S. Mariappan vs Kadar Beevi

S.S. Subramani, J.—Tenant in R.C.O.P. No. 1 of 1992, on the file of Rent Controller (District Munsif''s Court, Tuticorin) is the revision

petitioner. Respondent herein filed the eviction petition against the petitioner seeking surrender of the schedule premises on the ground that the

same is required for her son''s bona fide own occupation. It is her case that her son has no building of his own and he is doing business in electrical

goods in a rented premises. The schedule building is suitable for the same. Various demands were made to the petitioner asking him to surrender

the building, which he did not comply with. Hence the eviction petition was filed.

In the counter, tenant contended that he is conducting a barber shop in the schedule premises and the present eviction petition is lacking in good

faith. It is his case that the intention of the landlady is only to get enhanced rent. He also denied that the landlord''s son is doing any business, and

the rent receipt is only issued by a close friend of the landlady''s husband. Even without doing business, landlady''s son has managed to get

receipts. He said that the landlady has got other buildings of her. own, which are reasonably sufficient for her son''s occupation. The eviction

petition, according to the tenant, is liable to be dismissed.

Rent Controller, as per Order dated 29-7-1992, held that the claim of the landlady is genuine, and the revision petitioner is liable to surrender

the building. Rent Controller took into consideration both oral and documentary evidence for entering such a finding. Before the Rent Controller,

Exx. A-1 to A-6 were marked on the side of the landlady, and landlady''s husband was examined as P.W.1. Respondent (tenant) examined

himself as R.W. 1. No documentary evidence was adduced by him. Rent Controller further found that the landlady''s son was doing business of his

own in electrical goods, and the business was carried on in a rented premises. He also found that the landlady''s son has no building of his own,

and, therefore, the claim is bona fide. Aggrieved by the Order of the Rent Controller, the matter was taken in appeal before the Appellate

Authority as R.C.A. No. 64 of 1992. The Appellate Authority also confirmed the findings of the Rent Controller.

Before the Appellate Authority, an interlocutory application was also filed as I.A. 188 of 1994, seeking permission to adduce additional

evidence in Appeal. A case was put forward by the tenant that during the pendency of the Appeal, the landlady has obtained physical possession

of a building adjoining the schedule premises and the same was divided into two and let out to two different tenants. The tenant contended that

even if there was any bona fide in the claim, letting out the building to a'' stranger, which fell vacant subsequent to the filing of the eviction petition,

will show that the alleged requirement was not bona fide. It is his case that when a claim is made on the ground of requirement for own occupation,

the bona fide must subsist throughout the proceedings. Appellate Authority held that in spite of the additional evidence let in, the alleged subsequent

event will not have any effect on the requirement of the son, who has no building of his own. The Appeal was dismissed. It is the concurrent

judgment of the Authorities below that is challenged in this Revision.

Learned counsel for the petitioner put forward the following submissions:- (1) Finding of the Rent Controller and Appellate Authority is not

based on any legal evidence. (2) The son for whose requirement the building is sought, has not been examined. The son alone can say about his

need and, therefore, the requirement is not proved. (3) The landlady''s son is not carrying on any business as found by the Authorities below. The

Registration Certificate is of the year 1984 and the rent receipts produced on the side of the respondent land lady) Will only show that her husband

is occupying a rented premises and not the son. (4) Lastly, the Appellate Authority failed to take into consideration the subsequent event as

additional evidence.

According to me, all these submissions could be considered together. I will first take up the case whether the non-examination of the son has

any material bearing for the rent control proceedings.

u/s 10 (3) (a) (iii) of the Rent Control Act, landlord files a petition for own use either for himself or for any member of his family. It is not the

case of the tenant that the son is not a member of the family. Even though the building is to be used by the member of the family, it is the landlord

who is seeking eviction for the use of the member of the family. Really, therefore it is the landlord himself who has to satisfy the requirement of the

member of the family, as genuine, and seek the assistance of Court for getting possession. In this case, it cannot be said that the landlady is not a

person competent to speak about the requirement of a member of the family. To provide for the member of the family who is in need is as well the

requirement of the landlady herself, and the member of the family also depends on the family for his needs. If that be so, the non-examination of the

son cannot be said to be an adverse circumstance. Rent control proceedings are only civil proceedings and finding has to be entered on the

preponderance of probabilities. Even to enter a finding on bona fides, Rent Controller has to depend on evidence which is adduced in accordance

with law.

In a recent decision of the Supreme Court reported in Gulraj Singh Grewal Vs. Dr Harbans Singh and Another, landlord sought eviction for the

requirement of his son who also joined as a petitioner. The son for whose requirement the building was sought, was not examined. But the landlord

(1st respondent before the Supreme Court) was examined. An argument was taken before the Supreme Court that the non-examination of the son

is a material circumstance to show lack of good faith. In paragraph 8 of the judgment (Page 72 of the Reports), their Lordships considered this

point and held thus:-

Learned counsel for the appellant submitted that the personal need found proved is only of respondent 2, son of respondent 1, who did not enter

the witness-box and, as stated in an affidavit filed in this Court, even he is carrying on his profession at a place about 25 kms. away from Ludhiana,

in our opinion, this finding of fact is unassailable. The High Court has clearly observed that no meaningful argument could be advanced on behalf of

the appellant to challenge this finding of the appellate authority. Respondent 1 who is the father of respondent 2, has supported and proved the

need of respondent 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, respondent 2 is at present

carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlord''s need. In these circumstances, the non

examination of respondent 2 also when respondent 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter

relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened....

(Emphasis supplied)

I had occasion to consider a similar question in the decision reported in 1996 - 1 -M.L.J. 176=1995-2-L.W. 364 (Munuswamy v. S.S.

Nathan). In that case, I have said that the bona fides can be proved by other evidence. I have relied on the decision reported in Mattulal Vs.

Radhe Lal, to hold that ''the test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he

wants the nonresidential accommodation for the purpose of starting on continuing his own business, that would not be enough to establish that he

requires it for that purpose and that his requirement is bona fide. The word ''required'' signifies that mere desire on the part of the landlord is not

enough but there should be an element of need and the landlord must show - the burden being upon him - that he genuinely requires the non-

residential accommodation for the purpose of starting or continuing his own business''. On the said observation, I have held that ''if bona fide means

only state of mind, the assertion of the landlord would be sufficient. When the same depends upon various other circumstances and the Court has

to rely on those circumstances, it is not the state of mind alone, but something more has to be considered by this Court. In that view, mere

assertion of the landlord is not necessary, nor a decision could be taken on the basis of the mere assertion. I have already said that when a member

of the family requires the building for his occupation, he really looks upon the landlord for getting the tenant evicted. First the landlord satisfies

himself that the requirement of the member of the family is genuine, and it is that genuineness that is sought to be proved by him. It is really the

desire of the landlady to provide for her son that is agitated in this case. The examination of the son may be an additional evidence to prove the

bona fides. His non-examination cannot be a circumstance to negative the claim nor can it be a reason for entering a finding that the claim is lacking

in good faith.

The further question that arises for consideration is, whether the son is carrying on business, and whether he is occupying a rented premises,

and also whether the building is required for his own use. Both the Authorities below have concurrently found all the points against the tenant. The

landlady has spoken to the fact that her son is doing business in electrical goods and that he is occupying a rented premises. The same is also

supported by a registration of the son''s name as a dealer in electrical goods. Ex. A-3 is the said Certificate. As against the said evidence, when

R.W.1 was examined on 14-7-1992, he admitted that the landlady''s son is doing business in electrical goods. Unfortunately the evidence could

not be closed on that date and the case had to be adjourned to 16-7-1992. On that day, in chief-examination, when he was again asked whether

the landlady''s son was doing business in electrical goods, he pleaded ignorance. Rent Controller took into consideration the admission of the

tenant that the landlady''s son is carrying on business in electrical goods.

An argument was taken by learned counsel that the premises in the occupation of the tenant is not taken by the son on rent, but the receipts are

issued in the name of the father. I do not think that is a circumstance which could be taken against the landlord. The same has also been explained

by P.W.1. P.W.1 has said that since the landlord of the building is well-acquainted with her husband only, receipts are being issued in his name. In

fact, the case put forward by the landlady is that her son is occupying a rented premises and he does not own any building. I do not think there is

any inconsistency between the evidence and pleading, nor do the receipts go against the claim of the landlady. These are the circumstances urged

by the tenant to hold against the landlady. I do not think that any ground has been made out for interference in the concurrent judgments of the

Authorities below.

It is for the said purpose, learned counsel for the revision petitioner strenuously relied on the alleged subsequent event which, according to him,

disqualifies the landlady from getting possession of the building in question. it is the case of the tenant that immediately after the Appeal was filed

before the Appellate Authority, the landlady obtained physical possession of a neighboring shop after evicting the tenant therefrom, and thereafter

she has let out the same to two different tenants by putting up a partition wall. Before the Appellate Authority, certain photographs of the adjoining

premises were also filed along with an affidavit stating that the landlady has taken possession of the neighboring building. A counter-statement was

filed by the landlady, seriously disputing the fact that she has taken possession of the building. She only said that if is not a disqualification for the

son to get possession of the building in question. The lower Appellate Court accepted this explanation of the landlord and confirmed the order of

eviction.

The fact that the Rent Control Court is entitled to take note of a subsequent event can never be disputed. But the subsequent event must be of

some relevance affecting the rights of parties. If the same has no relevance, the findings of the Authorities below should not be interfered with.

u/s 10(3) (a)(iii) of the Rent Control Act, a member of the family is entitled to the possession after evicting a tenant if that member has no other

building of his own in the city. That requirement even now exists. The tenant has no case that the member of the family has obtained possession of

a building subsequent to the eviction petition. This argument has to be met in another angle also. If it is the case of the tenant that the landlord can

provide the son another accommodation and not his own, then the claim is bona fide must be taken as admitted, and the requirement of the son

also stands proved. If the requirement is found to be bona fide, then the choice is left to the landlady to decide as to which building her son should

occupy, and the tenant will not have any, say in the matter. If the bona fide is proved, then the tenant cannot dictate terms to the landlady that her

son should occupy only some other building and not the schedule building. In two decisions of the Supreme Court, namely Mrs. Meenal Eknath

Kshirsagar Vs. M/s. Traders and Agencies and another, and at page 353 of the same volume (Prativa Devi v. T. V. Krishnan), this question was

considered. Of course, in both these cases it is a case of residential building. In both these cases, the landlord obtained possession of some building

subsequent to the initiation of proceedings. Taking into consideration this contention, their Lordships said that the tenant cannot dictate which

building the landlord should occupy, and, if bona fide is proved, the choice must be given to the landlord to occupy a building which will be more

convenient and advantageous for him. I have already said that the landlady''s son''s requirement even now exists. He did not come into possession

of any building, and it is for his requirement exists even now, and, therefore, the alleged subsequent event cannot be made use of against him.

When this point was brought to the notice of learned counsel, he said that the Rent Control legislation is a beneficial legislation so far as the

tenant is concerned, and when the landlord comes before Court to plead for the son, naturally, when a building falls vacant, landlord should first

see that the requirements of the son are met. If, in spite of the fact that a building became vacant, the landlady had let out the building to strangers,

even if the qualification for getting possession of the schedule building for the occupation of landlady''s son is not taken away, to a certain extent

lack of bona fides stands proved. I appreciate the argument of learned counsel for the revision petitioner. But I do not think it can legally stand.

The submission of learned counsel that the Rent Control Act is a beneficial legislation only for the tenant is not correct. The Rent Control legislation

though restricts the rights of the landlord to get possession of the building, it enables him to get possession on certain specified grounds. If those

specified grounds are made out, to put further restrictions on the landlord to get possession, is not permissible in law. In Mst. Bega Begum and

Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, in paragraph 13 (at page 279 of the reports) their Lordships have said thus:-

Moreover, Section 11(h) of the Act uses the words ''reasonable requirement'' which undoubtedly postulate that there must be an element of need

as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the

genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term ''need'' or

''requirement'' should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for

the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant

to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts prevalent in other States in

the country....

(Emphasis supplied)

The said decision was followed in Kewal Singh Vs. Smt. Lajwanti, . In that case, their Lordships, said,

That the Rent Control legislation is a piece of social legislation and it is intended mainly to protect the tenants from frivolous evictions. At the same

time, in order to do justice to the landlords and to avoid placing such restrictions on their right to evict the tenant as to destroy their legal right to

property certain salutary provisions have been made by the legislature which give relief to the landlord. In the absence of such a legislation a

landlord has a common law right to evict the tenant either on the determination of the tenancy by efflux of time or for default in payment of rent or

other grounds after giving notice under the Transfer of Property Act. This brought in right has been curtailed by the Rent Control legislation with a

view to give protection to the tenants having regard to their genuine and dire needs. While the Rent Control legislation has given a number of

facilities to the tenants, it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also. For instance, open of

the grounds for eviction which is contained in almost all the Rent Control Acts in the country is the question of landlord''s bona fide personal

necessity. The concept of bona fide necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical"".

(Emphasis Supplied).

If the contention of learned counsel for revision petitioner is accepted, even if it is proved by landlady that her son is not in possession of any

building and is occupying a rented premises, the eviction petition will have to be thrown out only on the ground that the landlady obtained

possession of some other building, which will meet the requirement of the son. That will amount to putting further restrictions on the right of the

landlady, to provide for the dependent member of the family. The said contention is, therefore, rejected.

Learned counsel for the petitioner relied on the decisions reported in Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, , Hameedia

Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, and Ram Dass Vs. Ishwar Chander and Others,

In the first decision referred to above, learned counsel laid stress on paragraph 12 of the judgment wherein it has been held that the rent control

legislation was passed to meet the hue and cry of the human problem. That is, the tenant should not be thrown on the street. I respectfully agree

with the said law declared by the Supreme Court. In that case, their Lordships were considering whether the landlord has filed a vexatious or

frivolous petition. If such a petition is filed, naturally paragraph 12 of that judgment will help the tenant.

In the second decision, namely, Hameedia Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, , their

Lordships were considering the difference between the words ''requirement'' and ''honest need''. Their Lordships held that once the need of the

landlord is found to be genuine, the requirement must be a honest need. The said decision cannot support the case of the tenant, once it is held that

the very claim of the landlady is true, and she has come to Court with all good faith. In the last decision, namely Ram Dass Vs. Ishwar Chander

and Others, , learned counsel for the revision petitioner laid stress on the point that while interpreting law, protection afforded by law to the tenant

should not be whittled down and the Court must take note of the subsequent events. At the same time, their Lordships further held that the finding

regarding bona fide need is always a question of fact. If that be so, when both the Authorities below have concurrently come to the correct

conclusion that the claim of the landlady is bona fide, the jurisdiction of this Court becomes restricted. That finding itself is sufficient to discard the

earlier argument, i.e., the protection given to the tenant should not be rendered illusory. If grounds are made out by the landlord/ landlady, the

protection is not available to the tenant. It is only against unreasonable evictions, the protection is given to the tenant. In the result, confirming the

concurrent findings of the Authorities below, I dismiss the Civil Revision Petition, however, without any order as to costs. C.M.P. No. 573 of

1995 for stay is also dismissed consequently.