RAGHAVAN Vs. BALAMOHAN

JUDGEMENT

(1.) Respondent in this revision petition filed R.C.P. No. 168 of 1991 for evicting the revision petitioner/tenant under S.11(3) of the Kerala Buildings (Lease And Rent Control) Act (hereinafter referred to as the Act). The building consisting of two rooms was used by the revision petitioner as his Homeopathy Pharmacy and his consultation room for practising homeopathic medicine. The respondent/landlord is employed in an oil exploration company at Bombay. His family, i.e., his wife and children are residing with his uncle. Since he has no other building of his own for accommodating the family, he bona fide requires the petition scheduled building and therefore, petition under S.11(3) was filed. Rent Control Court found that there is no bona fide need. Hence, eviction petition was dismissed. In appeal, the Appellate Authority found that there is bona fide need and revision petitioner/tenant can be evicted under S.11(3) of the Act. The claim of the revision petitioner under second proviso to S.11(3) that he cannot be evicted because he is depending for his livelihood mainly on the income derived from the business carried on in the building and there is no other suitable building available in the locality to carry on such trade or business was not considered by both the authorities on the ground that he is a homeopathic doctor doing medical profession and he is not entitled raise such a contention as he is not carrying on any trade or business.

(2.) In Sethurama Menon v. Meenakshi Amma ( 1966 KLT 665 ) it was held that it is impossible to accede to the contention that a member of the profession is carrying on a trade or a business, to eke out his livelihood from the business, of the practice of the profession. Therefore, when the building is taken for carrying on a profession, it cannot be stated that one is carrying on business or trade. In S. Mohan Lal v. R. Kondiah ( AIR 1979 SC 1132 ) it was held that practice carried on by an advocate in relation to his profession can be said to be business. It was observed by the Supreme Court as follows:

(3.) The Supreme Court in Dr. Jess Raphael v. K. L. Regina Joseph (1995 Supp. (3) SCC 190) considered the second proviso to S.11(3) of the Kerala Act and it was held that nursing home run by the doctor is his business. It was further held that so long as commercial activity is carried on, it will be enough to call 'business'. Supreme Court pointed out that the decision of the Apex Court in S. Mohan Lal v. R. Kondiah wherein it was held that the profession carried on by an advocate is a business cannot be distinguished merely stating that it was decided in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act. Meaning of business in second proviso to S.11(3) was analysed and it was held that Mohan Lal's case is applicable to here also. For the meaning of the word 'business' Apex Court also referred to the definition of business in Black's Law Dictionary, 6th Edition at page 198 where the word business is defined as under: