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2004 DIGILAW 495 (KER)

Sebastian v. A. K. Mohamed Thamim

2004-10-13

K.S.RADHAKRISHNAN, K.THANKAPPAN

body2004
Judgment :- Radhakrishnan, J. Eviction was sought for under section 11(4) (ii) and section 11(3) of Act 2 of 1965. Separate notices were sent for eviction under section 11(4) (ii) as well as under section 11(3). In the notice issued under section 11(4) (ii) there was no mention of the bona fide need for own occupation, the question is whether it is fatal to a plea raised under section 11(3). 2. Landlord sent a registered notice A3 dated 18-10-1995 to the tenant stating that he is using the tenanted premises in such a manner so as to destroy or reduce the value or utility of the building materially and permanently. The fact that the landlord bona fide required the premises for the purpose of conducting a provision store was not stated in the said notice. Rent control Court found that it is not fatal to a plea raised under section 11(3) of the Act. Appellate Authority however, took the view that the non-mention of the bonafide need in that notice would be fatal. Appellate authority concluded as follows: “The petitioner sent a notice demanding vacant possession of the petition schedule shop room on 18-10-1995. It is stated in the petition that the requirement of the petition schedule building by the petitioner for own occupation was not mentioned in the said notice, since the idea of starting such a business by the petitioner along with his son was materialized only after issuing the notice to the first respondent. That means that the petitioner has no idea to start a business at the time of issuing the notice i.e. the petitioner has no idea to start a business upto 18.10.1995. The petition was filed on 8-1-1996 i.e. the petition was filed within two months from the date of issuing the notice. If the need alleged by the petitioner is bonafide one, the need arose after sending the notice i.e., the bonafide need of own occupation started within two months prior to the date of the institution of the petition.” This was one of the reasons which was taken into consideration by the Appellate Authority in holding that there is no bonafides in the need urged by the landlord. We find it difficult to accept that reasoning. 3. We find it difficult to accept that reasoning. 3. The Rent Control Act never mandates issuance of a notice prior to the filing of the rent control petition under section 11(3) of 11(4) (ii) of Act 2 of 1965 unlike in the case of section 11(2) (b) and 11(4) (i). Rent Control petition could be filed even without issuing notice under section 11(3) as well as under section 11(4) (ii) of the Act. The mere fact that the landlord has not mentioned that he bonafide needs the building for his own use in a petition filed under section 11(4) (ii) of the Act would not affect the bona fide need urged by the landlord under section 11(3) of the Act. In case there is sufficient materials to hold that the need is bona fide the non-mention of the need in the notice sent for eviction under section 11(4) (ii) is not fatal. So far as this case is concerned it is the specific case of the landlord that he wants to start a business in provision and stationery items for his livelihood. Further, he has stated that his son is a B.Com. graduate. Though he has completed his studies he is still unemployed and he has no avocation. He is also dependent on the landlord for his livelihood. Rent Control Court found that the need is bona fide. We find no reason to disbelieve the plea of bonafides raised by the landlord. Appellate Authority rejected the claim on the sole ground, as we have already mentioned, that the landlord has failed to mention in the notice issued to the tenant that he is seeking eviction under section 11(3) of the Act. In the absence of any evidence to show that the landlord has other building of his own in his possession we are of the view the need urged by the landlord is bona fide. Rent Control Court found both the limbs of second proviso against the tenant. Appellate Authority also concurred with the Rent Control Court that the tenant is not entitled to the benefit of second proviso to section 11(3). Under such circumstance rejection of the claim under section 11(3) of the Act by the Appellate Authority cannot be sustained. However, so far as the plea under section 11(4) (ii) we find no illegality, irregularity or impropriety in the order passed by the Appellate Authority. Under such circumstance rejection of the claim under section 11(3) of the Act by the Appellate Authority cannot be sustained. However, so far as the plea under section 11(4) (ii) we find no illegality, irregularity or impropriety in the order passed by the Appellate Authority. Revision Petition is therefore allowed and there will be an order of eviction under section 11(3) of the Act. Considering the entire facts and circumstances of the case the tenant is given time upto 28-2-2005 for vacating the premises on condition that he would file an undertaking before the Rent Control Court within one month stating that he would vacate the premises within the aforesaid time and that he would pay the arrears of rent if any, and also future rent.