Porkrakutty vs Attancheri Velappil Mammad

Ramaswami, J.—This is a civil revision petition which has been filed against the order made in revision u/s 12-B, Madras Buildings (Lease

and Bent Control) Act passed by the learned District Judge of South Malabar in C. R. P. No. 10 of 1952.

The facts are: The respondent before us A. V. Mammad has been carrying on business in a rented building belonging to one Aydress.

Subsequently in 1950 he purchased a non-residential building, which is the subject-matter of controversy, for Rs. 5500 for doing business.

Immediately after the purchase he caused a lawyer''s notice to be issued to the petitioner before us who was occupying that non-residential building

as a tenant carrying on business therein to surrender possession. The petitioner sent a reply agreeing to pay the stipulated rent but declined to

surrender possession of the premises. I have just now mentioned that the respondent before us was occupying a non-residential building. The

landlord of the building on the foot of arrears of rent for two months took out proceedings in the Rent Controller''s Court and obtained an eviction

order.

Thereupon this respondent before us has sought the eviction of the petitioner before us on two grounds, viz., that this petitioner before us has sublet

the premises to two other persons without his permission and was therefore liable to be evicted u/s 7(2)(ii)(a) and secondly, that he the landlord

required the premises for his own business u/s 7(3)(iii). Those two persons did not oppose the application and submitted that they were sub-

lessees of portions of the premises under the petitioner before us. The petitioner herein contended that there was no sub-letting but that he was in

possession of the entire building. In regard to the second ground viz., that the premises were required for the business of the landlord the first

respondent in the lower Court (petitioner herein) contended that the order of eviction passed against his landlord in respect of the building of which

he the landlord was the tenant was obtained collusively & therefore there were no bona fides in this claim and that the landlord was not entitled to

eviction.

In regard to the first ground, all the Courts below, viz., the Rent Controller, the appellate Court and the District Judge have come to the

conclusion that the sub-letting has not been made out to their satisfaction and therefore it does not concern us here.

Then in regard to the second ground, the Rent Controller and the appellate Court found that the respondent herein had managed to get an order

of eviction passed against him under Ex. P. 6 by defaulting in the payment of rent and therefore the claim of the landlord was not bona fide u/s 7(3)

(a)(iii), proviso (ii)(e) and dismissed the petition of the landlord. The learned District Judge in revision held that the claim of the landlord was bona

fide so far as this application was concerned and ordered eviction. Hence this civil revision petition.

The point for consideration is whether the claim of the landlord was bona fide.

The term ""bona fide"" has been explained in the Law Lexicon of British India by Mr. P. Ramanatha Aiyar (M. L. J. publication) as follows:

In good faith; without fraud or deception; honestly as distinguished from bad faith; openly; sincerely. That we say is done bona fide, which is done

really, with a good faith, without any fraud or deceit (Tomlins Law Dictionary)."" This term has also been the subject-matter of judicial discussion

with reference to the Malabar Tenancy Act, (S. 20) where the phrase ""the landlord requires the holding bona fide for his own cultivation"" had to be

interpreted. In -- ''Raman Nayar v. Kesavan Nambudiri'', S. A. No. 42 of 1939 (Mad) (A), Venkataramana Rao J. construed it as follows:

The language used is ''requires the holding bona fide''. A mere desire on the part of the landlord even if bona fide, to have the land for his own

cultivation is not enough and in coming to a conclusion on the question of the landlord''s need being bona fide, the Court should in each case

consider whether the circumstances are such that the land must be restored to the landlord for his own cultivation etc. etc.,"" In that connection the

learned Judge referred to the observations of Buckland J. in -- Rekhab Chand Doogar Vs. J.R. D''cruz, , a decision on Section 11, Calcutta Rent

Act. In that case Buckland J. observed:

I do not think it is enough that a plaintiff in order to defeat a plea under the Calcutta Rent Act should merely say that he desires the premises bona

fide for his occupation. The word in the Act is not ''desires'' but ''requires''. This in my opinion involved something more than a mere wish and it

involves an element of need to some extent at least.

This definition of Venkataramana Rao J. was differed from by King J. in -- ''Achuthan v. Katheeja Bi'', S. A. No. 538 of 1939 (Mad) (C). He

held that

what is meant by a landlord requiring the holding bona fide is that he asks for or demands it bona fide. The expression ""bona fide"" cannot apply to

a state of circumstances but only to the statements or intentions or actions of a human being. All therefore that is necessary in my opinion is for the

Court to decide whether, when the landlord demands or asks for or sues for any land on the ground that he wishes to cultivate it himself, his

statement that he wishes to cultivate it himself is a statement made bona fide"".

This was the subject-matter of a Bench decision in -- Narikkal Chathan of Muthuvannacha Amsom and Desom Vs. Veethiyottillath Kesavan

Namboodiri Karnavan and manager of his illom of Muthuvannacha Amsom and Desom, , where the interpretation of King J. was accepted and the

words ""the landlord requires the holding bona fide for his own cultivation etc."" were held to mean that the landlord should have a genuine intention

to cultivate the land and not that he should show a real need to do so. In fact the Malabar Tenancy Act, Section 20 has been subsequently

amended by substituting the word ""need"" for the original word ""requires"".

In connected Rent Control Acts of other states the phrase used herein ""reasonable and bona fide requirement of the landlord"" has been construed.

It will be noticed that in the Madras Act the words used are ""that the claim of the landlord is bona fide"". In a Calcutta case which arose under the

1948 West Bengal Premises Rent Control Act, Mukherjee J. had occasion to deal with the connotation of the word ""bona fide requirement"" of the

landlord. He held that gross unreasonable ness of the landlord may, in proper circumstances lead the Court to the conclusion that the landlord''s

requirement is not bona fide, and that how much unreasonableness will be regarded by the Court as evidence of mala fides of the landlord will

depend on the facts and circumstances of the case: -- Basant Lal Saha Vs. P.C. Chakarvarty, . Richardson J. in -- Saleh Abraham Vs. Manekji

Cowasji, , has held: ""I agree that the landlord is not acting bona fide under the Act unless he reasonably requires the house for his occupation"". The

words ""reasonably requires"" connote something more than a desire to have something, and much less than absolute necessity. There can be no

doubt that the landlord must have a genuine present need of the ouilding for his occupation.

In this connection two things may be borne in mind. Bona fides may be proved in an ordinary way like any other fact in issue or a relevant fact.

There is no such rule of law that bone fides being a subjective matter can only be proved by the plaintiff stepping into the witness-box: -- ''Atma-

ram v. Narayan'', AIR 1922 Bom 109 (G). Secondly, although ordinarily the decree or order in a suit or proceeding should accord with the rights

of the parties as they stand at the date of its institution, yet where it is shown that the original relief claimed has by reason of subsequent change of

circumstances become inappropriate or that it is necessary to base the decision of the court on the altered circumstances in order to shorten

litigation, or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since

the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made: -- ''Krishnaji v.

Motilal'', AIR 1929 Bom 337 (H). The Bombay High Court has accepted the view that the Court can even in appeal take into consideration

events subsequent to the decree. Vide -- Shankarbhai Manorbhai Patel Vs. Motilal Ramdas Shah, , -- ''Rustomji v. Purshothamdas'', 3 Bom LR

227 (J) and -- ''Sakharam v. Hari'', 6 Bom 113 (K).

Therefore, applying these decisions let us examine the facts in the instant case. There can be no doubt as concluded by the learned District

Judge from what is disclosed by the evidence of the respondent before me and his two witnesses as well as the surrounding circumstances of the

case made out from the record that the respondent before us had a genuine present need for the non-residential building for his occupation. Even

assuming what has been deduced from circumstances by the Courts below viz., that he did not take all steps that he could have possibly taken to

avoid being evicted from the rented building in which he was carrying on business this would not make his claim a mala fide one. It has been well

pointed out in -- Rustomji Dinshaw Billimoria Vs. Dosibai Rustomji Master, , as follows:

The only question is whether the plaintiff requires the premises in suit reasonably and bona fide for his use and occupation. Ordinarily speaking, an

owner of premises, if he says he wishes to use them for his own purposes, is entitled to do so. What the Rent Act endeavours to provide for is the

case of a landlord who evicts the existing tenants in order that he may let to another tenant at a higher rent, or exact a higher rent from the tenant on

a threat of eviction. It seems to me that the question in this case whether the plaintiff was reasonably dissatisfied with the premises which he rented

in Girgam is irrelevant, because in any event the plaintiff was entitled to live in his own premises. He was not bound to continue in rented premises

with all the uncertainties of that tenure. So that a great deal of irrelevant matter has been introduced into these suits .....It cannot, therefore, be said

that the plaintiff is acting, unreasonably in saying that he wishes to occupy.....

I therefore agree with the following observations of the learned District Judge: ""In the present case there is nothing strange in the petitioner, who is

the owner of the premises thinking of doing business in his own premises. In my opinion the question of collusion in respect of the order in Ex. P. 6

is irrelevant and I am not able to agree that the claim of the petitioner for eviction for the purpose of-doing his own business, is not bona fide.

Nothing has transpired subsequently to alter or modify this conclusion on the other hand the passage of time has only deepened the plight of this

evicted respondent and strengthened his case for being put in possession of his own business premises.

This civil revision petition, totally devoid of merits, is dismissed with costs.