LEKSHMANA NAIKAN Vs. GOPALAKRISHNAN PILLAI

JUDGEMENT

(1.) A landlord who sought eviction of his tenant from a portion of a building in which he himself was residing lost before the Rent Control Court, the Appellate Authority and the Revisional Court and he has challenged those orders in this revision. Of course an order for eviction was granted to him on the ground of arrears of rent but that was liable to be defeated by deposit. The courts have failed to determine properly under what provision of law the application for eviction had to be considered. In the petition filed by the petitioner he has referred to the petition as one filed under S.11. There are many sub-sections in S.11 each one of which indicates relief to be granted under different circumstances. A claim for eviction under S.11(3) and one under S.11(8) have quite often been wrongly identified in cases that come up before the courts. When a person seeks eviction for the purpose of occupation for himself or for any other member dependent on him the claim falls under S.11(3). When he seeks eviction so as to have additional accommodation for his existing residence then the claim falls under S.11(8). He may seek such additional accommodation because the existing accommodation is not adequate or because he desires to live more luxuriously or may be because he wants to, bring in some other near relation such as his parents into his family for residence. Whether it be a claim for eviction under S.11(3) or under S.11(8) there is something in common, viz., occupation by the landlord. Then what is it that distinguishes one from the other The distinction is relevant because the provisos to these sub-sections widely differ and, therefore, the questions that will have to be considered in the context of a claim under S.11(3) would vary considerably from the questions relevant when assessing a claim under S.11(8).

(2.) If the case of the landlord is that he is residing in a part of a building and he requires another part of the building in the occupation of the tenant for his occupation so as to have additional accommodation and not to transplant himself from the portion he is residing to the new portion then the case squarely falls within S.11(8). If on the other hand a person is occupying a portion of a building, another portion of the building is in the possession of the tenant and he wants that portion as he prefers to occupy that portion of the building and not the one he had been occupying so far it will be a claim that fails under S.11(3). That is because in that case the portion, surrender of which is sought is not required as any additional accommodation but as accommodation. There may be many reasons why he may not want to live in that part of the building where he had been living. He may think that it is better to live in the portion in which the tenant is living and if the circumstances are such that it can be said that he bona fide needs that portion occupied by the tenant for his occupation in place of the portion which he has been occupying so far, the claim will fall squarely under S.11(3). To put it in brief where what is sought to be recovered from the tenant is a portion of a building another portion of which is occupied by the landlord S.11(8) would operate only when -- but always when -- the portion occupied by the tenant is sought for the purpose of additional accommodation for the landlord.

(3.) Keeping in view this distinction it goes without saying that in this case the landlord moved for eviction of the tenant so that he may obtain additional accommodation. The whole building consisted of three rooms in the front, a charthu running all along the back of the three rooms and a kitchen back of the charthu behind the northern most room. The building let out to the tenant was the northern most room, that portion of the charthu which fell behind that and the kitchen behind it. What was left to the landlord was the portion with two rooms in the front and rest of the charthu He mortgaged the two rooms in the front also so much so that he was left with the charthu room to live. He is said to have constructed a kitchen behind the charthu room. During the course of the proceedings he came into possession of the two rooms in the front, but according to him he wants as additional accommodation the portion let out to the tenant. This is a clear case of a claim under S.11(8) of the Act 5 of 1965 and should have been dealt with as such. Unfortunately the courts were not able to make up their mind as to what provision should be applied. The Rent Control Court and the Appellate Authority treated the petition as under S.11(3) and applied the tests for a petition under S.11(3). Of course the test of bona fide need under S.11(3) would be more rigorous than the test under S.11(8). Judged by such standard the petitioner lost. It appears from the judgment of the Appellate Authority that the landlord attempted to base his case upon S.11(8) before the Appellate Authority, but he did not have a sympathetic treatment from that Authority. The Revisional Court considered the claim as under S.11(8), but it applied the standard applicable to a petition under S.11(3). It considered whether the landlord could somehow manage without the rooms rented out. I had occasion to speak on such an approach in CRP 701/79. May be that even without the additional accommodation the landlord may manage. If the question is one of dire need one may say he can do without it. In fact the additional accommodation which he seeks may even amount to a luxury for him. But there are many people who can afford luxuries. Those who can are entitled to them and there is no reason to deny that to them so long as law does not prohibit their enjoyment. Therefore, the test of bona fides under S.11(8) read with S.11(10) is not whether the landlord could very well afford to live without the additional accommodation, but whether in seeking the additional accommodation the landlord is pleading an honest purpose and not merely setting up an excuse to obtain eviction. There has not been such an approach to the question by the revisional court. There is no approach to this question in this manner by the Rent Control Court and the Appellate Authority which have not even applied the proper provision of law to the facts Naturally, therefore, there was no occasion for those authorities to consider the application of the proviso to S.11(8). The parties do not appear to have adduced evidence with the awareness that the proviso to S.11(8) is of application. Evidence on both sides is wanting in the case and it disposal is to be made as it is, the result must ultimately depend merely upon the burden of proof.