ABDUL RAHIMAN v. RAMANKUTTY MOOTHAN — 1983 DIGILAW 103 (KER)

Judgment :- 1. The petitioners are the landlords. The building in the possession of the respondents belongs to them. They filed O.P. Nos. 119 of 1976 and 120 of 1976 seeking eviction of the respondents under S.11(2), (4) and (8) of the Kerala Buildings (Lease and Rent Control) Act, for short, the Act. Eviction was sought on the ground that the petitioners, who were in occupation of a part of the building, wanted the remaining portion of it in the possession of the respondents to be used after reconstruction. The Rent Control Court after considering the oral and documentary evidence directed the respondents to put the petitioners in possession of the buildings under S.11(8) of the Act. Both the respondents filed appeals before the Appellate Authority, viz., the Principal Subordinate Judge, Palghat. The Appellate Authority confirmed the decision of the Rent Control Court and dismissed, the appeals. The respondents pursued the matter by filing two revisions as C.R.P. Nos. 44 and 45 of 1976 before the District Judge, Palghat. The revisional court by its order dated 18th February 1980 reversed the concurrent findings of the Rent Control Court and the Appellate Authority and held that the petitions were not maintainable under S.11(8) of the Act. The revisional Court remanded the petitions to the Rent Control Court with a direction to consider and decide whether the petitioners required the buildings under S.11(3) read with S.11(4) of the Act, and if so whether the tenants were entitled to the benefits of the 2nd proviso to S.11(3) and also to consider whether the petitions were filed for the bona fide need for occupation of the partnership firm mentioned in the petitions. 2. The Rent Control Court, the Appellate Authority and the Revisional Court disposed of the rent control petitions, appeals and revisions by a common order. Hence I am disposing of these two revisions also by a common order. 3. It is necessary to note at the outset that the petitions were filed under S.11 (2) arrears of rent, 11 (4) re-construction as the building is in such a condition that it is necessary to demolish it, and 11(8) for additional accommodation. The petitioners as owners of the building wanted it for their occupation to run their business. They did not rest their claim as partners. The petitioners as owners of the building wanted it for their occupation to run their business. They did not rest their claim as partners. It is necessary to bear in mind the above pleadings to test the correctness of the revisional order. I will extract below the concurrent findings entered by the Rent Control Court and the order by Revisional Court. After referring to the various details disclosed in the pleadings and the evidence, the Rent Control Court makes the following obserations: "Therefore the contention of the respondent in O. P. 119/76 that the petition scheduled building is not part of a big building of which the other portion is in the possession of the petitioners has no merit. It is admitted by the respondent in O. P. No. 120/76 that the petition scheduled buildings in O. P. 120 of 1976 and O. P. No. 119/76 are parts of the same building". The Rent Control Court further makes the following observation in para 12 of its order: "On a careful consideration of the entire evidence and circumstances in this case I am convinced that the petition scheduled building in O.P. Nos. 119 and 120 of 1976 are parts of one big building of which the remaining part is in the possession of the petitioners". The Appellate Authority after considering the question has found as follows in para 12 of its judgment: "In view of the exposition of law referred to above, it cannot be said that this is a case where the petitioners are not occupying part of a building of which the remaining part is in the occupation of the respondents". The revisional Court in para 8 of its order has observed: "The tenants contended that the scheduled premises and scheduled building was an independent unit which did not form part of the building which was previously in the occupation of the landlords. The two Courts below have come to a concurrent finding on that aspect against the tenants and I agree with that finding". Thus it is clear that the petitioners are in occupation of a part of the building, the remaining part of which is in the possession of the respondents. 4. The next question relates to the manner in which the Rent Control Court and the Appellate Authority dealt with the bona fide need of the petitioners. Thus it is clear that the petitioners are in occupation of a part of the building, the remaining part of which is in the possession of the respondents. 4. The next question relates to the manner in which the Rent Control Court and the Appellate Authority dealt with the bona fide need of the petitioners. The following two points were formulated by the Rent Control Court: "(1) Whether the petitioners require the petition scheduled building for providing additional accommodation for their business? (2) Whether the petitioners are entitled to evict the respondent under S.11(8) of the Kerala Buildings (Lease and Rent Control) Act?" The Rent Control Court made a detailed examination of the evidence in the case, touching upon the bona fide need. The evidence of pw.1 is that the building where the petitioners are doing their business is a rented one and that their landlord has asked them to surrender the building. This was noted by the Rent Control Court. The respondents did not deny this. The Commissioner's report states that the space available for the petitioners now is quite insufficient and that the space available in the reconstructed portion of the building is also insufficient to run the business. The Rent Control Court has referred in detail to the Comissioner's report and the plans produced in the case. It was after considering the evidence in detail that the Rent Control Court found: "there is preponderance of evidence in this case which enable me to come to a conclusion that the need of the petitioners to reconstruct the entire building including the petition scheduled buildings in O. P. 119 of 1976 and 120 of 1976 to provide additional accommodation for their business is genuine and dire". The Appellate Authority also considered this aspect of the case and in para 13 of its judgment, after considering the evidence, it held: "In these circumstances, it cannot be said that the requirement for additional accommodation for their personal business pleaded by the petitioners is not honest or is merely with a view to evict the respondents. I agree with the conclusion of the Rent Controller that the claim is bonafide." 5. It is necessary to see how the Rent Control Court and the Appellate Authority considered the evidence, on the proviso to S.11(10). The trial Court observed: "It is also in evidence that the petitioners have invested an amount of Rs. I agree with the conclusion of the Rent Controller that the claim is bonafide." 5. It is necessary to see how the Rent Control Court and the Appellate Authority considered the evidence, on the proviso to S.11(10). The trial Court observed: "It is also in evidence that the petitioners have invested an amount of Rs. 67,500/- for the purchase of the premises with a view to construct a new building there and to do their business in the building so constructed. The petitioners have also reconstructed a portion of the building. They can complete the construction only if the remaining portion of the building is not evicted". The Rent Control Court further considered the evidence in O.P.No.119 of 1976, in which the respondent is a lady. Her husband owns a Brassier Manufacturing Company viz., Metro Brassiers. rw.1 has admitted that her husband has a "coconut garden and other properties near Palghat. It has also come out in evidence that she and daughter of rw.1 together purchased a property for Rs. 27,500/- in Palghat on 30th June 1978. In view of this piece of evidence, the Rent Control Court found that the respondent was not dependent upon the income derived from the business conducted in the building in question for her livelihood and also that the hardship caused to her if eviction was ordered will far outweigh the advantage that the landlord would get. The Rent Control Court held that the advantage that would accrue to the landlord would be much greater than the hardship she will have. 6. Next, the Rent Control Court considered these aspects with reference to respondent in O. P. No. 120 of 1976. He is a jewellery merchant. It was found that he was rich enough. A person dealing in gold and silver, according to the Rent Control Court, cannot be a very poor person. It will not be difficult for him to get another building in the locality. While he would say that there is no other building available in the locality, pw.1's evidence is to the effect that vacant building will be available if search is made. After considering the evidence on both sides, the Rent Control Court held that it is satisfied that the hardship caused to the respondent will not outweigh the advantage that would accrue to the landlord in case eviction is ordered. After considering the evidence on both sides, the Rent Control Court held that it is satisfied that the hardship caused to the respondent will not outweigh the advantage that would accrue to the landlord in case eviction is ordered. The Appellate Authority agreed with this finding after considering the evidence in detail in Para.15 and 16 of its judgment. 7. That takes me to the manner in which the revisional Court exercised its jurisdiction. I will first refer to the points formulated, by the revisional Court: (i) S.11(8) was plainly not applicable because on the date of the filing of the eviction petition the landlords were not in occupation of any portion of the building; (ii) If an-application under S.11(8) is not maintainable, the claim can be made under S.11(3) and (4) of the Act, in which case the Rent Control Court and the Revisional Authority have not properly considered the second proviso to S.11(3). (iii) The petitions for eviction were filed on the ground of bona fide requirement of the partnership, but all the partners of the firm had not been impleaded, and hence the petition is not maintainable. 8. First regarding point (iii); the revisional Court addressed itself to the question about the partnership firm and after referring to some decisions held that the Rent Control Court and the Appellate Authority had not investigated the question as to whether the partnership was registered or not, and therefore, it directed an investigation into the matter. This approach, according to me, is wrong. This question had not loomed large either before the Rent Control Court or before the Appellate Authority. That being so, a remand of the case to investigate whether the firm was a registered one or not, was quite out of place. Even otherwise, the conclusion by the revisional Court is faulty. The petitioners claimed eviction not as partners of the firm. They wanted the premises for their joint business. The partners of a firm can have individual rights. They can put forward their personal requirement for the purpose of conducting their joint trade. 1981 KLT. 330 and 1981 KLT.791 are useful for this purpose. A petition for eviction cannot be thrown out on this ground alone. They wanted the premises for their joint business. The partners of a firm can have individual rights. They can put forward their personal requirement for the purpose of conducting their joint trade. 1981 KLT. 330 and 1981 KLT.791 are useful for this purpose. A petition for eviction cannot be thrown out on this ground alone. In my view the revisional Court exceeded its jurisdiction under S.20 of the Act in discovering a new case which was not seriously pleaded before the Rent Control Court and the Appellate Authority and in directing re-examination of the case for the purpose. I set aside the findings on point (iii) entered by the revisional Court. 9. Now point No. (i). The Court below holds that to get the benefit of S.11(8) the landlord should be in occupation of a part of the building. Since in this case he is not in possession of a part of the building on the date of the petition, S.11(8) is not attracted. This finding is based on the fact that the landlord had demolished that part of the building which was in his occupation for re-construction, expecting the tenants to surrender the remaining portion thereof. I find that the approach made by the Revisional Court is faulty and erroneous. The definition of the word 'building' in the Act is not a rigid one. The definition section, S.2, starts with the words 'unless the context otherwise requires'. Therefore while considering the claim under S.11(8) of the Act, the definition of the word'building' in S.2(1) will have to be understood keeping in view the purpose of S.11(8). Here, there is a concurrent finding that the landlord is inoccupation of a portion of the building. The revisional Court finds that the petition under S.11(8) is not maintainable on the ground that the portion of the building in the occupation of the landlord has been demolished at the time the petition was filed. This again is a defective approach. In this case, it is true that at the time of filing the petition for eviction, the portion of the building in the occupation of the petitioner had been demolished. The petitioner's case is that they were under threat from their landlord to evict them from the rented building in their occupation. Therefore they started reconstruction of the part in their possession. The petitioner's case is that they were under threat from their landlord to evict them from the rented building in their occupation. Therefore they started reconstruction of the part in their possession. To say that the petitioners were not in occupation of a part of the building at the time of filing of the petition, in these circumstances, would be to defeat the very purpose for which S.11(8) was enacted. On the concurrent findings by the Rent Controller and the Appellate Authority that the petitioners were in possession of a part of the building, the revisional Court should have considered the question of bona fide requirement under S.11(8) accepting that finding. In my view, the definition of the term 'building' in S.2(1) has to be understood in the context of S.11(8) of the Act. The conclusion arrived at by the Court below on point No. (i) is also wrong. 10. I may incidentally refer to an argument advanced by the respondents' counsel against the claim for eviction under S.11(8) of the Act-According to him, when an application for eviction under S.11(8) for additional accommodation is made, the landlord on eviction should occupy the building as it is and not demolish it before occupation. Reconstruction is permissible only under S.11(4) (iv) with the conditions laid down therein. I will answer this submission after referring to the following authorities bearing on it. 11. In Ramniklal Pitambaradas Metha v. Indradaman Amratlal Sheth (AIR 1964 SC 1976) the scope of S.13(1)(g) of the Bombay Act was under consideration before the Supreme Court. S.13(1)(g) for our purpose reads: "that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held". The following observation in Para.12 and 15 can be usefully referred to, to understand how the Supreme Court understood the scope of the section: "The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonable for his occupation, when he has proved his need for occupying the house. There is no such prohibition either in the language of the clause (g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it. There could not be any logical reason for such prohibition. Under ordinary law, the landlord is entitled to eject his tenant whenever he likes, after following certain procedure except in cases when he has contracted not to eject him before the happening of a certain event. The Act restricts that general right of the landlord in the special circumstances prevailing in regard to the availability of accommodation and the incidental abuse of these circumstances by landlords in demanding unjustifiably high rents. 15. We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from tenant in view of the provisions of sub-clause (9) of S.13(1) irrespective of the fact whether be would occupy the premises without making any alteration to them or after making the necessary alterations". In the above decision, the Supreme Court noted with approval the decision in Krishna Das v Bidhan Chandra Roy (AIR. 1959 Calcutta 181). There a Division Bench of the Calcutta High Court was considering S.12(1) proviso (b) of the West Bengal Premises Rent Control (Temporary Provisions) Act. A contention was raised before the Court that the proviso to the relevant section contemplated two classes of requirement: one, for building and/or rebuilding and the other for the landlord's own occupation and that the two classes were mutually exclusive. It was contended that where the requirement urged was for building and re-building that must be for purposes other than the landlord's own occupation and where the requirement is for the landlord's own occupation, no question of building or re-building should arise. In other words, the contention, was that if the landlord's case was that he required the building for his own occupation, he must occupy it as it is and must not think of building and/or re-building it. Mookerjea J., who spoke for the Bench, met the second part of the argument with a telling illustration. I quote below the relevant portion in the judgment: "In the course of arguments, I put to Mr. Gupta one concrete illustration. Mookerjea J., who spoke for the Bench, met the second part of the argument with a telling illustration. I quote below the relevant portion in the judgment: "In the course of arguments, I put to Mr. Gupta one concrete illustration. That was the case of a landlord who was about to be ejected from a rented premises but who had a premises of his own, let out to a tenant and unsuitable for his own occupation unless built and/or re-built, and I asked Mr. Gupta whether, in such circumstances, the landlord would be entitled under the proviso to get possession of the premises on the ground that he required it for his own occupation and he intended to build and/or re-build it for that purpose and to occupy it after such building and/or re-building. Mr. Gupta's answer was an emphatic 'no'. I do not think, however, that would be a reasonable construction of the statute and I refuse to believe that the Legislature intended to have the landlord without a remedy and without a residence for himself and his family even though he had a premises and a reasonable requirement of it for his own occupation or residence and also the means of making it fit for his habitation. The extreme position and its utter reasonableness-which Mr. Gupta had to take up to support or sustain his argument makes it clear that his said argument cannot be sound and we find no justification for accepting the unreasonable view of the statute which is necessarily involved in Mr. Gupta's submission. There is nothing in the Act which compels such acceptance and S.15, to which, pur attention was particularly drawn by Mr. Gupta, does not present any obstacle to our point of view as occupation of the premises for purposes of building and/or re-building in order to make it fit for one's own occupation would be part of such occupation. We, accordingly, overrule this extreme argument of Mr. Gupta". The binding observation by the Supreme Court and the approach made by Mukherjea J., with which I respectfully agree, afford the necessary answer to the respondents contention. In an application under S.11(8) the Court has to test the bona fides of the requirement. It has also to consider the first proviso to S.11(10). If the evidence satisfies both these requirements, the landlord is entitled to an order in his favour. In an application under S.11(8) the Court has to test the bona fides of the requirement. It has also to consider the first proviso to S.11(10). If the evidence satisfies both these requirements, the landlord is entitled to an order in his favour. The Court cannot insist upon the landlord to occupy it without any alteration or reconstruction. When the requirement of additional accommodation is established and eviction ordered, the landlord will be at liberty to make necessary alteration to the building or even to reconstruct it to suit his purpose. There is nothing in S.11(8) which prohibits it. 12. What remains is the discussion with regard to point No.(ii). On this point, the revisional Court finds fault with the Rent Control Court and the Appellate Authority that they have not addressed themselves to the question whether S.11(3) and 11 (4) applied to the facts of the case and if so whether the second proviso to S.11(3) would rescue the tenants. According to it, the Rent Control Court and the Appellate Authority missed the real point and observed: "A landlord even if he wants eviction of a building not for the purpose of occupation but for the purpose of demolition will still hold to have a bona fide need for own occupation under S.11(3) read with S.11(4)". The District Judge set aside the orders of the Appellate Authority and remanded the case to the Rent Control Court for consideration of the following two points with opportunity to adduce fresh evidence: "(1) Whether the landlords bona fide needed for their own occupation the scheduled building under S.11 (3) of the Act read with S.11(4) of the Act and if their need was bona fide, were the tenants in these cases entitled to the benefit of the second proviso to S.11 (3) of the Act; and (2) Whether the eviction petitions were filed for the bona fide need for own occupation of the partnership made mention of in the petitions; whether all the partners were impleaded, and whether the partnership was a registered one, and if not, whether the eviction petitions should not be dismissed as not maintainable in view of the decision reported in AIR. 1968 Madras 154". This was done after noting that the petitions were not maintainable under S.11(8) of the Act. 13. 1968 Madras 154". This was done after noting that the petitions were not maintainable under S.11(8) of the Act. 13. I have no hesitation to hold that the learned District Judge exceeded his jurisdiction under S.20 in passing this order. He should have seen that the application was under S.11(4) and 11(8). The Rent Control Court and the Appellate Authority addressed themselves to the bona fide need put forward under S.11(8) and the proviso to S.11(10). The observation of the revisional Court that S.11(8) contains the ingredients of S.11(3) and (4) is incorrect. According to me, S.11(3),11(4) (iv) and 11(8) are independent provisions. In all these cases the requirement should be bona fide. But the nature of the requirement in each section is different. In certain cases, the shades of requirement may overlap. But each section operates independent of the other. It may be that in certain cases the Court may while ordering eviction under S.11(3) permit the landlord to occupy it after necessary alterations or reconstruction. But a combined order for eviction under S.11 (3), 11 (4) (iv) and 11(8) cannot be passed, for these sections prescribe different post-eviction conditions. I find support for this view in Subramania Iyer v. Krishnaswamy (ILR.1981 (2) Kerala 442) by Poti J., where it was thus held, and with respect rightly that S.11(3) and 11(4) are independent provisions. Thus, on the facts of this case, the revisional Court should not have directed consideration of the application under S.11(3) and 11(4) when the landlords did not seek eviction on that ground. The case was primarily put forward under S.11(8) and the requirement under that section alone fell for consideration. 14. I could have myself disposed of this revision after considering the plea under S.11(8) in the light of the concurrent findings of the Rent Control Court and the Appellate Authority. Even so, it would not be proper in a revision under S.115 CPC. to consider the evidence in the case and arrive at a conclusion. S.20 of the Act gives power to the District Court to examine the regularity, correctness and propriety of the orders passed by the Rent Control Court and the Appellate Authority. The revisional Court has not considered the plea under S.11(8) with reference to the evidence on record. to consider the evidence in the case and arrive at a conclusion. S.20 of the Act gives power to the District Court to examine the regularity, correctness and propriety of the orders passed by the Rent Control Court and the Appellate Authority. The revisional Court has not considered the plea under S.11(8) with reference to the evidence on record. I therefore set aside the order of the Court below and remit the case back to it, to consider the correctness and propriety of the concurrent findings available about the bona fides of the requirement under S.11(8) and the first proviso to S.11(10). The C. R. Ps. are disposed of as, above, without any order as to costs. Send back the records forthwith.