SEBASTIAN Vs. A K MOHAMED THAMIM

JUDGEMENT

(1.) Eviction was sought for under S.11(4)(ii) and S.11(3) of Act 2 of 1965. Separate notices were sent for eviction under S.11(4)(ii) as well as under S.11(3). In the notice issued under S.11(4)(ii) there was no mention of the bona fide need for own occupation, the question is whether it is fatal to a plea raised under S.11(3).

(2.) Landlord sent a registered notice A3 dated 18.10.1995 to the tenant stating that he is using the tenanted premises in such a manner so as to destroy or reduce the value or utility of the building materially and permanently. The fact that the landlord bona fide required the premises for the purpose of conducting a provision store was not stated in the said notice. Rent Control Court found that it is not fatal to a plea raised under S.11(3) of the Act. Appellate Authority however, took the view that the non mention of the bona fide need in that notice would be fatal. Appellate Authority concluded as follows:

(3.) The Rent Control Act never mandates issuance of a notice prior to the filing of the Rent Control Petition under S.11(3) or 11(4)(ii) of Act 2 of 1965 unlike in the case of S.11(2)(b) and 11(4)(i). Rent Control Petition could be filed even without issuing notice under S.11(3) as well as under S.11(4)(ii) of the Act. The mere fact that the landlord has not mentioned that he bona fide needs the building for his own use in a petition filed under S.11(4)(ii) of the Act would not affect the bona fide need urged by the landlord under S.11(3) of the Act. In case there is sufficient materials to hold that the need is bona fide the non mention of the need in the notice sent for eviction under S.11(4)(ii) is not fatal. So far as this case is concerned it is the specific case of the landlord that he wants to start a business in provision and stationery items for his livelihood. Further, he has stated that his son is a B.Com. graduate. Though he has completed his studies he is still unemployed and he has no avocation. He is also dependent on the landlord for his livelihood. Rent Control Court found that the need is bona fide, We find no reason to disbelieve the plea of bona fides raised by the landlord. Appellate Authority rejected the claim on the sole ground as we have already mentioned, that the landlord has failed to mention in the notice issued to the tenant that he is seeking eviction under S.11(3) of the Act. In the absence of any evidence to show that the landlord has other building of his own in his possession we are of the view the need urged by the landlord is bona fide. Rent Control Court found both the limbs of second proviso against the tenant. Appellate Authority also concurred with the Rent Control Court that the tenant is not entitled to the benefit of second proviso to S.11(3). Under such circumstance rejection of the claim under S.11(3) of the Act by the Appellate Authority cannot be sustained. However, so far as the plea under S.11(4)(ii) we find no illegality, irregularity or impropriety in the order passed by the Appellate Authority.