MUSTAFA HAJI Vs. UMBICHI

JUDGEMENT

(1.) Is the non examination of the dependent son of the landlord is fatal to a petition filed under S.11(3) of Act 2 of 1965 is the question that is germane for consideration in this case. The Rent Control Appellate Authority placing reliance on the Division Bench decision of this Court reported in Thomas v. Kochammini Amma ( AIR 1995 Ker. 4 ) took the view that it is fatal to a plea under S.11(3) since the need urged is for the bona fide need of the son of the landlord.

(2.) Eviction was sought for, for the bona fide need of the landlord's son Majeed who is married and has got three children. For eking out his livelihood, Majeed wanted to start a stationery business. No other suitable building is in their possession. It was pleaded by the landlord that his son is dependent on him. He is not having any other building of his own or any other avocation. Landlord also contended that rent is in arrears since March 1993. Tenant resisted the petition contending that attempt of the landlord is only a ruse to evict him. Further it was also stated that the landlord's son is assisting the landlord for the conduct of his trade. Landlord is a butcher and a vendor in meat and son is in total control of the said business. Consequently son has no intention to start any stationery business. Further it is also stated that he is not dependent on the landlord. Further tenant submitted that he is entitled to get benefit of second proviso to S.11(3). .

(3.) Landlord got himself examined as PW. 1 and gave oral evidence according to the averments in the Rent Control Petition. Landlord produced Al and A2 documents. Tenant was examined as RW. 1. Rent Control Court after considering oral and documentary evidence came to the conclusion that the need is bona fide and also found that landlord is entitled to get rent from April 1993 onwards. Tenant took up the matter in appeal. Appellate Authority took the view that the non examination of landlord's son is fatal to the petition filed under S.11(3) of the Act. Appellate Authority held that the contentions raised by the tenant could be satisfactorily explained only if the son is examined and record the following reasonings.