P.K. RAJAN Vs. MOHANRAJ

JUDGEMENT

(1.) The tenants, who suffered an order of eviction under Sec. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'), came up with these Revisions challenging the findings of the Rent Control Appellate Authority (for short 'Appellate Authority), especially to the first proviso to Sec. 11 (3) of the Act.

(2.) The short facts of the case is that the landlords initiated eviction proceedings against two tenants by two different applications, which were fought up to the Appellate Authority. The Appellate Authority upheld the contention raised by the petitioners regarding Sec. 11(3) of the Act and ordered eviction, which is under challenge in these two Revisions.

(3.) The orders passed by the Appellate Authority are challenged mainly on the legal question whether it would be permissible to grant an order of eviction under Sec. 11(3) of the Act when there is evidence to show that the landlords have got a building of their own sufficient to meet the need projected in the applications. It is submitted that the first petitioner is having only a fractional interest over the petition schedule building as it is devolved upon him along with his siblings on the death of his father. The need advanced is for his son, who is a dependent on him for starting a glass mart. The tenants sought for protection under the first proviso to Sec. 11(3) of the Act under the premise that two shop rooms are lying vacant, which, according to them, 'D' and 'E' shop rooms in the series of five shop rooms, named as A,B,C,D,E, situated in the property which was devolved upon the first petitioner along with his siblings on the death of their father. D and E shop rooms also form part of the assets left out by the father in the hands of the first petitioner along with his siblings. If that be so, even if it is found that D and E schedule shop rooms are lying vacant, the question to be considered is whether it would attract the first proviso to Sec. 11(3) of the Act. The said question came up for consideration before a Division Bench of this Court in Asher Vs. Hassankutty Hajee (2004 (2) KLT 446). The learned counsel for the tenants/revision petitioners submitted that the Honourable Supreme Court had taken a different view in the matter of the expression "his own" in the decision in Super Forgings & Steels (Sales) Pvt. Ltd. Vs. Thyabally Rasuljee (Dead) through LRs. ((1995) 1 SCC 410). One of the contentions raised by the learned counsel for the revision petitioners is that in that decision, the Apex Court held that the expression "his own" would take in the owner of the property and a co-owner as well for the purpose of Sec. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Sec. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act is not pari meteria with Sec. 11(3) or the first proviso to Sec. 11(3) of the Act.