FATHIMA Vs. SAIDALI BAFAKHY

JUDGEMENT

(1.) All these Civil Revision Petitions filed under S.20 of the Kerala Buildings (Lease and Rent Control) Act arise from RCP 45 of 1982 filed by the landlords of a building, hereinafter referred to as the landlord, though they are two in number. The claim was for eviction under sub-s.2, 3 and 4(1) of S.11 of the Act. The application was resisted by the tenant and by the alleged sub tenants. The Rent Control Court refused to order eviction under sub-s.3 and 4(1) of S.11 of the Act, but granted an order for eviction under S.11(2) of the Act. There was no appeal by the tenant. But, the landlords filed RCA 189 of 1990 before the Rent Control Appellate Authority under S.18 of the Act. The Appellate Authority, on a reappraisal of the materials, confirmed the order of the Rent Control Court disallowing eviction under S.11(4)(i) of the Act. But the Appellate Authority, reversing the finding of the Rent Control Court found that the bona fide need set up by the landlord was established and ordered eviction under S.11(3) of the Act. Feeling aggrieved by the order for eviction under S.11(3) of the Act, the tenant has filed CRP 741 of 1992. Feeling aggrieved by the denial of an order for eviction on the ground of subletting under S.11(4)(i) of the Act, the landlord has filed CRP 1247 of 1992. The status of the sub tenants as such was not disputed, but what was contended was that the creation of those sub tenancies did not give the landlord a right to evict the tenant under S.11(4)(i) of the Act. Feeling aggrieved by the order for eviction under S.11(3) of the Act, the sub tenant, respondent No. 4 and the legal representative of the sub tenant respondent No. 5, and the legal representatives of the sub tenant, respondent No. 6, have filed CRP Nos. 507, 1529 and 1433 of 1992 respectively. Hence the questions involved in these revisions are, whether the Appellate Authority was legal, regular and proper in ordering eviction under S.11(3) of the Act and in not ordering eviction under S.11(4)(i) of the Act. The question whether the sub tenants are entitled to challenge the order for eviction passed under S.11(3) of the Act, also arises for consideration.

(2.) No doubt in CRP 1247 of 1992, the revision filed by the landlord, the landlord has also sought to raise a question regarding the rate of rent payable by the tenant. The Rent Control Court and the Appellate Authority did not accept the case of the landlord that the rent was Rs. 300 per month, but had accepted the evidence on the side of the tenant that the rent was only Rs. 260 per month. Though an attempt was made on behalf of the landlord to challenge the finding on the rent payable, rendered by the authorities below, we are not satisfied that there is any ground to interfere with the finding that the landlord has not established that the monthly rent payable was Rs. 300 and it was not Rs. 260 as claimed by the tenant. Even after accepting that case of the tenant, an order for eviction under S.11(2) of the Act had been passed, which had not been challenged by the tenant before the Appellate Authority. Since we do not find our way to accept the challenge of the landlord to the rate of rent, no modification of the order for eviction passed under S.11(2) of the Act, is called for.

(3.) We shall first deal with the challenge of the tenant to the claim for eviction under S.11(3) of the Act. It was pleaded by the landlord that the building was needed for the purpose of starting a trade by the son of the first petitioner landlord. It was pleaded that the son was about 48 years old, that he had no other avocation or business, that he wanted to start a business of his own, that he was dependent on the landlords for a building and that the building was bona fide needed for the starting of a business by him. In the objections filed by the legal representatives of the original tenant, respondents 1 and 2, there was no denial as such of the plea that the son of the first petitioner landlord had no other avocation or business and that he wanted to start a business in the petition schedule building, whereas in the objection filed by respondent No. 4 a legal representative of a sub tenant, a contention was taken that it was known that the owner of the first petitioner landlord had an avocation of his own. That was the stand adopted by the other sub tenants also. One other contention that was sought to be raised was that the landlords had not specified the investment they propose to make or the space the defendant needed for the starting of the business, and it was pointed out that the building that was sought eviction of, was a substantial large building.