VIMALA K.A. Vs. R. ANANTHA MALLAN

JUDGEMENT

(1.) THE defeated tenant in a proceeding under the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act'), initiated by the landlord seeking eviction under Section 11(4)(iii) of the Act is before us in this revision.

(2.) THE landlord sought eviction of the tenanted premises on the ground that the tenant has subsequently acquired a building reasonably sufficient for his requirement in the same city, town or village. The petitioners are the legal representatives of the original tenant who dies during the pendency of the original petition. There is no dispute in this case that the tenants, the petitioners before us, in fact, after the death of the original tenant, sold away the said building for discharge of the liabilities incurred by him during the pendency of the appeal. This fact was subsequently sought to be placed on record by filing an application under Order 41 Rule 27 of the Code of Civil Procedure read with Section 23 of the Act. The appellate court by the order impugned in this revision found that such events cannot be taken into consideration as a subsequent event as it is possible for every tenant who acquired possession or put up a building to resist the claim for eviction by creating such a sale deed. The fact that the building put up by the original tenant was sold after the commencement of the rent control proceeding is not a ground for defence available to the tenant to defeat the claim for rejection sought under Section 11(4)(iii). Thus the order of eviction passed by the Rent Control Court was affirmed by the appellate authority while rejecting the appeal filed by the tenant. Hence this revision.

(3.) ACCORDING to the counsel appearing for the petitioner the court below did not consider the documents sought to be produced along with the petition filed under Order 41 Rule 27 of the C.P.C. and non-consideration of such documents produced, has resulted in denial of a fair opportunity and so the order passed by the appellate authority suffers from a patent error. He placed reliance on the decision of the Apex Court in Harju and others v. Phulari and others, (2005(10) SCC 191) and M.M. Quassim v. Manohar Lal Sharma and others, 1981(2) RCR(Rent) 74 : (AIR 1981 SC 1113). He also contended that the appellate authority ought to have considered the subsequent event, namely that the building having been disposed of by the petitioners to wipe out the liabilities incurred by the original tenant and, as on date of passing the order by the appellate authority the building was not in the possession of the petitioners and hence no order under Section 11(4)(iii) of the Act should have been passed affirming the order of the Rent Control Court. He also placed reliance on the decision of a Division Bench of this Court in Kunhiraman v. Kumaran, 2004(2) RCR(Rent) 528 : (2004(2) KLT 674). Per contra, the learned counsel appearing for the respondent contended that the provision contained in Section 11(4)(iii) of the Act is attracted, once it is shown by the landlord that the tenant has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village. According to him, the tenant in this case acquired a building in the same city, town or village, which is sufficient for his requirement. Once the landlord has discharged his initial burden it is for the tenant to prove that the said building acquired subsequently is not reasonably sufficient for his requirement. There is no case for the original tenant was not reasonably sufficient for his requirement. On the other hand, the contention was that the said building having been disposed by the petitioners, the ground under Section 11(4)(iii) of the Act ceased to exist. It is also contended by the learned counsel for the respondent that merely because the tenant sold away the building subsequently in no manner can affect the accrued right of the landlord to get eviction of the tenanted premises and cannot defeat a claim under Section 11 (4)(iii) of the Act. He placed reliance on the decision of this Court in Ramachandran v. Parukuty Amma, (1993(2) KLT 42).