ELIYAMMA CHACKO Vs. SHAMEEM BEEGUM

JUDGEMENT

(1.) This revision is by the respondent in an application for eviction filed by the landlord of a building under S.11(3) of the Kerala Buildings (Lease & Rent Control) Act. The landlord pleaded that the building in the possession of the tenant, which was the only building belonging to her, was bona fide needed for the purpose of starting a business for her dependent unemployed son, who was 19 years of age, who was not good at studies. Landlord had sent a notice to the tenant prior to the filing of the petition for eviction setting out the need and demanding surrender. But the tenant had not chosen to send any reply to that notice. The landlord hence pleaded that an order for eviction may be passed. The tenant denied the bona fide need set up. The tenant contended that the son of the landlord was otherwise engaged and was undergoing training in a Film Institute in Madras. It is also contended that the landlords were permanently residing in Sankari in Salem and the claim for eviction was not bona fide and was a mere pretext for eviction. It was also pleaded that the tenant was depending mainly on the income derived from the business carried on in the petition schedule building and since no other suitable buildings were available in the locality, the tenant was entitled to protection of the second proviso to S.11 (3) of the Act.

(2.) In support of her case the tenant was examined as PWl and in support of her case the tenant was examined as RW1. No other evidence was adduced on either side. The Rent Controller held that landlord had not established the bona fide need pleaded and that the tenant established that even otherwise she was entitled to the protection of the second proviso to S.11(3) of the Act and hence an order for eviction cannot be granted. The Rent Controller, thus, dismissed the petition. On appeal by the landlord, the appellate authority, on a reappraisal of the relevant materials came to the conclusion that the landlord has established the bona fide need alleged by her and that the tenant had failed to prove that she was entitled to the protection of the second proviso to S.11 (3) of the Act. The Appellate Authority consequently reversed the decision of the Rent Controller and ordered eviction under S.11(3) of the Act. Challenging the decision of the Appellate Authority this revision was filed by the tenant. "When this revision came up for admission, this Court ordered notice on admission. On receipt of that notice the landlord has appeared. Records were called and the same were also received. When the matter came up again for admission, the revision itself was heard and is being disposed of by this order.

(3.) The case of the landlord was that her son was 19 years old, he was not good at studies, that she thought it necessary to start a trade for him, that he was dependent on her, that the landlord had no other building of her own in the town and that she was entitled to an order for eviction. The tenant contended that the landlord was living along with her husband away in Sankari in Salem, that the son of the landlord was also residing with them, that the need alleged was not bona fide, that the son of the landlord, alleged to be the dependent, was in fact undergoing training in a Film Institute in Madras and that the claim for eviction could not be allowed. Though the Rent Controller accepted the case of the tenant, the Appellate Authority found on the evidence that the need alleged by the landlord was true. The basic fact that the landlord had no other building in the town, that son of the landlord had no other avocation in life, that he was 19 years old and that he was not apparently good at studies were found as established by the Appellate Authority. On going through the only available evidence in this case, we are also in agreement with the Appellate Authority in holding that the landlord has succeeded in establishing the bona fide need set up by her. There is nothing to show that the application for eviction is motivated or that it is merely a ruse put forward to get rid of the tenant. Undergoing some training in a Film Institute does not mean that the landlord could not think of staring of a business in a premises that is owned by the landlord in the town and that inference by the Appellate Authority, in our view, is justified on the pleadings and the evidence in this case. The Rent Controller, in our view, was not justified in discarding the effect of the basic facts established and was not justified in finding that the bona fide need has not been established, merely on the basis that the landlord was living with her husband at Salem wherein her husband was employed. The fact that landlord was residing with her husband at Salem in the place of his employment is not a ground to find that the need for starting a trade for the son who was otherwise unemployed is not a bona fide or genuine present need. We are of the view that the landlord has established a genuine present need for eviction of the petition schedule building.