Eliyamma Chacko vs Shameem Beegum

Balasubramanyan, J.—This revision is by the respondent in an application for eviction filed by the landlord of a building u/s 11(3) of the Kerala Buildings (Lease & Rent Control) Act. The landlord pleaded that the building in the possession of the tenant, which was the only building belonging to her, was bona fide needed for the purpose of starting a business for her dependent unemployed son, who was 19 years of age, who was not good at studies. Landlord had sent a notice to the tenant prior to the filing of the petition for eviction setting out the need and demanding surrender. But the tenant had not chosen to send any reply to that notice. The landlord hence pleaded that an order for eviction may be passed. The tenant denied the bona fide need set up. The tenant contended that the son of the landlord was otherwise engaged and was undergoing training in a Film Institute in Madras. It is also contended that the landlords were permanently residing in Sankari in Salem and the claim for eviction was not bona fide and was a mere pretext for eviction. It was also pleaded that the tenant was depending mainly on the income derived from the business carried on in the petition schedule building and since no other suitable buildings were available in the locality, the tenant was entitled to protection of the second proviso to Section 11(3) of the Act. In support of her case the tenant was examined as PW 1 and in support of her case the tenant was examined as RW 1. No other evidence was adduced on either side. The Rent Controller held that landlord had not established the bona fide need pleaded and that the tenant established that even otherwise she was entitled to the protection of the second proviso to Section 11(3) of the Act and hence an order for eviction cannot be granted. The Rent Controller, thus, dismissed the petition. On appeal by the landlord, the appellate authority, on a reappraisal of the relevant materials came to the conclusion that the landlord has established the bonafide need alleged by her and that the tenant had failed to prove that she was entitled to the protection of the second proviso to Section 11(3) of the Act. The Appellate Authority consequently reversed the decision of the Rent Controller and ordered eviction u/s 11(3) of the Act. Challenging the decision of the Appellate Authority this revision was filed by the tenant. "When this revision came up for admission, this Court ordered notice on admission. On receipt of that notice the landlord has appeared. Records were called and the same were also received. When the matter came up again for admission, the revision itself was heard and is being disposed of by this order.

The case of the landlord was that her son was 19 years old, he was not good at studies, that she thought it necessary to start a trade for him, that he was dependent on her, that the landlord had no other building of her own in the town and that she was entitled to an order for eviction. The tenant contended that the landlord was living along with her husband away in Sankari in Salem, that the son of the landlord was also residing with them, that the need alleged was not bona fide, that the son of the landlord, alleged to be the dependent, was in fact undergoing training in a Film Institute in Madras and that the claim for eviction could not be allowed. Though the Rent Controller accepted the case of the tenant, the Appellate Authority found on the evidence that the need alleged by the landlord was true. The basic fact that the landlord had no other building in the town, that son of the landlord had no other avocation in life, that he was 19 years old and that he was not apparently good at studies were found as established by the Appellate Authority On going through the only available evidence in this case, we are also in agreement with the Appellate Authority in holding that the landlord has succeeded in establishing the bona fide need set up by her. There is nothing to show that the application for eviction is motivated or that it is merely a ruse put forward to get rid of the tenant. Undergoing some training in a Film Institute does not mean that the landlord could not think of staring of a business in a premises that is owned by the landlord in the town and that inference by the Appellate Authority, in our view, is justified on the pleadings and the evidence in this case. The Rent Controller, in our view, was not justified in discarding the effect of the basic facts established and was not justified in finding that the bona fide need has not been established, merely on the basis that the landlord was living with her husband at Salem wherein her husband was employed. The fact that landlord was residing with her husband at Salem in the place of his employment is not a ground to find that the need for starting a trade for the son who was otherwise unemployed is not a bona fide or genuine present need. We are of the view that the landlord has established a genuine present need for eviction of the petition schedule building.

Then the question is whether the tenant has pleaded and proved that she is entitled to the protection of the second proviso to Section 11(3) of the Act. It has been held by this Court in Kochappan Pillai v. Chellappan (1976 KLT 1) that the burden of proof of the facts in the second proviso to Section 11(3) of the Act is on the tenant. It is obviously so, since the scope of the proviso is that even in a case where the landlord makes out a ground for eviction u/s 11(3) of the Act, the landlord will be denied of an order for eviction, if the tenant establishes the elements to satisfy the requirements of the second proviso to Section 11(3) of the Act Obviously, in the context of the facts, where the landlord has already made out a claim for eviction, which would normally entitle her to an order of eviction, the burden is on the tenant to show that inspite of it, no order for eviction can be passed. In this case, the tenant adduced no evidence regarding the income derived by her from the trade carried on in the petition schedule building. In her evidence she only stated that other buildings were available but more rent had to be paid. The relevant passage in her evidence has been quoted by the Appellate Authority in its order. But the tenant as PW 1 asserted that she had no other income and was dependent on the income from the trade carried on in the petition schedule building. The landlord examined as PW 1 stated that she was not aware whether the tenant was depending mainly on the income derived from the business carried on in the petition schedule building. According to the Rent Control Court, this answer by the landlord will be sufficient to find that the tenant had established that she was depending mainly on the income derived from the business carried on in the petition schedule building for her livelihood. But, according to the Appellate Authority, this answer of the landlord was not sufficient to find that the tenant has discharged the burden cast on her of establishing that she was depending mainly on the income derived from the business carried on in the petition schedule building. The Appellate Authority also found, based on an appreciation of oral evidence of the landlord and the tenant, that the tenant has failed to show that other buildings were not available in the locality. In fact, the Appellate Authority, after referring to the relevant answers of the tenant examined as RW 1, came to the conclusion that no other suitable buildings were available in the locality. We may notice in this context that on receipt of notice from the landlord claiming eviction, that preceded the application for eviction, the tenant did not send a reply or set up any claim for protection under the second proviso to Section 11(3) of the Act. It is in that context that the evidence was appreciated by the Appellate Authority. We find absolutely no reason to differ from the appreciation of the evidence in the case by the Appellate Authority and the conclusion arrived at by that authority on the basis of that appreciation. Certainly, we are not in a position to say that the finding by the Appellate Authority in that regard suffers from any illegality, irregularity or impropriety.

There was one other fact which emerged during the evidence. The fact was that the tenant owned and possessed a two storied building opposite to an educational institution (Mercy College for Women) where the trade that was being conducted in the petition schedule building, namely, a book trade, could be conducted equally profitably. That building was sold after the filing of the petition for eviction and before the evidence was given in the case by the tenant. The Appellate Authority took note of that fact also while discussing the question of protection claimed by the tenant under second proviso to Section 11(3) of the Act. If we strictly go by the decision of the Division Bench in Chacko v. Lakshmiamma (1997(1) KLT 12) the relevant date for considering the claim for claiming protection under second proviso to Section 11(3) of the Act, is the date of filing of the rent control petition. On that date the tenant had a building of her own in an important locality and opposite to an educational institution, where she could easily have carried on the business of running a book stall. In this case an attempt was made to show that the building was not sold by the tenant voluntarily and an affidavit was filed by the tenant along with C.M.P. No. 3448/2000 praying that the affidavit be accepted, what is sought to be brought out in that affidavit is that the sale was not voluntary but it was a sale that had been effected by the tenant for discharging the liability that has been incurred. We must notice that the tenant could have brought out this fact in evidence at least in re-examination of RW 1 when the factum of sale of the building was established by questions in cross-examination. The fact remains that no such attempt was made either before the Rent Control Court or even before the Appellate Authority. We are therefore not satisfied that this subsequent fact pleaded by the tenant should be taken note of in this revision. But, in this case, obviously, if we go by the decision in Chacko''s case, since on the date of the application the tenant had owned that two storied building, the tenant would not be entitled to claim the protection of the second proviso to Section 11(3) of the Act. But, in this case, we need not further pursue this aspect since on the finding entered by the appellate authority it has not been shown that no other suitable building was available in the locality. The tenants pleaded that they mainly depended on the income derived from the business carried on in the petition schedule building for their livelihood. The tenant could have adduced clear evidence that she depended mainly on the income derived from the business carried on in the petition schedule building and that she had no other income.

Some arguments were addressed by the counsel for the tenant based on the decision of this Court in Varkey v. Raman Pillai (1981 KLT 213). According to counsel if a tenant is forced to pay rent for another building that is higher than the rent which is being paid for the petition schedule building, that building cannot be considered suitable building available to the tenant within the meaning of second proviso to Section 11(3) of the Act. Counsel relied on paragraphs 14 and 15 of the said judgment to say that the expression suitable must be given wider meaning and it is not merely a physical suitability that matters. We are afraid that we cannot agree with the observations contained in the decision in Varkey v. Raman Pillai (1981 KLT 213). All that the Section says is that the tenant to show that there is no other suitable building available in the locality for him to carry on the business or trade conducted in the petition schedule building. We think that the expression ''suitable'' must be related to the premises and the nature of the business carried on in the building sought to be evicted. It is not related to the person of the tenant or the person of the landlord or the capacity of the parties to pay. Suppose, a landlord has only one building and he is not in affluent circumstances and he establishes the need within the meaning of Section 11(3) of the Act. Suppose, in that case the rent payable for the building is only Rs. 507- per month. Will the landlord be deprived of an order for eviction inspite of the landlord establishing a claim for eviction u/s 11(3) of the Act on the ground that the tenant, according to him, cannot afford to pay a sum of Rs. 300/ - towards rent in respect of another building which was available in the locality at the time when the application for eviction was filed? It means that the landlord, even if he makes out a case for eviction, even if he points out the availability of another building, would be denied eviction unless he is able to show that the rent that need be paid for it is only Rs. 50/-per month. We do not think that the Act has placed such a fetter on the right of the landlord. The Act is introduced as a piece of legislation which confers rights on both parties. We think that under the circumstances, the interpretation which is sought to be placed by the counsel based on the decision in Varkey v. Raman Pillai (1981 KLT 213), would be against the spirit of the statute, which has only restricted the right of the landlord to evict or has only narrowed the right. The decision in Krishnan Kunju Raveendran v. Sukumaran Pillai (1999 (3) KLT 373) has only proceeded on the basis of Varkey v. Raman Pillai (1981 KLT 213). We are therefore of the view that suitability of premises within the meaning of second proviso of Section 11(3) must be related to the space and other conveniences available in the building that is available in the context of the trade or business that is being carried on by the tenant. This is all the more so, since invariably, rent have gone up and there is phenomenal escalation in costs of construction and fall in value of money. The interpretation canvassed for, if accepted, will tend to nullify the right u/s 11(3) of the Act and place the tenant in an unduly advantageous position, even making it necessary to consider its constitutional validity especially in the context of the striking down of Sections 5 and 8 of the Act. We have made the above observations only incidentally in this case. They are not strictly necessary. It is found here that other suitable buildings are available. On the materials, we are satisfied that the Appellate Authority was justified in passing an order for eviction. We, therefore, confirm that order and dismiss the revision.

Counsel for the tenant seeks some more time to vacate the building. We grant the tenant a period of three months on condition that the tenant files an undertaking before the Rent Control Court that he will surrender vacant possession of the building on the expiry of three months, that he will not let in any stranger into the premises and to pay rent or compensation for use during the extended period of her occupation and also deposits the entire rent in arrears in the Rent Control Court within one month from this date. If any of these conditions are not fulfilled by the tenant, the executing court will be free to execute the order without reference to the time granted by us.