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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, P.G. AJITHKUMAR, JJ.
Usha Bai W/o Selvaraj – Petitioner
Versus
Pandikasala Niyas S/o Pandikasala Muhammed Kutty – Respondent
R.C. REV. No. 21 of 2019
Decided On : 19-08-2022
Eviction - Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(2)(b), 11(3) - Summary of Acts and Sections: Section 11(3) of the Act allows a landlord to seek eviction of a tenant for his own occupation or for the occupation by any member of his family dependent on him. The first proviso to Section 11(3) restricts eviction if the landlord has another building of his own in the same city, town, or village, except for special reasons. The second proviso restricts eviction if the tenant is depending for 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.
Fact of the Case:
The legal representatives of the tenant filed a Revision under Section 20 of the Act after the Appellate Authority and the Rent Control Court ordered eviction under Sections 11(2)(b) and 11(3) of the Act. The landlords sought eviction to make space for parking in a shopping complex where several institutions and establishments were functioning. The tenant disputed the need for eviction, claiming sufficient parking space and livelihood dependence on the business in the shop room.
Finding of the Court:
The courts found the landlords' need for eviction to be bona fide and ordered eviction. The plea based on the second proviso to Section 11(3) did not survive after the death of the original tenant. The Revision Petition was dismissed, and six months' time was granted for vacating the premises.
Issues: The main issue was the bona fide need for eviction under Sections 11(2)(b) and 11(3) of the Act, along with the survival of the plea based on the second proviso to Section 11(3) after the tenant's death.
Ratio Decidendi: The courts applied the legal principles that a landlord's need for eviction must be bona fide, sincere, and honest, and not a mere pretext. The need for eviction under Section 11(3) of the Act was interpreted liberally, considering the landlords' intention to provide more convenient and sufficient parking for customers and visitors.
Final Decision: The Revision Petition was dismissed, and six months' time was granted for vacating the premises, subject to specified conditions.
ORDER :
1. Revision petitioners are the legal representatives of the tenant-appellant in R.C.A. No. 274 of 2016 on the file of the Rent Control Appellate Authority (II Additional District Judge), Kozhikode, who died on 03.11.2018, after disposal of the appeal. Respondents are the landlords. They filed R.C.P. No. 34 of 2014 before the Rent Control Court (Additional Munsiff-I), Kozhikode, seeking eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. R.C.P. was allowed as per the order dated 26.08.2016. An appeal was preferred under Section 18(1)(b) of the Act by the tenant. It was dismissed. Aggrieved by the judgment of the Appellate Authority and the order of the Rent Control Court, the legal representatives of the tenant have filed this Revision under Section 20 of the Act.
2. This Revision was admitted to file on 11.01.2019 and notice was ordered to be served on the respondents. On 13.11.2019, an interim order of stay was granted initially for a period of one month. The order of stay was extended from time to time and is still in force.
3. Heard the learned counsel appearing for the petitioners and the learned Senior Counsel appeared on instruction for the respondents.
4. The respondents are the owners in possession of 37 cents of land where Simax Shopping Complex and the petition schedule shop room are situated. Since eviction was ordered under Section 11(3) of the Act, facts with reference to the same alone are relevant. In Simax Shopping Complex, which has five floors, several institutions and establishments are functioning. M/s HDFC Bank, YES Bank, Tata Docomo Communications, Muthoot Fin-Corp, Kotak Mahindra Insurance Company and a few other companies are in occupation of various parts of the buildings as tenants. In order to make available sufficient and convenient parking area for the customers and staff members coming to the building, the space occupied by the petition schedule shop room and its adjoining room is required. Hence, eviction of the tenant from the petition schedule shop room was sought.
5. The tenant filed a counter statement disputing the contentions of the respondents. The shopping complex has enough parking space. The space earmarked for the parking while obtaining permit from the Corporation for the construction is enough and the contention of the respondents that more space has to be provided after demolishing the petition schedule shop room for the parking space is without any basis. The petition schedule shop room and its adjacent room occupy only a small area and by its demolition, there would not be any substantial increase in the area of parking. Therefore, it is alleged that the need urged is just a ruse for eviction. It was further contended that the tenant and his family have been depending for their livelihood on the income generated from the business in the petition schedule shop room. Since no other alternative building is available in the locality, the tenant is entitled to get protection from eviction under the second proviso to Section 11(3) of the Act.
6. PW-1 was examined and Exts.A1 to A4 were marked on the side of the respondents. RW1 was examined and Exts.B1 to B3 were marked on the side of the tenant. Exts.C1, C1(a), C2 and C(a) were also marked. The Rent Control Court after considering the said evidence, took the view that the respondents have established the need urged by them to be bona fide. After holding that the tenant failed to prove the requirements of the second proviso to Section 11(3) of the Act, eviction was ordered.
7. Before the Appellate Authority, the tenant has raised similar contentions. Further, the tenant has produced Ext.B4, a certified copy of the judgment in R.C.P. No. 33 of 2014. That R.C.P. was filed by the respondents seeking eviction of the tenant in the adjacent room. The Appellate Authority on finding that the said order was rendered only on 20.01.2017, which was after disposal of R.C.P. No. 34 of 2014, admitte
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