IN THE HIGH COURT OF KERALA AT ERNAKULAM

Pius C. Kuriakose and A.V. Ramakrishna Pillai, JJ.

R.C.R. No. 404 of 2011

Dated this the 3rd day of February, 2012

Head Note:-

Kerala Building (Lease and Rent Control) Act, 1965 - Section 11(3) - The right to seek remedies under the Act afforded to the landlord cannot be taken away by an agreement to the contrary.

For Appellant : 

• KKM. Sherif
• A.A. Siyad Rahman
• Lal K.Joseph 
  

For Respondents : 

• Saju S.A.
  

O R D E R

A.V. Ramakrishna Pillai, J

1. The tenant is in revision.

2. One Varikodan Aboobacker (hereinafter referred to as 'the landlord') of whom the respondents are the legal heirs approached the Rent Control Court, Manjeri for evicting the revision petitioner which is a public sector undertaking from the petition schedule premises under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act').

3. Admittedly, the petition schedule premises were let out to the revision petitioner for a period of five years from 1.3.2002 as per a registered lease deed. Alleging that the landlord's sons Ashraf and Siddique (respondents 2 and 5) are unemployed and are depending upon the landlord, he sought eviction of the revision petitioner from the petition schedule premises after an unsuccessful demand for vacant possession through a lawyer's notice. Starting a furniture show room was projected as the need.

4. The revision petitioner countered that they were occupying the tenanted premises for the last 20 years on the basis of duly executed lease deeds from time to time and lastly on 1.3.2002, it was renewed for a further period of five years. They resisted eviction mainly on the ground that as per clause-4(ii) of the lease deed, the revision petitioner is having a right to get the lease renewed for a further period of five years with increase in rent at the rate of 20% of the existing rent, by giving a notice in writing at least one month before the date of expiry of the period mentioned in the deed. It was also contended that the revision petitioner had issued a communication in that regard by invoking the above provision and have also offered to pay the increased rent at the rate of 20%. According to the revision petitioner, they are having a right to get the lease deed extended for a further period of five years from 28.2.2007. The bona fide need was also disputed contending that the petition schedule premises which is situated on the first floor of the building is not suitable for conducting a furniture show room.

5. The learned rent controller after trial awarded eviction under Section 11(3) of the Act as prayed for.

6. The revision petitioner took the matter in appeal. During the pendency of the appeal, the landlord died and the respondents were impleaded as supplemental respondents. The learned Rent Control Appellate Authority, after a reappraisal of the evidence, confirmed the order of eviction by the impugned order,

7. We have heard the learned counsel for the revision petitioner and the learned counsel for the respondents. We have also perused the impugned order as well as the order of eviction passed by the learned Rent Controller.

8. The main argument advanced by the learned counsel for the revision petitioner is that the petition for eviction is pre-mature in the light of a clause in Ext.B2 which is the lease deed executed by the landlord and the revision petitioner. A copy of Ext.B2 was made available to us for perusal during the course of the argument. As clause - 4(ii) enables the revision petitioner who is the lessee to renew the lease for a further period of five years on payment of enhanced rent up to 20%, the landlord is bound to abide by the conditions and renew the lease, so submitted by the learned counsel for the revision petitioner.

9. The learned counsel for the revision petitioner invited our attention to clause - 4(ii) of Ext.B2 which reads as follows:

"If the lessee shall be desirous of renewing the terms hereby created on the expiration thereof and of its such desire shall give to the lessor at least one month's notice in writing in that behalf before the expiration of the term hereby created then the lessor shall at the cost of the lessee and the lessor in equal share grant to the lessee the lease of the demised premises for a further term of 5 years at the monthly rent not exceeding 20% increase of the present rent and subject to the same covenants, conditions and agreement in all respect as are herein reserved and contained."

10. The first question to be answered in this revision is whether clause 4(ii) in Ext.B2 fetters the right of the landlord to seek his remedies for eviction under the Act.

11. Of course, clause 4(ii) stipulates that if the lessee is desirous of renewing the lease on the expiration of the term, the lessee may give a notice to the lessor one month prior to the expiration of the lease expressing his willingness to pay rent not exceeding 20% increase of the existing rent. It was argued that when such a notice is received by the landlord, he is bound to renew the lease by accepting the offer. No doubt, if the lease is for a fixed period agreed to by the lessor and lessee, no eviction can be sought for under the Rent Control Act before the expiry of the said period. However, on a reading of Ext.B2, we notice another clause which is incorporated as clause-4(iii) which provides option to the lesser as well as to the lessee to determine the lease before its expiry. The said clause reads as under:

"That in case this lease deed is determined prior to the expiry date either at the option of the lessor or lessee or otherwise, the lessee shall have the right to demand and collect from the lessor, the aforesaid deposit amount of Rs.8424/- (Rupees Eight Thousand Four Hundred and Twenty Four only) from the lessor and lessor will immediately pay the amount demanded by the lessee".

12. It is one of the cardinal principles of interpretation that an instrument should be read as a whole and all parts of it be taken together while construing a clause to find out the real intention of the maker of the same. A clause cannot be interpreted in isolation. Sometimes the meaning of the words may be determined by other words in the same clause, while in some cases a clause may be interpreted in the light of other clauses in the same instrument. Normally, a word used in the same clause more than once will have the same meaning. However, there may sometimes be compelling reasons for not interpreting a particular clause in the light of another clause. In all cases the scheme of the instrument should be the guiding factor. It is well settled that an instrument has to be expounded, not according to the letter, but according to the meaning and spirit of it. The net conclusion that can be drawn on a whole reading of Ext.B2 is that the parties to Ext.B2 never intended that the lease should be a continuing one.

13. The learned counsel for the revision petitioner placed reliance on the word 'shall' appearing in Clause-4(ii) of Ext.B2 to substantiate that it was imperative on the part of the landlord to renew the lease accepting the offer made by the revision petitioner. It is true that in ordinary usage 'shall' is imperative and 'may' is permissive and in accordance with such usage, the word 'shall' in an instrument will generally be held to be mandatory. However, Clauses in an instrument which encroach upon / the right conferred upon one of the parties by a statute to seek judicial remedies, whether as regards person or property, are subject to strict construction; in our view.

14. Where a clause in an instrument confers a right on one of the parties to an instrument which may be used to deprive the statutory right of the other party to have recourse to judicial remedies, such clause shall be interpreted in such a way not to take away the right conferred by the statute. The emphasis added by the learned counsel for the revision petition on the words 'shall' in clause 4(ii) of Ext.B2 is highly technical. As the word 'shall' in clause 4(ii) of Ext.B2 encroached upon the right of the landlord to seek his remedies under the provisions of the Act, it can be construed only as permissive.

15. The learned counsel for the respondents invited our attention to a situation somewhat similar to the one in the present case which was considered by a Division Bench of this Court in Allied Traders v. The Cochin Oil Merchants Association, 2002 (1) KLT 886. There, the tenant relied on a clause more or less similar to clause 4(ii) in Ext.B2 to continue in possession of the tenanted premises giving an increase of 10% in monthly rental amount every three years. Repelling the contention of the tenant, it was held that a tenant or landlord cannot contract out of the provisions of the Act and indefinite continuance of the tenant even after the landlord has satisfied the ingredients of Section 11 of the Act would be defeating the object and the purpose of the legislation.

16. It was argued strenuously by the learned counsel for the revision petitioner that the decision in 'Allied Trader's case (supra) does not have any application in the facts and circumstances of this case. In the aforesaid case, the clause in dispute was for the renewal of lease every three years and therefore, the term was indefinite; it was so argued. The persuasive submission of the learned counsel for the revision petitioner was that the landlord is bound to honour the willingness expressed by the revision petitioner to renew the lease for a further period of five years accepting the offer to pay the increased rate of rent by virtue of clause 4(ii) of Ext.B2.

17. At this juncture, we are reminded ourselves of the scheme of the Act which stems out of the legislative intention to give protection to the tenant as well as the legislative aim to uphold the right of the landlord to seek remedies for the eviction of the tenant under legitimate circumstances. The right to seek remedies under the Act afforded to the landlord cannot be taken away by an agreement to the contrary. As Clause 4(ii) of Ext.B2 curtails the right of the landlord to seek his remedies for eviction of the tenant under the Act, we are of the firm view that the principle laid down in Allied Trader's case can safely be followed in this case also. We further hold that any agreement which fetters the right of the landlord to seek remedies under the provisions of the Act is devoid of any legal sanctity and same is only to be ignored.

18. In the instant case a fixed term was specified in Ext.B2. However by incorporation of clause 4 (iii), the parties to Ext.B2 also envisaged a situation to determine the lease after proper notice, thereby indicating that they never intended the arrangement under Ext.B2 to be continued without interruption. We also notice that the period covered by Ext.B2 is over.

19. Regarding the alleged need, the original landlord gave evidence as PW1. The courts below found that his testimony was not seriously challenged in the cross examination either regarding the bonafides of the need or regarding his financial capacity to start a business. The evidence given by PW1 was supported by the testimony of PW2 who is the fifth respondent. Both of them gave evidence to the effect that no other buildings are available in the locality owned by them where they could start the proposed business. The relevance of the second proviso to sub section 3 of section 11 does not come into picture as the revision petitioner is a public sector undertaking doing insurance business.

20. The learned Rent Controller has considered the evidence in the correct perspective and found that the landlord needs the petition schedule premises for starting a furniture show room for his sons and the need does not lack bona fide. The learned Rent Control Authority, on a thorough reappraisal of the evidence, passed the impugned order. We see no irregularity, illegality or impropriety in the impugned order calling for an interference under section 20 of the Kerala Building (Lease and Rent Control) Act.

21. In the result, the revision petition fails and accordingly it is dismissed.

22. When our decision was made known to the learned counsel for the revision petitioner, he requested one year time to surrender the petition schedule premises. It was pointed out that the revision petitioner being a public sector undertaking requires some time to find out an alternate space. This request was seriously objected to by the learned counsel for the respondents. However, having bestowed our consideration on the entire facts and circumstances of the case, we are of the view that six months time can be granted to the revision petitioner to vacate the petition schedule premises, subject to the following conditions:

a) The revision petitioner shall pay charges for the use and occupation of the petition schedule premises with effect from 3.2.2012 till the date of surrender i.e 3.8.2012 at the rate of 4852/- per mensem.

b) The revision petitioner shall file an affidavit within one month from today before the Rent Control Court or the execution court as the case may be undertaking to give peaceful surrender of the building on 3.8.2012 and undertaking further to pay occupational charges at the rate of 4852/- with effect from 3.2.2012 till the date of surrender.

c) The execution proceedings pending, if any, shall be kept in abeyance till 3.8.2012.

23. We make it clear that the revision petitioner will get the benefit of time as allowed above only if he files the affidavit on time and honours the undertakings contained therein.