SURENDRA BHASKARAN Vs. MURALEEDHAR

JUDGEMENT

(1.) THE tenant is the revision petitioner and he challenges in this revision the judgment of the Rent Control Appellate Authority ordering eviction against him on the ground under sub Section 3 of Section 11 after finding that the first proviso to sub Section 3 of Section 11 does not operate against the landlord. THE landlord had sought eviction on the ground of arrears of rent also, but it is conceded by both sides that the issue of arrears of rent no longer survives. It is also conceded that in this revision we have to be seriously concerned with the question whether the Rent Control Petition is liable to be rejected by virtue of the first proviso to sub Section 3 of Section 11 and also the question whether the landlord's conduct in not occupying other building owned and possessed by him for accomplishing the need projected is not indicative of absence of bona fides. THE need projected by the landlord under sub Section 3 of Section 11 is that the landlord is conducting business under the name and style "Builders Wearhouse" from a building situated almost opposite to the petition schedule shop room taken on lease from landlord's relative by name Jetheendran. Jetheendran demanded the landlord to vacate that room for his bona fide need of accommodating his son. Hence, it has become necessary for the landlord to shift from Jetheendran's building. Hence, the landlord needs the petition schedule building for shifting his business over to the same. Apart from disputing the bona fides it was contended by the tenant that the landlord is having buildings of his own in his possession reasonably sufficient for the landlord's requirement. THE evidence in the case consisted of the oral testimony of landlord as PW1 and that of the tenant as RW1. THE documentary evidence consisted of Ext.A1 to A3, B1 to B4 and C1 to C3. THE Rent Control Court in the first instance disallowed eviction under Section 11(3). THE landlord preferred appeal as RCA.18/01. THE Rent Control Appellate Authority considering that RCA found that the need of the landlord is bona fide. However, remanded the issue of determining whether the tenant is entitled to the protection of the first proviso to Section 11(3) to the Rent Control Court. Pursuant to the remand the witnesses were recalled and examined. Additional evidence Ext.A1 A6(f), B1 to B8 were marked. THE Rent Control Court by order dated 04/03/05 ordered eviction under Section 11(3). Against that eviction order the tenant preferred RCA.84/05 in which the impugned judgment of the Appellate Authority has been passed. THE Appellate Authority noticed that it was on Ext.B1 that the tenant's defence based on the first proviso to Section 11(3) is founded. Ext.B1 refers to three buildings. Of these three two are in the first floor which are obviously not suited for the landlord's purposes. THE only ground floor building covered by Ext.B1 is building having Door No.21/3775. THE Appellate Authority would find on the basis of the evidence that the said building is in the possession of one Mr.A.Azeez since 1982. Yet another building, the possession over which was made serious issue before the Appellate Authority, was building having Door No.3773A. This building is shown shaded blue in Ext.C1 Commission Report. According to the Appellate Authority this building was also under the possessory control of Sri.Azeez. It was found by the Appellate Authority that the Azeez's wife Rukkia is holding licence for conducting City Hotel in that building. It was noticed that the tenant did not file any objection to the Commissioner's Report. It was also noticed that the tenant did not deny the suggestion that the above building is not one in which valuables can be kept. On the basis of all that the Appellate Authority held that at any rate the above building is unsuitable for the landlord's purpose.

(2.) IT was very strenuous and persuasive submissions which were addressed before us by Sri.K.P.Balasubramanyan, the learned counsel for the revision petitioner. All the submissions of Sri.Balasubramanyan were resisted by Sri.R.Sudhish, the learned counsel for the respondent. Mr.Balasubramaniyan argued that the finding of the Appellate Authority that building having Door No.3773A was in the possession of Azeez or his wife is contrary to the admissions of the landlord in evidence. The landlord's action in letting out that building for conduct of City Hotel is indicative of absence of bona fides apart from being an event which makes RCP liable to be rejected in view of the first proviso. He submitted that as far as building No.3775 covered by Ext.B1 is concerned in view of Section 26 of Act 2 of 1965 it had to be found that the said building is vacant. This again will make the RCP liable for rejection in view of the first proviso to sub Section 3 of Section 11.

(3.) THE only other building which requires to be considered is room No.3775A shown shaded blue in Ext.C4 commission report. THE argument of Sri.Sudhish was that even if that room was available with the landlord at the time of filing of the RCP, the landlord had special reasons for insisting of getting possession of the petition schedule room itself. According to the learned counsel, it was only the petition schedule building which had enough front yard for parking of the vehicles.