Krishnadas vs Velayudhan Nair

K.T. Sankaran, J.—The tenant challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Sections 11(4)(i) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ''the Act''). The petition schedule building was let out to the tenant as per the agreement dated 1.6.1984 fixing a monthly rent of Rs. 300/-. From January, 2011 onwards, rent was enhanced to Rs. 400/-. Since the Rent Control Court rejected the petition under S. 11(2)(b) and since that order became final, the question of arrears of rent does not assume importance now. The landlord alleged that the petition schedule building was sublet by the tenant to his brother Asokan and the sub-lessee is doing business in the petition schedule building. The respondent/landlord contended that he is conducting a stationery business in a temporary shed which was made after covering the staircase area. The landlord stated that his son sustained disability in a motor vehicle accident. According to the landlord, he bona fide requires the petition schedule building for expanding his business with the help of his son. There are two rooms in the building belonging to the landlord. Those two rooms were let out to the present tenant and his brother Asokan. The landlord contended that the tenant (Krishnadas) sublet one room to his brother Asokan. Thus both the rooms in the main building are now in the possession of Asokan. The landlord is in possession of only the shed attached to the building.

The tenant denied the sublease. He contended that Asokan is not doing business in the petition schedule building and that he is doing business only in the adjacent room which was let out to him. The tenant also disputed the claim made by the landlord under S. 11(8) of the Act.

The Rent Control Court considered the pleadings and the oral and documentary evidence in the case and held on facts that the petition schedule building was sublet by the tenant to his brother Asokan. Exhibits A7 to 10, the extracts of the license fee register maintained by the Panchayath, were relied on by the Rent Control Court to hold that the license to conduct the business in the petition schedule shop room was given to Asokan, the brother of the tenant. The evidence of the landlord as PW 1 was also found reliable by the Rent Control Court. The Commissioner, who was examined as PW 2 before the Rent Control Court, stated in his report that Asokan was conducting business in the petition schedule shop room. From the oral and documentary evidence, the Rent Control Court arrived at the finding that the landlord established that Asokan has exclusive possession of the petition schedule room and that it was on a sublease created by the tenant. The Appellate Authority confirmed the finding of the Rent Control Court under S. 11(4)(i) of the Act.

As regards the ground under S. 11(8) of the Act, both the Authorities found that the need for additional accommodation put forward by the landlord is genuine. A contention was raised by the tenant before the Rent Control Court that the adjacent room of the shed in the possession of the landlord is under the occupation of Asokan, the brother of the tenant, and therefore, even if the landlord has need for additional accommodation under S. 11(8), he should have sought for eviction of the building in the possession of Asokan. Another contention raised by the tenant was that the landlord: constructed another building on the rear side of the building in which the petition schedule room is situated and if at all the landlord wanted to expand his business, he could occupy sufficient rooms in the building on the rear side. These contentions were negatived by the Rent Control Court as well as by the Appellate Authority.

It is not in dispute that the room adjacent to the room occupied by the landlord is in the occupation of Asokan and the petition schedule room is situated next to the room occupied by Asokan. That means, in between the room in the occupation of the landlord and the petition schedule room, the room in the occupation of Asokan is situated. The contention of the tenant is that the claim for additional accommodation under S. 11(8) could only be in respect of the room adjacent to the room in the occupation of the landlord. S. 11(8) does not contain any such restriction. S. 11(8) provides that "a landlord who is occupying only a part of a building may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use." It is not a requirement under S. 11(8) that the room sought to be evicted should be the room adjacent to the room in the occupation of the landlord. The requirements of sub-section (8) of S. 11 are the following:

(i) The landlord must be in occupation of only, a part of the building.

(ii) The tenant is in occupation of the whole or any portion of the remaining part of the building.

(iii)The landlord requires for his personal use additional accommodation of the portion of the building in the occupation of the tenant.

The tenant cannot dictate to the landlord that he should make the application for eviction of only the adjacent room and not a room farther from the room in the occupation of the landlord, in order to found his claim under S. 11(8). There is no such fetter placed by the statute on the landlord and there is no scope for making such an interpretation going by the scheme of S. 11(8) and the first proviso to S. 11(10). We therefore reject the contention of the tenant in this regard.

The First proviso to S. 11(10) mandates that in the case of an application under sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. In the present case, the landlord has a case that the tenant sublet the petition schedule building to his brother. If that is so, the question of the hardship which may be caused to the tenant outweighing the advantage to the landlord becomes practically irrelevant. In such a case, where sublease is established, if the landlord prays for eviction under S. 11(8) as well, he may be able to get an order in his favour if he proves the ingredients of sub-section (8) and the bona fides as provided in sub-section (10) of S. 11. In the present case, it was found that the tenant sublet the petition schedule building. A tenant loses the protection provided under the Act, if he makes an objectionable sublease. Since the tenant has created a sublease, he cannot claim the protection of the first proviso to S. 11(10) of the Act.

The findings rendered by the authorities below are findings of fact based on oral and documentary evidence. We do not find any illegality, irregularity or impropriety in the order and judgment of the authorities below, warranting interference under S. 20 of the Act. Accordingly, the Rent Control Revision is dismissed. Lastly, the learned counsel for the petitioner/tenant prayed for six months'' time to vacate the petition schedule building. Taking into account the facts and circumstances, we are inclined to grant time till 30.6.2014 to the tenant to vacate the petition schedule building.

Accordingly, the tenant is granted time to vacate the petition schedule building till 30.6.2014 on condition that the tenant shall file an affidavit before the Rent Control Court on or before 22.5.2014, unconditionally undertaking to vacate the petition schedule building on or before 30.6.2014 and also on condition that the tenant shall deposit the arrears of rent before the Rent Control Court on or before 22.5.2014. If the tenant fails to comply with any of the conditions mentioned above, the respondent/landlord would be entitled to take necessary steps in execution.