Janaki Balakrishnan vs I.K. Thripu

A. Muhamed Mustaque, J.—These Rent Control Revisions are filed by the landlords aggrieved by the dismissal of the petition for eviction filed u/s 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ''the Act'').

The landlords approached the Rent Control Court alleging that they are in occupation of the upstair portion of the tenanted premises, in which, they are conducting business in sanitary wares, electrical goods and plumbing materials and also conducting a tailoring unit. It is pleaded in the Rent Control Petition that the second petitioner is unemployed and he wants to start a business in making bend pipes and in the sale of the same. The requirement espoused in the Rent Control Petition is specifically u/s 11(8) of the Act. This is because the landlords had approached the Rent Control Court earlier, seeking for eviction of the tenant u/s 11(3) of the Act. The above proceedings attained finality in R.C.R. Nos. 340 and 341 of 2005 before this Court. In the above Rent Control Revisions, this Court found that the prayer for eviction u/s 11(3) is not maintainable, based on the pleadings and evidence. This Court took the view that the requirement projected is to have an additional accommodation in view of the fact that the landlords are already in occupation of a part of the building. The claim u/s 11(3) of the Act was thus rejected in view of the fact that the pleadings and evidence would indicate that only a claim u/s 11(8) of the Act would be maintainable. The landlords in the above proceedings sought for a remand order to carry out amendment in the pleadings so as to substantiate their claim u/s 11(8) of the Act. However, this Court declined their request as it would cause prejudice to the parties. Thereafter, the landlords filed the present Rent Control Petition with the averments as above.

The Rent Control Court found that the landlords are not conducting any business as alleged in the Rent Control Petition. The Rent Control Court also found that there are contradictions in the pleadings as well as in the evidence. The Rent Control Court also noted the admission made by PW1 that entry to upstair is blocked by keeping tyres which would indicate that the upstair portion is not being used by the landlords for doing any business. It is also to be noted that the landlords have not produced any document to show that any business is being conducted by them in the upstair portion. It is also revealed from Ext. C1 Commission report that in the upstair portion there were only stitching machines and many of them were covered with full of dust. Except three sacks of bend pipes, nothing was there to indicate any signs of business in sanitary wares, electrical goods and plumbing materials as projected in the Rent Control Petition. Therefore, appreciating the pleadings and evidence, the Rent Control Court came to the conclusion that the landlords failed to establish that the need projected is for additional accommodation on account of the occupation of a part of the building. Accordingly, the Rent Control Petition was dismissed.

The Rent Control Appellate Authority also appreciated the pleadings and evidence and found that the additional accommodation projected in the Rent Control Petition and also revealed from the evidence are totally different and the landlords failed to establish their occupation of the tenanted premises.

The courts below also found that the hardship that may be caused to the tenant if eviction is ordered u/s 11(8) may outweigh the hardship that may be caused to the landlords, if the petition is not allowed. It was also found by the courts below that the tenant has no other source of income other than the income derived from the business conducted in the tenanted premises.

To claim eviction u/s 11(8) of the Act, the landlords must establish that they are in occupation of a part of the building. The mere legal possession is not sufficient to sustain the claim u/s 11(8) of the Act. The landlords have to establish that they are in actual occupation of a part of the building. The claim for additional accommodation arise only when the landlords establish themselves that they are in occupation of a portion of the building. In this case, the petitioners/landlords have miserably failed to prove before the courts below that they are in occupation of a portion of the building. The landlords having raised a case that they are doing business in sanitary wares, electrical goods and plumbing materials in the upstair portion of the building, necessarily they are bound to prove before the courts below that they are doing such a business in the upstair portion of the building. It is to be noted that the tenant had specifically denied the allegation of the landlords that they are in occupation of the upstair portion and they are doing business in the upstair portion of the building. Therefore, we are of the view that the courts below have rightly held that the landlords have not made out a case u/s 11(8) of the Act.

Both the courts below having found on facts that the landlords have failed to establish their case u/s 11(8) of the Act, we do not find any reason to interfere with the concurrent findings entered by the courts below.

Accordingly, we dismiss the Rent Control Revisions.