K.C. Arjunan vs Edathil Pulikandi Eranu

Paripoornan, J.—The tenant in R. C P. No. 91 of 1987, Rent Control Court, Kannur is the petitioner in this revision. The sole respondent is the landlord. The petition schedule building is one of the three units of a bigger building. It was demised to the tenant on 10-1-1976 on a monthly rent of Rs. 35/-. The rent due fell in arrears. It was further alleged that the tenant was negligent in the use of the building and the building suffered substantial damage and its value was affected materially and permanently. Finally, the landlord contended that the available accommodation was insufficient for the comfortable residence of himself and his family and to meet the growing requirements, additional accommodation is necessary. He pressed into service section 11(8) of Act 2 of 1965. So, the petition for eviction was laid u/s 11 (2), 11 (4) (iv) and 11(8) of Act 2 of 1965. The tenant contested the proceedings. It was contended that the entire arrears have been deposited in court. It was further contended that the building is not in a ruinous condition. Finally, the tenant stated that there is no need of additional accommodation for the landlord. The Rent Controller held that the landlord is not entitled to an order of eviction, on any of the grounds. In the appeal, before the Appellate Authority, the landlord assailed the decision of the Rent Controller u/s 11 (4) (iv) and section 11(8) of (he Act. The Appellate Authority held that the Rent Controller rightly dismissed the application and dented eviction, since none of the ingredients u/s 11 (4) (iv) of the Act was proved. But, holding that the landlord has proved the necessary ingredients to entitle him to an order of eviction u/s II (8) of the Act, the Appellate Authority set aside the order of the Rent Controller u/s 11 (8) of the Act and directed the tenant to surrender vacant possession of the scheduled premises to the landlord within three months. The tenant has come up in revision.

We heard counsel for the revision - petitioner/tenant, M/s. M. Ramesh Chander and M. Vijaya Kumar, as also counsel for the respondent/landlord Mr. A. P. Chandrasekharan. The sole controversy before us centered round the applicability of section 11 (8) read with section 11 (10) of the Act, which are as follows:

11 (8)-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.

11 (10)-The Rent Control Court shell, if it is satisfied that the claim of the landlord under sub-sections (3), (4), (7), or sub-section (8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall main an order rejecting the application:

Provided that, in the cans of an application made under subsection (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be "caused to the tenant by granting it will outweigh the advantage to the landlord:

The short question is whether the landlord has proved that he requires additional accommodation for his personal use, and even so, is this a case where the hardship that will be caused to the tenant by granting the eviction will outweigh the advantage to the landlord ?

Admittedly, the landlord has five children, there sons and two daughters, the details of the members of the family were not furnished in the petition filed before the Rent Controller. But, it is admitted and also found by the Appellate Authority, that the absence of mention of the details regarding the members of the family, has not caused a surprise to the tenant. The tenant is a neighbour of the landlord. He knows the full details of the occupants of the landlord''s unit. He admitted that the landlord has five children, of which two are daughters and three sons. The tenant also admitted that according to the religious customs of the Muslim community, to which the landlord belongs, the daughters, when they are given in marriage, should be provided with separate self contained Aras (suites). He agreed with the plea that the existing facilities of the landlord are not sufficient for the convenient residence of the members of the family of the landlord. it is true that the landlord h residing in one room and got possession of the middle room from another tenant, after the filing of the instant petition. Even so, he has got only two bed rooms and each unit has only one room, a veranda hand a kite hen. It will not be sufficient for the petitioner and five children including to two daughters to sleep in the two bed rooms. On the above premises, the Appellate Authority held that the need mentioned by the landlord is quite genuine. The finding to the contrary by the Rent Controller was held to be unjustified and unreasonable. The very fact that the tenant has admitted that for the convenient residence of the members Of the landlord''s family. the existing facilities are not sufficient, goes a long way to prove that the need mentioned by the landlord is quite genuine and the claim made bona fide. We concur with the Appellate Authority in his reasoning and conclusion, to hold that in the circumstances, the requirement of additional accommodation by the landlord is bona fide.

Counsel for the revision - petitioner stressed three aspects before us.. Firstly, it was contended that the requirements of additional accommodation should be for the landlord''s personal use and not for the use of the members of his family. Secondly, it was submitted that the landlord sought additional accommodation as a facility for convenient living and this is not a case where he, "requires" "additional accommodation"-meaning that there is no need. Thirdly it was contended, that under the first proviso to Section 11 (10) of the Act, the hardship that will be caused to the tenant by granting an order of eviction, will outweigh the advantage to the landlord. The burden is on the landlord to prove the ingredients of the first proviso to section 11 (10) of the Act. It has not been done. So, the order passed by the Appellate Authority is vitiated.

We are of the view that the above pleas lack substance. u/s 11 (8) of the Act, 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. "Personal use" in the context does not necessarily mean use by the landlord alone but also includes use by the members of his family who want to live with him. -- See--Bega Begum v. Abdul Ahad Khan (AIR 1979 S. C. 272, at p. 277 para 16); S. Sivasubramanya Iyer v. S. H. Krishnaswamy (AIR 1981 Kerala 57) and S Sivasankaran Kacharlal Sowcar (1984(1) M. L. J. 155 at pp.. 160 & 161, para j2). So, the first point raised to the effect that the requirements of additional accommodation should be only for the landlord''s personal use is without substance.

On the second point, on the basis of evidence, the Appellate Authority has held that the need mentioned by the landlord is quite genuine. May be he wants additional accommodation as facility for convenient living. But, it is difficult to say that what the landlord seeks is a mere luxury. Even in a case where an additional accommodation is sought as a luxury, it has been held that the relief u/s 11 (8) read with section 11 (10) should not be denied to the landlord. Poli, J (as he then was) stated the matter pithily thus; in S. Sivasubramanya Iyer''s case (AIR 1981 Kerala 57, at page 59, paragraph 3:

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 under 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. It 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 necessary use by himself but by the members of his family who want to live with him.

Again, the learned Judge, in his illimitable style, stated the law thus in Lekshmana Naikany Gopalakrishna Pillai (1981 K. L. T. 167) at page 169, paragraph 3:

...May be that even without the additional accommodation the landlord may manage. If the question is one of dire need one may say he can do without it. In fact the additional accommodation which he seeks may even amount to a luxury for him. But there are many people who can afford luxuries. Those who-can, are entitled to them and there is no reason to deny that to them so long as law does not prohibit their enjoyment. Therefore, the test of bona fides under S. 11 (8) read with S. 11 (10) is not whether the landlord could very well afford to live without the additional accommodation, but whether in seeking the additional accommodation the landlord is pleading an honest purpose and not merely setting up an excuse to obtain eviction.

We concur with the above decisions and hold that on the facts of this case, the landlord requires additional accommodation for his personal use, as rightly found by the Appellate Authority. The claim so made is bona fide.

The third and the final point taken centres round the applicability of the proviso to section 11 (10) of the Act. It was contended that the burden of proof is on the landlord to substantiate that greater hardship will be caused to him, if the application is rejected. On this aspect, the Supreme Court has held in Phiroze Bamanji Desai Vs. Chandrakant N. Patel and Others, , thus:

...In our opinion both sides must adduce all relevant evidence before the court; the landlord must show that other reasonable accommodation was not available to him and1 the tenant must also adduce evidence to that effect. It is only after sifting such evidence that the court must form its conclusion on consideration of all the circumstances of the case as to whether great hardship would be caused by passing the decree than by refusing to pass it..

The said decision was followed in Bega Begum v. Abdul Ahad Khan (AIR 1979 S, C. 272, at p 277 para 14). It is evident from the above decision that both sides should lead evidence substantiating the facts stated in the proviso to section 11 (10) of the Act. The final finding regarding the greater hardship, appears to be a finding of fact--P. B. Desa''s case (AIR 1974 S. C. 1059 at p. 1065). It is seen that at one time the question where lies the balance of hardship was opined to be not one of fact--See Chandler v. Strvett (1974 (I) All. E R. 164 per Scott, L. J.) Bat, the later decisions of the Court of Appeal in Coplans v. King (1947 (2) All E. R. 393) and Piper v. Harvey (1958 (1) All E R 454) have taken the view that the decision of the trial Judge with regard to the balance of hardship is a question of fact.

The Appellate Authority has stated that it has not been established that the hardship that will be caused to the tenant will outweigh the advantage to the landlord, if the eviction is implemented. Our attention was not invited to any material let in by the tenant to show that any hardship will be caused to him by granting the order of eviction. It is important to notice that the tenant himself stated that the existing facilities are not sufficient for the convenient residence of the members of the family of the landlord, but he is opposing eviction since he has difficulty in finding another accommodation for himself. In every case of eviction, there will certainly be difficulty for the tenant. But, what is required is something more. Even according to the tenant''s own admission, the existing facilities are insufficient for the convenient residence of the members of the landlord''s family. It is obvious, that if eviction is denied, it will cause greater hardship to the landlord. This is not a esse where by the grant of eviction greater hardship will be caused to the tenant. The finding entered on this score, by the Appellate Authority, is a finding of fact. Our attention was not invited to any material to demonstrate that the said finding is illegal, unfair or irrational. The order passed by the Appellate Authority does not merit interference in this revision. This revision is dismissed.