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High Court of Kerala
THE HONOURABLE MR. JUSTICE K.T. SANKARAN & THE HONOURABLE MR. JUSTICE P. UBAID, JJ.
K.S. Usman
Versus
Vidyavathi @ Vidya Kalesan & Others
RC Rev. No. 14 of 2014
Decided on: 25-02-2014
B. Kerala Building (Lease and Rent Control) Act, 1965, Section 11(4)(iii) - Eviction of tenant - Acquisition of building by tenant - Tenant's partnership business on said building is not consider as acquired possession under Section 11(4)(iii).
C. Kerala Building (Lease and Rent Control) Act, 1965, Section 11(4)(iii) - Subletting - Eviction - the court will have to find a case of sub-tenancy against the tenant when tenant handed over the tenanted premises to his brother and he has no case that his brother would only help him in his business, or that he is an employee under him, or that he is a partner in his business.
initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
FACTS OF THE CASE
The petition schedule building was let out to the revision petitioner herein by the deceased landlord on 1.5.1984 on a monthly rent of 3,340/-, for the purpose of running the godown of a parcel service, by name 'M/s.Saurashtra Roadways'. Subsequently, the rent was enhanced and now it is 5,440/- per month. The landlord alleges that the respondent-tenant has sublet the building to his brother Ummer and the said Ummer has started an establishment of his own in the building by name 'M/s.SRD Logistics". The said sublease arrangement was made by the tenant Usman without the knowledge and consent of the landlord. But the said arrangement came to the knowledge of the landlord much later. The petitioner also alleges that by rough and careless user of the building for parcel services, by bringing heavy parcel vehicles, the tenant and the sub-tenant have caused damage to the building, and this has diminished the value and utility of the building materially and permanently. The upstair portion of the building is occupied by the son of the landlord, but he finds it not safe to continue there, when the down stair portion occupied by the tenant stands damaged materially. It is also alleged in the petition for eviction that the tenant has acquired a building of his own, wherein, he has started a business by name "Lens and Frames", and he has thus abandoned the business which he started in the petition schedule building. Thus, the allegations in the eviction petition constitute the grounds for eviction under 11 4(i), 11 4 (ii) and 11 (4) (iii) of the Act.
FINDINGS
Revision petition is allowed in part to the very limited extent of setting aside the order of eviction passed under Section 11 (4) (iii) of the Act . But the other grounds for eviction and the orders passed thereon by the courts below are confirmed in revision.
Based on the provided legal document, the key points are as follows:
The eviction grounds under Section 11(4)(iii) of the Kerala Building (Lease and Rent Control) Act, 1965, require that the tenant has acquired a building of their own or put up a building that is reasonably sufficient for their requirements. In this case, the court found no evidence of such acquisition or construction by the tenant (!) (!) .
The tenant's involvement in a partnership business or conducting a different business in another building does not constitute acquiring possession of a new building under Section 11(4)(iii). The evidence did not establish that the tenant had acquired or built a building reasonably sufficient for his needs (!) .
The primary evidence indicated that the tenant handed over the premises to his brother, who conducted business there as a sub-tenant. The court found this to be a case of sub-letting, which is a ground for eviction, especially when the tenant has no claim that the person occupying the premises is an employee, partner, or helper (!) (!) .
The landlord's initial burden of proof on sub-letting was discharged by showing that a third party was in exclusive possession of the premises. The tenant then failed to rebut this presumption and did not establish that the third party was a partner, employee, or helper, leading to the conclusion of sub-tenancy (!) (!) .
Damage to the building caused by rough and careless use, such as heavy vehicle movement, can constitute a material and permanent diminution of the building’s value and utility, justifying eviction under Section 11(4)(ii). The evidence supported that such damage had occurred, impacting the safety and utility of the premises (!) (!) .
The court emphasized that ordinary wear and tear does not justify eviction; only damage that materially and permanently diminishes the building’s value or utility is sufficient. The damage caused by heavy vehicles and the resulting cracks and structural issues were deemed to meet this criterion (!) .
The court partially allowed the revision petition, setting aside the eviction order under Section 11(4)(iii) due to lack of evidence of the tenant's acquisition of a suitable building. However, the eviction based on damage caused by careless use was upheld (!) (!) .
The court granted the tenant a period of two months to vacate the premises, conditioned upon the tenant filing an undertaking to vacate, depositing arrears of rent, and ensuring no further damage to the building. Failure to comply would lead to the execution of eviction proceedings (!) (!) .
These points summarize the court’s findings, the legal principles applied, and the directions given regarding the eviction process.
Ubaid, J.
1. Concurrent findings of the Rent Control Court and the Rent Control Appellate Authority under Section 11 4 (i), 11 (4) (ii) and 11 (4) (iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short) against the tenant, are under challenge in this revision brought under Section 20 of the Act, by the tenant. Respondents herein are the legal heirs of the original landlord, who brought eviction proceedings before the Rent Control Court (Munsiff Court, Ernakulam) as RCP No.66 of 2011. The petition schedule building was let out to the revision petitioner herein by the deceased landlord on 1.5.1984 on a monthly rent of Rs. 3,340/-, for the purpose of running the godown of a parcel service, by name 'M/s.Saurashtra Roadways'. Subsequently, the rent was enhanced and now it is Rs.5,440/- per month. The landlord alleges that the respondent-tenant has sublet the building to his brother Ummer and the said Ummer has started an establishment of his own in the building by name 'M/s.SRD Logistics”. The said sublease arrangement was made by the tenant Usman without the knowledge and consent of the landlord. But the said arrangement came to the knowledge of the landlord much later. The petitioner also alleges that by rough and careless user of the building for parcel services, by bringing heavy parcel vehicles, the tenant and the sub-tenant have caused damage to the building, and this has diminished the value and utility of the building materially and permanently. The upstair portion of the building is occupied by the son of the landlord, but he finds it not safe to continue there, when the down stair portion occupied by the tenant stands damaged materially. It is also alleged in the petition for eviction that the tenant has acquired a building of his own, wherein, he has started a business by name “Lens and Frames”, and he has thus abandoned the business which he started in the petition schedule building. Thus, the allegations in the eviction petition constitute the grounds for eviction under 11 4(i), 11 4 (ii) and 11 (4) (iii) of the Act.
2. The tenant, who is the revision petitioner herein, entered appearance in the trial court and filed counter statement resisting the prayer for eviction on the contention that he has not, in fact, caused any damage to the tenanted building, except the ordinary wear and tear due to the user for the purpose for which it was taken on rent, that he has not acquired any building of his own, that he has only joined a partnership doing a business by name 'Lens and Frames' in another building, that he has not sub let the petition schedule building to his brother Ummer, that the business now being conducted in the petition schedule building is a business jointly run by him and his brother Usman and that he has not in any manner transferred the premises to his brother.
3. The parties adduced oral and documentary evidence during trial. During the proceedings, the trial court had appointed an Advocate Commissioner to inspect the tenanted premises and submit report. Pending the proceedings, the original landlord died. Some of the legal heirs were impleaded as supplemental petitioners, and the other legal heirs, who could not join as petitioners, were brought on party array as supplemental respondents. The 2nd additional petitioner was examined as PW1 and Exts.A1 & A2 series were marked on the side of the petitioners during trial. The tenant was examined as RW1 and Exts.B1 and B2 were marked on his side. The report submitted by the Advocate Commissioner was marked as Ext.C1.
4. On an appreciation of the oral and documentary evidence, the trial court found that the tenant has, in fact, sub let the premises to his brother Ummer, that he has acquired a building of his own for his business purposes, and that the tenant and his brother have caused material damage to the building in such a way as to diminish its value and utility.
5. Accordingly, the trial court
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