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1991 DIGILAW 410 (KER)

Kunhamma v. Usha

1991-09-24

MANOHARAN, VARGHESE KALLIATH

body1991
Judgment :- Varghese Kalliath, J. The tenants in proceedings under the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the act) are the revision petitioners. The landlady/respondent herein initiated proceedings for eviction of the revision petitioners alleging grounds under Ss.11(2) (3), (4)(i) and 11 Aof the Act. The ground under S.11A of the Act was taken on the fact that the respondent's husband was in military service. But it has to be noted that S.11A of the Act is applicable only if the building belongs to a military personal. The authorities below found that S.11A of the Act has no application aid we feel that the finding is correct. 2. The Rent Control Court allowed eviction only under S.11(2) (b) of the Act - arrears of rent. An appeal was filed by the landlady. The appellate authority confirmed the finding of the Rent Control Court under Ss.11 A and 11(4) (i) of the Act and did not agree with the finding recorded by the Rent Control Court under S.11(3) of the Act. It reversed the order of the Rent Control Court and allowed eviction under S.11(3) of the Act. 3. S.11(3) of the Act deals with bonafide need for own occupation. This ground itself is mainly a ground to be established on facts. In this case, the appellate authority has given good reasons to hold that the respondent herein has established the ground under S.11(3) of the Act. The case of the respondent herein is that she is residing along with her husband, who is in military service and at the time of filing the petition he was serving in the boarder area of Jammu& Kashmir. Respondent submitted that her children are studying in a school at Delhi. She also submitted that after the retirement of her husband, she wants to come and settle at her native place where she has got only the building in dispute. 4. The tenants contended that the case of the landlady is not bonafide. There was an earlier petition, which was withdrawn. It was withdrawn under peculiar circumstances. Of course, in the earlier petition also, a claim under S.11(3) of the Act was made, besides the claim under S.11(2) (b) of the Act. As regards the claim under S.11(3) of the Act, naturally evidence has to be adduced and that the petitioner has to be examined. It was withdrawn under peculiar circumstances. Of course, in the earlier petition also, a claim under S.11(3) of the Act was made, besides the claim under S.11(2) (b) of the Act. As regards the claim under S.11(3) of the Act, naturally evidence has to be adduced and that the petitioner has to be examined. But it was found to be very difficult for the petitioner/respondent herein to appear before the court, since she was in Delhi at that time. In these circumstances, respondent filed an application to amend the petition, so as to confine that petition for eviction only on the ground of arrears of rent reserving her right to raise the point under S.11(3) of the Act at a later stage. The application was allowed and the court allowed amendment of the rent control petition. Ultimately, that petition was disposed of. 5. It was contended that when once she has withdrawn the ground under S.11(3) of the Act on an earlier occasion, she cannot raise it now in the present petition. The appellate authority did not agree with this submission of the tenants. The circumstances which would justify the amendment of the earlier application cannot militate against the ground taken by the respondent herein in the present petition. We see no merit in this contention by the tenants and we agree with the appellate authority. 6. It was contended that the claim of the landlady is based on an event, which has to happen after some time. She wanted to occupy the building after the retirement of her husband. A question was raised whether a bonafide need can be one which arises subsequent to the filing of the petition for the purpose of the provision or in otherwords in anticipation of a bonafide need a petition for eviction on the ground of S.11(3) of the Act can be filed or not. A question was raised whether a bonafide need can be one which arises subsequent to the filing of the petition for the purpose of the provision or in otherwords in anticipation of a bonafide need a petition for eviction on the ground of S.11(3) of the Act can be filed or not. There is ample authority for holding that considering the long dealy that is taken in the matter of ultimate disposal of rent control petitions till recently having a three tyre proceedings with an added remedy of revision under S.115 of the Code of Civil Procedure which alone has been put out of the package of remedies, but even now a special leave before the Supreme Court is possible, it is only reasonable for landlord/ landlady to anticipate the delay in the finale of the result of the petition and so to file a petition sufficiently early is only pragmatic and reasonable when he/she is certain that the building in question is required after the retirement of the landlady or her husband. 7. Logic alone should not be the basic structure of administration of law, it should show the wisdom of experience otherwise it will become a provocative and moreish chimera - a will O' the - visp - a 'ignis fatuus'. 8. In this case, evidence was let in to show that the husband of the landlady has to retire within a short time. Further, it was contended before us that the respondent has got two children and for their educational purposes also, the landlady bonafide needed the building for her own occupation. It was brought out in evidence that the husband of the landlady was working in military service in Jammu & Kashmir and that it is very difficult to continue the family in Jammu & Kashmir. 9. In I.L.R.1970 (2) Kerala 101 (Madhavan v. Ramachandran), this question has been considered and held that "It is not necessary that there should be a current, urgent need. It is enough if it is reasonably likely to arise in the near future". 9. In I.L.R.1970 (2) Kerala 101 (Madhavan v. Ramachandran), this question has been considered and held that "It is not necessary that there should be a current, urgent need. It is enough if it is reasonably likely to arise in the near future". It is also pointed out in this decision that "Knowing that between the institution of the petition and the ultimate order from the apex court years pass, it will be as good as repealing the provision for eviction on the ground of bona fide need, if courts insist on landlords proving a present need as against a prospective but certain need". The court added that hence when the need confronts him, the building will be years away from him. Justice Krishna Iyer, as he then was, in his inimitable style, has said thus: "Proceedings in court should not become tantalizing tricks. Cannot the rent control court take note of this subsequent event and give relief? There is a discretion vested in the Court to depart from the general rule that the rights of parties must be determined as on the date of the institution of the action in justifiable circumstances, provided such departure will not cause injustice". This aspect of the matter has been very much taken into consideration by the appellate authority. 10. In 1984 K.L.T 290 (Secretary, Thevara Co-op. Consumer Stores Ltd. v. Jose), this Court had occasion to consider the question of allowing eviction of a tenant on the ground of bonafide need under S.11(3) of the Act when the landlord alleged the need as one for own occupation after his marriage. The court said that there is absolutely no reason for denying the landlord a planning for his own for ordaining his affairs in a proper or regular manner. Planning is absolutely necessary in modern life and said "It is, therefore, unjust to suggest that the landlord could seek eviction of a building, for him to live with his spouse, only after undergoing the marriage nuptials. He is justifiably entitled to foresee things and plan his life". It was also observed that the tribunal or court would not sit in judgment over his honest or bonafide decision in the matter. 11. He is justifiably entitled to foresee things and plan his life". It was also observed that the tribunal or court would not sit in judgment over his honest or bonafide decision in the matter. 11. As we said earlier, the question of bonafide need for own occupation is essentially a question of fact and only if the conclusion reached by the appellate authority is improver, irregular or illegal in the sense that those terms are used in S.20 of the Act, this Court can interfere with the order of the lower authorities. We see no merit in this Civil Revision Petition and it is only to be dismissed. We do so.