Kurian vs Prathapan and Others

Manoharan, J.—Appellant in R.C.A. 62 of 1989, 114 of 1989, 17 of 1989, 84 of 1989 and 51 of 1989 is the Petitioner in these revision petitions. The said appeals respectively were against the orders in R.C.P. 178 of 1983, 175 of 1983, 176 of 1983, 177 of 1983 and R.C.P. 173 of 1983 filed by the revision Petitioner for eviction of the tenant from five rooms in a double storeyed building having three rooms in the first floor and six rooms in the ground floor.

The five rooms involved in these revision petitions were let out to the respective Respondents by the predecessor of the revision Petitioner. Revision Petitioner alleged that the building belonged to his maternal grandfather Olikkal Pothen Mathew who let out one room each to the Respondent in the respective revision petitions. According to the Petitioner the said rooms were let out for their residence. Olikkal Pothen Mathew executed Ext. A-1 gift deed in favour of the revision Petitioner. Respondent in R.C.P. of 1983 is in possession of a room on an agreement to pay Rs. 40 per month. Rent for the room in R.C.P. 173 of 1983 is Rs. 75, Rs. 40 for the room in R.C.P. 177 of 1983, and Rs. 80 each for the rooms in R.C.P. 178 of 1983 and 176 of 1983.

The common ground for eviction was, Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short ''the Act''). Revision Petitioner alleged, he bona fide needs the building for his own residence; he contended, he has no other building to reside. In R.C.P. 173 of 1983 and 178 of 1983 eviction was sought u/s 11(2)(b) also on the ground that those Respondents kept arrears and inspite of demand neither have they paid the arrears nor have tendered the same. There is yet Anr. ground in R.C.P. 173 of 1983; Petitioner alleged, the room was sub let without his consent and hence he is entitled to eviction u/s 11(4)(1) of the Act also.

Respondents in their objections contended that, the revision Petitioner is not the landlord. They questioned the validity of Ext. A-1 and denied the claim of eviction on the ground of bona fide need. Respondent in R.C.P. 173 of 1983 denied the alleged sub letting. Respondent in R.C.P. 176 of 1983 and 177 of 1983 also contended that, they are conducting business in the said rooms and that they are entitled to the protection under the second proviso to Section 11(3) of the Act.

Petitioner got himself examined as P.W. 1. He also examined P.W.2, an independent witness. Respondent in R.C.P. 173 of 1983 was examined as R.W. 1, second Respondent in R.C.P. 178 of 1983 was examined as R.W. 2, Respondent in R.C.P. 177 of 1983 got himself examined as R.W. 3, Respondent in R.C.P. 175 of 1983 was examined as R.W. 4 and Respondent in R.C.P. 176 of 1983 was examined as R.W. 5. Revision Petitioner produced Exts. A-1 to A-21 and Respondents produced Exts. B-1 to B-4. Two commissions were issued; they filed Exts. C-1 and C-2 reports.

Learned Rent Controller by a common order allowed eviction of the Respondent in R.C.P. 173/1983 u/s 11(2)(b) of the Act; the other grounds were found against, consequently the rest of the petitions were dismissed. Against the said order of the Rent Controller Petitioner preferred the aforesaid appeals which were also dismissed by the appellate authority by a common judgment. These revisions are directed against the said judgment of the appellate authority.

Before us the only point urged by the learned Counsel for the revision Petitioner was that the revision Petitioner is entitled to an order of eviction u/s 11(3) of the Act. Paragraph 13 of the judgment of the appellate authority would show, before the appellate authority also the ground of bona fide need alone was urged.

Learned Counsel for the revision Petitioner contended, both the authorities went wrong in thinking that the revision Petitioner is not entitled to an order of eviction u/s 11(3) of the Act. According to the learned Counsel, the fact that the wife of the Petitioner has constructed a building and now the revision Petitioner along with his family is residing in the said building cannot have relevance in considering either the bona fide need of the revision Petitioner or the applicability of the first proviso to Section 11(3) of the Act. According to the learned Counsel so long as the Petitioner has no building except the petition schedule building, merely because his wife has a building cannot defeat his right to get eviction u/s 11(3) of the Act. Learned Counsel pointed out that at the time of institution of the proceeding the Petitioner with his family was residing in a rented building. It was only after the institution of the proceedings that a plot was purchased at Palarivattom and a building was constructed by his wife raising a loan from the bank. According to the learned Counsel that cannot be treated as a subsequent event to be noticed in considering the claim of the Petitioner u/s 11(3) of the Act.

In appreciating this argument of the learned Counsel, a few facts have to be mentioned. Though the tenants disputed the title of the Petitioner, Rent Controller found on the basis of Exts. A-1 to A-8 sound that the denial of title is not bona fide. Revision Petitioner is employed in the Premier Tyres and his wife is employed in a Nationalised Bank at Ernakulam. They were residing in a rented building. Their eldest child was studying in St. Teresas High School, Ernakulam. This was the background when the revision Petitioner instituted the proceeding for eviction on the ground of bona fide need and occupation. The tenants denied the bona fide need. Pending petition for eviction Petitioner''s wife constructed a double storeyed building in whose ground floor the Petitioner with his family is now residing, and the first floor was let out for a monthly rent of Rs. 1,000. This new building has got car porch and the same has two independent units for residence one the ground floor and the other the first floor. According to the Respondents the said circumstance is a subsequent event which has got relevance and importance in considering the need alleged by the revision Petitioner. As a matter of fact the main thrust of the argument of the learned Counsel for the Respondents is based on the possession of the new building acquired by the wife of the Petitioner.

Adding to this they contended that, the petition schedule building is not worthy for the residence of the Petitioner and his family. According to them, the very design and construction of the petition schedule building is such that the same is not intended for the residence of a family but was intended to be used as lodge. The first floor of this building has three rooms having a verandah in the front. The access to the said rooms is from the verandah only. Likewise in the ground floor there are three rooms each on either side of a corridor. It was contended by the learned Counsel for the revision Petitioner that the Petitioner wants to occupy the building only after effecting suitable modifications.

It is true, if the bona fide need is genuine the fact that the building in question requires modification need not necessarily affect the need. If the landlord seeks eviction of a building which is not suitable for residence, the fact that he needs the same for residence without necessary modification may have relevance in considering the bona fides of his claim. But the position will be different when the landlord wants to occupy only after effecting necessary modifications and alterations. In a given case bona fide need could be to demolish the existing structure and construct a new one for the residence of the landlord. In such cases the whole proved circumstances must be taken into consideration to see whether the alleged need is genuine or is only a pretext for eviction. In analysing the probabilities of the case the question whether there is compelling circumstance to prompt the Petitioner to make modifications of such magnitude for his own occupation too is a relevant factor. But the more important aspect to be considered is, whether the fact that the revision Petitioner with his family is now residing in a building belonging to his wife would affect his claim u/s 11(3) of the Act. The first question to be considered is whether the same would attract the first proviso to Section 11(3) of the Act. The said proviso can apply only where the landlord has Anr. building of his own in his possession. As admittedly since the building belongs to the wife of the revision Petitioner the condition in the said proviso is not satisfied. Therefore, the first proviso to Section 11(3) of the Act cannot apply.

But in deciding the bona fides of the Petitioner the said aspect is one of the predominant circumstances to be taken into account. Bona fides being a condition of mind may not be capable of direct evidence, necessarily therefore the same is a matter for inference from circumstances. A mere desire cannot amount to bona fide need within the meaning of Section 11(3) of the Act. The need must be genuine; and the same should be tested against the attending circumstances and see whether a person placed in the position of the Petitioner could have felt the need alleged by the Petitioner. The building in which the revision Petitioner now resides with his family is a new building with modern amenities. Therefore, ordinarily a. person who is residing in such a building cannot have a need to occupy a building which is 50 years old and which requires extensive modifications and alteration.

Learned Counsel for the revision Petitioner contended that the fact that the wife of the revision Petitioner purchased a plot at Palarivattom and constructed a building by availing a loan from the bank subsequent to the institution of the proceedings cannot have relevance. Learned Counsel relied on the decision in Devaky v. Krishnankutty 1987 (1) KLT 671 to contend, unless subsequent event has fundamental impact on the relief claimed the same cannot be taken into account. The decision in Devaky''s case 1987 (1) KLT 671 also states, the court is not only entitled but is bound to take cautions cognizance of subsequent events which have got fundamental impact on the right of relief. When the question is whether a person''s need for personal occupation is genuine or not, the fact that he is now residing in a building with sufficient amenities is a factor which certainly will have decisive relevance.

But according to the learned Counsel the fact that the revision Petitioner is residing in a building belonging to his wife cannot have negative effect against his claim for eviction on the ground of bona fide need. According to the Learned Counsel a desire to live under one''s own roof is a genuine need which is recognised and protected by courts. Learned Counsel made reliance on the decisions in Secretary, Thevara Co-operative Consumer Stores Ltd. v. Jose 1984 KLT 290 and Thankappan Pillai v. Sukumari Amma 1986 KLT 109. In Jose''s case, 1984 KLT 290 the Petitioner who was about to marry sought eviction. It was held the fact that the landlord''s mother owns a house of her own is no ground to deny the claim for eviction of his own building. It is observed therein, "A feeling that one is under his own roof and as of right, is a comforting one duly recognised and protected by law and legal institutions". In Thankappan Pillai''s case, 1986 KLT 109 the landlord was occupying a building belonging to her paternal uncle. It was held, the need to put up a building of her own cannot be defeated merely because the landlord and her mother were staying with her paternal uncle. Her father was no more and they were residing with her father''s brother.

We do not consider that these decisions can have application to facts of this case. Here the Petitioner along with his wife and children is residing in a house belonging to his wife. A person residing with his wife and children in the house that belongs to the wife cannot be equated with one who resides in the house of a paternal uncle as in Thankappan Pillai''s case, 1986 KLT 109 or a person whose mother has a building of her own in her possession as in Jose''s case, 1984 KLT 290.