M/S.Quilon Electric Corporation vs C.Yesudevan Nadar
2021 Latest Caselaw 21275 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
          Friday, the 29th day of October 2021 / 7th Karthika, 1943

                UNNUMBERED IA 1/2021 IN CRP NO. 2524 OF 2002

RCA 17/1998 OF THE DISTRICT COURT (RENT CONTROL APPELLATE AUTHORITY), KOLLAM.

         RCP 4/ 1994 OF THE ADDITIONAL RENT CONTROL COURT, KOLLAM.

PETITIONER/ 3RD PETITIONER:

   1. BALAKRISHNA PILLAI, S/O RAGHAVAN PILLAI, AGED 70 YEARS, PARTNER,
      M/S. QUILON ELECTRONIC CORPORATION, MAIN ROAD, KOLLAM.


RESPONDENTS/ RESPONDENTS:


   1. T. SABARIYAYI, W/O LATE YESUDASAN NADAR, AGED 85 YEARS, MOHAN
      MANSION, CONTONMENT,     BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM
      TALUK, KOLLAM DISTRICT-691 001.
   2. CELINE THANKARAJ, AGED 58 YEARS, D/O LATE YESUDASAN NADAR, MOHAN
      MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK,
      KOLLAM DISTRICT-691 001.
   3. KUMARI LALI ALIAS PHILOMINA, AGED 56 YEARS, D/O LATE YESUDASAN
      NADAR, MOHAN MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE,
      KOLLAM TALUK, KOLLAM DISTRICT-691 001.
   4. MANUEL MOHANDAS, AGED 53 YEARS, S/O. LATE YESUDASAN NADAR, MOHAN
      MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK,
      KOLLAM DISTRICT-691 001.
   5. VIJAYA SURESH, AGED 48 YEARS, S/O. LATE YESUDASAN NADAR, MOHAN
      MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK,
      KOLLAM DISTRICT-691 001.
   6. Y.S. JAYA, AGED 45 YEARS, D/O LATE YESUDASAN NADAR, MOHAN MANSION,
      CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK, KOLLAM
      DISTRICT-691 001.
   7. VINOD MOHANDAS, AGED 43 YEARS, D/O LATE YESUDASAN NADAR, MOHAN
      MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK,
      KOLLAM DISTRICT-691 001.
   8. CHELLAN MOHANDAS, AGED 41 YEARS, D/O LATE YESUDASAN NADAR, MOHAN
      MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK,
      KOLLAM DISTRICT-691 001.
   9. VISWAN MOHANDAS, AGED 39 YEARS, D/O LATE YESUDASAN NADAR, MOHAN
      MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK,
      KOLLAM DISTRICT-691 001.
  10. PRAKASH MOHANDAS, AGED 36 YEARS, D/O LATE YESUDASAN NADAR, MOHAN
      MANSION, CONTONMENT, BEACH ROAD, KOLLAM EAST VILLAGE, KOLLAM TALUK,
      KOLLAM DISTRICT-691 001
      Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to issue appropriate
directions to the respondents to put the petitioner back in possession of
the plaint schedule building in R.C.P No. 4/1994 before the Rent Control,
(Additional Munsiff).

     This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof and this court's judgment dated
16-06-2005 and upon hearing the arguments of M/S B.KRISHNA MANI &
V.PREMCHAND, Advocates for the petitioner and of M/S M.SHAHEED AHMAD &
K.A.NOUSHAD, Advocates for the respondents, the court passed the
following


                                                                     [PTO]
      ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
      ---------------------------------------------------
              Un-numbered I.A.No.1 of 2021
                               in
                   C.R.P.No.2524 of 2002
     ------------------------------------------------------
         Dated this the 29th day of October, 2021

                             ORDER

Anil K. Narendran, J.

The petitioner is the respondent-tenant in R.C.P.No.4 of

1994 on the file of the Additional Rent Control Court

(Additional Munsiff), Kollam, the appellant in R.C.A.No.17 of

1998 on the file of the IInd Additional Rent Control Appellate

Authority (District Judge), Kollam; and the petitioner in

C.R.P.No.2524 of 2002 before this Court, which was one filed

under Section 20 of the Kerala Buildings (Lease and Rent

Control) Act, 1965. The respondents herein-landlords filed

R.C.P.No.4 of 1994 seeking eviction of the tenant from the

petition schedule building under Section 11(3) of the Act. This

Court, by the common order dated 16.06.2005, dismissed

C.R.P.No.2524 of 2002 and also the connected matter, i.e.,

C.R.P.No.2523 of 2002. The operative portion of that order

reads thus;

"In the result, the revision petitions are dismissed. The respondent/revision petitioner will surrender Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

vacant possession of the premises within three months from the date on which the tenant of the upstair room, i.e. the respondent in RCP 3/94 surrender vacant possession of the upstair portion and also on providing a shop room on the first floor in the newly constructed building to the respondent, on fair rent and also on the respondent remitting arrears of rent if any, and continue to remit the rent and files an affidavit within one month before the court below undertaking to comply with the above conditions."

2. The petitioner has filed this interlocutory application

under Section 11 (12) of the Act seeking an order directing the

respondents-landlords to put the petitioner-tenant back in

possession of the petition schedule building in R.C.P.No.4 of

1994 on the file of the Additional Rent Control Court, Kollam

on the ground that the original tenant namely, C.Yesudasan

Nadar or his legal heirs have no intention to demolish the

petition schedule building in terms of the bonafide need set up

in the Rent Control Petition.

3. The Registry noted various defects in the

interlocutory application and hence, it is listed today as an

unnumbered interlocutory application.

4. Heard the learned counsel for the petitioner-tenant. Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

5. The issue that arises for consideration is as to the

maintainability of an application under Section 11(12) of the

Kerala Buildings (Lease and Rent Control) Act, before this

Court, in a revision petition filed under Section 20 of the said

Act, which has already been dismissed by the order dated

16.06.2005.

6. Section 11 of the Act deals with eviction of tenants.

As per Section 11(3) of the Act, a landlord may apply to the

Rent Control Court, for an order directing the tenant to put the

landlord in possession of the building if he bona fide needs the

building for his own occupation or for the occupation by any

member of his family dependent on him. As per the first

proviso to Section 11(3), the Rent Control Court shall not give

any such direction if the landlord has another building of his

own in his possession in the same city, town or village except

where the Rent Control Court is satisfied that for special

reasons, in any particular case it will be just and proper to do

so. As per the second proviso to Section 11(3), the Rent

Control Court shall not give any direction to a tenant to put

the landlord in possession, if such tenant is depending for his Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

livelihood mainly on the income derived from any trade or

business carried on in such building and there is no other

suitable building available in the locality for such person to

carry on such trade or business. As per the third proviso to

Section 11(3), no landlord whose right to recover possession

arises under an instrument of transfer inter vivos shall be

entitled to apply to be put in possession until the expiry of one

year from the date of the instrument. As per the fourth proviso

to Section 11(3), if a landlord after obtaining an order to be

put in possession transfers his rights in respect of the building

to another person, the transferee shall not be entitled to be

put in possession unless he proves that he bona fide needs the

building for his own occupation or for the occupation by any

member of his family dependent on him.

7. Section 11(10) of the Act provides that claim under

sub-section (3), (4), (7) or (8) of Section 11 should be bona

fide. As per Section 11(10) The Rent Control Court shall, if it is

satisfied that the claim of the landlord under sub-section (3),

(4), (7) or sub-section (8) is bona fide, make an order

directing the tenant to put the landlord in possession of the Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

building on such date as may be specified by the Rent control

Court, and if the Court is not so satisfied, it shall make an

order rejecting the application. As per the first proviso to

Section 11(10), in the case of an application made 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. As per the second proviso to Section 11(10), the

Rent control Court may give the tenant a reasonable time for

putting the landlord in possession of the building and may

extend such time so as not to exceed three months in the

aggregate.

8. Section 11(12) of the Act deals with restoration of

possession of tenant. As per Section 11(12), where a landlord

who has obtained possession of a building in pursuance of an

order under sub-section (3), does not occupy it without

reasonable cause within one month of the date of obtaining

possession, or having so occupied it, vacates it without

reasonable cause within six months of such date, the tenant

who has been evicted may apply to the Rent Control Court for

an order directing that he shall be restored to possession of Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

the building, and the Court shall make an order accordingly

notwithstanding anything contained in Section 4.

9. Section 11(13) of the Act deals with failure of

tenant to apply under Section 11(12). As per Section 11(13),

where a tenant who is entitled to apply for possession under

sub-section (12) fails to do so without reasonable cause within

one month from the date on which the right to make the

application accrued to him, the officer referred to in sub-

section (1) of section 4, shall have power, if the building is

required for any of the purposes or for occupation by any of

the officers or persons specified in sub-section (3) of that

Section to give intimation to the landlord that the building is

so required, and thereupon the provisions of sub-sections (5)

and (8) of section 4 shall apply to the building. As per the

proviso to Section 11(13), this sub-section shall not apply to a

building the monthly rent of which does not exceed fifteen

rupees.

10. In Chaliyadan Mariyam v. Ittappurath

Atholintavide Saifuddeen [2014 (2) KHC 759] a Division

Bench of this Court held that, the expression 'without Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

reasonable cause', occurring in Section 11(12) of the Kerala

Buildings (Lease and Rent Control) Act, cannot be interpreted

in a restrictive sense. The purpose and intent of Section

11(12) is to restrict the landlord from unjustifiably getting

vacant possession of tenanted building under the pretext of

bona fide need and after getting possession to restrict the

landlord from disposing of the same for other purposes. In

such a situation, the court is not powerless. The tenant is

given liberty to apply before the court for restoration of

possession. That means, a landlord, who gets an order of

eviction under Section 11(3) of the Act, cannot deal with the

building otherwise than for the bona fide need for which

eviction was sought. If he does so, the consequence of the

same would be restoration of possession of the building to the

tenant, unless the landlord establishes reasonable cause as

provided under Section 11(12) of the Act. The burden to

establish reasonable cause is certainly on the landlord. The

burden of proof in that regard is not a rigid one and

'reasonable cause' cannot be assessed with mathematical

precision. There may be a host of situations where a landlord, Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

who got vacant possession of the building, may fail to occupy

it within one month. All such situations cannot be treated in

the same manner in all cases. If a reasonable and true

explanation is offered by the landlord for non-occupation of

the building within one month from the date of obtaining

possession, the court will accept the same, depending on the

facts and circumstances of each case. No straight-jacket

formula can be adopted to ascertain what is reasonable cause.

It varies from case to case and from situation to situation. The

normal human conduct and the circumstances under which the

landlord could not occupy the building are all relevant factors

to be taken note of, to arrive at a conclusion whether the

landlord had reasonable cause for non-occupation within a

period of one month.

11. In Chaliyadan Mariyam the Division Bench was

dealing with a case in which the petitioner-landlady filed the

Rent Control Petition against the respondent-tenant, under

Section 11(3) of the Act for getting vacant possession of the

petition schedule building, for the bona fide need of her son,

for the purpose of running a Dental Clinic. Though the Rent

Control Court dismissed the Rent Control Petition, it was Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

reversed by the Rent Control Appellate Authority and it was

confirmed by this Court in revision filed under Section 20 of

the Act. The tenant requested for time before this Court to

vacate the petition schedule building and time up to

30.09.2006 was granted. Before that date, the tenant

surrendered the key of the building before court and the

landlady got delivery of the building on 17.10.2006. Alleging

that the landlady did not occupy the building within one month

from the date of obtaining possession, the tenant filed an

application under Section 11(12) of the Act before the Rent

Control Court on 10.01.2007. In that Rent Control Petition, an

order under Section 11(12) of the Act was passed by the Rent

Control Court. The landlord filed Rent Control Appeal before

the Rent Control Appellate Authority, under Section 18(1)(b)

of the Act. That appeal ended in dismissal, by confirming the

order of the Rent Control Court. Challenging that judgment

and order the landlady filed Rent Control Revision before this

Court, under Section 20 of the Act. This Court found that, the

courts below took a hyper-technical view of the matter and

erroneously held that the landlady failed to establish Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

reasonable cause within the meaning of Section 11(12) of the

Act for non-occupation of the building within one month. This

Court held that there is patent illegality and impropriety in the

order and judgment of the authorities below, warranting

interference under Section 20 of the Act. Accordingly, the

Division Bench allowed the Rent Control Revision and set aside

the order and judgment of the authorities below and dismissed

the application filed by the tenant under Section 11(12) of the

Act.

12. As held by the Division Bench in Chaliyadan

Mariyam, a landlord, who gets an order of eviction under

Section 11(3) of the Act, cannot deal with the building

otherwise than for the bona fide need for which eviction was

sought. If he does so, the consequence of the same would be

restoration of possession of the building to the tenant, unless

the landlord establishes reasonable cause as provided under

Section 11(12) of the Act. The burden to establish reasonable

cause is certainly on the landlord.

13. An application under Section 11(12) of the Act has

to be filed before the Rent Control Court in which the Rent

Control Court shall order restoration of possession unless the Un-numbered I.A.No.1 of 2021 in C.R.P.No.2524 of 2002

landlord establishes reasonable cause as provided under

Section 11(12) of the Act. Such an application cannot be filed

as an interlocutory application in a Rent Control Revision filed

under Section 20 of the Act, which has already been dismissed

vide order dated 16.06.2005.

Therefore, the defect noted by Registry sustained.

Sd/-

ANIL K. NARENDRAN, Judge

Sd/-

P.G. AJITHKUMAR, Judge AV/29/10

29-10-2021 /True Copy/ Assistant Registrar