Shaji Varghese v. P.C Cherian

Viswanatha Iyer, J.:— The tenant of the downstairs portion of a building belonging to the respondent is the petitioner in this revision petition filed under section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act). The respondent who is a Chartered Accountant by profession applied for eviction of the building quoting section 11(3) of the Act as the provision under which the petition is filed. The petition was allowed by the Rent Control Court under section 11(8) of the Act and eviction ordered, which was affirmed in appeal by the then appellate authority, the Subordinate Judge of Alleppey. The order was however set aside by the revisional court (the District Court) as in its view the appellate Authority had not arrived at definite findings “on the important aspects of application of law” namely sections 11(3) and 11(8). The matter was therefore remitted to the appellate authority for reconsideration of the matter after re-appreciation of the entire evidence, in the light of the observations contained in the revisional court's judgment.

2. It so happened that while the matter was pending after the remit, before the Sub Judge as the appellate authority the jurisdiction of the appellate authority stood vested in the District Judge by notification issued by Government and accordingly the appeal was taken up for disposal by the District Judge himself functioning as the appellate authority. He dismissed the appeal upholding the order of the rent control court. This revision is filed therefrom. The landlord, who, as mentioned earlier, is a practising Chartered Accountant is occupying the upstair portion of the building, the downstairs of which is in the occupation of the petitioner, from whom it is now sought to be evicted. Though the respondent had quoted section 11(3) as the provision of law under which he filed his petition, the rent control court was of the view that from the nature of the allegations in the rent control petition, the requirement of the respondent was one really for additional accommodation, falling under section 11(8). Since the respondent had made out his requirement for additional accommodation under that provision, the rent control court ordered eviction under section 11(8), after considering the question of comparative hardship. He held that the petitioner could not resist eviction on the ground that the hardship caused to him by eviction will outweigh the hardship to the respondent by refusing eviction. He also went into the question whether the petitioner was entitled to the protection afforded by the second proviso to section 11(3) namely whether he was depending mainly on the Income from the business carried on in the premises for his livelihood and whether there was no other suitable accommodation available to him in the locality for carrying on such business, though this was not really required to be gone into in the light of the finding that eviction was liable to be ordered under section 11(3) and held that the petitioner was not entitled to protection under the said proviso.

3. The appellate authority confirmed this order of eviction pasted under section 11(8) of the Act.

4. Counsel for the petitioner contended in the first instance that the petition having been filed under section 11(3), it could not have been dealt with as one under section 11(8) and ordered accordingly. According to him, the pleadings in the case related only to a claim under section 11(3) namely the bona fide requirement of the respondent for the building for his own occupation, and that there was no sufficient pleading to bring the case under section 11(8), namely need of the landlord in possession of a portion of the building for additional accommodation for his personal use. It is his submission that the petitioner has been taken by surprise by the course adopted and that the matter should in any case be remitted to the rent control court for fresh disposal, if not altogether dismissed for want of pleadings. Inter alia he referred to some observations in the revisional court's order of remand, which according to him, have clearly proceeded on the basis that the pleadings were insufficient to sustain a plea under section 11(8). What is relied on is the statement in paragraph 7 where the revisional court observed: “landlord is occupying the first floor of the building. Para 3 of the petition deals with the need of the landlord and also the reason for such need. Except this para there is no other details available with regard to the need of the petition schedule building by the landlord. In paragraph 3 of the petition landlord has averred that he is a Chartered Accountant having bis office on the first floor. He is finding it difficult and inconvenient to carry out his professional work in the limited accommodation. He bona fide needs the petition schedule building for his occupation to carry on his professional work more conveniently…………………………. In the instant case as stated earlier there is no required details given in para 3 but the landlord as observed by the rent control court only deposed in the box about the details……………”

5. We shall take up this plea of lack of pleadings and the alleged prejudice caused to the petitioner, before proceeding with the other contentions raised by him.

6. We may mention at this stage that section 11(3) of the Act enables a landlord to get an order of eviction of the tenant if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. This provision is hedged in by certain provisos including the second proviso which interdicts the rent control court from passing an order of eviction on the ground of bona fide need if the tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in the building and there is no other suitable building available in the locality for the tenant to carry on the trade or business. Section 11(8) is another provision which enables the landlord to get an order of eviction. Under that provision, a landlord who is occupying only a part of the building may apply to the rent control court for an order directing the tenant occupying the whole or any portion of the remaining part of the building to put him in possession thereof if he requires additional accommodation for his personal use. A claim for the eviction under section 11(8) has also to satisfy the test of comparative hardship under section 11(10) in that no order of eviction could be passed under section 11(8) if the hardship caused to the tenant by ordering eviction will outweigh the hardship caused to the landlord by refusing eviction. A building is defined in section 2(1) as meaning any building or hut or part of a building or hut, let or to be let separately for residential or non-residentical purposes, unless the context otherwise requires.

7. The filing of the rent control petition was preceded by the issue of a notice, a copy of which is Ext. A2. The landlord has stated therein that the two rooms occupied by the petitioner were required “for his bona fide occupation for using them as office since the present accommodation now available is not sufficient for carrying on his professional work”. Ext. A3 is the reply of the tenant to Ext. A2 in which, while disputing the claim of the respondent, he stated inter alia that the respondent did not “require additional accommodation for his personal use.” He also mentioned that the hardship that will be caused to the petitioner by granting an order of eviction will outweigh the advantages to the respondent, an averment clearly referable to a claim for eviction under section 11(8). A perusal of Ext. A2 shows that what the landlord had set forth was his need for additional accommodation for his personal use it being in evidence that both the upstairs and downstairs portions have been constructed alike. This ground falls squarely under section 11(8). It was so understood by the petitioner as well, as is clear from what he stated in Ext. A3, which we have extracted above, particularly from his reference to comparative hardship, which arises in the case of a claim for eviction under section 11(8) and not under section 11(3).

8. The petition for eviction that followed was also equally specific in relation to the averments under section 11(8). Paragraph 3 of the petition reads:—

“The petitioner is a Chartered Accountant and he is having his office on the first floor and the two rooms occupied by the counter petitioner are in the ground floor. The petitioner is finding it difficult and inconvenient in carrying on his professional work in the limited accommodation which he is at present having and he bona fide needs the petition schedule building for his occupation to carry on his professional work more conveniently.”

9. The reply of the tenant Inter alia was that “the room in the first floor of the whole building wherein the office of the petitioner is housed has ample space and accommodation.” He stated further in paragraph 6:

“The petitioner does not require additional accommodation for his personal use. Further the hardship that will be caused to the counter petitioner by granting an order of eviction will outweigh the advantages to the petitioner in cate of eviction”.

10. It is clear that despite the heading of the petition as one under lection 11(3), the pleadings were express and specific that the respondent needed the portion of the building occupied by the petitioner as additional accommodation for his personal use. It was so understood by the petitioner as well. In this state of the pleadings, and also the anterior notice and reply, it could not, for a moment, be contended that the petitioner was misled into believing that the claim was only under section 11(3) and not under section 11(8) and therefore he did not set forth the necessary averments to meet the case under section 11(8). There is absolutely no room for any misunderstanding of the requirement of the respondent as one for additional accommodation having regard to what is stated in his notice Ext. A2 and in the petition, read with the reply Ext. A3 and the averments in the counter statement of the petitioner. There is therefore no substance in the petitioner's plea that the pleadings were inadequate to sustain an order of eviction under section 11(8).

11. Section 11(3) and 11(8) are not mutually exclusive. (Muhammed v. Abdul Rahiman, 1983 KLT 874). Both of them relate to the requirement of the landlord for the building in the occupation of the tenant for his purposes. Both are related to the need of the landlord, in one case for the entire building where the landlord is not in possession of any portion thereof, in the other case for the portion not occupied by him when he is in occupation of a portion and needs additional accommodation. In Lakshmana Naikan v. Gopalakrishna Pillai, 1981 KLT 167 Poti, J. observed emphatically that whether it is a claim for eviction under section 11(3) or under section 11(8) there is something in common namely occupation by the landlord if the case of the landlord is that he is residing in a part of the building and he requires another part of the building in the occupation of the tenant for his occupation so as to have additional accommodation, and not to transplant himself from the portion he is residing to the new portion, then the case squarely falls under section 11(8). If on the other hand, a person is occupying a portion of the building, another portion of the building is in the occupation of a tenant and he wants that portion as he prefers to occupy that portion of the building, it will be a claim that falls under section 11(3). It may be that even without the additional accommodation, the landlord may manage. But there are many people who can afford luxuries. There is no reason to deny that to them so long as the law does not prohibit their enjoyment. The test of bona fides under section 11(8) read with section 11(10) is not whether the landlord could merely afford to live without the additional accommodation, but whether in seeking the additional accommodation the landlord is pleading an honest purpose and not merely setting up an excuse to obtain eviction.

12. Sections 11(3) and 11(8) being thus not mutually exclusive, and both being intended to subserve a similar purpose, namely, occupation by the landlord, the fact that the landlord quoted a wrong provision as the one under which he filed the petition, does not really affect the maintainability of the petition or the order of eviction under the other provision if the pleadings are sufficient to put the tenant on notice of the claim made by the landlord. After all, what the tenant has to deal with and reply are the averments in the body of the petition and not with reference to the section quoted at the heading of the petition for eviction.

13. We may also note that pleadings in rent control petitions are not to be analysad meticulously or in such a way as to lead to failure of justice. This is the effect of the decision in Narayani v. District Judge, 1991 (1) KLT 646, which did not accept the view of a learned Single Judge in L.R Rangaier Sons (P.) Ltd. v. Rukhiyabi 1982 KLT 658, insisting, on strict adherence to pleadings in rent control matters. The same view was taken in two subsequent decisions, in one of which, Madhayan v. Lelamma 1991 (2) KLT 32, the Bench went further to hold that if the court felt that no prejudice has been caused to the counter petitioner on account of the pleadings of the petitioner, it was not proper to deny relief on the ground that there was no pleading. The other decision is in Subbiah Reddiar v. Chinnamma, 1991 (2) KLT 461, by another Bench where it was reiterated that the pleadings should be liberally construed and a meticulous analysis of the pleadings should not be adopted which will lead to failure of justice.

14. There are some observations in another decision of a Bench of this court in Ebrahim Ismail Kunju v. Phasiba Beevi, 1991 (1) KLT 861, which appear to cast some doubts about the correctness of the decision in Narayani's case 1991 (1) KLT 646. We do not see this decision as striking any discordant note to the line of decisions we have traced deprecating meticulous analysis of the pleadings in rent control petitions. We are inclined to read the observations only as laying down a trend of thought which may require to be considered in an appropriate case where pleadings are totally wanting.

15. When parties have gone to trial with full knowledge that a particular point was involved, and arose for consideration, the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying on it, if it is satisfactorily proved by evidence. It is not open to the other party at a subsequant stage to turn round and contend that the trial is vitiated for want of a specific plea of issue on the point. Bhagwati v. Chandramaul AIR 1966 S.C 735. That is also the position here. The petitioner went to trial after he had been, put on notice of the plea under section 11(8) by the petition as well as the antecedent notice that he was seeking additional accommodation. The petitioner's plea that he has been taken by surprise cannot therefore be countenanced.

16. Reliance on the observations in the order of remand does not also appeal to us. The stray observations therein do not really preclude a contention that the pleadings in the case were sufficient to found a case under section 11(8). In fact the ultimate order of remit is one for re-appreciation of the evidence in the light of the case set up under sections 11(3) and 11(8). It is significant that the revisional court did not preclude consideration of the case under section 11(8) for the alleged lack of pleadings. The first contention raised by the petitioner, based on the pleadings in the case, has therefore to be negatived.

17. The next contention raised by the petitioner is that section 11(8) cannot be invoked in this case, as according to him, the upstairs portion occupied by the respondent and the down-stairs portion occupied by him, do not constitute one building, but two independent buildings, and therefore a claim for “additional accommodation” will not lie under section 11(8). Reliance is placed on the decision of the Supreme Court in Gangaram v. Shankar Reddy, (1988) 4 SCC 648 : AIR 1989 S.C 302, a case arising under section 10(3)(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960, corresponding to section 11(8) of the Kerala Act. The building concerned in that case was a line building of which three rooms were occupied by the landlord and the other three rooms by the tenant with a common wall separating the same. They bore different door numbers. In these circumstances, the Supreme Court stated that the two portions of the building, were not one and the same building, but separate ones. A practical test, to ascertain whether adjoining buildings formed part of the same building or were two different buildings was suggested by Their Lordships, namely to see whether one of the two buildings could be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlords's possession, and enjoyment of the premises in his occupation being affected.

18. The petitioner's case is that there is admittedly an independent access to the upstairs through a staircase situate adjacent to the building, the staircase from inside the building having been closed temporarily, by wooden reapers. Therefore, the two portions are distinct and separate buildings in which case section 11(8) is out of the way as it applies only where the. landlord is in possession of a portion of the building, and the tenant in possession of the whole or portion of the other part of the building.

19. This contention has to fail for more than one reason. Such a point has not been raised at any anterior stage of these proceedings. It makes its appearance for the first time in this court. The petitioner had no case in his counter statement or in his reply notice Ext. A3 that the two portions of the building are distinct, separate buildings and not part of a single whole building. In fact, a perusal of the petitioner's counter statement shows that he has proceeded only on the basis that both the portions together constitute one whole building. He states:—

“The room in the first floor of the whole building wherein the office of the petitioner is housed……………………………”

20. The petitioner having thus understood the two portions of the building as forming part of one integral whole, it does not stand to reason that he should at this stage be allowed to plead that the two portions are distinct separate buildings to which section 11(8) will not apply. It is clear from the Commissioner's report that the building is one, with the upstairs and downstairs occupied separately at present with the normal access to the upstairs through the staircase situate inside the building. This staircase has been temporarily closed by the tenant with wooden reapers which are liable to be removed at any time and the upstairs made accessible from the downstairs. The decision of the Supreme Court was really concerned with a line building, and it was in that context that the Court applied the practical test formulated by them to see whether any portion could be sold by the landlord and the purchaser inducted into possession without this landlord's possession and enjoyment of the premises in his occupation being affected. It is clear from what the Supreme Court has stated that this test is limited to two adjoining buildings. It may also be noted here that the petitioner has no case that the downstairs and upstairs portions of this building were constructed or intended to be enjoyed as flats in which case there would have been some point for consideration.

21. So far as the Kerala Act is concerned, what is made relevant is a whole building and the occupation of a portion thereof by the landlord. If the construction adumbrated by the petitioner were to be accepted, it may as well lead to the startling result of section 11(8) being rendered otiose and purposeless, for it is unlikely that the landlord will be in possession of any area, which is not completely cut off from the portion in the possession of the tenant. Poti, J. had occasion to consider this aspect in his decision in S. Sivasubramanya Iyer… v. S.H Krishnaswamy…., AIR 1981 Kerala, page 57, where after an elaborate consideration, the learned Judge observed that if the approach suggested by the tenant were to be accepted, then there will be practically no case at all to which section 11(8) will apply. The learned Judge observed:—

“If the portion let out to the tenant is to be treated as a separate building for the purpose of Section 11(8) of the Act, it would be a sufficient answer in every case where Section 11(8) of the Act is invoked that since the portion of the building let out to the tenant is to be treated as an independent building in view of the definition of the term ‘building’ contained in the Act, eviction cannot be ordered under section 11(8) of the Act. The definition of the term ‘building’ in Section 2(1) of the Act no doubt defines ‘building’ to mean “any building or hut or part of a building or hut let or to be let separately for residential or non-residential purposes.” But, I must notice that the definition section starts with the expression “unless the context otherwise required”.

It goes without saying that the context of Section 11(8) of the Act requires, that the term ‘building’ Should be read in the sense in which it is understood in the common parlance. It may be that for the purpose of other sections of the Act a part or portion of a building independently let out to a tenant may be a ‘building’ and not a part of a building But, for the purpose of S. 11(8) such part or portion of a building occupied by a tenant, though a building within the definition, would continue to be a part or portion of a building, since the context otherwise requires.”

22. We are in agreement with this view. A building of the nature, we have in this case, constructed, and intended to be used as one, integral unit, different portions of which are occupied either by the tenant or by the landlord, cannot be treated as different buildings to preclude the operation of section 11(8). The upstairs and downstairs portions constitute but parts of a whole building, which cannot be split up into different buildings for purposes of section 11(8).

23. We have already held that the building in question is one for which the normal access is through a staircase situate inside the building which stands closed only temporarily. In the absence of pleadings, and in the absence of anything to indicate that the two portion were intended to be used to the exclusion of the other, it is not possible for us to accept the petitioner's contention that they are different buildings, and not portions of the same building to which section 11(8) will apply. This contention raised by the tenant therefore fails.

24. The need of the landlord for the portion in the occupation of the petitioner has been found. He is a Chartered Accountant under whom there are a number of apprentices and other staff working. A perusal of the Commissioner's report shows that the space is hardly sufficient for the occupation of all these persons. The report of the Commissioner that the space available in the upstairs is adequate for the respondent's purposes is without any basis. At any rate, it cannot be said that the respondent cannot aspire for larger space for housing his office or for his clients. The findings are concurrent that the respondent needs this accommodation as well, for the purpose of his practice as a Chartered Accountant. Nothing has been brought out before us to indicate as to how the need of the landlord for this accommodation for his personal use is not bona fide. Nor, for that matter, the finding regarding comparative hardship, on which ho arguments were addressed before us. The finding of fact entered by the authorities below which is supported by the evidence in the case, is not liable to be interfered with in a petition under section 20 of the Act. No other contentions have been raised before us. We have repelled the various pleas raised by the petitioner. The revision petition has therefore to fail. But having regard to the facts of the case, we are inclined to grant some time to the petitioner to vacate subject to his filing undertaking as mentioned below.

25. The Civil Revision Petition is therefore dismissed, without any order as to costs. The petitioner is however, granted three month's time to vacate from the premises in question subject to his filing an affidavit in the Rent Control Court within a period of two weeks from today, unconditionally undertaking to vacate and surrender vacant possession of the building to the respondent within a period of three months’ from today. Needless to say, the petitioner will continue to pay damages for use and occupation of the building for the period of his occupation at the rate of the rent which he was paying hitherto. If the affidavit is not filed as directed, It will be open to the respondent landlord to evict the petitioner and recover possession forthwith.