Ramachandran and Others vs Parukutty Amma

Varghese Kalliath, J.—This is a revision u/s 20 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ''the Act'') at the instance of the tenants. The landlady filed a petition for eviction under Sections 11(2), 11(3), 11(4)(ii) and 11(4)(iii) of the Act The Rent Control Court dismissed the petition on all other grounds except Section 11(2) of the Act, The tenants as well as the landlady filed appeals. The appellate authority dismissed the appeal filed by the tenants and allowed the appeal filed by the landlady in respect of the ground u/s 11(4)(iii) of the Act. Now, Section 11(2) of the Act and other grounds under Sections 11(3) and 11(4)(ii) are not alive. Tenants are aggrieved by the order of the appellate authority granting eviction u/s 11(4)(iii) of the Act and they have filed this revision. Section 11(4)(iii) of the Act reads thus:

11(4) A landlord may apply to the Rent Control Court for en order directing the tenant to put the landlord in possession of the building-

(i) ....

(ii)....

(iii) if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same City, town or village.

In order to attract Section 11(4)(iii) of the Act, the landlady has to establish that the tenants had in their possession a building at the time of filing the petition or subsequently acquired possession of or put up a building, reasonably sufficient for their requirements in the same city, town or village. Admittedly, at the time of filing the application for eviction, the tenants had a building owned by them. There is no serious dispute as to the further fact that the building they were owned was reasonably sufficient for their requirements. The only dispute is that at the time when the petition was filed whether the tenants who.owned the building had possession of the building.

This aspect of the matter was considered by the appellate court in great detail. Admittedly, the tenants purchased a building in April, 1979. The relevant document is Ext. A-10. According to the tenants, at the time when they purchased the building, a tenant was occupying that building and so they had not actual physical possession of the building. This aspect of the matter was considered by the court below and finally the court found that the case pleaded by the tenants that they had no physical possession at the time when the, petition was filed was incorrect. The appellate court found that the tenants had a building owned by them and possessed by them at the time when the petition was filed. This is a finding of fact. This finding of fact of course if found to be an improper finding of fact or illegal finding of fact or the finding is vitiated by any illegality or irregularity, certainly we can interfere. But from the facts discussed by the appellate court, we are convinced that the finding is proper, legal and regular.

The case pleaded by the tenants that at the time when they purchased the building, it was wfth a tenant has no basis, since the document of sale does not show that they did not get physical possession and that they got only a symbolic possession, since the building was held by a tenant. The tenants produced a lease deed, Ext. B-1 to fortify their case that the building was tenanted at the time when they purchased the same. The appellate court did not rely on that document, because it is considered as a spurious document created for the purpose of this case. We also feel that the document is not genuine. The attendance circumstances including the evidence of P.W. 2, a doctor, who said that he took the building from the tenants for a short: period from May, 1979 to July, 1979 also belie the case of the tenants. The petition was filed only in 1980. Obviously, the doctor P.W. 2 also surrendered the building in July, 1979. We do not want to discuss this question of fact any further. We only agree with the finding of fact recorded by the appellate court.

Counsel in his able arguments submitted that admittedly in this case in the year 1986, six years after the filing of the application, the tenants have sold the building and so before passing the final order the tenants have not got the building in their possession and so the petition ought to have been dismissed. Though counsel argued the case with great ability, we are unable to accept this submission. The argument was on the basis that the sale of'' the building by the tenants is a subsequent event which has to be taken note of by the court and taking note of that subsequent event the relief has to be moulded and in moulding the relief the petition has to'' be dismissed on the ground that Section 11(4)(iii) of the Act is unavailable to the landlady. We feel that this approach is not just and proper and is not warranted on the theory that the subsequent events have to be taken note of by the courts in moulding the relief.

The classic decision on the question of taking note of the subsequent events in moulding the relief is by Gwyer C.J. in AIR 1941 5 (Federal Court) . In this case, a passage from a decision of the United States Supreme Court is referred to Patterson v. State of Alabama (1934) 294 U.S. 600. That passage reads thus: "We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered" (emphasis added).'' We irav also refer to a passage from Rameshwar and Others Vs. Jot Ram and Another, where Justice Krishna. Iyer analysing the concept of moulding the relief on the basis of subseauent events, said thus: "...The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine." Counsel submitted following the arguments advened by counsel who appeared for the tenants in the case 1980 KLT 430 (Narayanan Nair v. Pachumma) that when Section 11(4)(iii) of the Act has said that the court can take note of the fact of the tenants acquiring a building subsequent to the filing of the petition, in the same token the court has to consider the fact that the tenants, subsequent to the filing of the petition, have disgorged the building they had at the time, of filing the petition. This contention was ribt accepted by this Court in 1980 KLT 430. The" Court said that: "Even assuming the interpretation that is put upon Section 11(4) is acceptable, I find it difficult to accept the plea that the court should refuse to grant relief to a landlord pn the Ijasis of the tenant giving up of possession of a building which is reasonably sufficient for the tenant''s requirements in the same town or city just to escape eviction when the landlord approaches the court u/s 11(4) of the Act". After referring to the decision reported in AIR 1941 5 (Federal Court) and also the decision reported in Rameshwar and Others Vs. Jot Ram and Another, , Justice Chandrasekhara Menon observed thus: "On the basis of the principles enunciated by the Supreme Court it is difficult to accept the contention that when the tenant gives up his right to a building in his possession just before the final order in the proceeding so. as to defeat the rights of the landlord the court should take note of that in moulding the relief and refuse the landlord''s prayer for eviction".

Counsel for the tenants submitted that this Court should take note of the observation that the ''tenant gives up his right to a building in his possession just before the final order''. In this case also the tenants have given up their right to the building just six months prior to the final order anticipating that the ground u/s 11(4)(iii) of the Act will be upheld. It was contended thaifc the tenants have given up their right in the building.

The fact that the tenants have transferred the building which was in their possession and ownership six months prior to the disposal of the application cannot be putforth for the purpose of negativing the ground u/s 11(4)(iii) of the Act. The subsequent event that can be taken note of normally cannot be an event or an action engineered by the tenants themselves and which has got an impact on the ground alleged in the application. We see no merit in the submission that the sale of the building by the tenants has to be taken as a subsequent event in favour of the tenants to say that the landlady has lost the ground''for eviction u/s 11(4)(iii) of the Act. The learned District Judge also has considered this aspect in the right perspective and we see no reason to disagree with him.

In the result, the revision petition is only to he dismissed. We do so.

Counsel for the tenants submitted that they must be given a little time to surrender the building. The tenants are given three months time to surrender the building on condition that the tenants must pay the entire, rent till the date of surrender and also should file an undertaking in the form of an affidavit before the Rent-Control Court that they will surrender the building within three months from today. The affidavit has to 62 filed within 15 days from today. If the affidavit is not filed as stipulated, the landlady can execute the verdict she has obtained in her favour.