SUBBIAH REDDIAR Vs. CHINNAMMA

JUDGEMENT

(1.) The tenant in R.C.P.No. 27 of 1985, Rent Controller, Ernakulam is the revision-petitioner herein. There are two respondents herein. They are the landlords of the building demised to the revision-petitioner/tenant. In this revision, we are only concerned with the order of eviction in proceedings initiated under S.11 (2), 11(3) and 11 (4) (i) & (ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The tenant had initiated proceedings for fixation of fair rent (R.C.P.No. 189 of 1982) and the landlords had initiated proceedings for eviction of the tenant under S.11 (2) of the Act in R.C.P.No.7 of 1983 the above two petitions and R.C.P.No. 27 of 1985, from which the present revision arises, were disposed of by a common order by the Rent Controller, dated 10-7-1989. We are not concerned with the legality or regularity of the proceedings in R.C.P. 189/82 or R.C.P.No. 7/83, in this revision. The Rent Controller dismissed R.C.P.No. 27 of 1985. He found that the landlords/petitioners failed to exhibit any element of need objectively in support of their plea of vacant possession of the petition schedule building. In other words, the plea of the landlords, that the building is needed bona fide for own occupation, was rejected. Relief under S.11(3) of the Act was negatived. The Rent Controller also held that the landlords are not entitled to an order of eviction under S.11(4)(i)or S.11(4)(ii)of the Act. The matter was taken in appeal, by the landlords as also by the tenant. The appeal filed by the landlords is R.C.A.No. 56 of 1989, preferred against the common order dated 10-7-1989 rendered in R.C.P.No. 27 of 1985. The appeal preferred by the tenant is R.C.A.No. 74 of 1989 against the common order passed in R.C.P.No. 189 of 1982. We are concerned in this revision only with the order passed in R.C.A.No. 56 of 1989. The Appellate Authority found that no case was made out by the landlords for an order of eviction under S.11(4)(i) and (ii) of the Act. But, the Appellate Authority found that the landlords have succeeded in proving that the plaint building is required bona fide for own occupation and so they are entitled to an order of eviction under S.11 (3) of the Act. Now, the only controversy between the parties is as to whether the landlords are entitled to an order of eviction under S.11(3) of the Act on the ground that the building is required bona fide for own occupation.

(2.) There are two petitioners in R.C.P.No. 27 of 1985. They are the landlords. The second petitioner was, at the relevant time, in Government service. He was about to retire. The landlords' plea was that their son had studied upto S.S.L.C. He failed for S.S.L.C. in 1983. Even after several attempts, he could not succeed in the examination. The son wanted to start a business in provision. The brother of petitioner No.2 is a businessman. He is running a provision shop and a rice depot. He has promised to help the petitioners and their son for conducting the business. The petitioners need the building for their occupation and for the occupation of their son to start a business. They have no other building to meet the need. The respondent/tenant is a rich man. He does not depend upon the income from the business in the rented building as the source of his livelihood. He could get a alternate building without any difficulty. The tenant, in his objections, referred to the other proceedings between the landlords and the tenant, and stated that the conduct of the petitioners/landlords showed that they were bent upon harassing the tenant for evicting him from the building. The tenant also specifically pleaded that the petitioners' son is not capable of starting any business as alleged, the petitioners have no idea at all to start any business in the petition schedule building and the need stated in the petition is without any bona fides. Capacity and ability of the petitioners and their son to run the business were also questioned. It was further submitted that the respondent is not rich and that he depends upon the income derived from the business carried on in the petition schedule building for his livelihood and no suitable building is available in the locality to shift his business. The need of the landlords and the basis for an order of eviction are slated in Para.8 and 9 of the petition (R.C.P.No. 27/85) dated 18-2-1985. The objections of the tenant are stated in Para.5 of the objections dated 19-7-1985.

(3.) A large volume of evidence (oral and documentary has been let in by the parties to substantiate their pleas. In particular, the tenant laid emphasis on Ext.B42 dated 11-4-1979, Ext.B9 dated 10-10-1979 and Ext.B1 dated 26-10-1979, the three documents by which he was let in possession. He also produced and relied on Ext.B26, proceedings of the Accommodation Controller, Kanayannur dated 11-2-1987 to show the strained relationship between the parties and how the tenant was permitted to carry out the repairs to the petition schedule building. The evidence of RW3, one Mr. Ananda Kammath, who was the mediator and figured as a witness in Ext.B42 and Ext.B1, was also pressed into service by the tenant. In substance, the plea was this: In the place where the petition schedule building stands, originally there was a small tiled building. The landlords could not put up a big building there, due to lack of funds. The landlords approached the tenant through RW3. The tenant agreed to pay a sum of Rs.55,000/- on condition that the landlords will complete the building within 75 days and rent it out to the tenant. This is evidenced by Ext.B42 dated 11-4-1979. This was not done. The landlords wanted Rs.9000/- more. The tenant paid the said amount also, evidenced by Ext.B9 dated 10-10-1979. The landlords agreed to complete the building within 15 days and put the tenant in possession. They did not complete the building within the time stipulated in Ext.B9. Even so, the tenant took possession of the building on executing a lease deed (Ext.B1) dated 26-10-1979. It was for a period of five years, with liberty to extend the term, by mutual consent, for a further period of five years. The monthly rent was fixed at Rs.1000/-. The amounts borrowed by the landlords, in the sum of Rs.64,000/-, will be repaid by adjusting a sum of Rs.250/- every month out of the rent. These facts are spoken to by the mediator (RW3). The plea of the tenant was that the parties never intended to terminate the relationship of landlord and tenant atleast till the sum of Rs.64,000/- borrowed and acknowledged in Ext.B1 lease deed is paid by adjustment from the rent in monthly instalment of Rs.250/-. There was a specific clause for extending the period of lease for a further period of five years also. Ext.B1 is clear on those aspects. It is because of other certain extraneous considerations the landlords initiated proceedings for eviction prematurely and the plea, that the building is required for starting a business for their son was put forward as a pretext for eviction.