Jose vs Komalavally

S. Sankarasubban, J.—This Civil Revision Petition is filed against the judgment in R.C.A. No. 34 of 1997 of the Rent Control Appellate Authority, Thrissur. Original proceeding is R.C.P. No. 51 of 1994 of the Rent Control Court, Thrissur. Revision petitioner is the tenant. The facts of the case are as follows:

Building No. 13/296 of Thrissur Municipality was taken on lease by the petitioner on 6.3.1989 for a monthly rent of Rs. 450/- from the predecessor of the respondents for a period of one year. The petitioner executed a rent deed on 4.3.1989 in favour of the original landlord. The rental arrangement continued under the same terms and conditions. Allegations are that the tenant kept rent of the room in arrears from February, 1994 and also that the adjacent premises in which the landlord resides with his family was insufficient for their use and that the room occupied by the tenant is bonafide needed for additional accommodation of the landlord and by carrying out necessary repairs and alterations the tenanted premises can be made suitable for the additional accommodation.

Ext. A2 notice was issued to the tenant. The landlord filed petition under Sections 11(2)(b), 11(3) and 11(8) of the Kerala Building (Lease & Rent Control) Act (hereinafter referred to as ''the Act''). The tenant opposed the application by filing objection stating that there was no rent in arrears. The necessity for getting eviction for additional accommodation was also denied by the tenant. It was also contended that the tenanted premises is used as a workshop and it is from the income derived from the workshop that the tenant and his family live and that no other building is available anywhere near the tenanted premises.

Before the Rent Control Court, the petitioner was examined as PW1. Exts. A1 to A3 were marked on the side of the petitioner. Respondent was examined as RW1. Two other witnesses, RWs 2 and 3 were also examined. Exts. B1 to B4 were marked on the side of the respondent. Exts. X1 to X2 are court Exhibits. Eviction under Sections 11(2)(b) and 11(3) of the Act was rejected. The Rent Control Court ordered eviction u/s 11(8) of the Act. The respondent preferred appeal, R.C.A. No. 34 of 1997. The appeal who also dismissed. It is against that the present revision is filed.

Learned counsel for the petitioner contended that eviction is ordered u/s 11(8) of the Act, and the relief is granted only for additional accommodation. The landlord died before the proceedings were closed. According to him, the need has already lapsed and the proceedings cannot be continued. According to him, unfortunately, both the Courts did not consider this. Learned counsel submitted that after the death of the original landlord, the need u/s 11(8) of the Act cannot be claimed. On the other hand, learned counsel for the respondent submitted that what the landlord wanted is to accommodate the members of his family and that continues even now.

Before we go into the point to be decided, we shall extract what is stated in the Rent Control Petition:

It is now admitted that the ground raised is u/s 11(8) of the Act and on that basis both the Authorities granted eviction. Section 11(8) of the Act is as follows: "A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use".

In Arjuna v. Eranu 1991 (2) KLT 279, this Court held that the words "if he requires additional accommodation for his personal use" are not confined to the landlord alone, but will also include the use by the members of his family, who want to live with him. In Shamsudeen v. District Court 1997 (2) KLT 630, it was held as follows: "The invocation of Section 11(8) arises only if the landlord is occupying a portion of the building and the rest of the building is required for additional accommodation. The word ''occupation'' has to be understood differently from the word ''possession''. Unless the landlord is physically present for a substantial period of time, it cannot be said that he was in occupation. Where the landlord after discontinuing his business had dumped some of his belonging in one room and so that room was not let out to the tenant, the application for eviction cannot be said to be one u/s 11(8)". Thus, occupation of the landlord in a portion of the building in sine qua non for invoking the provision u/s 11(8) of the Act.

The question whether bona fide need can be urged by the surviving member of the landlord came up for consideration before this Court, especially eviction u/s 11(3) of the Act, in Padmanabhan Nair v. Ulahannan 1982 KLT 872 . There eviction was ordered on the ground of personal need of the landlord. Pending execution, the landlord died. It was held that as the right to sue does not survive the legal representatives are not entitled to get impleaded to continue the proceedings. In P.V. Papanna and others Vs. K. Padmanabhaiah, , it was held that when eviction has become final and the landlord died thereafter in execution petition the contention cannot be raised. In Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, , it was held that the right to sue does not survive after the death of the landlord. But there is a distinction that bonafide need can be for the landlord or in favour of the family. Depending on him and as need can be continued even after the death of the landlord. But so far as Section 11(8) of the Act is concerned, what is stated in the Section is "for the personal need of the landlord". In P.V. Papanna and others Vs. K. Padmanabhaiah, , the Supreme Court has held that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into consideration for the purpose of adjudication until a decree is made by the final court determining the rights of the parties but any event takes place after the decree becomes final cannot be made a ground for reopening the decree. The finality to the dispute culminating in the decree cannot be reopened by the executing court for readjudication on the ground that some event or the other has altered the situation. As a corollary thereto it must also be held that once the decree became final it becomes a part of the estate of the landlord and therefore the legal representatives of the deceased landlord would be entitled to execute the same. In Hasmat Rai and Another Vs. Raghunath Prasad, , it was held thus: "it is well settled now that in a proceeding for the ejectment of a tenant on the ground of personal requirement under a statue controlling the eviction of tenants, unless the statute prescribes to the contrary, the requirement must continue to exist on the date when the proceeding is disposed of either in appeal or revision, by the relevant authority". In S. Sivasubramanya Iyer Vs. S.H. Krishnaswamy, , a distinction was made between Section 11(3) and Section 11(8) of the Act. Subramonian Poti, J. (as he then was) observed as follows:

"If the landlord feels that additional accommodation is necessary and if there are sufficient grounds or justification in support of it and therefore, if he seeks recovery of the part of the building let out to a tenant u/s 11(8) of the Act, then, it is not for the court to find out whether even without such additional accommodation, the landlord could somehow manage to carry on. It may not be that if he could manage to carry on, his claim is not bona fide. If on the other hand he is intending to seek additional accommodation not to provide such additional accommodation to his own family members, and if the evidence indicates so, then of course his claim u/s 11(8) will not be bona fide. In other words, the bona fides of the claim does not normally depend upon the court being satisfied of the genuineness of the need of additional accommodation. Then, what has to be considered first is whether the additional accommodation is required for the personal use of the landlord. Personal use in this context is not necessarily use by himself but by the members of his family who want to live with him".

Thus, the words "to accommodate the members of the family" are taken as personal use. We are highlighting this because, learned counsel for the respondents submitted that since the need urged is to accommodate the members of the family there is a right to sue even after the death of the landlord. But what is stated is for the additional accommodation of the landlord. Stress is for the additional accommodation of the landlord. Purpose may be accommodate the members of the family. Learned counsel for the respondents brought to our notice a decision of the Supreme Court reported in Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., , wherein it was observed as follows:

"That apart, the fact that the landlord needed the premises in question for starting a business which facts has been found by the appellate authority. In the eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the Writ Petition in the High Court the bonafide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son".

The facts of that are different from the facts of this case. There, the landlord was alive when the proceedings are pending before the Authorities. He died only when the matter was taken under Article 227 of the Constitution of India. It was in that context that Supreme Court made the above observation.

Taking into consideration all the aspects, we are of the view that the bonafide need of the landlord u/s 11(8) of the Act cannot survive the landlord. In this case, the landlord died during the pendency of the petition. Hence, according to the petitioner, the petition ought to have been dismissed on the ground that the need does not perverse the orders of the court below. Hence, we set aside the order passed u/s 11(8) of the Act.

Civil Revision Petition is disposed of as above.