Khalid Ummer vs Afsal

P.N. Ravindran, J.—The petitioner is the tenant in R.C.P. No. 5 of 2011 on the file of the Rent Control Court, Vaikom. The respondent is the landlord therein. The respondent instituted R.C.P. No. 5 of 2011 for an order of eviction under sections 11(2)(b), 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act" for short). The substance of the averments in the rent control petition was that the rent is in arrears from October 2010, that the building is in such a condition that it needs reconstruction and that the landlord bonafide needs the reconstructed building for his own use to start a supermarket. The landlord had in the rent control court produced and marked as Ext. A6, the building permit issued from Thalayolaparambu Grama Panchayat as also a copy of the estimate and plan approved by the Thalayolaparambu Grama Panchayat as Ext. A7. He had also filed R.C.P. No. 4 of 2011 praying for a similar order of eviction in respect of the remaining portions of the same building, which is admittedly situate in Thalayolaparambu town.

The petitioner opposed the application contending inter alia that the need put forward is not bonafide and that the building does not require reconstruction. He also contended that he is entitled to the benefit of the second proviso to sub-section (3) of section 11 of the Act. Though the tenant had no contention in the counter statement that the landlord is in possession of other buildings in the same locality, town or village, an Advocate Commissioner was appointed for the purpose of ascertaining the said fact. The Advocate Commissioner after inspecting the petition schedule building as also the other buildings stated to be owned by the landlord, filed Ext. C1 report. The tenant or the landlord did not file objections to it.

Before the rent control court, the landlord examined himself as PW1, two other witnesses as PW2 and PW3 and produced and marked Exts. A1 to A17. The tenant examined himself as CPW1, two other witnesses CPW2 and CPW3 and produced and marked Exts. B1 to B3. The rent control court considered the rival contentions and held that the landlord has not succeeded in proving that the rent is in arrears. The rent control court also held that the building is in such a situation that it needs reconstruction. It also found that the need put forward by the landlord is bonafide. The rent control court repelled the plea of the tenant that the landlord has got other vacant buildings in his possession and therefore, in the absence of special reason, an order for eviction cannot be passed. The contention based on the second proviso was also repelled. An order for eviction was accordingly passed under sections 11(3) and 11(4)(iv) of the Act. The appeal therefrom filed by the tenant as R.C.A. No. 60 of 2013 was dismissed by the Additional Rent Control Appellate Authority-IV, Kottayam by judgment delivered on 9.6.2015. The tenant has, aggrieved thereby, filed this revision petition.

We heard Sri. P. Chandrasekhar, learned counsel appearing for the petitioner. The learned counsel appearing for the petitioner contended that it has come out in evidence and it has been admitted by the landlord when examined as PW1 that he owns two commercial buildings in the same village as also a residential building and therefore, the landlord is not entitled to an order for eviction in the absence of special reasons having regard to the first proviso to subsection (3) of section 11 of the Act. Inviting our attention to the report submitted by the Advocate Commissioner, the learned counsel for the petitioner contended that the burden was on the landlord to prove the special reasons and in the absence of such special reasons, an order for eviction could not have been passed.

We have considered the submissions made at the Bar by learned counsel appearing for the petitioner. We have also gone through the impugned judgment/order and the objections filed by the petitioner/tenant to the rent control petition and Ext. C1 report submitted by the Advocate Commissioner. A reading of the objections filed by the tenant discloses that he had no case therein that the landlord is in possession of other vacant buildings in the same city, town or village. He had, apart from contesting the claim for eviction under sections 11(2)(b), 11(3) and 11(4)(iv) of the Act, contended that he is entitled to the protection of the second proviso to subsection (3) of section 11 of the Act. He had contended that he is depending for his livelihood mainly on the income derived from the petition schedule building and that no other suitable building is available in the locality. Ext. C1 report discloses that he had filed a memo before the Advocate Commissioner to take note of two buildings owned by the landlord and situate about 2 kms away from the petition schedule building. The Advocate Commissioner has in Ext. C1 report stated as follows:

The Advocate Commissioner has in Ext. C1 report referred to the existence of two commercial buildings situate about 2 kms away from the petition schedule building and the fact that they are owned by the landlord. The Advocate Commissioner has also reported that one of the two buildings is a three storied building, that the ground floor of the said building is put to commercial use by the landlord who is running a business therein under the name and style "Able Auto Spare Parts" and that in the adjacent building also he is running the very same business. The Advocate Commissioner has also reported that the first and second floor of the first building is constructed for residential occupation. The Advocate Commissioner has also referred to the existence of a residential building allegedly owned by the landlord''s wife in paragraph 12 of the report.

It is evident from the materials on record that the landlord is not in vacant possession of any commercial building in the same city, town or village. In the commercial building in his possession he is running a business under the name and style "Able Auto Spare Parts". The spare parts business is being done going by the report and plan submitted by the Advocate Commissioner in both the buildings namely in the ground floor of the three storied building and in the building adjacent to it. The petitioner has not filed objections to the commission report and stated that the Commissioner has not referred to the existence of any other building. Such being the situation, as the evidence in the case on hand discloses that the landlord is not in possession of any commercial building but the evidence is to the effect that he is running a business under the name and style "Able Auto Spare Parts", we are of the opinion that the tenant cannot contend that in view of the first proviso to sub-section (3) of section 11 of the Act, an order for eviction could not have been passed. Apart from the fact that such a case had not been pleaded, the evidence available in the case on hand establishes beyond doubt that the landlord is not in possession of any vacant building in the same city, town or village.

We therefore find no good grounds to entertain the challenge to the impugned judgment/order. The revision petition fails and is accordingly dismissed. However having regard to the request made by the learned counsel appearing for the petitioner/tenant, we deem it appropriate to grant the tenant four months'' time from today to vacate the premises subject to the condition that he shall within two weeks from today file an undertaking in the form of an affidavit in the rent control court, undertaking to surrender vacant possession of the petition schedule building to the landlord within four months from today. He shall in the affidavit also undertake to pay the rent in arrears and to continue to pay the rent till the date of surrender. He shall also undertake that he will not induct strangers into possession of the petition schedule building or commit acts of waste therein. Needless to say, in the event of failure on the part of the petitioner/tenant in filing an affidavit within the time limit stipulated above, it will be open to the landlord to forthwith execute the order for eviction.