POOLAKANDI KUMARAN Vs. KULANGARA VEETTIL MATHU

JUDGEMENT

(1.) The tenant, who has suffered order of eviction concurrently on the ground mentioned under Sections 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (Act 2 of 1965) (hereinafter referred to as 'the Act') at the hands of the Rent Control Court and the Appellate Authority, has filed this revision petition under Section 20 of the Act. Though the landlady invoked the ground under Section 11(4)(iii) also, the said ground does not survive any longer since rent control appeal or revision petition were filed by the landlady against the order declining eviction under that ground. The landlord's case in the context of the ground under Section 11(3) was that she requires the petition schedule building bona fide for occupation by her dependent son Sukumaran, so that Sri. Sukumaran can conduct a stationary business therein. It was also averred by the landlady that neither she nor Sukumaran possess any building of their own as to disentitle them to order of eviction under Section 11(3) of the Act. The case was resisted by the revision petitioner/tenant. The bona fides of the need and the claim were disputed. The revision petitioner also claimed protection of the second proviso to Section 11(3) of the Act. The Rent Control Court on an evaluation of the evidence, which consisted of the documents Exts.A1 to A8 and oral evidence of PW1/the de facto claimant, son of the landlady and the counter evidence which consisted of Exts.B1 to B20 and oral testimonies of Rws.1 to 4, apart from Exts.C1 to C3 commissioner's reports and plans would hold that the need of the landlady is bona fide and that the tenant has not been successful in establishing that he satisfies either of the ingredients of the second proviso to Section 11(3) of the Act. Accordingly, order of eviction was passed under Section 11(3) of the Act. The Rent Control Appellate Authority would re-appraise the evidence and concur with all the conclusions of the Rent Control Court and dismiss the appeal.

(2.) We have heard the submissions of Mr. B. Krishnan, learned Counsel for the revision petitioner and Mr. T. Krishnanunni, learned senior counsel for the respondent/landlady. Mr. Krishnan drew our attention to the 5th paragraph of the rent control petition wherein it is averred by the landlady that her son Sukumaran, the de facto claimant, was in possession of another shop room belonging to one Muhammed Haji and that in view of an order of eviction passed against him under Section 11(3) of the Act in favour of Sri. Haji, Sukumaran surrendered possession of that room to Sri. Haji and hence Sri. Sukumaran is without any building other than the petition schedule building for conduct of business. It is further averred that the landlady thus became compelled to file the rent control petition for eviction of the petition schedule building. Mr. Krishnan argued that the above averment in paragraph 5 of the rent control petition is a false and dishonest one. He would draw our attention to Ext.B11 statement filed by Sri Muhammed Haji, Sukumaran's landlord in O.S. No. 6/2004. He also referred to the finding of the Rent Control Court in paragraph 35 of its judgment wherein it is found that actual surrender of Muhammed Haji's room by Sukumaran was only on 5-7-2004. Mr. Krishnan submitted that the said finding has not been challenged by anybody and therefore , it is clear that the statement in paragraph 5 of the Rent Control Petition, which was filed on 15-7-2004 is a false one. According to Mr. Krishnan, the authorities under the Rent Control Act are governed by the principles of equity, justice and good conscience and, therefore, the landlady, who came to the Rent Control Court stating an absolutely false case, is not entitled for relief. In this context, Mr. Krishnan also referred to the cross examination of PW1.

(3.) Mr. Krishnan would further submit that on the terms of the lease deed, Ext.B1, there is a clear contract between the parties that the tenant will be evicted only on the ground of arrears of rent or on ground of sub-letting. Such a contract is permissible in law since non-obstante clause in Section 11(1) can operate only against the landlady and there is nothing illegal in the landlady and the tenant agreeing that a tenant will be evicted only under one or more of the statutory grounds for eviction. The agreement, counsel submitted, at any rate is not opposed to public policy or opposed to the provisions of the statute or any other statute. In this context, Mr. Krishnan drew our attention to Ext.B2 assignment deed executed by the same landlady in favour of the revision petitioner. He would submit that upon the land covered by the B2 deed, a smoke room was constructed by the tenant after demolishing a shed which existed on that land. The intention of the parties in confining the ground for eviction to sub-letting and arrears of rent was because the very purpose for selling and purchasing the property covered by Ext.B2 was to enable the revision petitioner to carry on his business smoothly and uninterruptedly, subject to liability, to be evicted on the grounds specified in the lease agreement only.