JOHN PAUL Vs. THOMAS THOMAS

JUDGEMENT

(1.) The matter arises under the Rent Control Act. One of the sons of the tenant is the petitioner in this revision. The other legal representatives of the original tenant are impleaded as respondents 2 to 10. The LRs of landlord are also impleaded as respondents 11 to 16 in this revision. The first respondent (landlord) filed an application for eviction under Sec. 11(3) of the Act namely that he needs the schedule building for bona fide use of his unemployed son for business in rice and tapioca. The petitioner who is the third respondent in R.C.P. resisted the petition and contended that there was no bona fide need, that the son has independent means of livelihood and was not dependent on the father who has other buildings in the town should a need arise. It was further contended by the third respondent/petitioner herein that he was depending for his livelihood on the income from the business run in the scheduled building and that other suitable buildings were not available in the locality. In other words he claimed benefit of the second priviso to Sec. 11(3) which prevents eviction even when bona fide need is in dispute. On the side of the landlord P.Ws. 1 to 4 were examined and Exts. A1 to A3 were marked. On the side of the tenant three witnesses were examined. The trial Court after an enquiry and on appraisal of law and facts allowed the R.C.P. and ordered eviction. In the appeal by the third respondent/petitioner herein the appellate authority has concurred in the decision and dismissed the appeal. Hence this revision by the third respondent in R.C.P.

(2.) We have heard learned counsel appearing on either side. Learned counsel for the revision petitioner contended that considering the broad facts and circumstances transpiring on the evidence the Court should have found that there was no bona fide need, that the averments in that regard are a pretext for illegal eviction. It is also contended that the Court below went wrong in denying the benefit of the second proviso to Sec. 11(3) of the Act and that the finding that the tenant was not depending on the income from the business in the scheduled premises for his livelihood is contrary to the evidence. According to the learned counsel for the tenant the Courts below have considered irrelevant and extraneous facts and have rendered the finding. The evidence of the tenant was also misread. On the question of availability or otherwise of suitable building in the locality learned counsel submitted that the courts below have gone wrong. According to the learned counsel suitability implies affordability, proximity, besides convenience for the particular business run by the particular tenant and that the sheer inability of the person to pay exorbitant rent and at once furnish a hefty sum by way of security should have been the cardinal consideration. This aspect has been missed by the courts below. It is contended that the second proviso to Sec. 11(3) of the Act has not been properly construed or applied. Learned counsel also submitted that since the landlord himself died during the pendency of the proceedings, the dependency pleaded for does not survive. In support of his contention he cited Pasupuleti Venkateswarlu Vs. The Motor & General Traders, AIR 1975 SC 1409 that subsequent event should be taken by the Court in disposing of the proceedings.

(3.) Per contra learned counsel for the landlord invited our attention to the findings rendered by the Courts below and submitted that landlord has clearly established the bona fide need under Sec. 11(3) and that the order of eviction passed by the Courts below does not call for interference in this revision. We have gone through the judgments of the Courts below. The appellate authority, on a consideration of the entire evidence came to the conclusion that the landlord has established his claim under Sec. 11(3) of the Act through adequate evidence and that there is no vacant building fit for his business. However, P.W. 1 had admitted that he had constructed a house spending Rs. 1,75,000.00 five years ago. He added that a sum of Rs. 45,000.00 was obtained as loan and that the additional document produced before the appellate authority was also relied on in this revision. The lower appellate Court has also allowed marking of Exts. B1 to B4 which shows that a sum of Rs. 43,000.00 was obtained as loan from the Changanacherry Urban Housing Cooperative Society and that this has been paid up in full by 21-2-1994. As regards the balance amount for the house namely Rs. 1,32,000.00 no source is explained before the Court that the said amount was either the saving from his business or that he had other income. In the circumstances the appellate authority came to the conclusion that the counter petitioner has failed to establish that he is depending mainly on the income from the business carried on in the scheduled building. He has also further failed to establish his entitlement to the second proviso namely non-availability of other buildings. The petitioner/landlord has given evidence to the effect that he found on enquiry that the 10 shop rooms were lying vacant in the market road at Chanagancherry between the Boat jetty and Vattappally. According to him another shop room which belongs to Fathima Yusuff is lying vacant about half a furlong away from the schedule building. It is pertinent to note that C.P.W. 1 had admitted that his brother Sebastian who was employed in the Gulf had purchased a building which is only 125 metres away from the schedule building. According to him this building is lying vacant. The additional document produced before the appellate authority show that this Sebastian had purchased an old building under Ex. B1 on 6-1-1992 and that he started sale of food grains in the said building. He also produced Exts. B2 and B3 to prove the same. Therefore we are unable to accept the argument advanced by the learned counsel for the tenant. Though the availability of other buildings has to be established with reference to the date of the petition and that subsequent vacancies are immaterial. Even accepting the said contention it is only the availability of the building that is available nearby and the availability of various other buildings are also spoken to by P.W.1. Under these circumstances we are of the view that the landlord has clearly established the bona fide need under Sec. 11 (3) of the Act.