N. Damodara Prabhu vs Jaganath Prabhu

John Mathew, J.—The Point that arises for decision is whether the protection u/s 11(17) of the Kerala Buildings (Lease and Rent Control) Act (the Act) is available to a tenant who is sought to be evicted u/s 11(8) of the Act. A tenant who has been ordered to be evicted u/s 11(8) of the Act is the revision petitioner. According to the landlord, he leased out the Southern portion of his residential building to the tenant on a monthly rent of Rs. 7/-. The landlord and his family are in occupation of the northern portion of the same building. His family consists of his wife, grown up daughters, three sons and a sister. The portion in his possession consists of two rooms a kitchen and a varandah. The landlord is experiencing considerable difficulty due to lack of space. On these averments he filed the petition for eviction u/s 11(8) of the Act since he required additional accommodation for his personal use.

The tenant contended that the portion now occupied by the landlord is sufficient for his accommodation. It was also contended that the tenant was in continuous occupation of the building prior to 1-4-1940 and therefore, he is entitled to the protection u/s 11(17) of the Act. In this Civil Revision Petition we are not concerned with the other contentions of the tenant Since the findings on those contentions have become final. The authorities below found that the landlord was entitled to eviction and that the tenant was not entitled to the protection u/s 11(17) of the Act

Section 11(17) of the Act is as follows:

Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant, shall not be liable to be evicted for bonafide occupation of the landlord or for he occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of building and requires the building, bonafide for his own permanent residence or any member of his family or the landlord is in dire need of a place for residence and has none of his own.

(Explanation omitted as unnecessary for this case)

Relying on the judgment in Y. W. C. Association v. Jacob (1969 K. L. T. 919) learned counsel for the tenant contended that the protection given u/s 11(17) is available to a tenant who is sought to be evicted under sub section (8) of section 11 of the Act also. Under sub section (17) a tenant who has been in continuous occupation of a building from 1st April, 1940 shall not be liable to be evicted for bonafide occupation of the landlord or of any number of his family dependent on him. The words ''for bonafide occupation of the landlord or for the occupation of any member of his family dependent on him'' which appear in Section 11(17) of the Act is a re-production of the same words in Section 11(3) of the Act. Section 11(8) of the Act does not contain those words. From this it is clear that sub-section (17) of Section 11 does not confer the benefit of that provision on a tenant who is sought to be evicted u/s 11(8) of the Act. Accordingly we hold that the protection of Section 11(17) of the Act can be claimed only by a tenant who is sought to be evicted u/s 11(3) of the Act and not by a tenant who is sought to be evicted u/s 11(8) of the Act.

Therefore, the following passage in Y. W. C. Association v. Jacob (1969 K. L. T. 919) requires clarification.

5..................................................................... On reading S.11 as a whole, it is soon that there are only two provisions, which entitle a landlord to have an order for eviction of a tenant for the purpose of his own occupation. One is sub-section (3), and the other is Sub-section (8). It appears to be clear that the protection given under S. 11(17) to a tenant, who has been in continuous occupation of a building from 1st April, 1940, is available only against a landlord who seeks eviction bonafide for his own occupation or for the occupation of any member of his family. In other words the said protection is available only for a tenant who is sought to be evicted under Sub-section (3) or Sub-Section (8) of S.11.

From a reading of this judgment it is clear that the underlined portion (underlining ours for easy reference) was included by a clerical mistake. It is not in accordance with the earlier portions of the judgment or with Section 11(17) of the Act in that case this Court was only concerned with the applicablity of Section 11(17) of the Act to a proceeding u/s 11(7) of the Act. Therefore, the judgment in Y. W. C. Association v. Jacob (1969 K. L. T. 919) will stand clarified in accordance with our finding recorded in the previous paragraph. There is no illegality or impropriety in the finding that the landlord is entitled to get eviction u/s 11(8) of the Act. So also the authorities below have rightly held that the hardship caused to the tenant by the order of eviction will not outweigh the advantage of the landlord. Thus there is no merit in this Civil Revision Petition. C. R. P. is accordingly dismissed. However, under the circumstances of this case we grant two months'' time to the tenant to vacate the premises.