additional accommodation" takes in both residential as well as non-residential accommodation. Their Lordships went on to hold in the said decision that 'personal use' is an expression of wide amplitude and that there is nothing in sub-section (8) which restricts the import of that expression. Finally, the Supreme Court held that the use to which the building in question should be left entirely to the option of the landlord. According to us, in the light of the law as laid down by the Supreme Court in Davis v. Sebastian (cited supra) which is reiterated by the Full Bench of this court in Moidootty Haji's case the argument of Mr. Nagaraj Narayanan that sub-section (8) of Section 11 cannot apply in the present case where the landlady who is in residential occupation of a portion of the larger building, needs the tenanted building for conducting business cannot be accepted. 

8. Another point which was highlighted before us by Mr. Nagaraj Narayanan was that at any rate, the need for additional accommodation for personal use which going by the express provisions of the statute should be personal need of the landlady, does not survive now as the landlady is no more. According to Mr. Nagaraj Narayanan, neither the pleadings nor the evidence adduced by the parties will show that additional second respondent daughter (PW2) has a bona fide need for additional accommodation of the petition schedule premises. 

9. The learned counsel for the respondent placed strong reliance on the judgment of the Supreme Court in Kamaleshwar Prasad v. P. Agarwal (1997 KHC 502) and argued that even without amendment of pleadings this court can sustain the order of eviction presently passed in favour of the original landlady and grant to the supplemental respondent the benefit of the above eviction order. Considering the above submissions we have gone through the pleadings raised by the parties as well as evidence adduced by PWs. 1 and 2. When one reads carefully between the lines in the testimonies of PWs. 1 and 2 it may be possible to make out that the need projected by the landlady was the need of the daughter PW2 also. However, we find considerable force in the submission of Mr. Nagaraj Narayanan that sustaining the impugned eviction order straight away will result in serious prejudice to the revision petitioner. We find that there is complete dearth of pleadings to the effect that the supplemental respondent (PW-2) has a bona fide need of the tenanted room by way of additional accommodation for personal use. We therefore are inclined to accept the submission of Mr. Nagaraj Narayanan that the matter should go back at least to the Rent Control Appellate Authority so that the additional respondent if so advised can raise additional pleadings and further enquiry can be conducted by the Appellate Authority as to what all are the implications of the subsequent event of the original landlady passing away. 

10. At the same time, we notice another aspect of the matter. The petition schedule building is situated in a prime commercial locality within the limits of Thiruvananthapuram Corporation. The buildings are fetching a very low rent of Rs. 500/- (RCR No. 133/2004) and Rs. 300/- (RCR No. 132/2004) respectively. We are sure that if these rooms are let out today, they will fetch much more to the landlady. We are therefore inclined to re-fix the rent tentatively. We re-fix the rent payable by the revision petitioner in RCR. No. 133 of 2004 for the two buildings possessed by him at Rs. 1000/- per mensem. Similarly, we re- fix the rent payable by the revision petitioner in RCR No. 132 of 2004 for the building possessed by him at Rs. 600/- per mensem. We make it clear that this re-fixation is tentative and if either party is aggrieved, it is open to them to seek regular fixation of fair rent by resorting to Section 5 of the Rent Control Act. 

11. The result of the above discussion therefore is as follows:

The impugned common judgment is set aside to the extent the same pertains to bonafides of the need for additional accommodation under sub-section (8) of Section 11. The findings entered in favour of the landlady in the context of the proviso to sub-section (10) of Section 11 (comparative advantages and hardships) and the finding regarding the bonafides of the need harboured by the original landlady are confirmed. The RCAs. are remanded to the Rent Control Appellate Authority, Thiruvananthapuram to decide as to whether the need of the original landlady to have additional accommodation of the building in question has survived in favour of supplemental respondent No.2. In other words, the impact and implications of the passing away of the original landlady on the bonafides of the need projected will be considered by the Appellate Authority. If the supplemental respondent No.2 is desirous of raising additional pleadings the learned Appellate Authority will permit her to do so. If additional pleadings are raised by the supplemental respondent, the learned Appellate Authority will permit the revision petitioners to raise counter pleadings. Since the power of the Rent Control Court and the Appellate Authority in the matter of adduction of evidence is coequal, the Appellate Authority will conduct an enquiry. It is open to both sides to adduce whatever evidence they want to for substantiating their respective claims and contentions. The learned Appellate Authority will complete the enquiry as expeditiously as possible and pass a revised judgment at the earliest. 

We also clarify that the order declining eviction under Section 11(2)(b) and 11(4)(i) and 11(3) are confirmed. The rent is re-fixed as indicated herein before. Transmit the records forthwith to the Rent Control Appellate Authority, Thiruvananthapuram. The parties will enter appearance before the Rent Control Appellate Authority, Thiruvananthapuram on 29-2-2012 or on the date notified by the Appellate Authority after receipt of records. 

(PIUS C.KURIAKOSE, JUDGE) 
(A.V.RAMAKRISHNA PILLAI, JUDGE) 
ksv/-