MANIYOOR PARAKKUM PUZHAKKAL KUNHIRAMAN Vs. ANJUKANDATHIL KUMARAN

JUDGEMENT

(1.) THE object and purpose of the Kerala Buildings (Lease, and Rent Control) Act, 1965 is to regulate the leasing of the buildings, prevention of unreasonable eviction of tenants and for the control of rents. The provision of the Rent Control Act has given an overriding effect by employing the non obstante clause in S.11 of the Act. S.11(4)(iii) has been enacted so as to enable a landlord to seek eviction. Rent Control Court and Appellate Authority in the instant case ordered eviction on the ground that the tenant is already having in his possession a building reasonably sufficient for his requirement.

(2.) COUNSEL appearing for the tenant Sri. P.V. Mohanan submitted that the Courts below have misunderstood the scope and ambit of S.11(4)(iii) and consequently reached an erroneous conclusion and therefore liable to be interfered with under S.20 of the Act. This Bench in Pakran v. Kunhiraman Nambiar, 2004 (1) KLT 824, held that the revisional jurisdiction under S.20 is wider than the revisional jurisdiction of this Court under S.115 CPC. We may therefore examine whether the Courts below have correctly applied S.11(4)(iii) in the facts of this case. S.11(4)(iii) contemplates three situations where the landlord could successfully maintain a petition for eviction. If the tenant has come into possession of a building before or after commencement of the tenancy which is reasonably sufficient for his requirement in the same city, town or village and continued to be in his possession on the date of filing of the petition the landlord could seek an order for eviction S.11(4)(iii). So also if the tenant after the commencement of the tenancy acquire possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village and continues to be in possession on the date of filing of the application that is also a ground available for eviction to the landlord. Landlord could seek eviction under S.11(4)(iii) even if the tenanted building is not bona fide required for his own occupation or for additional accommodation. The underlying object of the provision is that tenant shall not keep unto himself so many tenanted premises lest there will be scarcity of accommodation for the needy tenants. Burden of proving that the tenant has in his possession of a building and continues to be in possession of that building or has put up a building is on the landlord. Landlord has also to establish prima facie that the building which is in the possession of the tenant is reasonably sufficient for the tenant's requirement. The tenant can disprove the same by establishing that he is not in possession of the building on the date of the application and if at all he is in possession that is not reasonably sufficient for his requirement. The Court has to weigh the evidence adduced by the landlord and tenant and render a finding as to whether the tenant is in possession of a building which is reasonably sufficient for the requirement on the date of filing of the petition. However, in a given case the tenant can even explain that though he has put up a building the circumstances are such that he cannot occupy the same. Construction of building availing of loan from financial institution is quite common and unless tenant gets a reasonable return it will not be possible to repay the loan amount. In such ' circumstance the tenant may rent out the building, so that he can repay the loan. Tenant may in a given case put up building after availing loan from prospective buyers or even from prospective tenants, so that the mere fact that tenant has put up a building is not sufficient to show that he is in possession so as to occupy the same without any hindrance. However, the onus is on the tenant to show the circumstances which stands in his way of not occupying the premises. The burden is on the landlord to prima facie show that the building acquired by the tenant and building subsequently put up by the tenant is also reasonably sufficient for his requirement.

(3.) UNDER such circumstance this revision is allowed and the order of eviction passed under S.11(4)(iii) would stand set aside. However, the landlord is entitled to get rent at the rate of Rs.750/- per month from 1.3.2004 onwards. We make it clear that if the landlord has got a case that he is entitled to get more rent than Rs.750/- it is for him to approach the Rent Control Court for fixation of fair rent.