SANTHA Vs. 1ST ADDL DISTRICT JUDGE

JUDGEMENT

(1.) The landlady of a building in the occupation of respondents 4 to 9 is the petitioner in this petition under Art.227 of the Constitution of India. The building had been leased out to one Subramaniam, the predecessor of these respondents on January 1, 1963 under a lease deed Ext. P1 for the purpose of conducting a tea shop. After the death of Subramaniam the respondents are in possession and respondents 6 and 8 are admittedly carrying on tea shop business in the premises. This building is part of a line building in another portion of which the petitioner's husband is carrying on a ration shop. Petitioner filed application for eviction of respondents 4 to 9 (hereinafter referred to as the tenants) from the building, on the ground that she needed it bona fide for the residence of her eldest son Sooraj Babu and his family, a ground of eviction falling under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act, for purpose of brevity). Another ground raised that the tenants were using the building in such a way as to impair its value and utility materially and permanently does not survive for consideration now as it was not pursued after the Rent Control Court held against the landlady on this point. We are therefore concerned only with the first ground of eviction, namely bona fide need.

(2.) The tenants disputed the need set up by the landlady, besides claiming protection under the second proviso to S.11(3), namely that they were depending for their livelihood mainly on the income derived from the trade carried on in the building, and no other suitable building was available in the locality for them to carry on their trade. The Rent Control Court found the need to be bona fide. She also held that the tenants were not entitled to the protection under the second proviso to S.11(3). Eviction was thus ordered. The tenants appealed. The Appellate Authority confirmed the finding regarding the landlady's bona fide need, but upheld the tenants' claim for the benefit of the second proviso to S.11(3). He found that the tenants were depending mainly on the income from the trade carried on in the building for the livelihood and that no other suitable building was available in the locality in which they could carry on the said trade. The rent control petition was accordingly dismissed. The landlady challenged this order in revision before the District Court under S.20 of the Act. The tenants did not file any revision petition of their own, but while supporting the appellate order on the point found in their favour, namely that under the second proviso to S.11(3) they sought to question the finding of the first two authorities regarding the bona fide need of the landlady. The landlady however objected to their right to question this finding on bona fide need, without themselves filing a revision petition. The revisional court overruled her objection and considered the question. He held against the landlady and found that the need set up by her was not bona fide, reversing the findings entered by the Rent Control Court and the Appellate Authority. The revisional court concurred with the Appellate Authority in upholding the tenants' claim for protection under the second proviso to S.11(3). The revision petition was accordingly dismissed. The landlady challenges the order in this petition. -

(3.) Apart from the challenge to the finding of the revisional court on the question of the landlady's bona fide need, counsel for the petitioner Smt. Suseela Bhat has very vehemently raised a question of jurisdiction, namely that this question was not open for consideration by the revisional court when it had not been challenged by the tenants by filing any revision petition. She submits that the tenants cannot challenge the Appellate Authority's finding on this point in defence to a revision petition filed by the landlady. It is contended that neither the Act nor the Rules contain any provision analogous to O.41 R.22 of the C.P.C. and in that situation, the tenants cannot be permitted to support the order of the Appellate Authority on any ground decided against them by that authority. Reliance is placed on the decision of a learned Single Judge in Prabodhini v. Rajammal, 1991 (1) KLJ 113 where it was held that the provisions of O.41 R.22 of the C.P.C. are not applicable to revision petitions under S.20 of the Act, that the revisional jurisdiction is not co-extensive with appellate power, though the power under S.20 of the Act is wider than the jurisdiction under S.115 of the C.P.C. and therefore a party cannot challenge any finding rendered by the Appellate Authority except by filing a revision petition himself.