Kerala High Court: In a revision petition filed by the tenant challenging the order of the Rent Control Appellate Authority (‘RCAA’) , wherein the Appellate Authority set aside the order of dismissal of the eviction petition by the Rent Control Court, and held that the landlord is entitled to get vacant possession of the petition-scheduled building as per Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (‘the Act’), the division bench of A. Muhamed Mustaque and P. Krishna Kumar*, JJ. said that in a case where an eviction order has already been passed, only subsequent events that fully undermine or negate the landlord’s genuine need for eviction can be used as a valid reason to cancel or overturn that eviction order. In the present case, the landlords’ need could not be said to have been completely eclipsed by subsequent events. Thus, the Court upheld the Appellate Authority’s findings, confirming that the landlords genuinely require vacant possession of the tenanted premises.
As a result, the revision petition was dismissed, though the tenant was permitted to remain in the petition-scheduled building for an additional period of four months, subject to certain conditions.
Background
The owners of the petition-scheduled building had rented it out to the tenant through their predecessor-in-interest. The landowner, who was unemployed, sought eviction under Section 11(2)(b) and 11(3) of the Act claiming the need for the room to start a hardware business. The tenant opposed the eviction, arguing that the landlords owned other vacant rooms more suitable for the business.
The eviction petition was filed in 1997. The Rent Control Court initially dismissed the petition, finding no bonafides on the landlords’ part. On appeal, the Appellate Authority ruled in favor of the landlords, ordering eviction. However, the High Court reversed the decision and remanded the case for fresh evidence, particularly regarding the landlords’ possession of three shop rooms obtained after an earlier eviction order.
After considering the fresh evidence, the Rent Control Court again found that the landlords were not entitled to eviction, as they were already in possession of other vacant rooms. The Rent Control Appellate Authority set aside this finding and remanded the matter for further disposal, appointing an Advocate Commissioner to inspect the premises and the vacant rooms. The third time as well, the Rent Control Court dismissed the case.
The order was once again challenged before the Appellate Authority, wherein it found that the tenant failed to prove the existence of any circumstances for invoking the first proviso to Section 11(3) of the Act. The Appellate Authority further concluded that the landlords had a bonafide requirement for vacant possession of the petition-scheduled building for their own occupation.
Analysis and Decision
The Court stated that there was no reason to upset the order of the Rent Control Appellate Authority. As correctly observed by the Appellate Authority, the Rent Control Court’s findings were primarily based on the fact that the landlords had subsequently obtained possession of three rooms, totaling a combined area of 689.74 sq.ft., which was larger than the petition-scheduled building.
The Court disagreed the Rent Control Court, that the landlords lacked bonafides, suggesting that if these three rooms were combined into a single hall the landlords could have started the proposed hardware business there. The Court stated that it could not accept the proposition. The landlords, being the best judges of their own cause, were under no obligation to alter the structure of the vacant rooms to suit the business they intended to start. Such a conversion could require significant financial investment and might affect the building’s structural integrity. These considerations, the Court noted, could have deterred the landlords from pursuing such modifications. Matters like this, the Court emphasized, should remain within the exclusive domain of the landlords, and the Court should refrain from directing or advising them on how to modify their property for business purposes.
However, the Court acknowledged that such matters could have been raised during the trial to test the veracity of the landlords’ claim of bonafide requirement. The landlords may have several justifications for not utilizing the vacant building, but as correctly observed by the Appellate Authority, the Commissioner reported that the petition-scheduled shop room was more suitable for starting the hardware business than the vacant rooms obtained by the landlords.
The Court also addressed another finding of the Rent Control Court, which noted that two rooms on the first floor of the building became vacant after the filing of the case but were subsequently rented out to other tenants. The Court pointed out that these rooms were on the first floor and, therefore, could not be compared to the petition-scheduled building, which was on the ground floor and faced the road. Moreover, the tenant failed to prove that the rooms on the first floor were sufficient or suitable to accommodate the proposed hardware business.
The Court said that the finding of the Appellate Authority—that the crucial period for determining the landlord’s bona fide need is the date when the eviction petition was filed—is not erroneous. While acknowledging that there are exceptions to the general rule that the rights and obligations of the parties are determined as of the commencement of the lis, the Court emphasized that the landlord’s need must continue throughout the litigation and exist on the date of the final order.
However, the Court clarified that the true test for assessing the impact of subsequent events on the landlord’s bona fide need is whether those events completely eclipse the landlord’s need. If not, the Court can proceed with the general rule that the situation at the commencement of the litigation governs the decision.
In the present case, the Court found that the landlords’ need could not be said to have been completely eclipsed by subsequent events. Even though the landlords had obtained possession of another building, this building would require the combination of rooms, which could involve significant modifications. The Court ruled that this did not affect the landlords’ bona fide need.
The Court further noted that if the tenant seeks to argue that the landlords obtained a suitable vacant building after the petition, the onus of proof lies with the tenant. The Rent Control Court’s decision was based on a misplaced burden of proof, and this warranted the reversal of the decision.
The Court ultimately upheld the Appellate Authority’s findings, confirming that the landlords genuinely require vacant possession of the tenanted premises. Both the Rent Control Court and the Appellate Authority agreed that the tenant was not entitled to the protection of the second proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. Thus, the Court found no reason to interfere with the eviction order passed by the Appellate Authority.
As a result, the revision petition was dismissed, though the tenant was permitted to remain in the petition-scheduled building for an additional period of four months, subject to the following conditions:
(i) The tenant was required to file an affidavit before the Rent Control Court or the Execution Court, within two weeks of receiving a certified copy of the order, providing an unconditional undertaking to surrender vacant possession of the petition-scheduled shop room to the landlords within four months, and not to induct third parties into possession.
(ii) The tenant was required to deposit any outstanding arrears of rent, if any, before the Rent Control Court or Execution Court within one month of receiving a certified copy of the order, and to continue paying rent for subsequent months without default.
(iii) Failure to comply with any of these conditions resulted in the automatic cancellation of the time granted for surrendering possession, and the landlords were at liberty to proceed with the execution of the eviction order.
[P.M. Ismail v Abbas, Rcrev. No. 165 of 202, decided on 12-03-2025]
*Order by: Justice P. Krishna Kumar
Advocates who appeared in this case :
For Petitioner: MEENA.A. KURIAN ANTONY EDASSERY VINOD RAVINDRANATH K.C.KIRAN M.R.MINI ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. NIVEDHITHA PREM.V
For Respondent: SADCHITH P KURUP, C.P.ANIL RAJ, SIVA SURESH, B.SREEDEVI, ATHIRA VIJAYAN
