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P.B. Dineshan Pillai v/s Joseph @ Jose

    RCRev. No. 136 of 2018

    Decided On, 19 February 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN

    For the Petitioner: J. Julian Xavier, Firoz K. Robin, Advocates. For the Respondents: B. Jayaparakash, M.V. John, Renju John, Advocates.



Judgment Text

K. Harilal. J.

1. (1) Does the pendency of a Civil Suit, seeking a decree for realisation of the arrears of rent or the existence of a decree for the same, preclude the Landlord from instituting a Rent Control Petition, seeking an order of eviction under section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act, on the ground of arrears of rent, of the same period.

(2) Is it obligatory on the part of the tenant to identify and point out the vacant buildings in the possession of the Landlord, for giving special reason, for not occupying that building by the Landlord.

These are the questions that emerge for consideration in this Revision Petition.

2. The Revision Petitioner is the tenant in R.C.P.No.9/2012 of the Rent Control Court, Cherthala. The said Rent Control Petition was filed against him by the respondent herein, under section 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'), seeking an order of eviction. (The parties are referred to as in the Rent Control Petition).

3. According to the petitioner, the rent was in arrears from 20.07.2005. Though he had sent statutory notice demanding payment of arrears, the respondent did not heed to the said notice and thereby, he is entitled to get an or

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der of eviction under section 11(2) (b) of the Act. Further, the petitioner averred that the petitioner and tenant are occupying different rooms of the same building owned by him. He needs the petition schedule shop room for the expansion of his business, carrying on in the corner shop room of the building to which the petition schedule shop room also forms a part. He has no other shop room of his own in his possession, suitable for the expansion of the existing business. But, several other buildings are available in the same town to shift the respondent's business from the tenanted premises. With the aforesaid averments, he prayed for eviction of the respondent under section 11(2)(b) and 11(3) of the Act.

4. The respondent resisted the claim for eviction under section 11(2)(b) of the Act, contending that the petitioner had instituted two civil suits claiming arrears of rent and both the suits were decreed and the decree amount is being paid by him. Therefore, for the very same amount, no Rent Control Petition can be filed under section 11(2)(b) of the Act . The existence of the decree for realisation of the arrears of rent precludes the petitioner/landlord from instituting the present Rent Control Petition under section 11(2)(b) of the Act on the ground of the same arrears of rent. As regards section 11(3) of the Act, he contended that the need projected is not bona fide and it is a pretext for eviction only. The petitioner has several other buildings of his own in his possession to expand his business. The income from the tenanted premises is the only source of his income. With the aforesaid contentions, he prayed for the dismissal of the Rent Control Petition.

5. Both parties adduced evidence on the aforesaid pleadings and after considering the evidence on record, the Rent Control Court passed an order of eviction under both grounds. In the appeal, the Appellate Authority also confirmed the order of eviction passed by the Rent Control Court.

6. Heard Shri. Julian Xavier, the learned counsel appearing for the Revision Petitioner.

7. The learned counsel for the respondent advanced the arguments contending that the petitioner himself had admitted that the respondent had paid certain amount to the petitioner, as arrears of rent, in execution of the decree passed in O.S.No.408/2006 and O.S.No.738/2008. According to the learned counsel for the respondent, no order of eviction could have been sought on the ground of non-payment of the amount covered by the aforesaid original suits. The Courts below have not considered the maintainability of the said claim, in view of the decree obtained in the original suits, O.S.No.408/2006 and O.S.No.738/2008. Secondly, the learned counsel for the respondent contended that the Courts below have failed to appreciate the evidence available under the first proviso to Section 11(3) of the Act in its correct perspective. According to the learned counsel, it has come out in evidence that the petitioner has other buildings of his own in his possession and the petitioner himself admitted the same in his evidence. Therefore, the Courts below ought to have found that no special reason was given by the petitioner for not occupying those rooms for the expansion of the existing business.

8. Coming to the first question, it is not disputed that the petitioner had claimed an order of eviction under section 11(2)(b) of the Act, on the ground that the rent was in arrears from 20.07.2005. It is also admitted that, earlier, the petitioner had filed two Original Suits, O.S.No.408/2006 and O.S.No.738/2008, for realisation of the arrears of rent and the said suits were decreed, granting a decree for realisation of the arrears of rent.

9. On a bare reading of Section 11(2)(a) and (b) of the Act, it is well discernible that the said provision is a ground to evict the tenant, on the ground that the tenant has not paid or offered arrears of rent, despite the receipt of the statutory notice issued to him, demanding arrears of rent, under section 11(2)(b) of the Act, and the said provision is not intended for realisation of the arrears of rent. Under Section 11 (2)(b) of the Act, no executable order can be passed to realise the arrears of rent found by the Rent Control Court. As per Section 11(2)(c) of the Act, the tenant has an option either to deposit the arrears of rent within one month from the date of order or further period, if allowed, so as to vacate the order of eviction passed against him under section 11(2)(b) of the Act or to vacate the premises, without paying the arrears of rent. Certainly, the tenant will get the order of eviction vacated under section 11(2) (c) of the Act, if he deposits the arrears of rent with interest and cost of proceedings within the specified time. Thus, the order under section 11(2)(c) is not an order to realise the arrears of rent, and it is an order to get an order of eviction vacated, if the tenant desires so. The landlord will get arrears of rent, only if the tenant opts under section 11(2)(c) of the Act.

10. On the other hand, the suit for realisation of arrears of rent is intended for obtaining an executable decree to realise the arrears of rent only, through the process of Court. Thus, both proceedings are different, distinct and intended for different purposes and those proceedings are mutually exclusive. Therefore, the pendency of a suit for realisation of arrears of rent or existence of a decree for arrears of rent does not preclude the landlord from instituting a Rent Control Petition, seeking an order of eviction on the ground that the tenant has not paid or offered arrears of rent for the same period. Notwithstanding the existence of a decree for realisation of arrears of rent, the landlord can institute a Rent Control Petition, under section 11(2)(b) before the Rent Control Court, seeking an order of eviction, if the tenant has not paid the decree amount, covered by the statutory notice issued under section 11(2)(b) of the Act, with 6% interest and postal charges within a period of 15 days from the date of receipt of notice. Thus, the landlord can proceed with the Rent Control Petition, seeking an order of eviction on the ground of the arrears of rent, notwithstanding the pendency of a suit for realisation of that arrears of rent or the existence of a decree for realisation of that amount, as arrears of rent.

11. In the instant case, the respondent/tenant himself admitted that he had paid certain amount only towards the decree amount. But it is pertinent to note that the decree passed in the aforesaid earlier suits were not produced in evidence and no kind of evidence has been produced to establish the payment of any amount towards the decree amount. It is needless to say that burden of proof is heavy on the tenant to prove that he had paid the amount and no amount is due from him. In the absence of any evidence to prove any kind of payment towards the decree amount, after passing of the decree, it cannot be held that the arrears of rent claimed in the Rent Control petition includes the amount which is alleged to have been paid under the decree. The learned counsel submits that the petitioner/landlord himself admitted receipt of some amount towards the decree amount. We have gone through the oral deposition of the petitioner and we find that, in the oral evidence of PW1, no question was put to him, suggesting receipt of any particular amount, as arrears of defaulted payment, for any particular period. In the absence of any specific question suggesting receipt of arrears, the answer to that question cannot be taken as an admission. We find that there is no admission from the part of the petitioner admitting the receipt of any amount, falling under the decree and included in the claim put forward in the Rent Control Petition. When the respondent has no specific case as regards the payment of any particular amount, it cannot be held that the petitioner admitted the receipt of any arrears under the decree. Therefore, we find that in the absence of any material evidence, establishing the payment of arrears of rent after 20.07.2005, the Courts below are justified in finding that the rent was in arrears from 20.07.2005 onwards, despite the existence of a decree for the same.

12. Coming to the second question, it is the case of the respondent that the petitioner has several other vacant buildings of his own in his possession to start the proposed business. In view of the submission, we have gone through the counter statement filed by the respondent and we find that the pleadings are very vague with respect to the first proviso to section 11(3) of the Act. It is stated that the petitioner has several other buildings. No particular vacant room has been identified or pointed out in the pleadings. We are of the opinion that it is obligatory on the part of the tenant to plead and prove the identity of the vacant building in the possession of the landlord. In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be said that the respondent/tenant has not discharged the initial burden of proof under the 1st Proviso to Section 11(3) of the Act.

13. Coming to the evidence also, no evidence has been adduced to prove the availability of any other vacant rooms in the possession of the petitioner. Certainly, he could have taken out a commission to ascertain and report the vacant rooms in the possession of the petitioner. In the absence of any material evidence to prove the availability of vacant shop rooms in the possession of the petitioner, there is no occasion to give any special reason for not occupying such rooms, vaguely contended in the counter statement. But, we further find that in the Rent Control petition itself, the petitioner/landlord has stated that now he is conducting a textile shop in the corner room and the petition schedule building is required for the expansion of the business of his corner shop, as the petition schedule shop room is situated adjacent to the corner shop room. We are of the opinion that this is a special reason for the requirement of the petition schedule shop room itself and for not occupying any other shop rooms in his possession. Thus, we find that the respondent has not discharged the burden of proof under the first proviso to Section 11(3) of the Act. On the other hand, in the pleadings itself, the petitioner has given special reasons for requiring the petition schedule buildings, rather than other rooms.

14. In the above view, we find that there is no illegality and impropriety in the findings, whereby the Courts below found that the need projected in the petition is bonafide and the claim for eviction is not barred by the first Proviso to Section 11(3) of the Act. Hence the Revision Petition fails and dismissed accordingly.

15. Having regard to the nature of business, which is being conducted in the tenanted premises, the Revision Petitioner/tenant is given six month's time to vacate the petition schedule building, on the following conditions:-

(1) The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop room within six months from today.

(2) The revision petitioner/tenant shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default.

(3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order.

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