KORAN ABRAHAM Vs. K VARUGHIS
LAWS(KER)-2003-10-2
HIGH COURT OF KERALA
Decided on October 23,2003

Koran Abraham Appellant
VERSUS
K Varughis Respondents

JUDGEMENT

- (1.) Tenant is the revision petitioner. Eviction was sought for under S.11(2)(b) and 11(3) of Act 2 of 1965. Rent Control Court dismissed the petition holding that there is no bona fides in the plea. However, benefit of the second proviso was denied to the tenant. On appeal by landlord the Appellate Authority found that the plea of the landlord is bona fide and held that the tenant had not established both the ingredients of the second proviso to S.11(3). The appeal was allowed and the tenant was directed to put the landlord in possession.
(2.) Petition schedule building is an out house with a separate entrance. Landlord along with his wife was residing in the main building situated in the same compound. Original tenant died. Now the present tenant is conducting a money lending business by name "City Finance". Monthly rent of the building is Rs.75/-. Landlord was away in Bombay in connection with the employment. He retired from service in 1982 and he is occupying the main building along with his wife. Landlord bona fide needs the " building for the purpose of conducting an agency business. The business involves storage, display and sale of multi volumes of valuable books. Ever since 1983 the wife of the landlord has been in contact with various publishers and book companies for agency and terms and conditions have been agreed upon. Due to want of proper place of business for display of books, storing them etc. she is denied of the privilege of conducting and developing the business. The building bearing number 36/510 is the petition schedule building, which as we have already indicated, is an out house. The building bearing No.36/509 is the main building in which landlord and his wife are residing. Landlord had highlighted the advantage in using the tenanted premises, which was very near to the place of their residence and in the same compound. The land in which the two buildings are situated is having an extent of 60 cents out of which 23 cents of land which is having road frontage of Canon Shed road which was sold by the landlord. The Rent Control Court dismissed the petition on the ground that landlord has not shown any special reasons why the premises in which the landlord and his wife are occupying is not sufficient for their requirement. The Appellate Authority however allowed the appeal holding that the landlord has shown sufficient reason for not using his residential premises and that the tenant has not discharged the burden under the second proviso to S.11(3).
(3.) Senior Counsel for the petitioner Sri T.P. Kelu Nambiar submitted that the entire complexion in the area has been changed due to subsequent events. Counsel filed I.A. No 1677 of 2003 along with an affidavit underlying the subsequent events. Reference was also made to Para.9 of the Memorandum of Revision as well. After narrating the position in 1994, it is stated that, in the year 2003 there is a vast further change in the situation and in the events at the instance of the landlord. The property on which the original building stood, has an extent of 60 cents. A twelve storeyed building was constructed by the Southern Investments in the name and style of S.I. Ambar Park. The building faces the Cannon Shed Road. Ambar Park is surrounded in all the four sides by huge compound walls and the entry to the building is from the Canon Shed Road. Though a narrow pathway is constructed to reach the present building from the Market Road, the said pathway is not being used by anybody since it is not motorable. First respondent herein - the landlord had been occupying five flats in the new building of which, according to the petitioner, he has already sold two. Still he is in occupation of three apartments. Counsel submitted that eviction was sought for in 1987 on the basis of the lie of the old building, the nearness of the petition schedule building to the old building and the direct access to the petition schedule building etc. The entire situation has now been changed and the old building is not in existence and a new building has come up which has no features of the old building. Counsel submitted that the above factors are of considerable importance to decide the issue. Counsel also submitted wife of the landlord is 79 years old and it is difficult to conceive that at this stage she should would start a business. Counsel also placed reliance oh the decision of the Apex court in Om Prakash Gupta v. Ranbir B. Goyal ( 2002 (2) SCC 256 ) and wanted this court to examine the subsequent events. Counsel appearing for the landlord submitted that this court need only examine the position that existed on the date of filing of the petition for eviction. Reference was made to the decisions of the apex court in Gaya Prasad v. Pradeep Srivastava ( 2001 (2) SCC 604 ) and G.C. Kapoor v. Nand Kumar Bhasin and Others ( 2002 (1) SCC 610 ). Counsel submitted landlord shall not be penalised due to change of circumstances. Counsel submitted subsequent developments in the area are made use of by tenants as well and that cannot be the basis for considering the application.;


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