K. Krishnankntty Menon vs A.P. Malathi and Others

K. Sukumaran, J.—The revision arises in proceedings for eviction under the Rent Control Act. The tenant is the revision petitioner. Eviction was sought on the ground of bona fide requirement of the building for the landlord. Though the Rent Controller declined the prayer the appellate and the revisional authorities have granted the same. The view taken by the appellate and the revisional authorities is fully justified by the evidence in the case. There is absolutely no scope for interference with the findings of those authorities in the limited revisional jurisdiction u/s 115. C. P. C.

The landlord''s family was a very large one. The family house belonged to eighteen different members. Understandably enough, the extreme inconvenience arising therefrom has been spoken to by P.W.1. An unpleasant atmosphere which had developed also has come out in evidence. The 1st petitioner, in such circumstances needs separate accommodation to live as an independent unit with her husband and children. A bonafide need is clearly established in the case.

Before the Revisional Court a contention based on the second proviso to Section 11 (3) of the Act was sought to be raised by the tenant. It is to the effect that the tenant was depending upon the income obtained from his profession as a lawyer and as such depending upon the income derived by the use of the building. A request for remand to establish that point was made before that court. This request was rejected on two grounds: (i) the tenant had not raised such a contention on the earlier occasion and (it) the justification for raising that contention, namely, the decision of the Supreme Court in S. Mohan Lal Vs. R. Kondiah, , did not support the contention.

The main contention pursued before this Court was the one based on the second proviso to Section 11 (3) of the Act. Counsel for the petitioner placed considerable reliance on the aforesaid decision of the Supreme Court. That decision does not have any bearing on the interpretation of the provision now under consideration. The Supreme Court was expressing its view in the context of an entirely different provision, namely, the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act which enables a landlord to apply to the Controller for an order directing the tenant to put the landlord in possession of a building, in the contingencies provided therein, for the purpose of a business. In that Setting the Supreme Court noted that the term ''business'' was not defined in the Act. The scheme of the enactment was analysed in that context. A wider meaning to the word ''business'' was given by the Supreme Court. The court observed that the right to evict under the Act was not limited to any class of the landlords and continued:

There is no reason why a landlord who is a member of the legal or medical profession and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining possession of the premises.

If the word ''business'' was given a limited interpretation, it was felt, a discrimination against the liberal profession would result.

The present Revision is not concerned with the interpretation of she term ''business'' occurring in such a context. As the very same decision of the Supreme Court pointed out:

It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act; more so if the two Acts in which the same word is used are not cognate Acts. Neither the meaning, nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally. On the other hand it is a sound, and, indeed, a well-known principle of construction that meaning of words and expressions used in an Act must take their colour from the context in which they appear.

(empasis supplied)

The question arising for decision in this case, viz. the second proviso to Section 11 (3) of the Kerala Act, had been clearly and squarely covered by a binding decision of a Bench of this Court reported in Sethurama v. Meenakshi, A. I. R. 1967 Kerala 88. The Supreme Court, had adverted to the above decision. It is significant that even then the Supreme Court had not overruled its decision in S. Mohan Lal Vs. R. Kondiah, . There is nothing in the decision of the Supreme Court to suggest that the decision of the Division Bench of this Court has been overruled, even by implication.

The reasoning of the Division Bench of this Court is clear, cogent and powerful. It is impossible to accede to the contention that a member of the profession is carrying on a trade or a business, to take out his livelihood from the ''business'', of the practice of the profession. To equate a member of the learned profession as a businessman making out his livelihood from his profession would be to completely ignore the history and glory of a noble profession. A concept that a member of the profession is depending for his livelihood on the profession is supremely inapposite to the context of a profession which holds a high and hoary tradition. It is unnecessary for the purpose of the present case to extract passages from the legal literature, sketching the history of the profession throughout the ages. Professor R, J. Hobsbawm of the University of London refers to the lead given by the lawyers in shaping history, both in the East and in the west. (See'' the Age of Capital page 18-19.) Regarding a House of Commons from which all lawyers were excluded, Lord Coke declared "that the whole of its legislation was not worth twopence." (See "The English Bar'', a speech delivered at the Inner Temple Hall in 1908 by Right Hon. H. H, Asquith, vide ''Occasional Addresses'' 1918 page 121).

Chandrachud J. pointed out In Banglore Water Supply & Sewerage Board v. A, Rajappa. A. T. R. 1978 S. C. 548, how "a Solicitor does not carry on trade or business" and how "he pursues a profession which is variously and justifiably described as learned, liberal or noble." Though the observations were held not applicable in the context of the section of the Act under consideration in S. Mohan Lal Vs. R. Kondiah, , they have relevance and significance in the context of the second proviso to Section 11 (3) as occurring in the Kerala enactment.

For other reasons also, the plea has to be rejected. Various ingredients have to be established to sustain a plea u/s 11 (3). They have not been raised before the Rent Controller, Even after the pronouncement of the Supreme Court sufficient or clear particulars have not been made in the petition seeking to raise the additional contention. If the petitioner wanted to rely on the second proviso, that should have been done in the very beginning itself. This is particularly so as the tenant himself is a practising advocate. The mere fact that a Division Bench decision had taken a contrary view which, according to him, was incorrect, did not preclude him from raising the contention based on Section 11 (3) and the second proviso thereto. Not having done so, it was not open to him to urge it for the first time before the revisional authority. The revisional authority was justified in declining to entertain such a new plea. Such an action on the part of the revisional authority, is not amenable to correction in the limited jurisdiction of this Court u/s 115, C. P, C.

An attempt was made to canvass the correctness of the findings of fact, particularly in relation to Section 11 (17). Contentions in that area are totally out of bounds to the revisional jurisdiction of this Court. The appreciation of evidence cannot be reopened in a revision u/s 115, C. P. C. The result is that the revision petition fails and is accordingly dismissed. There will, however, be no order as to costs.