Thomas Baby v. Cherian Thressiamma

1. In this revision under s. 115 c. P. C., The tenant of a non - residential building challenges the validity of the order of eviction passed under s. 11 (3) and 11 (4) (ii) of the kerala buildings (lease and rent control) act (act 2 of 1965). The rent controller had found both the grounds against the landlord, But in appeal the findings of the rent controller were reversed on both the grounds and an order of eviction was granted. The judgment of the appellate authority was confirmed by the district court in revision.

2. Various grounds have been taken in the memorandum of this revision petition. The main points on which arguments were advanced by sri. C. K. Sivasankara panicker, The learned counsel for the revision petitioner, Are the following:

(i) the landlord had no bona fide need to occupy the petition schedule building and the rooms, Which were being used for non - residential purposes, And in particular in the context that she had another house of her own in her possession in the same municipality, And the special reasons mentioned in support of the order of eviction by the appellate authority and the revisional court are without any factual basis.

(ii) even assuming that the landlord had the bona fide need, The revision petitioner is protected by the second proviso to sub - section (3) of s. 11 of the act inasmuch as he is depending for his livelihood mainly on the income derived from the trade carried on in the petition schedule building, And there is no other suitable building available in the locality for him to carry on his trade or business, And

(iii) the landlord did not succeed in establishing that the revision petitioner has been using the building in such a manner as to destroy or reduce its value or utility materially and permanently and, Therefore, The order of eviction under s. 11 (4) (ii) is not sustain able.

3. It is in evidence that the landlord respondent is a widow now in her seventies. She has expressed the desire to live separate from her child - ren with whom she was residing at the time of the filing of the petition in a house belonging jointly to them all, Her interest in the house being one out of six equal shares. I have no hesitation in holding that the rent controller was wrong in taking the view that though she was only having a fractional interest in the property, And a preliminary decree for partition had already been passed, She had the right to continue to stay in the house. The ownership contemplated in the first proviso to sub - section (3) of s. 11, In my opinion, Is the absolute ownership, Not a fractional interest which does not entitle such person to have exclusive occupation of the building or any particular portion thereof which could be conveniently used as a separate place of residence. If, In the final decree, The house was allotted to the respondent before the proceedings are over, Different consideration may arise. However, I find no evidence on record as to whether the final decree has been passed, And, If so, To whom the house has been allotted. I, Therefore, Reject the contention of the revision petitioner that the respondent has no bona fide need to have a separate house for her own occupation, And hold that the fact that she has a fractional right in the house, Which originally belonged to her husband, Is not a bar for seeking eviction of the petition schedule building (with rooms attached thereto) which alone belongs to her in absolute right.

4. The contention that in view of the provisions contained in subsection (1) of s. 17 of the act that no non - residential building shall be converted into residential building except with the permission in writing of the accommodation controller deserves to be considered more seriously than was ] done by the courts below. It is in evidence that this building, Which admittedly is being used for non - residential purposes, Was, Prior to ex. P - 2 lease deed in favour of the revision petitioner, Used as a workshop and lorry shed. That being so, It is only with the permission of the accommodation controller the building and the rooms could be converted into a residential building. Presumably this point was not seriously argued or pressed before the courts below and, Therefore, It is unnecessary for this court at this stage to consider what would" have been the decision of the rent controller on this point if it was seriously urged before him.

5. Now we pass on to the second point, Namely, The protection under the second proviso to sub - section (3) of s. 11 of the act. This proviso reads as follows:

"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 available in the locality for such person to carry on such trade or business":"

the finding of the rent controller that the revision petitioner was mainly depending for his livelihood on the income derived from the dry cleaning work that is being carried on in the petition schedule building has not been disturbed by the appellate authority or the revisional court. Even then the revision petitioner is liable to be evicted unless the landlord fails to prove that there is

"other suitable building available in the locality for such person to carry on such trade or business"

, The wording of the proviso is such that the burden of proving that the tenant was depending for his livelihood mainly on the income derived from the business or trade carried on in the building is on the tenant, And that there is other suitable building available in the locality for the tenant to carry on such trade or business is on the landlord. The finding of the rent controller on this point is contained in para. 18 of his order which is extracted below:

"there is no evidence to show that any particular building suitable for the conduct of the trade of the counter petitioner is readily available in the town. But it cannot be said that if the counter petitioner wants to get another building, It will be impossible for him to get one. A room in the thatchankari buildings very close to the leased property was available in february, 1969 as sworn to by pw. 3. True, That room is not as big as the leased building. It has come out from the evidence of the counter petitioner as cpw. 1 that certain dry cleaners are having the show room and the working place in separate places. The counter petitioner was the first to start a dry cleaning business at changanacherry. Thereafter three or four persons have started the same business and it was possible for them to get suitable accommodation. Considering the circumstances it cannot be said that no suitable building will be available in the locality provided necessary enquiries made. Of course, Some time may be required for getting a building"

.)

6. The rent controller is categoric that at the time of passing his order there was no building readly available in the town. If that be so, In my view, The order of eviction cannot be sustained. It is only where it is proved by the landlord and the court is satisfied that there is another suitable build -, Ing in the locality where the tenant could carry on his trade or business that the eviction could be ordered. The passing remarks made by the rent controller that "it cannot be said that no suitable building will be available in the locality provided necessary enquiries made". "of course, Some time may be required for getting a building" etc., Cannot be treated as findings that suitable building where the petitioner could carry on his trade or business is available to satisfy the requirement of the second proviso to sub - section (3) of s. 11. The appellate authority and the revisional court have not independently examined this aspect of the matter, But proceeded on the footing, Misreading the observation of the rent controller, That there was proper finding that other suitable buildings were available for the petitioner to carry on his trade or business. To satisfy the requirements of the proviso the finding that suitable building is available for carrying on the business or trade should be categorical and should have reference to existing facts without being left to chances. There should be proper evidence regarding the availability of the building, Reasonableness of the rent that the tenant may be required to pay, Utility of the building with particular reference to the trade or business that is being carried [ on by the tenant and other surrounding circumstances in order to enter a proper finding on this question. Even though the facilities available to the tenant when he shifts to another building (if it is proved that such a building is available to him), Though not exactly the same as available to him in the building which he is to surrender possession to the landlord, Should not fall much below his requirements so as to adversely affect his trade or business to any appreciable extent. There is no such consideration or a proper finding in this regard in this case and i find no materials placed before the rent controller to enter a finding that there was any other building available for the revision petitioner to carry on his trade or business. The availability of other suitable building must relate to the time of passing the order of eviction. That there was such building available in the past, Or such building may become available at a future date, Is not the sort of finding contemplated under the second proviso to sub - section (3) of s. 11 of the act to sustain an order of eviction under s. 11 (3). Considered in this light, The order of eviction under s. 11 (3) of the act in the instant case cannot be upheld. I

7. The last point to be considered relates to the alleged use of the building by the tenant in such a manner as to destroy or reduce its value or utility materially and permanently. Whether such damage has resulted from such use of the building by the tenant as was not warranted in the normal course or in terms of the lease also will be relevant. Here there is no case that the building was put to any use other than for the dry cleaning work which is the express purpose for which the building was taken on lease by the revision petitioner. There is no satisfactory evidence as to what exactly was the condition of the building at the time of the lease to the revision petitioner. The evidence shows that a tank for storing water and a platform for carrying i out the dry cleaning work have been put up by the revision petitioner. For these and other improvements alleged to have been effected by the revision petitioner, The revision petitioner has claimed a sum of rs. 11,600/ -. As per the order of this court in a revision filed earlier, It has been directed that the quantum of compensation has to be ascertained before the order of eviction could be put into effect. The indications are that the platform and the water tank came into existence with the knowledge of the landlord who was also quite aware of the nature of work that was being carried on in the building by the revision petitioner from 1965. In the notice to quit the landlord had no grievance on the score that the revision petitioner had used the building in such a manner as to destroy or reduce the value and utility of the building materially and permanently. Of course, The absence of this allegation in the quit notice may not operate as a legal bar against the landlord to claim eviction on that ground also. However, In coming to the finding whether the damage, If any, Noticed to the building is such as to destroy or reduce its value and utility, Materially and permanently, And whether it is the result of the use of the building by the revision petitioner in such a manner as to cause such da - mage, The failure to mention such a ground in the quit notice may have some bearing. It has also to be considered whether the damage attributed is the result of the peculiar manner in which the building was being used by the revision petitioner. Are the cracks on the wall such as to be considered as injuries destroying or reducing the utility and value of the building materially and permanently? i am afraid from the evidence on record an answer in the affirmative is not possible. Even assuming that there are some cracks on the wall, Is there any evidence on record to show that they are the result of the use of the building by the revision petitioner? here the allegation seems to be that chemicals are dissolved in water and the platform is being used for dry cleaning purpose. No expert witness has been examined to prove that when chemicals are dissolved in water and such water is used on a platform for dry cleaning purpose, Cracks on the wall would follow. Cracks on the wall may be due to various reasons, And it may not be at all for the reason suspected by the landlord. The court below has not adverted to this aspect of the matter. I think the evidence now on record is not sufficient to come to the conclusion that the revision has used the building in such a manner as to reduce or destroy the utility and value of the building materially and permanently. This, In my view, Requires further investigation.

8. The scope of interference in revision under s. 115 c. P. C., By the high court with the decisions of the courts below certainly is narrower than that of the district court hearing the revision under s. 20 of the act. The question of availability of suitable building in the locality for the tenant to carry on his trade or business and the question as to whether the tenant had used the building in such a manner as to destroy or reduce its value and utility materially and permanently may appear to be purely questions of fact. But in a case like this where the rent controller gets jurisdiction to pass an order of eviction only on establishing that suitable building for carrying on the tenant's trade or business is available in the locality or that the use of the building by the tenant is in such a manner as to destroy or reduce the value and utility of the building materially and permanently, The findings on these questions have a bearing to jurisdiction, And where such findings are entered in the absence of legal evidence or without having any legal basis, In exercise of the power under s. 115 c. P. C., The high court will be justified in interfering with the decisions based on such findings of the courts below.

in this view the revision petition is allowed and the orders of the appellate authority and the revisional court are set aside. I hold that the landlord is not entitled to recover possession of the building under s. 11 (3) of the act, Though she has got bona fide need, In view of the fact that it has not been established in this case that suitable building to enable the revision petitioner to carry on his trade or business was available in the locality as required under the second proviso to sub - section (3) of s. 11 of the act. For a proper finding on the ground based on the use of the building by the revision petitioner in such a manner as to reduce or destroy its utility and value permanently and materially as to warrant an eviction under s. 11 (4) (ii) of the act, I remand the matter to the rent controller. The rent controller will go into this question afresh allowing the parties to adduce evidence. The further enquiry is for entering a definite finding as to whether the damage, If any, Is such as to destroy or reduce the value and utility of the building materially and permanently and, If so whether that is the result of the use of the building by the revision petitioner in a manner as to cause such damage. The rent controller will pass appropriate orders with respect to the claim for eviction under s. 11 (4) (ii) of the act after due enquiry in that behalf as indicated above. There will be no order as to costs in this revision.