URMESE J VALOORAN Vs. PADMA

JUDGEMENT

(1.) This revision is filed challenging concurrent order of eviction under S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, the "Act") by the tenant. The need projected is for the daughter of the landlady, namely, Geetha to start a business in the tenanted premises. Geetha is a partner in furniture business carried under the name and style, 'Woodman'. It is stated that Geetha is the owner of the shoproom in the first floor in the tenanted premises and tenanted premises being in the ground floor, she finds ground floor is most suitable for starting a furniture business. It appears that during cross examination, the need that is projected by her is that of partnership firm as well. It has also come out that an adjacent residential building is vacant. The tenanted premises was let out to the tenant for non residential purpose and the tenant, it appears, is doing a business in garments by name, "Family". During cross examination of Geetha, she has deposed that partnership firm will pay rent to the landlady after it start occupying the tenanted premises.

(2.) In the light of factual background as above, Shri Mathew John appearing for the tenant, has raised three questions of law in this revision, viz.- (1) whether need of a dependant can be the need of a partnership firm of which dependent is a partner; (2) whether payment of rent by the partnership firm after eviction will amount to creation of tenancy and if so, a petition under S. 11(3) of the Act is maintainable to create a tenancy after eviction and; (3) whether failure to plead and prove special reasons for non occupation of a residential building in possession of the landlady is fatal in eviction of nonresidential building under first proviso to S. 11(3).

(3.) In the pleadings, the need projected is that of the dependant-Geetha, However, during the course of cross-examination, she has deposed that the need is that of partner ship as well. An eviction that can be sought under S. 11(3) is for the landlord himself or for the purpose of occupation of any member of his family dependent on him. So long as the need projected by the petitioner does not vary substantially or fundamentally to cause prejudice to the tenant, there is no impediment in law in granting eviction once landlord has established bona fides. The court in such situation is only concerned about whether requirement could be accommodated within the ambit of S. 11(3) of the Act as such. It is in this background, the need projected by the dependant has to be understood. S. 11(3) of the Act, clearly mentions that eviction can be granted for own occupation or for the occupation of any member of his family. That means the dependant is permitted to occupy and landlord retains ultimate control of the tenanted premises after eviction. The occupation of the tenant can be for himself or through a partnership firm in which the dependant is a partner. The need of the dependant can be the need of the partnership firm in which the dependant is a partner. In law, partnership is a relationship between persons who have agreed to share profits of the business carried on by all or any one of them acting for all. The test of determination as to the occupation in such situation is the real and actual in evolvement of the dependant in the business. This has to be decided with reference to the pleadings and evidence. If the need is not projected for exclusive occupation by the firm, independent of the dependent, there is nothing wrong in seeking eviction for the dependent which may benefit the firm as well. It has to be noted that partnership is only a compendious mode of persons, who have agreed to carry on business in partnership. Thus, it is always open to the dependant to form partnership for running a business. It is for the landlord or the dependant to decide the nature and structure of the business proposed by them. So long as the need set up is not a claumoflage or clandestine to transfer possession of the building to a third party, such arrangement between the dependant and the landlord need not be doubted. In this case there is nothing on record to disbelieve the claim of the landlady. The pleadings and evidence clearly disclose the active and real participation of the dependent in the business. Therefore, we are of the view that the need projected by the dependant to occupy the building by the partnership firm, in which she is a partner, is bona fide and maintainable under S. 11(3) of the Act.