Abdulla Haji vs Krishnan

Pius C. Kuriakose, J.—Under challenge in this revision filed u/s 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority ordering eviction on the ground under Sub-section (8) of Section 11. The landlord had invoked Sub-section (3) of Section 11 and Sub-section (8) of Section 11 for evicting the tenant. The Rent Control Court found that the Rent Control Petition is maintainable only on the ground of Sub-section (3) of Section 11. That Court, on appreciating the evidence, came to the conclusion that the need projected by the landlord was a bona fide one. Neverthless that Court concluded further that the tenant was successful in proving that he satisfies both the ingredients of the second proviso to Sub-section (3) of Section 11. Accordingly, notwithstanding the finding that the need is bona fide, the Rent Control Petition was dismissed. The Appellate Authority, considering the appeal preferred by the landlord, reversed the findings of the Rent Control Court and found that in the fact situation which obtains in the case it is Sub-section (8) of Section 11 that applies. After concluding so, the Appellate Authority would hold further that the standards for determining bona fides in a case of Section 11(8) are not so stringent as in the case of Sub-section (3) of Section 11 and also that the need for additional accommodation projected by the landlord is bona fide. The question whether the Rent Control Petition is liable to fail in view of the proviso to Sub-section (10) of Section 11 was also answered in favour of the landlord and it was held that the advantages which the landlord will gain by getting eviction will outweigh the hardship which may be occasioned to the tenant. In order to conclude so, the Appellate Authority relied on the evidence of RW1, the tenant himself.

The tenant in this revision has raised various grounds, including the ground that the Appellate Authority went wrong in taking the view that it is Sub-section (8) of Section 11 that applies and not Sub-section (3) of Section 11. Placing strong reliance on the judgment of this Court in Abraham Roy v. Philip @ Pappachan and Ors. 2009 (2) KLT 29 (C. No. 34) : 2009 (2) KHC 462) to which one among us (P.C.K. (J.)) was party and also the statutory provision, it was argued strongly by Sri. Vipindas that in order Sub-section (8) of Section 11 applies, it is absolutely necessary that the landlord must be in actual physical occupation of a part of the building, another part of which is the tenanted building. Sri. Vipindas pointed out that going by the pleadings and also by the admissions in the evidence, the landlord is not in occupation of any part of the larger building. On the contrary, it is landlord''s son who is in occupation of the other part and is conducting vessels business therein. Additional accommodation has been sought for accomplishing the personal use of not the landlord but the landlord''s son. According to Sri. Vipindas the finding of the Appellate Authority that Section 11(8) applies is to be set-aside immediately.

Sri. Kaleeswaram Raj, learned Counsel for the landlord, would per contra draw our attention to the judgment of this Court in Pakran Vs. Kunhiraman Nambiar, and the judgment in Arjunan v. Eranu 1991 (2) KLT 279 and argue that it has been held that additional accommodation contemplated by Sub-section (8) of Section 11 need not necessarily be that of the landlord but can also be the need of a dependent family member of the landlord. Sri. Raj also referred to the judgment of the Supreme Court in Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, and argue that the concept of own occupation by the landlord is not to be construed in a narrow manner though the same is confined to own occupation by the landlord and nothing short of that.

We have considered the factual and legal submissions of the learned Counsel on the issue as to which eviction ground is apposite to the facts presently pending in this case, whether Sub-section (3) of Section 11 or Sub-section (8) of Section 11. It will immediately be noticed that Pakran''s (supra) was a case where the landlord the second Petitioner in the RCP in that case was in actual occupation of a portion of the larger building and the need projected by him was that he wants to accommodate the members of his family by way of additional accommodation. Arjunan''s case (supra) also was one where the landlord was in actual occupation of a part of the larger building and the need projected was to accomodate his children in the tenanted building, which was another part of the same building. The situation in the present case is different. Here it is contended that the landlord is not in occupation of any part of the larger building. It is not contended that occupation by the son is occupation for the landlord. Even the judgment of the Supreme Court in Bega Begum''s case (supra) cannot come to the rescue of the landlord in this case as we notice that the above decision has been rendered in a proceeding for eviction u/s 11(1)(h) of the Jammu & Kashmir Houses and Shops Rent Control Act. The above provision is in fact extracted by the Supreme Court in paragraph 16 of the judgment and the same will show that going by the statutory provision itself order of eviction can be passed for accomplishing the need of persons other than the landlord. As rightly argued by Sri. Vipindas, Abraham Roy''s case (supra) was one where this very issue was considered, i.e., whether the landlord can apply u/s 11(8) seeking additional accommodation when he does not have occupation of any portion of the larger building. According to us, a plain reading of Sub-section (8) of Section 11 itself will show that the correctness of the conclusion arrived at by this Court in Abraham''s case that in order that Sub-section (8) of Section 11 applies, the landlord must be in actual occupation of a part of a building, the other part of which is the tenanted owned premises does not admit of doubt. In the instant case, it is conceded in the pleadings and the evidence that the landlord does not have occupation of any part of the larger building. It is the landlord''s son, who is in occupation and additional accommodation is sought for accomplishing personal use of not the landlord but of the landlord''s son. It is very clear to our mind that the apposite provision which applies is Sub-section (3) of Section 11 as rightly found by the Rent Control Court.

Sri. Kaleeswaram Raj would argue that there is no warrant for interfering with the finding of the Rent Control Court that the need is bonafide, even applying the rigorous standards of Sub-section (3) of Section 11; Sri. Vipindas'' s answer is that even when the need is found to be bonafide, the landlord has to surmount the second proviso to Sub-section (3). According to Sri. Vipindas, the finding of the Rent Control Court that the tenant satisfies both the ingredients in the proviso of Sub-section (3) of Section 11 is founded on legal evidence available on records. As the findings are divergent we have made a survey of the evidence on records. As for the first limb of the second proviso, apart from the contention that the children of the tenant are well-placed and that the tenant''s wife owns a lodge and that there are coconut trees standing in the house property extending to 62 cents, we do not find any acceptable evidence on the basis of which it can be held that the main source of livelihood for the tenant is some source other than the business carried on in the petition schedule building. The first limb of the second proviso has necessarily to be answered in favour of the tenant. Now coming to the second limb, the argument of Sri. Kaleeswaram Raj was that the Rent Control Court did not take into account the judgment of the Full Bench in Francis Vs. Sreedevi Varassiar, which is to the effect that the burden of proving that tenant satisfies both the ingredients of the second proviso is on the tenant. It is true that the Rent Control Court without referring to the Full Bench decision decided the issue, in this particular case however enshouldering the burden, the tenant adduced positive evidence to show that no building was available in the locality. Sri. Raj submitted that an opportunity be given to the tenant for adducing evidence which may show that, as of now, so many buildings are available in the locality. We are not inclined to accept the above request as we feel that the same will prejudice the tenant. We do not find any infirmity on the finding presently entered by the Rent Control Court in the context of the second proviso to Sub-section (3) of Section 11. The above discussion will lead to the inevitable conclusion that the Rent Control Petition will fail. But, at the same time, we notice elements of genuineness in the grievance voiced by Sri. Raj that the monthly rent of Rs. 700/-, which is being paid by the tenant for the petition schedule building having an area of approximately 600 sq. ft. in a prime locality of Payyannur town is very low. Sri. Vipindas also fairly submitted that the current rate is low. It is pointed out by Sri. Vipindas that in 2007 his client had offered to pay Rs. 3,500/ - by way of monthly rent for the petition schedule building. We are therefore inclined to re-fix the rent tentatively at Rs. 4,500/- per month prospectively with effect from 1.10.2010. We make it clear that the above re-fixation is tentative and it is open for either party to apply for regular fixation of fair rent, if they are aggrieved. Till such time as fair rent is fixed, the Respondent shall pay rent at Rs. 4,500/- per month.

The Rent Control Revision is allowed. Setting aside the order of eviction, we dismiss the RCP. However, we make it clear that this judgment will not preclude the landlord from seeking eviction of the tenant on available grounds, including u/s 11(3), if change of circumstances justifies order of eviction on that ground also.