P N GOVINDAN Vs. ABDUL KARI SUBAIDA BEEVI

JUDGEMENT

(1.) The short question arising for consideration in this revision is this : Whether the general principle of constructive res judicata or S.15 of the Kerala Buildings (Lease And Rent Control) Act, 1965 (for short 'the Act') would preclude a landlord from claiming eviction on any one of the grounds mentioned in S.11 of the Act after an adverse finding in an earlier petition for eviction filed on some other grounds under that Section, if such omitted ground was available to him at the time of filing the earlier petition and the adverse decision thereon

(2.) The brief facts of the case necessary for disposal of the revision are thus: Respondent landlady filed RCP 53 of 1989 claiming eviction of the petition schedule building from the petitioner tenant under S.11(3) and 11(4)(iii) of the Act. It was alleged in the petition that the landlady assisted by her husband wanted to open a new stationary business and a showroom and depot in the petition schedule building for the sale of Match boxes produced in the Match factory owned by her husband and as such the building is needed bona fide for her occupation. It was also alleged in the petition that the tenant has acquired possession of one-and-half cents of land and a shop room situated therein very close to the petition schedule shop room facing the road and sufficient enough to satisfy the requirements of the tenant to carry on his business conducted in the petition schedule building. It was on the basis of the above allegations, landlady has claimed eviction. Tenant denied all the material allegations in the petition by filing a detailed counter affidavit. Disputing the existence of the need alleged and its bona fides, it was submitted that on mere or less similar grounds an earlier petition, RCP 40 of 1982, was filed by the landlady which was dismissed by all the statutory authorities including this Court. In the earlier petition, RCP 40 of 1982, the need alleged was that the landlady's husband wanted a godown and shop room to be opened in the petition scheduled building and for that purpose he needs the building. It was contended that there is no change in the circumstances as alleged in the petition and as such the petition is one filed without any bona fides. As regards the ground under S.11(4)(iii) of the Act, apart from denying the fact that he is in possession of another building sufficient to satisfy his requirements in the locality, it was submitted that the landlady is not entitled to claim eviction on that ground also. After filing the original written objection, an amendment petition was filed to amend the written objection already filed by incorporating 3 additional paragraphs as 11(a), 11(b) and 11(c) of which 11(a) alone is relevant - and deserves to be quoted. Additional Para.11(a) is in the following terms:

(3.) The Rent Control Court dismissed the petition finding that the petition in its entirely is barred under S.15 of the Act. In the appeal filed by the landlady, the Appellate Authority has found that the eviction sought for under S.11(3) is barred by S.15 of the Act. However, the Appellate Authority found that the bar pleaded under S.15 of the Act against the eviction claimed under S.11(4)(iii) of the Act is unsustainable in law. On merits the claim for eviction under S.11(4)(iii) was found sustainable. It was found that the tenant as a matter of fact was admitted during his cross examination that he has acquired a building subsequent to the commencement of the tenancy and has failed to establish specifically that the said building is not reasonably sufficient for his requirements. As such the Appellate Authority has ordered eviction under S.11(4)(iii) of the Act while allowing the appeal in part. Aggrieved by the order of eviction, the tenant has preferred this revision mainly raising the question already noted by us, along with some other minor points.