Kerala High Court
Anandavalli Amma vs Haridasan Unni on 6 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
OP (RC) NO. 89 OF 2017
AGAINST THE JUDGMENT DATED 23.2.2017 IN RCRP NO.1 OF 2014 AND
R.C.R.P. NO.3 OF 2014 OF DISTRICT & SESSIONS COURT, ALAPPUZHA
PETITIONERS/RESPONDENTS :
1 ANANDAVALLI AMMA
AGED 71 YEARS
D/O.BHAVANI AMMA, BHAVANI SADANAM,
KADAKKARAPPALLI,CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688529
2 JAYAKRISHNAN
AGED 40 YEARS, S/O.RADHAKRISHNA KARTHA,
BHAVANI SADANAM, KADAKKARAPPALLI,CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688529
3 HARIKRISHNAN
AGED 35 YEARS, S/O.RADHAKRISHNA KARTHA,
BHAVANI SADANAM, KADAKKARAPPALLI,
CHERTHALA TALUK, ALAPPUZHA DISTRICT-688529
BY ADVS.
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.S.NITHIN ANCHAL
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENT/PETITIONER :
HARIDASAN UNNI
AGED ABOUT 57 YEARS, S/O.KRISHNAN UNNI,
O.P.(R.C.) No.89 of 2017 2
IKKARA MADHATHIL, CHERTHALA,
ALAPPUZHA DISTRICT-688524
BY ADVS.
SRI.GEORGE VARGHESE (MANACHIRACKEL)
SRI.M.P.RAMNATH
THOMSTINE K. AUGUSTINE K.A.
THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(R.C.) No.89 of 2017 3
AMIT RAWAL & EASWARAN S. , JJ.
-------------------------
O.P.(RC) No.89 of 2017
-----------------------------------
Dated this the 6th day of June 2024
JUDGMENT
AMIT RAWAL, J.
Petitioner landlord is aggrieved of the judgment dated
23.2.2017 rendered in R.C.R.P. No.1 of 2014 of the appellate
authority whereby, the order of the Rent Controller in I.A. No.143 of
2013 in E.P. No.273 of 2003 has been set aside.
2. The case has little checkered history. The
petitioner/landlord sought the ejectment of various tenants
including the respondent vide R.C.P. No.36 of 1998 by invoking the
provisions of Section 11(4)(IV) of the Kerala Building (Lease & Rent
Control) Act which entitles the landlord to seek eviction for
reconstruction of the building and offer the premises to the tenants
on determination of the fair rent. The aforementioned R.C.P was
allowed vide ejectment order dated 16.10.2001 and the appeal
preferred by all the tenants including the respondent was also
dismissed on 7.4.2004.
4. Petitioner -landlord reconstructed the building in the
assessment year 2005 - 2006 and after construction offered the
possession of the portion to the respondent -tenant which was not
accepted on the ground that it did not have the same amenities
which were there before the demolition/reconstruction of the
building. It is in that background the petitioner / landlord filed the
aforementioned I.A. During the pendency of the aforementioned
I.A., the key was handed over to the tenant on 2.4.2013 in court.
Despite that the tenant did not occupy the premises. He kept on
insisting for provision of kitchen and toilet, the amenities in
existence at the time when the building before the reconstruction or
in terms of the lease deed dated 1.8.1976, produced as Ext.P1
before the Rent Controller.
5. Learned Rent Controller vide Ext.P7 judgment dated
12.7.2014 directed the tenant to return the keys by holding that the
tenant waived his right for repossession.
6. The petitioner/landlord alleged to have let out the premises
to a tenant at a particular rate of rent. Appeal preferred has been
allowed. It is in that background, as noticed above, petitioner
landlord is in this Court.
7. Mr.P.B. Subramanian the learned counsel appearing on
behalf of the petitioner in support of his arguments raised the
following issues.
No doubt the provisions of Section 11(4)(i) and the proviso
provided therein enables the tenant to take the possession of the
area on reconstruction of the building by the landlord on
determination of the fair rent. Landlord though offered the same but
the tenant, as noticed above, did not accept for want of amenities
like kitchen and toilet. The question whether the kitchen and toilet
was in existence has not been proved on record for, the lease deed
mentioned that on the western side there is a kitchen and the
premises was having a thatched roof. Non occupation of the
premises by the tenant has actually resulted into waiver and this
fact has totally been non-appreciated/ignored by the court by
reversing the finding. The doctrine of waiver is magna carta in such
circumstances. The conduct of the parties would definitely reflect
that the tenant had lost the right to retain the premises. The tenant
has failed to place on record any material to establish that the
landlord, at the time of renting out the premises in 1976, had
constructed the kitchen and the toilet which were part and parcel of
the tenanted premises. It is also pointed out that, during the
pendency of the aforementioned I.A., as an interim measure, the
Executing Court passed Ext.P5 order dated 18.3.2013 issuing two
directions. 1) to take the possession and 2) to determine the fair
rent and further gave liberty to the tenant to occupy. That order
was also challenged in R.C.R.P No. 3 of 2004 and by common order
both R.C.R.P No.1 of 2014 and R.C.R.P. No.3 of 2014 have been
decided.
9. On the other hand, Sri.Thomstine K. Augustine, the learned
counsel appearing on behalf of the respondent/tenant countered the
argument of Sri.Balasubramaniam by submitting that the terms and
conditions of the lease deed executed between the landlord and the
tenant are sacrosanct. They cannot be deviated in the manner and
mode as the landlord has attempted to build a new case during the
course of the subsequent proceedings. It cannot be believed that
the tenant who is conducting a business of a restaurant would not
have the facility of a kitchen or toilet, in fact no such business can
be done. In such circumstances there is no illegality and perversity
in the order of the appellate authority as the tenant in no way could
have undertaken the same avocation before the demolition of the
building and the eviction order. It was a ploy adopted by the
landlord and has been successful in ousting the tenant as he has
been able to fetch more rent by letting out the disputed premises.
10. We have heard the learned counsel for the parties and
perused the paperbook. The facts narrated above, concededly, not
in dispute. The provision of Section 11(4)(IV) of the Kerala Building
(Lease & Rent Control) Act are extracted herein.
"(4) A landlord may apply to the Rent Control Court for an order
directing the tenant to put the landlord in possession of the building,-
xxx
(iv) if the building is in such a condition that it
needs reconstruction and if the landlord requires bona fide
to reconstruct the same and if he satisfies the Court that
he has the plan and license, if any required, and the
ability to rebuild and if the proposal is not made as a
pretext for eviction:
Provided that the landlord who evicts a tenant and
does not reconstruct completely the building within a time
which may be fixed or extended by the Rent Control
Court, shall on a petition before that Court be liable to a
fine of rupees five hundred, if it is proved that he has
willfully neglected to reconstruct completely the building
within such time:
Provided further that the Court shall have power at
any time to issue directions regarding the reconstruction
of the building and on failure of compliance by the
landlord, to give effect to the order in any manner the
Court deems fit and in appropriate cases to put the tenant
back in possession or award to the evicted tenant
damages equal to the excess rent he has to pay for
another building that he is occupying in consequence of
such eviction:
Provided further that the tenant who was evicted
shall have the first option to have the reconstructed
building allotted to him with liability to pay its fair rent:"
11. There is no specific reference with regard to the amenities
which the premises had to be provided. Be that as it may, the
presumption has to be drawn in favour of the tenant but the fact
remains that the tenant was required to establish prima facie on
record that the aforementioned amenities were provided to him and
for that, the following documents were sine qua non for adjudication
of the disputes.
1. The permission from the concerned municipality or the
department for running the restaurant.
2. water bills.
3. Inspection or the permission granted from the
department of food and supplies. All these documents are
conspicuously wanting to establish that whether the building
owned by the respondent/ landlord could have been let out for
that purpose, or whether had the necessary permissions.
4. There have been many cases where the tenant after
having obtained the possession on rent on his own makes the
provisions for convenience. Though that would have been a
ground for ejectment by the landlord on change of user,
meaning thereby the landlord acquiesced to such acts, but
again the question would revolve on a point of consideration
whether those amenities were in existence or not.
12. We have gone through the contents of the lease deed
Ext.P1 of 1996. It do not specify that the tenanted premises
consisted of a kitchen but it was mentioned that it was in existence
on the western side. It is not construed whether before letting out
the premises to the tenant, there was no other tenant running the
same business and had constructed the kitchen whether it was of a
permanent or a makeshift. No direct and cogent evidence for
existence of the aforementioned facilities have been brought on
record. Be that as it.
13. There are other circumstances which have not been
found in the favour of respondent/tenant to ask for the relief as
granted by the Rent Controller vide Ext.P7 order dated 12.3.2014.
Despite having been handed over the keys on 2.4.2013, the tenant
did not express bonafide intention to carry out the business, would
have occupied the business and sought indulgence of the Rent
Controller for provision of the facilities or could have asked for a
set-up at his cost and adjusted expenses incurred for construction of
the amenities in the present or future rent or at the time of the
determination of the fair rent. No such exercise was done. Since
the premises have already been let out long time back and in
occupation of the tenant, all these factors if looked into
cumulatively, in our considered view, the appellate authority ought
not to have reversed the findings of the Rent Controller. Thus, there
is an abdication much less illegality. The common judgment dated
23.2.2017 disposing of RCRP Nos.1 of 2014 and 3 of 2014 are set
aside. O.P.(RC) stands allowed.
Sd/-
AMIT RAWAL, JUDGE
Sd/-
NS EASWARAN S., JUDGE
APPENDIX OF OP (RC) 89/2017
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE RENT CHIT DATED
01.08.1976
EXHIBIT P2 A TRUE COPY OF THE MEMO DATED 07.06.2004
FILED BY THE COUNSEL FOR RESPONDENT IN
R.C.P.NO.36 OF 1998 ON THE FILE OF THE
MUNSIFF'S COURT, CHERTHALA
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 12.04.2007
IN I.A.NO.1870 OF 2006 IN R.C.P. NO.36 OF
1998 ON THE FILE OF THE PRINCIPAL
MUNSIFF'S COURT, CHERTHALA
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 14.10.2009
IN E.P.NO.272 OF 2008 IN R.C.P.NO.36 OF
1998 ON THE FILE OF THE PRINCIPAL
MUNSIFF'S COURT, CHERTHALA
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 18.03.2013
IN E.P.NO.272 OF 2008 IN R.C.P. NO.36 OF
1998 PASSED BY THE PRINCIPAL MUNSIFF'S
COURT OF CHERTHALA
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED
17.02.2014 IN O.P.(R.C.) NO.4168 OF 2013
PASSED BY THIS HON'BLE COURT
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 12.03.2014
IN I.A.NO.143 OF 2013 IN E.P. NO.272 OF
2003 IN R.C.P.NO.36 OF 1998
EXHIBIT P8 A TRUE COPY OF THE COMMON JUDGMENT DATED
23.2.2017 IN R.C.R.P.NO.1 OF 2014 AND
R.C.R.P.NO.3 OF 2014 ON THE FILE OF THE
DISTRICT COURT, ALAPPUZHA
