KUNHAMMA ALIAS LAKSHMI AMMAS CHILDREN Vs. AKKALI PURUSHOTHAMAN

JUDGEMENT

(1.) This appeal by special leave arises out of the following facts:

(2.) The Rent Controller in his judgment dated 29th June 1995 held that the tenant was in arrears of rent and was therefore liable to ejectment under Section 11(2) of the Act. On point No.2, the Rent Controller observed that the two sisters were residing in a rented building at Kannur and that they intended to shift to their own residential house situated behind the demised premises and that for their convenient and beneficial stay the existing pathway, which was only 3.5 feet wide, had to be widened and that Section 11(3) of the Act would also apply to a case where the landlord bona fide required the rented building for its demolition so as to facilitate the ingress and egress to another residential building belonging to him. The Rent Controller rejected the plea of the tenant that he was solely dependent on the income derived from the business conducted from the demised premises observing that he was, in fact, an autorickshaw driver and owned atleast one if not two such vehicles. His plea that the autorickshaws belonged to one Anil was rejected by observing that he had not been examined as a witness. The tenant s ancillary submission that he had been unable to find suitable accommodation for relocating himself on account of very high rents was also not accepted as he had been unable to show as to the enquiries that he had made in this regard. Point No.3 was given up by the landlord but as a result of the discussion on point Nos. 1 and 2, the Rent Controller allowed the petition and ordered ejectment under sections 11(2) and 11(3) of the Act. The tenant thereupon filed an appeal before the appellate authority which in its order dated 5th June, 1998 observed that the entire arrears of rent till date had, in the meanwhile, been paid and as such the only issue that now survived was with regard to the ejectment ordered under Section 11(3). The appellate authority on a re-assessment of the evidence held that the plea of bona fide personal necessity was not made out as the residential building to which the sisters wanted to shift had been rented out to college students and that there was no suggestion that the landlords had taken any steps to secure its vacant possession. It was also observed that the two sisters had not even appeared as witnesses to depose as to their bona fide personal need as only their brother, the original landlord, had appeared as PW.1. The appellate authority accordingly allowed the appeal and dismissed the ejectment application. The landlords thereupon preferred a revision petition before the High Court which has been allowed with the finding that the landlords had been able to prove their bonafide need as envisaged under Section 11 (3) of the Act. The tenants are in appeal before us.

(3.) The learned counsel for the appellants has urged that a bare perusal of Section 11(3) of the Act would show that the bona fide need visualized therein had to be equated with physical occupation of the premises by the landlord after ejectment and would therefore not include its demolition for the purpose of widening a passage to another property belonging to the landlord. It has also been pleaded that the appellant had no alternative accommodation available to him which was suitable to his needs and that his only source of income was generated from the business conducted from the solitary room which constituted the demised premises and for this reason too the order under challenge was not sustainable. The learned counsel for the respondents has however supported the judgment and order of the High Court and has placed reliance on a judgment of this Court in Ramniklal Pitambardas Mehta V/s. Indradaman Amratlal Sheth, AIR 1964 SC 1676 a judgment of the Kerala High Court reported as Sarada & Others V/s. M.K.Kumaran, 1969 0 KLT 133 and the judgment of the Privy Council reported as Mckenna and Anr. V/s. Porter Motors Ltd., 1956 AllER 262 to contend that the "use and occupation" envisaged under Section 11(3) would include a demolition of the demised premises so as to widen a pathway for another building belonging to the landlord. The learned counsel has also referred to Krishna Menon V/s. District Judge, 1988 1 KLT 131 to submit that the word "building" occurring in Section 2(1) of the Act included gardens, grounds etc. which were appurtenant to a building and that the definition had been kept flexible in order to meet the numerous and varied exigencies which may arise in individual cases.