Shahitha Abootty vs V.P.Najeem

Sophy Thomas, J.

The tenants, who suffered concurrent orders of eviction, under Sections 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred as ‘the Act’) are the revision petitioners herein.

The landlord filed RCP No.8 of 2016 before the Rent Control Court, Mananthavady, seeking eviction of the tenants under Sections 11(3) and 11(4)(i) of the Act. According to him, the schedule premises, which was a residential building, was leased out to one Mr.Abootty, as per Ext.A1 rent agreement dated 01.08.1993. Since he was in bona fide need of that house, for the residential accommodation of his brother, who was managing their family business at Mananthavady, he wanted to get the tenants evicted from that house. The original tenant Sri.Abootty passed away, and respondents 1 to 4 are the legal heirs of deceased Abootty. After death of Sri.Abootty, his legal heirs sublet that building to the 5th respondent-Sri.K.P.Ashraf, without the knowledge and consent of the landlord. So the landlords approached the Rent Control Court for getting vacant possession of the schedule building under Sections 11(3) and 11(4)(i) of the Act.

The legal heirs of late Mr.Abootty as well as the 5th respondent Sri.K.P.Ashraf opposed the Rent Control Petition, alleging that though Ext. A1 agreement was executed in the name of Mr.Abootty, it was a joint lease in favour of the 5th respondent-Mr.K.P.Ashraf also. From the very beginning Sri.Ashraf was residing in the first floor of that building and that fact was well known to the landlord. As Mr.Ashraf was residing there since 1993, his gas connection, Aadhar Card etc. are in the address of the schedule room. According to them, the landlord was having another building near to the schedule building, and so there is no bona fides in claiming eviction of the tenants from the schedule building. Near to the petition schedule building, family of the landlord is having a suitable building and he could very well occupy that building, if he wants to reside at Mananthavady. So according to them, the bona fide need and sublease advanced by the landlord against the tenants are only a ruse to evict them.

The oral testimony of PW1, PW2, RW1, Exts. A1 to A6, B1 to B7, C1 and C2 constitute the evidence before the Rent Control Court.

After analysing the facts and evidence, the Rent Control Court found that the bona fide need projected by the landlord as well as the sublease of the tenanted premises to the 5th respondent, without the knowledge and consent of the landlord, were genuine and so, eviction was ordered under both the grounds.

The respondents took the matter in appeal before the Rent Control Appellate Authority as RCA No.9 of 2019. The Appellate Authority affirmed the order of the Rent Control Court, and dismissed the appeal, against which they have preferred this revision under Section 20 of the Act.

Now we are called upon to find out whether there is any illegality, irregularity or impropriety in the judgment impugned warranting interference by this Court.

Heard learned counsel appearing for the revision petitioners and learned counsel appearing for the respondent.

Admittedly, the schedule building, which is a residential house, belongs to the landlord. Ext.A1 is the lease agreement executed between the landlord and Mr.Abootty. According to the landlord, after death of Mr.Abootty, his legal heirs sublet that building to Mr.K.P.Ashraf, who is the 5th revision petitioner herein, without his knowledge and consent. Now the landlord is in bona fide need of that building for the residential accommodation of his brother Noushad, who is depending on him for the building. Mr.Noushad is managing the family business at Mananthavady and so he wants to reside at Mananthavady. He has no building to reside, other than the petition schedule building.

The fact that the 5th revision petitioner-Sri.K.P.Ashraf is now occupying the petition schedule room is not disputed by the tenants. But their case is that though Ext.A1 lease agreement was in the name of Mr.Abootty only, in fact, it was a joint lease in favour of both Mr.Abootty and Mr.K.P.Ashraf. According to them, from 1993 onwards, Sri.Ashraf was occupying the upstair of the building, with the knowledge and consent of the landlord, and so the case of sublease put forward by the landlord is not correct.

The Appellate Court rightly found that when there was a document executed between the landlord and the tenants as Ext.A1 lease agreement, the case of joint lease set up by the tenants was hit by Section 92 of the Evidence Act. When the terms of a contract was reduced to the form of a document, no evidence shall be given in proof of the terms of such contract except the document itself. When the terms of any such contract is proved, according to Section 91 of the Evidence Act, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from its terms. When Ext.A1 agreement clearly says that the lease agreement was between the landlord and Mr.Abootty, no evidence is permissible contradicting, varying, adding to or subtracting from its terms. Moreover, there was nothing to show that Sri.K.P.Ashraf ever paid rent for the schedule building at any point of time. So the contention taken up by the tenants that Sri.Ashraf was also a lessee under Ext.A1 agreement, was not liable to be accepted.

Now regarding the bona fide need, the landlord contended that his brother Noushad was managing their family business at Mananthavady and he wanted to stay at Mananthavady, for which no building was available, other than the petition schedule building. So Sri.Noushad was depending on the landlord, for the schedule building. The case of the tenants was that PW2-Noushad was conducting an independent business and he was not depending on PW1. The tenants have got a case that the family of the landlord is having another building near to the schedule building. It has come out in evidence that there was a small residential building near by, which was owned by their father, and father used to reside there, whenever he came to Mananthavady in connection with his family business. The building owned and occasionally occupied by the father will not disentitle PW1 from getting vacant possession of the schedule building, for the purpose of accommodating his brother, who is not having any other building in that locality for his residence. It has come out in evidence that the building owned by the father is a small one and it is not sufficient for PW2 to reside there with his family. PW2 was having his own business at Mananthavady apart from the family business as deposed by him. So, his requirement to reside at Mananthavady stands established. The fact that he had started construction of a new house at Muzhappilangad was not a reason to deny the eviction sought under Section 11(3) of the Act, as he was a businessman at Mananthavady.

Since the landlord succeeded in proving the bona fide need of the schedule building for the residential accommodation of his brother, and also the sublease in favour of the 5th revision petitioner, without the knowledge or consent of the landlord, the Rent Control Court as well as the Appellate Authority are justified in ordering eviction under Section 11(3) and 11(4)(i) of the Act. So the revision petition is liable to be dismissed.

Having regard to the facts and circumstances of the case, we deem it appropriate to grant six months time to the tenants to surrender vacant possession of the premises, on condition that they shall file an affidavit before the Rent Control Court on or before 22.05.2023, unconditionally undertaking to vacate the tenanted premises within six months from today, and agreeing to pay the arrears of rent, if any, within one month, and continue to pay the monthly rent before the due dates, till they vacates the premises. In case of default of any of these conditions, the landlords can initiate execution proceedings.

With these directions, the revision stands dismissed.