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K.K Mohammedkutty v. Janaki & Ors.
Factual and Procedural Background
This opinion concerns a revision petition filed by the tenant challenging an eviction order made under Section 11(3) of Act 2 of 1965. The Rent Control Court ordered eviction under Section 11(3), and that order was confirmed by the Appellate Authority. The tenant, who has occupied the building since 1976 and conducts a tailoring business there, seeks to resist eviction. The landlord sought vacant possession to run a jewellery shop; the landlord and his family already operate two or three jewellery shops in the area.
At trial the landlord examined the 9th petitioner as P.W.1 and produced Exhibits A1 to A4. The tenant was examined as RW-1 and produced Exhibits R1 to R3. The Accommodation Controller was examined as RW-2. Ext. C1 is the commission report and Ext. XI is the Accommodation Register maintained by the Tahsildar, Ottappalam. Both the Rent Control Court and the Appellate Authority found, on the basis of the oral and documentary evidence, that the landlord had established a bona fide need under Section 11(3) of the Act. The tenant has preferred this revision petition challenging that conclusion.
Legal Issues Presented
- Whether the tenant established the second limb of the second proviso to Section 11(3) of the Act — namely, that "there is no other suitable building available in the locality for such person to carry on such trade or business".
- What is the proper allocation and quantum of proof with respect to availability and suitability of other buildings in the locality under the second proviso to Section 11(3) (i.e., whether the tenant must prove the negative or whether the landlord must prove availability and suitability)?
- Whether the fact that a prospective building would require payment of a higher rent or larger security deposit (i.e., be beyond the tenant's financial reach) renders that building "not suitable" within the meaning of the second proviso.
Arguments of the Parties
Tenant's Arguments
- The tenant's counsel argued that the tenant cannot be called upon to prove a negative — that no other suitable building is available in the locality; rather, the availability of suitable buildings in the locality should be proved by the landlord.
- The tenant relied on Ext. XI (the Accommodation Register) and submitted that the register would not show rooms as lying vacant.
- The tenant relied on judicial authorities, including Varkey v. Raman Pillai (1981 KLT 213), Sadanandany Kunheen (1991 (2) KLT 628), and Krishnankunju Raveendran v. Sukumara Pillai (1999 (3) KLT 373), particularly paragraph 17 of Krishnankunju Raveendran's case, to support the contention that suitable buildings must be within the tenant's reach and that mere existence of vacant buildings does not defeat the proviso.
Landlord's Arguments / Evidence
- P.W.1 (examined on behalf of the landlord) testified that vacant rooms are available near the railway station road and in front of the court premises.
- Ext. A2 (a notice) was produced showing rooms available on rent in Priyanka Shopping in R.S. Road (published by K.P. Syed Haji).
- The landlord deposed that rooms are available in Chandran Building Complex (approximately 50 metres away) and in Vengeri Appan Complex (about 75 metres away) from the tenanted premises.
- The Accommodation Controller (RW-2) deposed that six rooms are lying vacant on the road leading to the court and that a board exhibiting "rooms for rent" was present.
- The landlord thus relied on both oral testimony and documentary exhibits (A1–A4) to show availability of alternative buildings in the locality.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Varkey v. Raman Pillai (1981 KLT 213) | The opinion records reliance on this decision by tenant's counsel (no specific principle from the decision elaborated in the text). | The court noted the tenant's reliance on the decision but did not extract a specific holding from this case in the opinion's reasoning beyond acknowledging it as one of the authorities cited by the tenant. |
| Sadanandan v. Kuncheen / Sadanandany Kunheen (1991 (2) KLT 628) | Held that the proviso works as an exemption and the person seeking exemption must prove the ingredients; however, being a negative matter, the tenant's proof may be confined in appropriate cases to a positive affirmation that no suitable building is available, after which burden shifts to landlord to prove availability. | The court relied on this principle to explain burden allocation: tenant may give a positive assertion of non-availability, but once availability is put in issue the landlord must positively prove that buildings are available. |
| Krishnankunju Raveendran v. Sukumara Pillai (1999 (3) KLT 373) | Paragraph 17: "suitable building" means one suitable for the tenant's business and available to the tenant; a building that is of a very different category (e.g., expensive modern premises suitable for a star hotel) may not be suitable for a petty teashop; vacant buildings should be within the tenant's financial reach. | The court quoted and discussed this dictum when considering what "suitable" means, but contrasted and reconciled it with later authority (Xavier) and with the view that once suitability and availability are established the tenant must negotiate at current market rent. |
| Xavier v. Krishnakumari (2000 (3) KLT 809) | Held that being forced to pay the current going rate of rent is not a ground to deny eviction under Section 11(3); "suitable" means suitable for the tenant's needs but the tenant is expected to pay the prevailing rent — the Rent Control Act does not freeze rent to the historic rate at the date of letting. | The court relied on this Division Bench explanation to reject the tenant's contention that the need to pay higher rent makes available buildings unsuitable; it applied the principle that tenant must accept current market rent and cannot expect the old rent in the same locality. |
Court's Reasoning and Analysis
The court confined its examination to the second proviso to Section 11(3), because counsel on both sides limited their arguments to that proviso. The court accepted that the tenant had established the first limb of the second proviso, leaving only the second limb — that no other suitable building is available in the locality for the tenant to carry on his trade or business.
The court summarized the evidentiary record: the landlord produced testimony and documents (including Ext. A2 and other exhibits) showing vacant rooms/buildings in the locality (Priyanka Shopping Complex, Chandran Building Complex, Vengeri Appan Complex, and six rooms on the road to the court). The tenant relied on Ext. XI and argued that the register did not show vacancies.
The court analyzed the allocation of burden and the meaning of "suitable" by reference to prior authorities. It noted Sadanandan v. Kuncheen for the proposition that the proviso is an exemption and the person claiming the exemption must prove its ingredients, but that when the matter concerns a negative fact (non-availability) the tenant's proof may, in appropriate cases, be limited to a positive affirmation that no suitable building is available; once the tenant gives that affirmation, the burden shifts to the landlord to prove availability.
The court also engaged with the dictum in Krishnankunju Raveendran that a suitable building must be one within the tenant's financial reach and appropriate to his trade (for example, a petty teashop could not reasonably be expected to occupy an expensive modern hotel building). However, the court relied on the later Division Bench decision in Xavier v. Krishnakumari, which clarified that the fact that the tenant would have to pay the current prevailing rent in the locality is not a ground to deny eviction; the Rent Control Act does not require the tenant to pay the historic rent. Thus "suitable" means suitable for the tenant's needs, but suitability is to be assessed in the context that the tenant must pay the current market rent to obtain possession of alternative premises.
Applying these principles to the facts, the court concluded that the landlord had discharged the burden of showing availability of suitable buildings in the locality (by evidence of vacant premises and documentary notices). The tenant had not successfully established that the available buildings were unsuitable for carrying on his tailoring business. The court emphasized that matters such as payment of higher rent or security to a prospective landlord are matters for negotiation between tenant and prospective landlord and do not defeat the landlord's bona fide need once availability and suitability are established.
Because both courts below had concurrently found that the tenant failed to obtain protection under the second proviso to Section 11(3), the revisional court found no reason to disturb that concurrent finding.
Holding and Implications
Final Holding: The revision petition is dismissed. The concurrent findings of the courts below that the landlord established a bona fide need under Section 11(3) and that the tenant failed to establish the second limb of the second proviso are upheld.
Direct Consequences:
- The tenant has been given three months to vacate the premises.
- The eviction order under Section 11(3) as confirmed by the Appellate Authority stands.
Broader Implications: The court applied existing authorities to clarify allocation of evidence under the second proviso: a tenant asserting non-availability may make a positive assertion, after which the landlord must prove availability; "suitable" focuses on suitability for the tenant's trade, but the tenant is expected to seek alternative premises at the current market rent — the fact that existing market rent may be higher is not by itself a bar to eviction. The opinion does not purport to lay down a novel precedent beyond these applications of prior decisions.
K.S Radhakrishnan, J.:— Tenant is the revision petitioner. Eviction was sought under Section 11(3) of Act 2 of 1965. Rent Control Court ordered eviction under Section 11(3) of the Act which was confirmed by the Appellate Authority. Aggrieved by the same, this revision petition has been preferred.
2. Tenant is in occupation of the building from 1976 onwards and is conducting tailoring business in that building. Landlord wanted vacant possession for conducting a jewellery shop. Landlord and his children have already got two or three jewellery shops. On the side of the landlord 9th petitioner got himself examined as P.W 1. Tenant was examined as RW-1 and Accommodation Controller was examined as RW-2. On the side of the landlord Exhibits A1 to A4 were marked. Exts. R1 to R3 were marked on the side of the tenant. Ext. C1 is the commission report. Ext. XI is the Accommodation Register maintained by the Tahsildar. Ottappalam. On the basis of the oral and documentary evidence both the authorities below have concurrently found that the landlord has established the bonafide need under Section 11(3) of the Act.
3. Counsel on either side have confined their argument to the second proviso to Section 11(3) only. We therefore need examine only that contention. The first limb of the second proviso has also been established by the tenant. The question is whether he could establish the second limb of the second proviso to Section 11(3). Both the courts below have concurrently found that tenant had failed to establish the second limb of the second proviso.
4. Counsel appearing for the tenant submitted that tenant cannot be called upon to prove negative that no other suitable building is available in the locality to carry on his trade or business. The availability of suitable building in the locality according to the tenant is for the landlord to prove. P.W 1 gave evidence to the effect that vacant rooms are available on the side of the railway station road and also in front of court premises. Ext. A2 is the notice produced by the landlord which is seen to have been published by K.P Syed Haji to the effect that in Priyanka Shopping in R.S Road rooms are available on rent. Landlord has also deposed that rooms are available in Chandran Building Complex which is situated 50 metres away from the petition schedule building and also in Vengeri Appan Complex, situated 75 metres away from the tenanted premises. Accommodation Controller was examined as RW-2. He deposed that six rooms are lying vacant on the side of the road leading to court and there is a board exhibited ‘rooms for rent’. Counsel appearing for the tenant placed reliance on Ext. XI register and submitted that the register would not show rooms are lying vacant. In our view, landlord has discharged the burden showing availability of suitable building at Priyanka Shopping Complex, Chandran Building Complex and Vengeri Appan Complex etc. It is for the tenant to establish that in those buildings rooms are not available and even though rooms are available those are not suitable to carry on his trade or business.
5. Counsel appearing for the tenant placed much reliance on the decision of a learned single judge of this court reported in Varkey v. Raman Pillai (1981 KLT 213). Reliance was also placed on the decision in Sadanandany Kunheen (1991 (2) KLT 628) and Krishnankunju Raveednran v. Sukumara Pillai (1999 (3) KLT 373). Reliance was also placed on paragraph 17 of the decision in Krishnankunju Raveendran's case, supra, which is extracted below.
“The provision in the second proviso to Section 11(3) “there is no other suitable buildings available in the locality for such person to carry on such trade or business” would make it clear that the vacant building should be one suitable for carrying on the business that the tenant was carrying on in the petition schedule building and also that the building should be available to the tenant.
A building constructed at a very high cost with modern facilities suitable for running a star hotel or similar business need not or may not be a building suitable for running a petty teashop and may not be within the reach of the tenant. The landlord also may not let out such a building to a tenant for running a petty tea shop or for a meagre rent. The vacant building in the locality should be one within the reach of the tenant. If the vacant building will be available only on payment of huge deposits and on very high rent, then it may not be said that a suitable building was available in the locality where the tenant can carry on his trade or business. The vacant building should be within his financial reach. For the simple reason that there was some vacant buildings in the locality the tenant cannot be denied of the above protection under the second proviso to Section 11(3) of the Act.”
6. Aforementioned dictum was subsequently explained by another Division Bench in Xavier v. Krishnakumari (2000 (3) KLT 809). The court held as follows:
“Whatever that be, the fact that the tenants will be forced to pay the rent that is commensurate with the rent now prevalent in the locality, is not a ground to deny the landlord an order for eviction under Section 11(3) of the Act on the ground that no suitable building is available to the tenant in the locality. The Rent Control Act does not contemplate that the landlord and the tenant should be pinned down to the state of things as they were on the date of the letting. What the court is called upon is to see whether on paying the current going rate of rent, any other building in the locality is available for the tenant to shift his business. It cannot be expected that a tenant would now get a building on the rent that he originally agreed to pay to his landlord, in the same locality and in the same town. Rents have gone up. He will have to pay the prevalent rent in the locality consistent with the economic situation now obtaining. Therefore, the argument in that behalf raised by counsel for the tenants cannot be accepted. We do not see anything in the decision of this court in Krishnankunju Raveendran v. Sukumara Pillai (1999 (3) KLT 373) which compels us to take a different view. The use of the expression suitable building can only mean suitable for his needs. It cannot be understood as a building forwhich the tenant need pay rent only at the rate that was prevailing twenty or thirty years ago. It will be an unrealistic interpretation of the statute. If the above decision has laid down any such proposition, with respect, we must say that we cannot find our way to agree with the same.”
7. We may examine the scope of the second proviso to Section 11(3) which we extract below for easy reference.
“Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession. If such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building and there is no other suitable building available in the locality for such person to carry on such trade or business.”
8. Landlord could prove the existence of vacant buildings in the locality. If it is established, tenant can show that the building though available is not suitable to carry on the trade or business conducted by him in the tenanted premises. The reasoning of the Division Bench in Krishnankunju Raveendran's case, supra, was that suppose a tenant is carrying on a petty tea shop and landlord could establish availability of a building in a prime location of the city, petty shop owner would not be in a position to take that building on rent. Further, according to the Division Bench the vacant building should be within the financial reach of the tenant. The Bench felt the mere fact that rooms are available as such is not a ground to deny the protection available to the tenant.
9. We are of the view that the availability of building in the locality and its suitability are all matters of evidence. The Rent Control Court has to decide each individual case on its merits. A Division Bench of this court in Sadanandan v. Kuncheen (1991 (2) KLT 628) held that since the proviso works as an exemption the person who desires to get the exemption has to prove the ingredients of the proviso and to that extent there cannot be any doubt. However, being a negative aspect and that too, the availability of a suitable building in the locality, the nature and quantum of evidence that has to be proved by the tenant may, in appropriate cases, be confined to a positive affirmation by the tenant before the court that no suitable building is available in the locality. Burden then shifts to the landlord since he can positively prove the fact that buildings are available. The expression “suitable buildings available in the locality to carry on trade or business” assumes importance to understand the meaning of the second proviso. Building must be suitable to carry on the business or trade which is being conducted in the tenanted premises. Once it is established that building is available, the available building is to be suitable to carry on the business or trade conducted in the tenanted premises. But once suitability and availability is established, it is the look out of the tenant to negotiate with the prospective landlord and obtain possession. Tenant cannot plead payment of high rent and security amount to the prospective landlord as a defence to defeat the bonafide need established by the landlord under Section 11(3).
10. In other words, payment of high rent and security amount by the tenant to the prospective landlord has no inter relationship with the bonafide need established under Section 11(3); nor the Rent Control Court is expected to determine the plea of the tenant that even though suitable buildings are available they are out of reach after negotiation with the prospective landlord. Naturally tenant is expected to pay the current market rent prevalent. Prospective landlord may fix the rent taking into consideration a variety of facts, cost of construction, land value, importance of the locality etc. before letting out the building. No tenant can expect a building with the same rent which is currently being paid by him for the tenanted premises. In other Words, those are all matters for the tenant to negotiate with the prospective landlord and not the concern of the landlord who had already established his bonafide need under Section 11(3).
11. In this case both the courts have concurrently found that tenant is not entitled to protection under the second proviso to Section 11(3). We therefore find no reason to disturb the said finding. However, tenant is given three months time to vacate the premises.
12. Revision petition is dismissed.
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