THOMAS Vs. JOSEPH

JUDGEMENT

(1.) The parties to this Revision Petition are close relatives. The Revision Petitioners are the tenants of a building owned by the respondents. The respondents' application for eviction under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 was rejected by the Rent Controller. However, on appeal by the landlords, the Appellate Authority allowed the application. The learned Sub-Judge found that the landlords had bona fide need of the building and that the tenants did not prove that there was no other suitable building available in the locality for them to carry on their trade or business. The learned Sub-Judge, however, did not go into the question as to whether the tenants depended for their livelihood mainly on the income derived from their trade or business carried on in the building. On appeal by the tenants, the District Court affirmed the finding of the Appellate Authority as to the bona fide need of the landlords and allowed eviction. The District Court, however, set aside the finding of the Appellate Authority as to the non availability of a suitable building in the locality. The District Court found that the tenants had adduced evidence to show that no other suitable building was available in the locality and they were not cross examined on the point. In the absence of any contrary evidence, the court held that the tenants had proved that no other suitable building was available in the locality. Nevertheless eviction was allowed for the reason that the tenants failed to prove that they depended for their livelihood on the income derived from their trade or business carried on in the building. In coming to this finding the learned District Judge appreciated the evidence which the Appellate Authority failed to consider.

(2.) It is clear from the proceedings so far that, although the landlords' application was rejected by the Rent Controller, both the Appellate Authority and the Revisional Authority found that the landlords bad bona fide need to occupy the building in question. This is a concurrent finding based on evidence, and it must remain final. However, as regards the essential ingredients of the second proviso to S.11(3), there is no finding by the Appellate Authority on the question whether the tenants depended for their livelihood mainly on the income derived from their trade or business carried on in the building. The finding on that point is rendered only by the Revisional Authority. It has to be appreciated that, notwithstanding proof of bona fide need, the landlords are not entitled to evict the tenants until the two ingredients of the second proviso to S.11(3) are clearly found against the tenants.

(3.) The two ingredients are not disjunctive, but conjunctive, and therefore both the ingredients have to be found against the tenant before the landlord could be ordered to be put in possession of the building, the bona fide need notwithstanding. The second proviso to S.11(3) is mandatory. It says: