Kerala High Court
Abdu Rahiman vs Fathimma on 11 February, 2021
R.C.Rev. No. 270 of 2016 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942
RCRev..No.270 OF 2016
AGAINST THE ORDER/JUDGMENT IN RCA 64/2015 DATED 29-07-2016 OF DISTRICT
COURT& SESSIONS COURT,MANJERI
AGAINST THE ORDER/JUDGMENT IN RCP 56/2013 DATED 26-09-2015 OF MUNSIFF
COURT, TIRUR
REVISION PETITIONER/S:
ABDU RAHIMAN
AGED 43 YEARS, S/O.KAINIKKARA MAMMI, THRIKKANDAYU AMSOM,
KUMARAMANGALAM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADVS.
SRI.R.T.PRADEEP
SRI.P.K.JANARDHANAN
SMT.M.BINDUDAS
RESPONDENT/S:
1 FATHIMMA
W/O.CHEKKUMBATT HAMZA HAJI, TIRUR AMSOM, KOTT DESOM,
TIRUR TALUK, MALAPPPURAM DISTRICT. 676 101
2 ASHRAF
S/O.CHEKKUMBATT HAMZA HAJI, TIRUR AMSOM, KOTT DESOM,
TIRUR TALUK, MALAPPPURAM DISTRICT. 676 101
3 HANEEFA
S/O.CHEKKUMBATT HAMZA HAJI, TIRUR AMSOM, KOTT DESOM,
TIRUR TALUK, MALAPPPURAM DISTRICT. 676 101
4 KABEER
S/O.CHEKKUMBATT HAMZA HAJI, TIRUR AMSOM, KOTT DESOM,
TIRUR TALUK, MALAPPPURAM DISTRICT. 676 101
5 ABDUL AZEEZ
S/O.CHEKKUMBATT HAMZA HAJI, TIRUR AMSOM, KOTT DESOM,
TIRUR TALUK, MALAPPPURAM DISTRICT. 676 101
R1 BY ADV. SRI.ARUN MATHEW VADAKKAN
R1 BY ADV. SRI.K.P.SUDHEER
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
04.02.2021 , THE COURT ON 11.02.2021 PASSED THE FOLLOWING:
'CR'
A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ
-----------------------------------------------------------
R.C.Rev. No. 270 of 2016
-------------------------------
Dated this the 11th day of February, 2021
ORDER
P.V.Kunhikrishnan, J.
The revision petitioner is the petitioner in RCP No. 56/2013 on
the file of the Rent Controller of Tirur and the respondents herein are
the respondents in the above rent control petition (hereinafter
revision petitioner is mentioned as petitioner and the respondents are
mentioned as respondents respectively). The above rent control
petition was filed by the petitioner under Secs. 11(3) and 11 (8) of the
Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'Act,
1965').
2. The case of the landlord, in brief, is like this : The landlord is
the owner of the petition schedule building. The respondents are in
possession of the petition schedule property as legal heirs of deceased
'Hamza Haji'. Hamza Haji, the husband of the 1st respondent and
father of the other respondents had taken the petition schedule
property on lease in 1996 by fixing a monthly rent of Rs.1,500/- and
also on payment of Rs. 2,75,000/- as advance. According to the
petitioner, the respondents kept the rent in arrears from February
2011 onwards. Hence, he requested Hamza Haji to vacate the room
for starting a business in the petition schedule room. Since Hamza
Haji refused to accede to the request of the petitioner, he filed RCP
No. 20/2003 under Sec.11(3) of the Act, 1965. That application was
dismissed and the appeal filed as RCA No. 28/2004 was also
dismissed. According to the petitioner, since there is a possibility of
delay in getting the petition schedule room for his own occupation
after litigation, the petitioner started a business of bakery, cool
drinks, and coffee stall in a room having a length of 3½ metres and
width of 1 metre, which was constructed by him subsequently on the
northern side of the plaint schedule property. According to the
petitioner, there is a shortage of space in the room, in which bakery
and cool bar business conducted by him. Since the petitioner is
running that business in a busy crowded market area, it is highly
necessary to expand the business. Hence, the petitioner requires the
petition schedule shop room as additional space for expanding his
business. According to the petitioner, it is very convenient to conduct
business by attaching the petition schedule shop room to the room in
which he is conducting business.Hence, the petitioner sends a lawyer
notice on 6.1.2011 directing the respondents to vacate the room for
the above said purpose. According to the petitioner, the reply notice
send by the respondents contains false allegations. Hence, the
petition is filed for getting the vacant possession of the petition
schedule property.
3. Respondents Nos.1 and 4 appeared through counsel before
the Rent Control Court.But they have not filed any counter before the
Rent Control Court. Respondent No.3 filed a counter statement, in
which he contended that the petition schedule property was not
taken on lease by the respondent's father as stated in the petition.
According to him, the petition schedule property was in the co-
ownership of the petitioner and his brothers. While construction of the
petition schedule building was in progress, the respondent's father
obtained the room on lease from the petitioner's brother, Mohammed
Basheer by paying Rs.2,75,000/- as per agreement dated 9.11.1995.
Thereafter, the room bearing No.542V on the upstairs of the petition
schedule property was taken on lease by Hamza Haji for doing
business. After the death of Hamza Haji, a license is obtained in the
name of the 1st respondent, and the respondent Nos. 2 and 5 are
conducting business in the room. RCP No. 20/2003 and 21/2003 was
filed by the petitioner for getting vacant possession of the petition
schedule room and room No.542V. The respondent's father, Hamza
Haji died during the pendency of those petitions and thereafter, the
respondents were impleaded in those petitions. RCP Nos.20/2003 and
21/2003 were dismissed on 31.03.2004. Against the order in RCP
No.20/2003, the petitioner filed RCA No. 28/2004, and the same was
also dismissed on 25.10.2011.The allegation that there is rent arrears
from February 2011 was denied. The averments in the petition that
the petitioner has no avocation and the only source of income of the
petitioner is the rent of the room are also disputed. According to the
3rd respondent,the petitioner has got large number of properties and
other sources of income, and the petition is filed with an intention to
harass the respondents. According to the 3rd respondent, the
petitioner is not conducting any business as stated in the petition.
Hence, the respondents requests to dismiss the petition before the
Rent Control Court.
4. Respondent Nos. 2 and 5 also filed a separate counter with
almost similar contentions raised by the 3rd respondent.
5. To substantiate the case, PW1 was examined on side of the
petitioner, and Exts.A1 to A8 were marked on side of the petitioner.
RW1 was examined on side of the respondents and Exts.B1 to B7
were also marked on their sides. Exts.C1 to C4 were marked as court
exhibits.
6. After hearing both sides and perusing the evidence and the
documents, the Rent Control Court allowed the petition under Sec.
11(8) of the Act, 1965.
7. Aggrieved by the order of eviction by the Rent Control
Court, the respondents filed RCA No.64/2015 before the Rent Control
Appellate Authority (District Judge), Manjeri. The Appellate Authority
after considering the entire facts and circumstances found that the
order of eviction passed by the Rent Control Court is not sustainable.
8. According to the Appellate Authority, there is no bonafides
for the petitioner in seeking a claim under Sec.11(8) of the Act, 1965.
The Appellate Court found that the petitioner failed to prove that he
required the petition schedule room for additional accommodation for
expanding the business conducted by him in building No.542V. The
Appellate Authority also found that since there is a finding that the
petitioner failed to prove the requirement of additional
accommodation for expansion of business, the question of
comparative hardship does not arise. The Appellate Authority also
observed that taking licence for business in room No.542V after the
dismissal of RCA No.28/2004 and thereafter issuing notice for own
occupation on the ground of additional accommodation for expanding
the business will a long way speak about the lack of bonafide on the
part of the petitioner.
9. The Appellate Authority also found that the petitioner has
not proved the inadequacy of space for conducting the existing
business in his room and the need for expansion. Mainly on these
grounds, the Appellate Authority reversed the finding of the Rent
Control Court and ordered eviction under Sec. 11(8) of the Act, 1965.
Aggrieved by the above eviction order under Sec. 11(8) of the Act,
1965, this revision is filed under Sec. 20 of the Act, 1965.
10. Heard Adv.R.T.Pradeep for the petitioner and
Adv.K.P.Sudheer for the respondents.
11. The counsel for the petitioner submitted that the findings
of the Appellate Authority are perverse. According to the counsel, the
Rent Control appellate authority considered all the aspects of the case
and found that the petitioner is entitled eviction order under Sec.
11(8) of the Act, 1965. According to the counsel, the lack of bonafide
found by the Appellate Court is all figment of the imagination and
there is no evidence to support the same. The counsel also submitted
that the tenant cannot dictate the way in which the additional
accommodation is to be arranged by the petitioner. According to the
counsel, the Appellate Authority erred in finding that there is no
sufficient business now to the petitioner for expanding the same.
Therefore, the counsel submitted that the findings of the Appellate
Authority are perverse. The counsel also submitted that the petitioner
only prayed for the eviction of the ground floor of the building and the
1st floor is even now in the possession of the respondents. The
counsel submitted that the Appellate Authority erred in interfering
with the order passed by the Rent Control Court.
12. The counsel for the respondents submitted that the
Appellate Authority correctly found that there is no bonafides in the
claim raised by the petitioner. Moreover, the counsel also submitted
that the Rent Control Court and the Appellate Authority erred in
entertaining the petition under Sec. 11(8) of the Act, 1965, because
there is no pleadings in the Rent Control Petition to the effect that
the plaint schedule building is a portion of the building owned by the
landlord.
13. According to the counsel, this is the fundamental fact to be
pleaded and proved by a landlord for getting an eviction order under
Sec. 11(8) of the Act, 1965. The counsel submitted that even though it
is a revision filed by the landlord, the respondents can raise grounds
that have been held against him also in a revision filed by the landlord
in the light of the principle in O rder 41 Rule 22 Civil Procedure Code.
The counsel submitted that there is no basic pleadings in the Rent
Control Petition for ordering eviction under Sec.11(8) of the Act,
1965. The counsel also submitted that in the commission report, the
Commissioner has no case that the petition schedule building is the
part of the building,which is in occupation by the landlord. According
to the counsel, the functional integrity of the petition schedule
building and the building occupied by the landlord is not proved by
the landlord. According to the respondents, the petition schedule
building is a separate building and it has no functional integrity with
the building occupied by the landlord. The counsel submitted that the
court has to consider whether the premises is part of the building for
ordering eviction under Sec. 11(8) of the Act, 1965. The counsel relied
the judgment of this Court in Marzook K.N. And others v. A.J.
Simon [2012 (2) KLT 276] to support his contention. The counsel also
relied the judgment of the Apex Court in Gangaram v. N.Shankar
Reddy [AIR 1989 Supreme Court 302].
14. According to the counsel, this aspect is not properly
considered by the Rent Control Court and the Appellate Authority.
The findings in this regard by the Rent Control Court and the
Appellate Authority are prima facie unsustainable and hence, the
petition under Sec. 11(8) of the Act, 1965 is not maintainable.
15. After hearing both sides and perusing the records, we are
not impressed with the findings of the Appellate Authority to the
effect that the petitioner failed to prove that he required the petition
schedule room for additional accommodation for expanding the
business. The reasoning of the Appellate Authority for rejecting the
claim of the petitioner under Sec. 11(8) of the Act, 1965 is not
satisfactory. But we left open these contentions for the reasons
mentioned below.
Sec.11(8) of the Act, 1965 is extracted hereinunder.
"xxxxxx xxxxxx xxxxxx
xxxxxx xxxxxx xxxxxx
(8) 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.
xxxxxx xxxxxx xxxxxx
xxxxxx xxxxxx xxxxxx"
16. The requirements necessary to maintain a petition under
Sub-sec.8 of Sec. 11 of Act, 1965 are mainly the following.
1) The landlord must be in occupation of only a part of the
building
2) The tenant is in the occupation of the whole or any portion
of the remaining part of the building.
3) The landlord requires for his personal use the additional
accommodation of the portion of the building in occupation of the
tenant.
17. From the above requirements, it is clear that to maintain a
petition under Sec.11(8) of the Act, 1965, the landlord should be in
occupation of a part of the building and the tenant should be in
occupation of the whole or any portion of the remaining part of the
building. So the fundamental requirement to file a petition under
Sec.11(8) of Act, 1965 is that there should be functional integrity
between the building in occupation of the landlord and the building
in occupation of the tenant.
18. It is true that in Marzook's case (supra), this Court
observed that the following test can profitably be applied to decide
whether a premises is part of the building for Sec.11(8) of the Act,
1965 to apply. They are :-
10. "The following tests can profitably be applied to decide whether
the premises is part of the building for S.11(8) of the Act to apply. They
are:
i) Common title deeds
ii) Common construction
iii) Common foundation
iv) Common roof
v) Structural oneness &
vi) Functional integrity
So viewed we conclude that the shop rooms occupied by the
landlords and the tenant are part of the same building and that the
ground of additional accommodation can be called in aid."
19. This does not mean that the combination of all the above
requirements alone will constitute a ground for a petition under
Sec.11(8) of the Act, 1965. As held in Marzook's case (supra), these
are only tests that can profitably be applied to decide whether the
premises are part of the building as envisaged in Sec.11(8) of the Act,
1965. But, there cannot be any straight-jacket formula to find out
whether the premises occupied by the tenant is whole or any portion
of the remaining part of the building occupied by the landlord. The
proximity between the buildings occupied by the landlord and tenant
alone is not the criteria. Functional integrity is more important. Each
case has to be considered based on its facts. As we said earlier, there
cannot be any straight-jacket formula for deciding whether a
particular premises is part of the building as stated in Sec.11( 8) of the
Act, 1965.
20. The Apex Court in Gangaram's case (supra) considered a
similar provision contained in the Andhra Pradesh Building (Lease,
Rent and Eviction) Control Act, 1960. Sec. 10(3)(c) of the Andhra
Pradesh Building (Lease, Rent and Eviction) Control Act, 1960 is pari
materia with Sec.11(8) of the Act, 1965. Sec.10(3)(c) of the Andhra
Pradesh Building (Lease, Rent and Eviction) Control Act, 1960 is
extracted hereinunder:
"10(3)(c). A landlord who is occupying only a part of a building,
whether residential or non residential, may notwithstanding anything
in clause (a), apply to the Controller for an order directing any tenant
occupying the whole or any portion or the remaining part of the
building to put the landlord in possession thereof, if he requires
additional accommodation for residential purpose or for purpose of a
business which he is carrying on, as the case may be."
21. The question that was considered by the Apex Court was
whether a landlord can invoke Sec.10(3)(c) of the Andhra Pradesh
Building (Lease, Rent and Eviction) Control Act, 1960 to seek the
eviction of a tenant, who is not occupying a portion of the building
occupied by the landlord himself, but he is occupying another
building belonging to landlord. The Apex Court considered this point
in the following manner.
"7. On a consideration of the matter, we find that the contention of
Mr. Nambiar, which has found acceptance with the Appellate Court
and the High Court is not at all a tenable one. What S.10(3)(c)
envisages, is the oneness of the building and not the oneness of
ownership of two different buildings, one occupied by the landlord
and the other by the tenant. The significant words used in S.10(3)(c)
are "the landlord who is occupying only a part of a building" and
" any tenant occupying the whole or any portion of the remaining part
of the building". Surely no one can say that two adjoining buildings
bearing different door numbers, one occupied by the landlord and the
other by the tenant would make them one and the same building if
they are owned by one person and separate buildings if they are
owned by two different persons. A practical test which can be applied
to find out if two adjoining buildings form part of the same building or
two different buildings would be to see whether one of the two
buildings can be sold by the landlord and the purchaser inducted into
possession of the premises sold without the landlord's possession and
enjoyment of the premises in his occupation being affected. Viewed in
that manner, it can at once be seen that the leased premises in the
appellant's occupation can be independently sold and the purchaser
delivered possession without the respondent's possession of door No.
1-1-249 being affected in any manner. As a matter of fact, the
previous history of the building shows that before it was purchased
by the respondent, it was owned by Sri Sitaram Rao and the
respondent was owning only door No. 1-1-249. Such being the case,
merely because the appellant has acquired title to door No. 1-1-250
also, it can never be said that the building under the tena ncy of the
appellant became part and parcel of the respondent's building No. 1-
1-249. Similarly, the fact that the two buildings are separated only by
a single wall with no intervening space between them would not alter
the situation in any manner because the identity of two separate
buildings is not to be judged on the basis of the buildings two being
separated by a single wall or by two separate walls with intervening
space in between them."
22. From the above judgment, the following points can be
culled out. Sec.11(8) envisages the oneness of the building and not
the oneness of the ownership of the two different buildings, one
occupied by the landlord and the other occupied by the tenant. The
significant words used in Sec. 11(8) are "a landlord who is occupying
only a part of a building", and "any tenant occupying the whole or any
portion of the remaining part of the building". Therefore, it cannot be
said that two adjoining buildings bearing different door numbers, one
occupied by the landlord and the other by the tenant would made
them one and the same building. Each case has to be considered
based on its own facts. Simply because the two buildings are
separated only by a single wall with no intervening space between
them, would not alter the situation in any manner, because the
identity of two separate buildings is not be judged based on the
buildings being separated by a single wall or by two separate walls
with intervening space in between them. Functional integrity is
important. For example, if a roofed enclosed passage connecting the
two buildings occupied by the landlord and tenant is there, the
situation may be different. These are all facts to be pleaded and
established by the landlord in an application under Sec. 11(8) of the
Act, 1965.
23. While considering the facts of a particular case, the court
only needs to remember that the legislature has not provided for
Sec.11(8) of the Act,1965 being made applicable to a landlord, where
he owns adjoining buildings and he is in the occupation of only one of
those two buildings and the tenant is in the occupation of the other
and the landlord is bonafide in need of additional accommodation for
his residential or business needs. Therefore, from the above
discussion, it is clear that there cannot be any straight-jacket formula
to find out whether the tenant is in the occupation of a part of the
building occupied by the landlord to maintain an application under
Sec. 11(8) of the Act, 1965. Each case has to be decided based on the
facts of that particular case.
24. The next point to be decided is whether the requirements of
Sec.11(8) of Act, 1965 are to be pleaded in a Rent Control Petition.
The Full Bench of this Court in Pottarath Kunhammi v.
Varikkapulakkal Abdullakutty [2015 (1) KHC 684] observed that a
meticulous analysis of pleading should not be adopted while dealing
with Rent Control Petition under the Kerala Buildings (Lease and
Rent Control) Act, 1965. But the Full Bench also observed that it does
not mean that proper pleadings are not required. Therefore, proper
pleadings about the requirements needed for maintaining a petition
under Sec.11(8) of the Act, 1965 is necessary.
25. The case of the petitioner should be properly pleaded in a
petition so that the respondent can defend the case based on such
pleadings. If there is no proper pleadings in a petition, that will
definitely cause prejudice to the respondent to defend his case
properly. Therefore, to sustain a petition under Sec. 11(8) of the Act,
1965, the basic requirements of Sec. 11(8) of the Act, 1965 should be
specifically pleaded.One of the main requirements of a petition under
Sec. 11(8) of the Act, 1965 is that the landlord should share in the
occupation of his building with a tenant. In other words, the landlord
must be in occupation of only a part of the building and the tenant
should be in occupation of the whole or any portion of the remaining
part of the building. These basic pleadings are necessary to maintain
a petition under Sec.11(8) of the Act, 1965.
26. Now,coming back to the facts of this case, the respondents
took a contention before the Rent Control Court and before the
Appellate Authority that there is no functional integrity between the
building in occupation by the petitioner and the respondents and
therefore, an application under Sec. 11(8) of the Act, 1965 is not
maintainable. The same contention is raised in this revision also. It is
true that the above contention of the respondents was concurrently
found against the respondents by the Rent Control Court and by the
Appellate Authority. This is a revision filed by the landlord. But now,
it is settled by several decisions of this Court that the respondent in a
revision filed under Sec. 20 of the Act, 1965 can be permitted to
support the judgment of the lower authority not merely on the
grounds found in his favour, but also on the grounds which have been
held against him based on the principle of Order 41 Rule 22 Civil
Procedure Code. (See Santha v. 1st Additional District Judge
[1994 (1) KLT 516]. Therefore, the respondents are justified in raising
the contention that the requirement under Sec. 11(8) of the Act, 1965
is not available to the petitioner. For deciding this, the pleadings of
the petitioner in his Rent Control Petition is relevant. The relevant
portion of the pleadings in the Rent Control Petition is extracted
hereinunder :
"ÙV¼ßAÞøX §çMÞZ È¿JáKÄÞÏ Bakery, cool drinks and coffee stall §çMÞZ
È¿JáK ØíÅÜJí Õ{æøÏÇßµ¢ ØíÅÜAáùÕáIí. Õ{æø ºáøáBßÏ ØíÅÜ
ØìµøcÎÞÏÄßÈÞW ÎÞVAxí ¯øßÏ ¦ÏÄá æµÞIíåµâ¿áÄW µ¿µ{ᢠ¦ZAÞøá¢
©UÄá æµÞIá¢, çÎM¿ß Éà¿ßµÎáùßÏáæ¿ ¯øßÏ ÕÜáÄÞçAI ¦ÕÖc¢
ÕKßøßAáKá.ÙV¼ßAÞøÈí §çMÞZ Õ{æø Äáºí»ÎÞÏ ÕøáÎÞÈ¢ ÎÞdÄçÎ µßGáKáUá.
ÕViߺîá ÕøáK ¼àÕßÄ æºÜÕáµ{ᢠÎxᢠµÃAßæÜ¿áAáçOÞZ §çMÞZ È¿JáK
ÌßØßÈTí ÕßÉáÜàµøßAÞJÉf¢ ¼àÕßÄ æºÜÕáµZ È¿JßæµÞIá çÉÞµÞX
ÄæK ØÞicÎÞµÞæÄ ÌáißÎáGáIÞµáKÄÞÃí. ¦ÏÄßÈÞW §çMÞZåÈ¿JáK
ÌßØßÈTí ÕßÉáÜàµøßçAIÄí ©JÎ ÕßÖbÞØÎÞÏ ¦ÕÖcÎÞÏßøßAáKá. §çMÞZ
²øá ÌßØßÈTí È¿JáK ØíÅßÄßAí ¦ ÌßØßKTí ÄæK µâ¿áÄW
ØìµøcçJÞæ¿ ÕßµØßMߺîí È¿JáKÄÞÃí ÉáÄßÏ ²øá ÌßØßÈTí
Äá¿BáKÄßçÈAÞZ dÉÞçÏÞ·ßµ¢. ÌßØßÈTí ÕßÉáÜàµøßçAI
¦ÕÖcJßçÜAÞÏß §æMÞZ ÌßØßÈTí È¿JáK ÎáùßÏáæ¿ æÄÞG¿áJ ÎáùßÏÞÏ
ÙV¼ß ÉGßµ Îáùß ²ÝßEá µßçGIÄí ©JÎ ÕßÖbÞØÎÞÏ ¦ÕÖcÎÞÃí.å¨ Îáùß
§çMÞZ µºîÕ¿¢ È¿JáK ÎáùßÏáÎÞÏß çÏÞ¼ßMߺîá ÌßØßÈTí È¿JáKÄßÈᢠÎxá¢
Õ{æø ØìµøcÎáUÄÞÃí. ÙV¼ßAÞøX §çMÞZ È¿JáK µºîÕ¿¢
ÕßµØßMßAáÕÞÈᢠØíÅÜØìµøc¢ ©IÞAáÕÞÈᢠ¥Äá Õ{æø ¥ÄcÞÕÖcÕáÎÞÃí.
¥BßæÈ ¥Áà×ÃW ¥æAÞÎç¿×Èá çÕIß ÙV¼ßåÉGßµ Éà¿ßµÎáùß ²ÝßEá
µßçGIÄá Õ{æø ¥ÄcÞÕÖcÎÞÃí."
27. From the above pleadings, it is clear that there is no clear
averments in the petition to the effect that the landlord is occupying
a part of the building and the tenant is occupying the whole or any
portion of the remaining part of the building. This is the basic
requirement to maintain an application under Sec. 11(8) of the Act,
1965.
28. Before the Rent Control Court, an advocate commission
was appointed and he has submitted his report. Exts.C1 and C2 are
the first report. A perusal of Exts. C1 and C2 will not show that the
landlord is occupying only a part of the building and the tenant is
occupying the whole or any portion of the remaining part of the
building.
29. Moreover, PW1 who is examined on the side of the
petitioner deposed like this :
"çÌAùß µºîÕ¿¢ È¿JáK Îáùß dÉçÄcµ¢ ÄùÏᢠbasement©¢ ÍßJßµ{ᢠഉള
æµGß¿ÎÞÃí."
30. Similarly when DW1, who is the witness examined on the
side of the respondents deposed like this :
"ÙV¼ßÉGßµ Îáùß ØíÅßÄß æºÏîáKÄá ØáÎÞV 16 ÎáùßµZ ©Uí ²øá concrete
æµGß¿ÎÞÃí. 542.v ®KÄßæaÏᢠ542.P ®KíÄßæaÏᢠ§¿ÏßW ¦ ÎáùßµZ
çÕVÄßøßAÞX ²x ÍßJßÏÞÃí ©UÄí.?
ÖøßÏÜï.å¥ÄßÈß¿ÏßW ØíÅÜ¢ ©Ií. ¦ øIí ÎáùßµZAí §¿ÏßW çÕæù æµGß¿
ÎáùßµZ §Üï."
31. It is true that Rent Control Court and the Appellate
Authority considered this point. The finding of the Rent Control Court
is extracted herein.
"Though the respondents have no specific contention in the counter
statement that the room No.542V is not a part of the building wherein
the petition schedule room is situated, learned counsel for the
respondents submitted that the petition u/s 11(8) is not maintainable
since the petition schedule room and the room bearing No.542V are
different buildings. Learned counsel for the respondents submitted
that PW1 admitted that the petition schedule property and the room
bearing No.542V were constructed at different time. PW1 stated that
the building wherein the petition schedule room situated was
constructed in the year 1995-96. According to PW1, the room bearing
No.542V was constructed by him in the year 2003. He stated that he
had filed application before the Municipality for getting permit for
constructing that room. The respondent No.5 was examined as RW1.
He stated that there is a gap between the petition schedule room and
the room No.542V and he had shown the gap between those rooms to
the Advocate Commissioner. He failed to state any reason for not filing
any objection against the Commissioner's report for not reporting
those fact. As per the Commissioner's report, the petition schedule
room and the room bearing No.542V are the part of the same building.
Admitted case of the parties is that the room No.542V was
constructed in the year 2003. The present number of the room is also
542V. If it is a separate building, there is no possibility of giving same
digit number to the petition schedule room and the room bearing
No.542V." (emphasis supplied)
32. We perused the commission report. There is nothing in
Exts.C1 to C4 to the effect that the petition schedule room and the
room bearing No. 542V are part of the same building. Similarly, the
Appellate Authority also considered this point in the following
manner:
"The Commissioner's C1, C2, C3 and C4 report would indicate that
petition schedule room and room No.6/542 are situated nearby and no
space has been shown in between these two rooms by the
Commissioner. In the objection filed by the respondent also even
though it has been contended by the respondent that the building
No.542V has been constructed in the year 2003 they have no case that
it is not part of petition schedule room. So also in the objection filed by
the respondents 2 and 5 it has been categorically stated by them that
building No.542/V which is situated just on the northern side of the
petition schedule room has been constructed by the petitioner in the
year 2003. Since it is admitted by the respondent that it has been
constructed just on the northern side of the petition schedule room it
can only be considered and as an extended portion of petition schedule
room and that may be the reason why no specific contention has been
raised by the respondents in the objection that it is not part of the
petition schedule building."
33. The Appellate Authority concluded that since it is admitted
by the respondents that it has been constructed just on the northern
side of the petition schedule room, it can only be considered as an
extended portion of the petition schedule room. We are afraid
whether this finding of the Appellate authority can be accepted. The
specific point raised by the respondents-tenants before the Rent
Control Court and the Appellate Authority is that the petitioner-
landlord is not occupying any part of a building and the tenant is
occupying the whole or any portion of the remaining part of the
building. The Rent Control Court and the Appellate Authority
concluded based on the commission report that the building occupied
by the respondents-tenants is a portion of the remaining part of the
building occupied by the landlord. There is no basis for the same. In
such circumstances, according to us, the petition under Sec. 11(8) of
the Act, 1965 is to be rejected for lack of pleading about the main
requirement necessary to sustain a petition.
34. But, we cannot ignore the realities. According to the
petitioner/landlord,he is occupying only a part of the building and the
tenant is occupying the whole or any portion of the remaining part of
the building. That is the definite stand taken by the counsel for the
revision petitioner before this Court also. The counsel for the
respondents submitted before this Court that the building occupied
by the petitioner/landlord is not in any way connected to the building
occupied by the tenant. There is no functional integrity between the
room occupied by the petitioner and the respondents respectively. In
such situation, if the contention of the petitioner/landlord is factually
correct,a petition under Sec.11(8) of the Act, 1965 cannot be rejected
for poor drafting of a petition in which the basic requirement of
Sec.11(8) is not pleaded. The ultimate aim of a court of law is to find
out the truth. According to us, an opportunity can be given to the
petitioner/landlord to amend the pleadings and contest the case once
again. If such a prayer is allowed, there is no prejudice to the
respondents/tenants also, because if their contention to the effect
that there is no functional integrity between the building occupied by
the landlord and the building occupied by the tenants is correct, they
can also succeed by adducing additional evidence. The parties can be
allowed to file an application to appoint a commissioner to find out
this point specifically. There is no 'filling up the gap' in the justice
delivery system while taking any steps by the court to find out the
truth if it will not prejudice the parties to the lis. The counsel for the
respondents submitted that they produced a copy of the building
permit of the structure now occupied by the petitioner/landlord before
the Appellate Authority and the same will show that there is no
functional integrity between the bu ildings. We perused the records of
the Rent Control Appellate Authority. Such a document is not seen
produced or marked by the Appellate Authority. The respondents also
can produce those documents to show that there is no functional
integrity between the room occupied by the landlord and tenant to
sustain a petition under Sec.11(8) of the Act, 1965.
35. We are taking this stand in the peculiar facts and
circumstances of this case, because the petitioner/landlord should
not loose his case due to a poor drafting of a Rent Control Petition.
Therefore, according to us, the impugned orders can be set aside and
the matter can be remanded to the Rent Control Court for fresh
disposal in accordance to law. We make it clear that de nova trial is
not necessary. The petitioner/landlord can be given an opportunity to
amend the pleadings and the respondents can be allowed to file
additional objections, if any. Thereafter, the parties can be given an
opportunity to adduce further oral or documentary evidence.
Thereafter, the Rent Control Court will dispose the case within a time
limit. Therefore, this Rent Control Revision is allowed in the following
manner.
1) The order dated 26.9.2015 in RCP No.56/2013 of the
Rent Controller of Tirur and the order dated 29.7.2016 in
RCA No.64/215 of the Rent Control Appellate Authority
(District Judge, Manjeri) are set aside and the case is
remanded to the Rent Control Court for fresh disposal, in
accordance to law.
2) The petitioner/landlord is at liberty to file a petition to
amend the pleadings in the Rent Control Petition, if he is
advised so and if such a petition is filed, the Rent Control
Court will pass appropriate orders in it, in accordance to
law. If the amendment petition is allowed, the respondents
should be given an opportunity to file additional objections,
if any.
3) Thereafter, the Rent Control Court will give
opportunity to the petitioner and respondents to adduce
further oral and documentary evidence, if any.
4) The Rent Control Court will dispose the petition as
expeditiously as possible, at any rate, within 4 months from
the date of receipt of a copy of this order.
sd/-
A.HARIPRASAD
JUDGE
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
