Padmavathi and Others vs Krishna Prabhu and Others

This Civil Revision Petition is filed against the Judgment in R.C.A, No. 36 of 1998 on the file of the 2nd Additional District Judge and Rent Control Appellate Authority, Ernakulam. Revision Petitioners are Respondents 2 to 4, 6, 7 and 9 in the appeal. R.C.P. No. 38 of 1996 on the file of the Additional Munsiff and Rent Controller, Kochi was filed by the first Respondent--Krishna Prabhu. Respondent 2 onwards are the other Respondents in R.C.A. The R.C.P. was filed by Krishna Prabhu, first Respondent herein, for eviction of one Sreenivasa Pai, who died when the matter was pending in appeal. The R.C.P. was filed under Sections 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter called as ''the Act'').

The case of the landlord was that he was in possession of a building adjacent to the petition schedule building, which was rented out to the Respondent in the R.C.P. He was doing business in vegetable and dry fruits and also backery items. According to him, he wants the tenanted building also for the purpose of expansion of his business and for the purpose of additional accommodation. He further stated that one of his sons, Rajesh is to be married and hence the present income is not enough. The tenants contended that the need is not bona fide. Further, they claimed the benefit of the second proviso to Section 11(3) of the Act.

Before the Rent Control Court, the landlord was examined as P.W. 1 and the tenant was examined as R.W. 1. Exts. A-1 and A-2 were produced on behalf of the landlord and no exhibit was produced on the side of the tenant. Ext. C-1 is the commission report. The Rent Control Court found-that the bona fide need is not established. Further, it was of the view that the tenant is not depending on the income derived from the business and other buildings are available. Hence, the R.C.P. was dismissed. Against that, the landlord filed appeal before the Appellate Authority.

After going through the evidence of P.W. 1 and R.W. 1, it was of the view that the finding of the Rent Control Court regarding the bona fide need is not correct. According to the Appellate Authority, a reading of the evidence of P.W. 1, and the circumstances will show that the need alleged is bona fide. It also held that the plaint schedule building is required for the additional accommodation for expanding the business of the landlord. So far as the benefit of the second proviso to Section 11(3) of the Act is concerned, it held that the tenant has not discharged the burden under the second proviso to Section 11(3) of the Act. Thus, order of eviction was passed u/s 11(3) of the Act. It is against that the present Civil Revision Petition is filed.

When the case was posted for admission, learned Counsel for the first Respondent took notice. Respondents 2 to 6 are the legal representatives of the tenant. Even though notice was ordered, it was not served. But it was found that it is not necessary to serve notice on them, since they have not challenged the order passed by the Appellate Authority and further they will be entitled to the same benefit as of the Appellant.

He heard learned Counsel for the Petitioners Sri S.K. Brahmanandan and learned Counsel for the Respondents Sri Lakshmi Narayanan.

Learned Counsel for the Petitioners submitted that it cannot be said that the order of the Rent Control Court is perverse. He also submitted that interference is called for only when it is found that evidence was wrongly appreciated. He further brought to our notice that the order of eviction is passed by the Appellate Court, u/s 11(8) of the Act. If that be so, it is the proviso to Section 11(10) of the Act that has to be considered. What was considered is the proviso to Section 11(3) of the Act. Learned counsel for the Respondents submitted that the Rent Control Court held that the need is not bona fide. It was further submitted that so far as the Second Proviso to Section 11(3) of the Act is concerned, the tenants are entitled to the same and hence, the order of the court below is correct.

On going through the order passed by the Rent Control Appellate Authority, we are satisfied that the need alleged is bona fide. The Rent Control Court forgot the fact that the business conducted by the landlord is a small business in vegetables, dry fruits and bakery items. It is not a very big business. The Rent Control Court held that the tenants are depending for their livelihood on the income derived from the business. The Appellate Court found that the income from the business alone should not be taken into consideration. In view of the above, we uphold the findings of the Appellate Authority u/s 11(8) of the Act.

So far as the next contention is concerned, according to us, learned Counsel for the Petitioners is correct in arguing that the Appellate Court was wrong in considering the Second Proviso to Section 11(3) of the Act. The Second Proviso will not apply to a case which is for an order of eviction u/s 11(3) of the Act. What is to be considered is the proviso to Section 11(10) of the Act. According to us, the contents of both the provisos are different. It has been held by this Court in the decision reported in Kochappan Pillai v. Chellappan Pillai 1976 KLT 1 that the burden to prove the benefit of the Second Proviso is on the tenant. It is not with regard to the Proviso to Section 11(10) of the Act. Here, on the basis of the evidence adduced by the patties, the court is to find out whether the hardship that will be caused to the tenant will out weigh the advantage to the landlord. As stated in Arjunan. v. Eranu 1991 (2) KLT 279 both sides should lead evidence substantiating the facts stated in the proviso. The final finding regarding the greater hardship appears to be a finding of fact. It is stated in Phiroze Bamanji Desai Vs. Chandrakant N. Patel and Others, , that both sides must adduce all relevant evidence before Court. The landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence to that effect. It is only after shifting such evidence that the court must form its conclusion. It is stated in Ammini v. Ammu 1986 KLT 846, that as Section 11(8) is intertwined with Section 11(10) and its first proviso there must be a definite finding regarding the comparative hardship. Eviction cannot be ordered solely on the landlord establishing a bona fide claim for additional accommodation.

In the above view of the matter, we are of the view that the matter requires fresh consideration at the hands of the Appellate Authority. Thus, while confirming the finding that the bona fide need u/s 11(8) of the Act is established, the order of eviction is set aside and the case is remanded to the Appellate Authority to consider the question regarding its satisfaction of the proviso to Section 11(10) of the Act.

The Civil Revision Petition is disposed of as above. The parties are directed to appear before the court below on 29th October 2001. The Appellate Authority shall dispose of the appeal within three months from 29th October 2001.