Eliamma Chacko and Others vs Leela Karunakaran

S. Sankarasubban, J.—This Civil Revision Petition arises u/s 20 of the Kerala Buildings (Lease, and Rent Control) Act. The Respondents in R.C.P. No. 129/85 are the revision Petitioners. The Respondent in the revision petition Mrs. Leela Karunakaran filed the Rent Control Petition for eviction of the tenants u/s 11(2)(b) read with Section 11(3) of the Buildings (Lease and Control) Act, hereinafter referred to as the Act.

The case of the landlady was as follows:-The house which was scheduled in the Rent Control Petition belonged to her mother Smt. Devi Ammal. Smt. Devi Ammal entrusted the house to one Chacko on a monthly rent of Rs. 15 from 1st April 1964. The landlady obtained right over the property on 1st March 1969. The tenant attorned to her and agreed to pay rent at an enhanced rate of Rs. 20 per month from 1st April 1969. The tenant Chacko died and the present revision Petitioners are his legal representatives. The rent subsequent to 17th December 1982 was in arrears. The Petitioner in the Rent Control Petition has two daughters by name Usha Balaraj and Raji Prakash. Raji Prakash is now working as a Clerk in the State Bank of Travancore, Ernakulam. Her husband is an Officer of Dhanalakshmi Bank also working at Ernakulam. They are trying to get a transfer to Calicut or other near places. The landlady has permanently settled down at Calicut. Smt. Raji Prakash wants to set up a permanent residense at Calicut. Hence the landlady bona fide requires the scheduled building for occupation of her daughter Raji Prakash. Before filing a petition for eviction, a registered notice was issued to the tenants.

A counter-statement was filed on behalf of the tenants. The bona fide need was disputed and denied. A contention was taken that the building was originally taken on rent in 1934. The arrears of rent was also denied. It was stated that the landlady has several other houses in Calicut which are more convenient for occupation. The tenants further contended that in 1973 a petition was filed for eviction by the landlady-Respondent. But that was dismissed. Another counter statement was filed by Respondents 1 and 3. Before the Rent Control Court the landlady was examined as P.W. 1 and her daughter Raji for whom the building was required was examined as P.W. 2. On behalf of the Respondents, the first Respondent, who is the first Petitioner in the C.R.P. was examined as R.W. 1.

Regarding the arrears of rent, the Rent Control Court found that there was arrears of rent from 17th December 1982. It further negatived the contention of the tenants that they were in occupation from 1934. Regarding the contention of bona fide requirement, the Rent Control Court found against the landlady. It was of the view that there was no application for getting a transfer to Calicut. Further it took the view that there was no possibility of the husband of P.W. 2 coming to Calicut because he had to look after his father and further it took the view that since their child was of tender age, there was no question of the husband and wife living separately. On the above basis, the Rent Control Court dismissed the petition u/s 11(3) while it allowed the eviction u/s 11(2)(b) of the Act. Against the order, an appeal was filed before the Sub Court. Subsequently it was transferred to the District Court Kozhikode as R.C.A. 149/89. The only contention before the Appellate Court was with regard to eviction u/s 11(3) of the Act. The appellate Court set aside the finding of the Rent Control Court and held that the petition schedule house was bona fide required by the petitioner in R.C.P. for the occupation of her daughter P.W. 2. Against that order C.R.P. 1303/94 was filed by the first Petitioner before this Court. During the pendency of that revision, it was brought to the notice of this Court by the tenants that P.W. 2 for whom the building was required had constructed a building in Calicut and that was enough for her occupation. Hence the tenants submitted before this Court that the subsequent event should be taken note of. The landlady admitted the construction of a new building. But she contended that inspite of the construction of a new building, the requirement continues because the petition schedule building is more convenient for P.W. 2. C.R.P. No. 1303/94 was disposed of by order dated 18th November 1996. This Court held as follows:

In view of the above, we set aside the finding of the Appellate, Authority regarding bona fide need and bona fide need may be reconsidered by the Appellate Authority, taking into account the subsequent events also. Both sides will be free to adduce evidence before the Appellate Authority. The Appellate Authority may dispose of the appeal within six months from the date of receipt of the records. It is submitted by the landlord that there are arrears of rent. The tenants cannot continue to occupy the building without paying rent. Therefore, we direct the tenants to deposit the entire arrears of rent, if any, as on today before the Rent Control Appellate Authority within three weeks. The question regarding bona fide need may be reconsidered by the Appellate Authority denovo.

The C.R.P. is allowed with the above directions.

After remand the landlady applied for a Commission by filing I.A. No. 139/97. The tenants wanted the Commissioner to verify certain facts. So the tenants were allowed to give a work memo to the Commissioner. The Commissioner inspected the building and filed a report which was marked as Ext. C-l. On the part of the tenants, two applications were filed. One was filed to recall P.W. 1 and P.W. 2 and that was dismissed, and another was to examine the Commissioner. The Court below rejected both these applications. The application for examining the Commissioner was rejected because the tenants had not filed any objection to the Commissioner''s report. Then the appellate Court considered the question of bona fide requirement and after discussing the evidence of the case, it found that the building was bona fide required by the landlady for her daughter. It referred to Ext. C-l Commission report which had reported that the petition schedule building was more advantageous to P.W. 2 than the building constructed by her. The location of the petition schedule building was very convenient and the P.W. 2''s daughter who was undergoing education will find the petition schedule building was more convenient than the building constructed by P.W. 2. Further it was reported that the petition schedule building was situated in an ideal locality and the Banks in which P.W. 2 and her husband were working were very near to the house. Taking into consideration all these facts, the Lower Appellate Court ordered eviction u/s 11(3) of the Act. Against the above order of the Appellate Authority the tenants have filed this revision petition.

We heard the Counsel for the Petitioners and Respondent.

Learned Counsel for the Petitioners submitted that because of the subsequent event of the construction of a new building the landlady ought to have amended the Rent Control Petition and stated why the alternate accommodation was not convenient. Further it was contended that P.W. 2 had rented out the building constructed by her and they are in occupation of the tenants. It was further contended that there was no proof to show that P.W. 2 or her husband had applied for transfer to Calicut. It was the further case of the Petitioners that the P.W. 2 and her family will not stay in the petition schedule house because it is not a modern one and it is almost dilapidated. Learned Counsel for the Petitioners further submitted that the daughter was not a dependant of the mother.

Learned Counsel for the Respondent submitted that this Court in exercise of its power u/s 20 of the Act can interfere with the order of the Appellate Authority only when it finds that the appellate authority has not referred to any facts or evidence in the case and that there cannot be any re-appreciation of the facts and evidence. If the view taken by the appellate authority was reasonable, then merely because another view may be possible this Court should not interfere with the finding.

We shall now consider the contention raised by the Petitioners. The first contention raised by the learned Counsel for the Petitioners is that P.W. 2 cannot be said to be a dependant of the Petitioners. He contended that P.W. 2 and her husband are independant and further he submitted that P.W. 2 had constructed her own building very near to the petition schedule building. He further contended that after remand the landlady should have amended the petition for eviction.

It is now held by various decisions including a decision of this Court in Anthony Kochuvariatku v. Chakkalinga Nadar 1971 KLT 119 that dependency mentioned in Section 11(3) does not mean financial dependency. A daughter can be said to be dependent on the mother in spite of the fact that she has an independent income. The word ''dependent'' is used when a person looks after another person for help. Normally son or a daughter look upon their parents for help. Hence we are of the view that it is not correct to say that the daughter is not dependent on the mother for the purpose of Section 11(3) of the Act.

The next contention raised is that having now admitted, that P. W, 2 has got another building it was the duly of P.W. 2 to explain as to why the building is not required and hence the Rent Control Petition ought to have been amended. Learned Counsel for the Petitioners referred to the decision in Maqboolunnisa v. Mohd. Saleha Quaraishi (1998) S.C.C. 585. In that case during the examination of the landlord it was known that another building was constructed by the son for whom the building was required. During evidence it was explained that both these buildings together were required. The Supreme Court considering this question held as follows:

At the trial, during her evidence the Appellant went on to say that by breaking the wall between the suit shop and the shop vacated by Shri Sukumaran the entire area can be converted into one big shop to enable the son to carry on his business. That such evidence should not have been allowed to be let in since it was beyond the pleadings admits of no exception.

It was in the above circumstances, the Supreme Court held that the pleadings should have been amended. In the present case, both the parties are bound by the remand order. By the remand order the Court below allowed both the parties to adduce evidence with regard to the bona fide need in the light of the subsequent construction of the building and hence we are of the view that amendment of the R.C.P. is not necessary. Further as per the Act, the mere possession of another building does not disentitle the landlady from getting possession of a building if the landlady shows sufficient reasons why the particular building is required.

The next contention of the Counsel for the Petitioners is with regard to the bona fide requirement. According to ham, the requirement is not bona fide because both the P.W. 2 and her husband have not so far been transferred to Calicut. Further P.W. 2 has constructed another building. The plaint schedule building is not a modern one and hence P.W. 2 may not be staying in the new building. There is no dispute that P.W. 2 belongs to Calicut and her parents are in Calicut. Both P.W. 2. and her husband are employed in Bank. Their intention to settle down at Calicut is stated in the Rent Control Petition as well as in the evidence of P.W. 1 and 2. It cannot be said that merely because both the husband and wife are working at different places, it is not necessity for them to have a permanent residence. At the time of filing the Rent Control Petition both the husband and wife were at Ernakulam. Now P.W. 2''s husband is at Coimbatore. The Rent Control Court refused to accept the bona fide claim on the ground that P.W. 2''s husband will not get a transfer to Calicut because he has to look after his father. These things are now belied the fact that P.W. 2''s husband is now at Coimbatore. Further, the daughter who was a small child, when the petition was filed has grown up and doing her higher education. Hence we agree with the Lower Appellate Court regarding the fact that the building is required bona fide for the occupation of the daughter of the Petitioner. Then the question is how far the bona fide need is changed by subsequent construction of the building by the daughter. Normally when a new building is constructed, one can say that, that building should be occupied by the landlord. But it is not always necessary that the landlord should occupy the building. In the present case a Commissioner was deputed to find out the locations of the building and newly constructed building of P.W. 2 and the report regarding the advantages or disadvantages. The Commissioner in the report stated as follows regarding the petition schedule building.

Calicut branch of S.B.T. is situated nearly one kilo metre south to the petition schedule house of the side of the Kannur road and another branch at Mavoor road nearly 1-1/2 k.m. away from the petition schedule house. Malabar Christian College is situated Nearly 500 metres south to the petition schedule house, Calicut Railway Station, K.S.R.T.C. Mofusel bus stand and such other places also are near to the petition scheduled house. Petition schedule house is situated in an ideal locality in the centre of town. Bank and education institutions situated within a walkable distance. The facility available to the petition schedule are not at all available to the newly constructed house. The distance between the petition schedule and newly constructed house is 1.25 k.m.

Thus from the report of the Commissioner, it is clear that the petition schedule building will be more convenient to P.W. 2 than the building constructed by her. The Court cannot compel that P.W. 2 should occupy the building newly constructed by her. She prefers the petition schedule building in so far as it is found that the petition schedule building is more convenient to her. In this context, it is pertinent to note that the Petitioners have not filed any objection to the Commissioners''s report.

That was the reason why the Court below did not allow the Commissioner to be examined. Thus on going through the records of the case namely, oral evidence and documentary evidence, we are satisfied that the finding arrived at by the Appellate Authority is just and reasonable and does not require any interference u/s 20 of the Act.

Learned Counsel for the Petitioners submitted that they are in occupation of the building for a long time and that they required some time to vacate the building.

Considering the above facts, we grant six months time from today to the Petitioners to vacate the petition schedule building. But this is on condition that the Petitioners should file an undertaking in the form of an affidavit before the executing Court that they will vacate the building within six months from today and further they will pay the monthly rent to the Respondent as damages for use and occupation till they vacate the building. In case such an undertaking is not filed within two weeks from today or in case the Petitioners do not vacate the building at the expiry of six months, the Respondent is entitled to take delivery of the building after dispossessing the Petitioners.

Civil Revision Petition is disposed of as above.

*A reproduction from ILR (Kerala Series).