Smitha vs V.Krishnan on 25 June, 2010

[Cites 36, Cited by 2]

Kerala High Court

Smitha vs V.Krishnan on 25 June, 2010

A Division Bench of this Court referred the following questions for consideration by a Full Bench. (The reference order is reported in Smitha v. Krishnan (2011 (4) KLT 697.) "(i) In a claim for eviction under Section 11(3), 11 (4), 11(7) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (the Act hereafter), is the landlord bound, after establishing such grounds for eviction, to show further that his claim for eviction is bona fide? Is not the Court under Section 11(10) at all bound to consider the bona fides of such claim? Is there serious dichotomy between Aboobacker v. Sahithya P.S.Sangham Ltd. (2004(2) KLT 947) and the decisions of coequal Benches?

(ii) Can a litigant claim a further and different relief which is specifically denied to him by subordinate authorities in an appeal or revision under the Act filed by R.C.R. No.358 of 2010 :: 2 ::

his adversary challenging a part of the order adverse to him when such litigant is, himself not choosing to challenge the rejection of his claim for such specific relief by preferring any appeal/revision or cross objections. Do precedents in Santha v. First Additional District Judge (1994(1) KLT 516) and Ganesh v. Varghese (2005 (1) KLT 282) require re- consideration?"

2. The facts of the case relevant for consideration of the questions referred to the Full Bench are stated below. The respondent/landlord filed the Rent Control Petition under Sections 11 (2)(b), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The Rent Control Court allowed the Rent Control Petition under Section 11(2)(b) alone. The claim for eviction under Section 11(4)(i) and 11(4)(ii) was rejected by the Rent Control Court. Challenging the order under Section 11(2)(b), the tenants filed R.C.A.No.29 of 2008 before the Rent Control Appellate Authority, Palakkad. The Appellate Authority allowed the appeal filed by the tenants and dismissed the Rent Control Petition under Section 11(2)(b) of the Act. However, the Appellate Authority found that the monthly rent payable was R.C.R. No.358 of 2010 :: 3 ::

`3,000/-. The tenants filed R.C.R.No.429 of 2010 before this Court challenging the finding of the Appellate Authority regarding quantum of rent. No revision was filed by the landlord challenging the judgment of the Appellate Authority. R.C.R.No.429 of 2010 filed by the tenants was dismissed. Against the order of the Rent Control Court under Section 11(4)(i), the landlord filed R.C.A.No.28 of 2008 before the Rent Control Appellate Authority, Palakkad. The Appellate Authority allowed the appeal and allowed the Rent Control Petition under Section 11(4)(i) of the Act. The tenants filed R.C.R.No.358 of 2010 before this Court challenging the judgment of the Appellate Authority in R.C.A.No.28 of 2008. In the Revision filed by the tenants, the landlord challenged the judgment of the Appellate Authority in R.C.A.No.29 of 2008 dismissing the Rent Control Petition under Section 11(2)(b) of the Act. No cross objection was filed by the landlord. The dismissal of the Rent Control Petition under Section 11(4)(ii) became final, since no appeal was filed by the landlord.

3. When R.C.R.No.358 of 2010 came up for hearing before the Division Bench, after hearing the arguments of the counsel, the R.C.R. No.358 of 2010 :: 4 ::

questions mentioned in paragraph 1 of this order were referred to the Full Bench for consideration.

4. When the matter came up before the Full Bench, the learned counsel for the revision petitioners filed a memo stating that during the pendency of the Rent Control Revision, the parties arrived at an out of Court settlement, in terms of which, the tenants vacated the tenanted premises. Since certain questions of law were referred by the Division Bench for the decision of the Full Bench, we heard the counsel in detail for answering the questions referred to the Full Bench.

5. Question No.1: The Division Bench took the view that there is a conflict between the decision in Aboobacker v. Sahithya P.S. Sangham Ltd. (2004 (2) KLT 947) and three other decisions of the Division Bench, namely, Haridas v. Mercantile Employees' Association (1975 KLT 437), Social Service Guild of Assissi Sisters v. Ouseph Chacko (2009 (2) KLT 199) and Nagarajan (supra). There is no decision in which Nagarajan is a party and there is no reference to the same in paragraphs 1 to 26 of the R.C.R. No.358 of 2010 :: 5 ::

reference order. However, we take it that the said decision is Krishnan v. Vijayaraghavan (1977 KLT 1013). It is relevant to note here that subsequent to the order of reference, two Division Bench decisions, namely, Sampath S. Pawar v. Ibrahim (2013 (3) KLT

722) and Abdulkhader v. Naseema (2013 (1) KLT 827) were also rendered, in which it was held that apart from proving the bona fide need under Section 11(3) of the Act it is not necessary for the landlord further to prove that the claim is bona fide under sub-

section (10) of Section 11 of the Act.

6. Sub-section (1) of Section 11 of the Act provides that notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. The Act provides for various grounds for eviction like arrears of rent, bona fide need for own occupation of the landlord or for the occupation by any member of his family dependent on him, that the tenant has sublet the building, that the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently, that the tenant has in his possession another R.C.R. No.358 of 2010 :: 6 ::

building reasonably sufficient for his requirements, that the building is required bona fide for the landlord to reconstruct the same, that the landlord wants to renovate the building etc. Sub-sections (7) and (8) of Section 11 also provide for other grounds for eviction. Sub-section (7) of Section 11 applies where the landlord of a building is a religious, charitable, educational or other public institution and the building is needed for the purpose of the institution. Sub-section (8) of Section 11 provides that a landlord who is occupying only a part of the building may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.

7. Section 11(3) of the Act provides that the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation of any member of his family dependent on him. There are four provisos to Section 11(3), which are not relevant for the purpose of decision of R.C.R. No.358 of 2010 :: 7 ::

this case. Section 11(4) contains five grounds for eviction. We extract clauses (i) to (v) of sub-section (4) of Section 11, excluding the provisos and explanations, which read thus:

"(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, --

(i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so:

(ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; or

(iii) if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or

(iv) if the building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court R.C.R. No.358 of 2010 :: 8 ::

that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction:

(v) if the tenant ceases to occupy the building continuously for six months without reasonable cause."

8. The bona fide need of the landlord under Section 11(3) would be tested by the Rent Control Court and only if the Court is satisfied that the landlord bona fide needs the building as provided in sub-section (3), an order would be passed. Some of the grounds for eviction do not require the landlord to prove that he bona fide requires it or that the need is bona fide. For example, if there is subletting by the tenant, that by itself is a ground for eviction and, in that case, it is not necessary for the landlord to prove that the need for eviction is bona fide. In the case of clauses (ii) and (iii) of sub- section (4) of Section 11 also, the bona fides of the landlord is immaterial. Under clauses (i) to (iii) of sub-section (4) of Section 11, a landlord would be entitled to get an order of eviction on proving the ingredients therein. In the case of sublease, the tenant loses the protection as provided under the Act. The Act also recognizes the R.C.R. No.358 of 2010 :: 9 ::

right of the landlord to evict a tenant who uses the building in such a manner to destroy or reduce its value or utility materially and permanently. If the tenant acquires possession of another building as provided in clause (iii) of sub-section (4) of Section 11, then also the landlord would be entitled to get an order of eviction. Under clause (v) of sub-section (4) of Section 11 also, the bona fides of the landlord need not be tested. In these instances coming under clauses (i) to (iii) and (v) of sub-section (4) of Section 11, the question of bona fides of the landlord is not relevant at all. On the other hand, the question is whether the tenant has done some contumacious act or whether the tenant has acquired another building or whether he ceases to occupy the building. In the case of reconstruction under Section 11(4)(iv), bona fides of the landlord is a criterion to be established. In sub-sections (7) and (8) of Section 11, the word "bona fide" does not occur. In other words, the word "bona fide" occurs only in sub-sections (3) and (4)(iv). In sub-section (10) of Section 11, mention is made about sub-sections (3),(4),(7) and (8). Sub-section (10) of Section 11 states that the Rent Control Court shall, if it is satisfied that the claim of the landlord under sub-

sections (3), (4), (7) or sub-section (8) is bona fide, make an order R.C.R. No.358 of 2010 :: 10 ::

directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application. An argument is possible on the basis of inclusion of sub-section (3) in sub-section (10) that apart from proving the bona fide need under Section 11(3), the landlord has to satisfy the Rent Control Court that his claim is also bona fide. Though sub-sections (3) and (4) provide for eviction in various circumstances, those sub-

sections do not provide for passing an order of eviction. Probably that is a reason why in sub-section (10) a specific mention is made about making an order directing the tenant to put the landlord in possession of the building.

9. In Haridas v. Mercantile Employees' Association (1975 KLT 437), a Division Bench of this Court held that on a combined reading of sub-sections (7) and (10) of Section 11, there cannot be any doubt that the Rent Control Court is under a mandatory obligation to investigate into the bona fides of the claim put forward by the landlord under sub-section (7). In that case, the District Court took a view that consideration of the question as to whether there R.C.R. No.358 of 2010 :: 11 ::

was bona fide need for the institution of a petition under Section 11 (7) of the Act was extraneous to the enquiry. The Division Bench held that the said view was manifestly incorrect. In Haridas v.

Mercantile Employees' Association (1975 KLT 437), the Division Bench had no occasion to consider whether to get an order of eviction under Section 11(3) or any of the grounds under Section 11 (4), the landlord has to prove not only the bona fide need but also to prove that the claim is bona fide under sub-section (10).

10. In Krishnan v. Vijayaraghavan (1977 KLT 1013), the question which arose for consideration was whether the landlord has to prove that the claim is bona fide as provided in sub-section (10) of Section 11, in a petition for eviction on the ground of subletting under Section 11(4)(i) of the Act. In that case, Justice V. Khalid (as His Lordship then was) held thus:

"Each case has to be decided on its own facts This case, according to me, can be easily distinguished from the cases referred to above. While doing so, I cannot close my eyes to the fact that S.11 (10) takes within its ambit the whole of sub-s.(4) of S.11. I will have to adopt a harmonious construction of the different R.C.R. No.358 of 2010 :: 12 ::

sections in the Act in dealing with the section. It is significant to note that the ground of arrears of rent is not included in S.11(10) of the Act. The difficulty arises since S.11(10) take in S.11(4) of the Act which sub- section has five sub clauses. The question that arises is as to what is meant by the claim being bona fide when a landlord proves and satisfactorily establishes the grounds mentioned in S 11(4)(i), (ii), (iii) and (v). If S.11 (10) is to be applied to clauses (i), (ii), (iii) or (v) of S.11 (4), then it will lead to very unhappy results. What the Legislature intended by enacting S.11(10) including the entire S.11(4) can only be to include S.11(4) (iv) and not the other clauses of that sub-section. This is the only possible construction that can be given to S 11(10). I do not know whether I will be justified in saying that S.11 (10) as a whole is a surplusage because in petitions under S 11(3), 11(4)(iv), 11(7) and 11(8) the ingredient of bona fide has necessarily to be proved. The order for eviction can be made only if the concerned authority is satisfied that the claim is bona fide. Perhaps, under these circumstances, S.11(10) could have been avoided. But since this section remains on the statute book, I have to explain it in a reasonable and harmonious manner. To say that the Legislature intended only to include S.11(4)(iv) in S.11(10) as was contended by the respondent's counsel, may perhaps R.C.R. No.358 of 2010 :: 13 ::

expose me to the charge of judicial legislation. I very strongly feel that the Legislature could have only meant S.11(4) (iv) when it included S.11(4) in S.11(10). However, on the section as it now stands I would hold that when a landlord establishes the ground of sub- letting as also the grounds under S.11(4) (ii), (iii) and (v) to the satisfaction of the Court, that by itself is proof that the claim is bona fide. I would rest my conclusion on this construction and meet the requirement of S.11(10)."

11. In Azhikode Service Co-op. Bank Ltd. v. Narayanan (1994(2) KLT 29), the landlord filed an application under Section 11 (3) of the Act. The landlord was a co-operative society. The Rent Control Court dismissed the petition. In the appeal, the landlord raised a contention that their claim can be sustained under Section 11(7) of the Act. The Appellate Authority found that the landlord failed to establish the bona fide need whether the claim be construed as one under Section 11(3) or as one under Section 11(7). In that context, the Division Bench held thus:

"4. ...... Then the question that arises for examination is what is meant by the claim being bona fide as contemplated under sub-section (10) when the R.C.R. No.358 of 2010 :: 14 ::

landlord establishes his bona fide need as required under sub-section (3) of S.11. When the bona fide need is established under sub-section (3), can it be said the claim for eviction is ipso facto bona fide? It cannot be said so in all the circumstances because even if the 'bona fide need' is established, the application for eviction need not be honest in all cases. But ordinarily when the bona fide need is established, it necessarily follows the claim for eviction also is bona fide unless it is a subterfuge. In the case of eviction under sub-section (7) the landlord shall establish that his claim is bona fide as required under sub-section (10)."

12. Another Division Bench in Abdul Rahiman v. Lakshmi (1994(2) KLT 123), held that a landlord need not prove that he bona fide needs the building for his own occupation or for the occupation of any member of his family dependent on him, if the petition for eviction is filed under Section 11(4)(iii) of the Act. The Division Bench held thus:

"The bona fide need of a landlord for his own occupation or occupation of any member of his family depending on him is a separate ground for eviction. Under sub-section (4), five different grounds are given R.C.R. No.358 of 2010 :: 15 ::

which would also entitle a landlord to seek eviction of his tenant. The first ground under sub-section (4) is sublease without the consent of the landlord. The second ground relates to the tenant using the building in such a manner as to destroy or reduce its value etc. The third ground is one where the tenant has in his possession another building reasonably sufficient for his requirement. If the petitioner's contention that in order to get eviction under the third ground, the landlord has to prove bona fide need of own occupation in view of the provision contained under sub-section (10). Then, it would mean that the landlord has to prove such bona fide need even when the tenant sub-lets the building or destroys or reduce its value. So also, even if the tenant ceases to occupy a building continuously for six months, which is the 5th ground under sub-section (4), the landlord will not be able to seek eviction unless he requires for own occupation. Such an interpretation would certainly be absurd. On the other hand, the bona fides of the requirement of the landlord to re-construct the building is made a condition under the 4th ground under subsection (4) for eviction. The provisions contained under the Buildings (Lease and Rent Control) Act are meant not only for the benefit of the tenants and landlord, but it is meant for the benefit of the society at large. If a tenant ceases to occupy the building R.C.R. No.358 of 2010 :: 16 ::

continuously for six months without reasonable cause, it has to be taken that he has no requirement for the tenanted building. It is certainly against public interest to keep a building vacant. It can be used either by the landlord himself or by another tenant."

13. In Aboobacker v. Sahithya P.S.Sangham Ltd. (2004 (2) KLT 947), another Division Bench of this Court held thus:

"8. In view of the above mentioned discussion the following principles emerge.

(1) An order of eviction is to be passed by the Rent Control Court under S.11(10) when a landlord establishes the bona fide need under sub -ss.(3),(4),(7) or sub-s.(8) of S.11. The Rent Control Court is not expected to further examine as to whether the claim is bona fide or not.

(2) Rent Control Court while examining the question whether the need urged by the landlord is bona fide or not under sub -ss.(3),(4),(7) or sub-s.(8) is virtually examining the claim itself, that is the ground for eviction. (3) Rent Control Court is legally obliged if it is satisfied that the claim of the landlord under sub -ss.(3),(4),(7) or R.C.R. No.358 of 2010 :: 17 ::

sub-s.(8) is bona fide to make an order specifying a date for enabling the tenant to put the landlord in possession of the building."

In Aboobacker's case, the Division Bench referred to the decisions in Azhikode Service Co-op. Bank Ltd. v. Narayanan (1994(2) KLT

29) and Abdul Rahiman v. Lakshmi (1994(2) KLT 123).

14. In Social Service Guild of Assissi Sisters v. Ouseph Chacko (2009 (2) KLT 199), another Division Bench held thus:

"Unlike sub-s.(3), the word 'bona fide' is absent in sub-s.(7). But, that does not mean that for succeeding in a petition for eviction under sub-s.(7), it is not necessary to establish bona fides of the claim. Sub-s. (7), like sub-s.(8) is qualified by sub-s.(10) of S.11. It is therefore, clear that in order that a landlord succeeds in a petition for eviction invoking ground under sub-s.(7) of S.11, he satisfies the Rent Control Court that his claim is bona fide."

15. After R.C.R.No.358 of 2010 was referred to the Full Bench, another Division Bench (in which Justice K.T. Sankaran was a party) held that there is no conflict among the decisions of the R.C.R. No.358 of 2010 :: 18 ::

Division Benches. In Sampath S. Pawar v. Ibrahim (2013 (3) KLT

722), it was held thus:

"14. It is well settled that when conflicting views are taken in the decisions of two Benches of equal strength, the decision later in point of time will prevail over the earlier one. [See Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458 (F.B.)).] The later decision on the point which deals with all the aspects of the case is Aboobacker v. Sahithya P.S.Sangham Ltd. (2004 (2) KLT 947). We are of the view that there is no conflict in the views expressed by the various Division Benches as observed by the Division Bench in Smitha v. Krishnan (2011 (4) KLT 697)."

16. In yet another decision of a Division Bench in Abdulkhader v. Naseema (2013 (1) KLT 827), the question whether in a case where the Rent Control Court is satisfied that the claim of the landlord under Section 11(3) of the Act is bona fide, is it the requirement of law that the bona fides of the claim of the landlord has again to be considered in view of Section 11(10) of the Act, was considered by the Division Bench and it was held thus:

"8. ....... Sub-sections 3, 4(iv), 7 and 8 of Section 11 provide the grounds on which the landlord can claim R.C.R. No.358 of 2010 :: 19 ::

for an order of eviction from the Rent Control Court directing the tenant to put the landlord in possession even without any act or omission from the part of the tenant. At the same time, the grounds under Ss.11(2)

(b), 11(4)(i), 11(4)(ii), 11(4)(iii) and 11(4)(v) would emerge only on some act or omission from the part of the tenant; the ground under S.11(2)(b) on the failure of the tenant to pay the rent; S.11(4)(i) when the tenant commits objectionable sub-letting; S.11(4)(ii) when the tenant uses the building in such a manner as to destroy or reduce its value or utility materially or permanently;

S.11(4)(iii) when the tenant has in his possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirement; and S.11(4)(v) on the failure of the tenant to occupy the building continuously for six months. So the above provisions constitute grounds due to some act or omission from the part of the tenant and not due to any desire from the part of the landlord. Even without any desire on the part of the landlord, he becomes entitled to apply for eviction or direction as aforesaid solely due to some act or omission from the part of the tenant. Whereas, the other provisions namely Ss.11(3), 11(4)

(iv), 11(7) and 11(8) deal with a claim from the part of the landlord even without any act or omission from the part of the tenant. That is why, the legislature has in its R.C.R. No.358 of 2010 :: 20 ::

wisdom employed the term the claim of the landlord under Ss.11(3), 11(4), 11(7) and 11(8) in S.11(10)."

17. We have carefully gone through the decisions referred to in the reference order as well as the subsequent Division Bench decisions. We do not find any conflict among the decisions of the Division Benches.

18. In Haridas v. Mercantile Employees' Association (1975 KLT 437), the Division Bench said that in a claim under Section 11(7), the landlord must prove the bona fides as provided under Section 11(10). In Krishnan v. Vijayaraghavan (1977 KLT 1013), it was categorically held that when the landlord establishes the ground of subletting as also the grounds under Sections 11(4)(ii),

(iii) and (v) to the satisfaction of the Court, that by itself is proof that the claim is bona fide. In the subsequent Division Bench decisions, the decision in Krishnan v. Vijayaraghavan (1977 KLT 1013) was not referred to. In Azhikode Service Co-op. Bank Ltd. v. Narayanan (1994(2) KLT 29), while answering the contention that though the petition was filed under Section 11(3) the landlord could R.C.R. No.358 of 2010 :: 21 ::

invoke sub-section (7) of Section 11 and, therefore, it is not necessary to establish the bona fide need, the Division Bench made an observation that when the bona fide need is established under sub-section (3) that by itself would not be meant that the claim is bona fide. At the same time, the Division Bench said, ordinarily when the bona fide need is established, it necessarily follows that the claim for eviction also is bona fide unless it is a subterfuge. After referring to the decision in Azhikode Service Co-op. Bank Ltd. v. Narayanan (1994(2) KLT 29), the Division Bench in Aboobacker v. Sahithya P.S.Sangham Ltd. (2004 (2) KLT 947) categorically held that after establishing the bona fide need under sub-section (3) of Section 11, it is not necessary for the Court to further examine whether the claim is bona fide or not.

19. Under Section 11(3) of the Act, the landlord has to prove that he bona fide needs the building for his own occupation or for the occupation of any member of his family dependent on him. While considering the bona fides, the Rent Control Court would consider all the facts and circumstances which may tend to show whether the need is bona fide or not. Section 11(4)(iv) provides for eviction if the R.C.R. No.358 of 2010 :: 22 ::

building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction. Only if the need is bona fide under Section 11(3) and 11(4)(iv), an order of eviction will be passed by the Rent Control Court. The satisfaction to be arrived at by the Rent Control Court under sub-section (10) of Section 11 is taken care of by the proof of bona fides under Sections 11(3) and 11(4)(iv). A further proof that the claim is bona fide need not be undertaken or insisted under Section 11 of the Act, if the bona fides under Sections 11(3) or 11(4)

(iv) is proved. That itself is the proof of the claim being bona fide.

There is not much difference between the claim being bona fide and the need being bona fide. We are of the view that the Legislature never wanted to put a further fetter on the right of the landlord to get an order of eviction on the ground of bona fide need under Section 11(3) or need for reconstruction under Section 11(4)(iv) by compelling the landlord to further prove that not only his need is bona fide but his claim is also bona fide. Apart from testing the bona fides under Section 11(3) or 11(4)(iv), as the case may be, which R.C.R. No.358 of 2010 :: 23 ::

necessarily includes testing the bona fides in all angles, further proof of the bona fides of the claim is not required. Proof of the bona fide need or bona fide requirement under these sub-sections is proof of bona fides of the claim under Sub-section (10) as well. No further proof of the claim being bona fide need be made under Section 11 (10) in the case of an application under Section 11(3) or 11(4)(iv) if the landlord proves bona fide need or the bona fide requirement under Section 11(3) and 11(4)(iv) respectively. In the case of sublease coming under Section 11(4)(i), it is not necessary for the landlord to prove that he bona fide requires the building for any purpose. By the act of subletting the tenant forfeits his protection under the Act. So also, under Section 11(4)(ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently, it is not necessary for the landlord to prove his bona fide need or bona fide requirement for any purpose.

By the very contumacious act of the tenant, the landlord gets a right to get an order of eviction and the tenant loses the protection afforded to him under the Act. In a claim for eviction under Section 11(4)(iii), the requirement to be established is that the tenant already has in his possession a building or subsequently acquires R.C.R. No.358 of 2010 :: 24 ::

possession of or puts up a building reasonably sufficient for his requirements in the same city, town or village. If the ingredients of Section 11(4)(iii) are satisfied, it is not necessary for the landlord to further prove that he requires the building bona fide for any purpose. What is being tested in a Rent Control Petition for eviction under Section 11(4)(iii) is not the bona fides of the landlord but whether the tenant is already safe with a building in his possession for his requirement. In a petition for eviction under Section 11(4)(v), the landlord has to establish that the tenant ceases to occupy the building continuously for six months without reasonable cause. Cessation of occupation by the tenant has no nexus with the bona fides of the landlord. The landlord need not prove his bona fide requirement in a petition for eviction under Section 11(4)(v). By ceasing to occupy the building continuously for six months without reasonable cause, the tenant loses the protection provided to him under the Act. We respectfully agree with the view taken by the learned single Judge (Justice V. Khalid as His Lordship then was) that if Section 11(10) is to be applied to clauses (i), (ii), (iii) or (v) of Section 11(4), then it will lead to very unhappy results. What the Legislature intended by enacting Section 11(10) including the entire R.C.R. No.358 of 2010 :: 25 ::

Section 11(4) can only be to include Section 11(4)(iv) and not the other clauses of that sub-section. As held in Krishnan v. Vijayaraghavan (1977 KLT 1013), this is the only possible construction that can be given to Section 11(10). We also respectfully agree with the way in which the learned single Judge in Krishnan v. Vijayaraghavan (1977 KLT 1013) harmoniously construed the provisions of Section 11(10) and other provisions in the statute.

20. For the aforesaid reasons, we are of the view that in a claim for eviction under Sections 11(3) and 11(4)(iv) of the Act, after proving the bona fides mentioned therein, the landlord need not further satisfy the Court that his claim is bona fide. We hold that in a petition for eviction under Section 11(4)(i), (ii), (iii) and (v) of the Act, it is not necessary for the landlord to prove that the claim is bona fide, since by proof of the ingredients of those clauses in Section 11 (4), the landlord would be entitled to get an order of eviction. For invoking Section 11(7), as held in Haridas v. Mercantile Employees' Association (1975 KLT 437), Azhikode Service Co- op. Bank Ltd. v. Narayanan (1994(2) KLT 29) and Social Service R.C.R. No.358 of 2010 :: 26 ::

Guild of Assissi Sisters v. Ouseph Chacko (2009 (2) KLT 199), the landlord has to establish that his claim is bona fide under Section 11(10) of the Act. In a petition for eviction under Section 11(8), the landlord has to establish that he requires additional accommodation for his personal use and that his claim is bona fide as held in Indian Saree House v. Radhalakshmy (2006 (3) KLT 129) and which was followed by the Full Bench in Kunhammi v. Abdullakutty (2015 (1) KLT 795 (F.B.)). We also hold that there is no conflict between or among the various Division Bench judgments referred to in the reference order.

21. Question No.2: As stated in paragraph 2, the relief under Section 11(2)(b) was allowed by the Rent Control Court, but it was reversed by the Appellate Authority. The Appellate Authority dismissed the Rent Control Petition under Section 11(2)(b). The landlord did not file a Revision against that order. When the present Revision filed by the tenants against the order under Section 11(4)(i) came up for hearing, the landlord contended that the Rent Control Petition under Section 11(2)(b) is liable to be allowed. The landlord did not file any memorandum of cross-objection nor did he file a R.C.R. No.358 of 2010 :: 27 ::

Revision challenging the order under Section 11(2)(b). The question is, by invoking the principles of Rule 22 of Order XLI of the Code of Civil Procedure, whether the landlord can support the order for eviction not only on the ground on which it was allowed but also on the ground on which it was denied to the landlord, by challenging the findings in respect of those grounds on which the court/courts below held against him.

22. The Division Bench while referring the case to a Full Bench opined that the decisions in Santha v. First Additional District Judge (1994 (1) KLT 516) and Ganesh v. Varghese (2005 (1) KLT 282) require reconsideration.

23. In Santha v. First Additional District Judge (1994 (1) KLT 516), the Rent Control Petition was filed under Sections 11(3) and 11(4)(ii) of the Act. The Rent Control Court found the need under Section 11(3) to be bona fide. It was held that the tenants were not entitled to the protection under the second proviso to Section 11(3). The Rent Control Court dismissed the claim for eviction under Section 11(4)(ii). The ground under Section 11(4)(ii) R.C.R. No.358 of 2010 :: 28 ::

was not pursued in appeal by the landlord after the Rent Control Court held against him. The tenants filed an appeal challenging the order under Section 11(3). The Appellate Authority held that the bona fide need is established but upheld the tenants' claim for the benefit under the second proviso to Section 11(3). Accordingly, the Rent Control Petition was dismissed by the Appellate Authority. The landlord filed a Revision before the District Court. The tenants did not file any Revision Petition. They supported the finding of the Appellate Authority under the second proviso to Section 11(3) and also questioned the finding of the authorities below regarding the bona fide need of the landlord. The landlord objected the attempt of the tenants to challenge the finding of bona fides in the Revision filed by the landlord. The revisional court overruled the objection raised by the landlord and considered the question. The revisional court held against the landlord and found that the need set up by her was not bona fide, reversing the finding of the Rent Control Court and the Appellate Authority. The revisional court concurred with the view taken by the Appellate Authority with respect to the claim for protection under the second proviso. Accordingly, the Revision Petition was dismissed. In a petition under Article 227 of the R.C.R. No.358 of 2010 :: 29 ::

Constitution of India filed before this Court, the landlord challenged the order of the revisional court. One of the grounds raised by the landlord before the High Court was that it was not open for the revisional court to consider the question of bona fides when it was not challenged by the tenants by filing a Revision Petition. The Division Bench in Santha v. First Additional District Judge (1994 (1) KLT 516), held thus:

"9. Order 41 R.22 of the C.P.C. entitles the respondent not only to support the decree appealed against but also to state that the finding against him in the court below in respect of any issue ought to have been in his favour, besides taking cross objection to the decree which he could have taken by way of appeal. Thus if any part of the decree of the court below is adverse to the respondent, he has to challenge it by filing a memorandum of cross objection; but if the ultimate decree of the court below is in his favour, he can invoke his rights under R.22 and support the decree on points found in his favour or against, without formally filing a memorandum of cross objection. We do not see why the same principle shall not apply to rent control proceedings or to a revision petition filed under S.20 of the Act. It is no doubt true that O.41 R.22 is not specifically applicable to appeals under S.18 or to R.C.R. No.358 of 2010 :: 30 ::

revisions under S.20 of the Act. An appellate power is the power of entering into an appellate court for a review de novo of the decision of the court below, subject to limitations, if any, on the scope of the appellate power imposed by the provision conferring the right of appeal, as in S.100 C.P.C. Under the procedural law in India, an appeal is a continuation of the suit, and the hearing of an appeal is in the nature of a rehearing (Lachmeshwar Prasad Shukul v. Keshwar Lal Chandhuri, AIR 1941 S.C.

5). The revisional power is only one of the modes of exercising the appellate jurisdiction. It is part of the general appellate jurisdiction though the scope of exercise of the power is limited by the provision conferring the revisional power (Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapet, AIR 1970 SC

1). The difference usually noted between appellate and revisional powers is that in the case of an appellate power, the jurisdiction is wider, extending to examination of questions of fact and of law, and some times of questions of law only, while in the case of the revisional power, it is usually a limited and discretionary one, subject to exercise within limits (vide State of Kerala v.

K.M.C. Abdulla & Co., AIR 1965 SC 1585). Either way, it is the general appellate jurisdiction that is exercised by the revisional court and we do not find any reason why the principles of O.41 R.22 should not be attracted to R.C.R. No.358 of 2010 :: 31 ::

proceedings under the Act whether appellate or revisional. If O.41 R.22 is taboo so far as proceedings under the Act are concerned, any erroneous finding by the Rent Control Court or the Appellate Authority may become final, without the person affected having a right to challenge it in appeal or revision, if the decision of the Rent Control Court or the Appellate Authority is eventually one in his favour on other points. This is so because an appeal or a revision lies under Ss.18 or 20 only at the instance of an aggrieved party, and a person who has an order in his favour cannot be stated to be aggrieved by that order. If we accept the view propounded by counsel for the petitioner, and accepted by the learned Single Judge in Prabodhini, the consequence will be that the findings of the lower authority on a particular point will become final without the aggrieved party having any remedy to challenge it at all in appeal or revision. ....."

24. The Division Bench in Santha v. First Additional District Judge (1994 (1) KLT 516), referred to the judgment in Prabodhini v. Rajammal (1991 (1) KLJ 113), where it was held that the provisions of Order XLI Rule 22 of the Code of Civil Procedure are not applicable to Revision Petitions under Section 20 of the Act and R.C.R. No.358 of 2010 :: 32 ::

that the revisional jurisdiction is not co-extensive with appellate power, though the power under Section 20 of the Act is wider than the jurisdiction under Section 115 of the CPC. In Prabodhini's case it was held that a party cannot challenge any finding rendered by the Appellate Authority except by filing a revision petition. The Division Bench in Santha v. First Additional District Judge (1994 (1) KLT 516), held thus:

"10. In Prabodhini, the learned Single Judge was weighed down by the attenuated nature of the revisional jurisdiction, which according to us, is not material in the context, as it is but part of the general appellate jurisdiction as referred to earlier. The other reason which weighed with the learned Judge was that the landlord has distinct and separate rights under S.11 to seek eviction of a tenant, and if he gets defeated in any one of the several grounds urged by him, he has to challenge it in an appeal or revision filed by him. We must note here that despite being distinct grounds, the landlord is permitted- may, even required - to urge all the grounds available to him in a single consolidated petition. If that be so we fail to understand why he should not be permitted to urge the grounds disallowed in defence to an appeal or revision by the tenant, and be R.C.R. No.358 of 2010 :: 33 ::

driven to file a separate appeal or revision himself. It is a matter of procedure in the ultimate analysis and procedure must be subservient to and be in aid of justice."

25. In Ganesh v. Varghese (2005 (1) KLT 282), eviction was sought under Section 11(2)(b), 11(3) and 11(4)(i) of the Act. The Rent Control Court disallowed the claim under Sections 11(2)(b) and 11(3), but allowed the claim under Section 11(4)(i) of the Act. The tenants filed an appeal challenging the finding under Section 11(4)

(i). No appeal was preferred by the landlord against the findings of the Rent Control Court under Sections 11(2)(b) and 11(3). Though the landlord did not file an appeal against the finding under Section 11(3), the same was considered by the Appellate Authority and the finding of the Rent Control Court under Section 11(3) was confirmed and the Rent Control Petition was dismissed in respect of the ground under Section 11(3). The landlord filed a Revision before the High Court. In the Revision, the tenants raised a preliminary objection that the Appellate Authority was not justified in framing an issue on the claim under Section 11(3) without the landlord filing an appeal under Section 18 of the Act. The preliminary objection was R.C.R. No.358 of 2010 :: 34 ::

considered by the Division Bench in Ganesh v. Varghese (2005 (1) KLT 282) and held thus:

"6. We may first examine whether the Appellate Authority is justified in raising an issue under S.11(3) in a case where landlord had failed to file an appeal on the adverse finding rendered by the Rent Control Court. Rent Control Court has ordered eviction under S.11(4)(i) of the Act. So far as the landlord is concerned, he is already armed with an order of eviction and there is no purpose in further litigating the matter even if the Rent Control Court has rejected one of the grounds raised by him for evicting the tenant. Landlord will always be hopeful that the order which is in his favour would be upheld and in a given case if the tenant is not preferring an appeal under S.18 of the Act against the order of eviction, the question of filing appeal by the landlord does not arise since he is already armed with an order of eviction. It is not the law, once tenant has filed an appeal aggrieved by the order of eviction landlord shall also file an appeal or cross appeal challenging all the findings rendered against him even if the order of eviction is in his favour. In appeal if the Appellate Authority is likely to disagree with the order of eviction it is always open to the landlord to attack the findings against him on other grounds and try to sustain the order of eviction on the basis of evidence already on R.C.R. No.358 of 2010 :: 35 ::

record. Landlord is not raising any new ground or adducing fresh evidence but only attacking the findings on the basis of available evidence on record. Though O.XLI R.22 of the Code of Civil Procedure is not specifically applicable to appeals under S.18 or to revisions under S.20 of the Act, the principle contained therein would always apply for Courts to do complete justice between the parties. O.XLI R.22 entitles the party not only to support the finding appealed against but also to state that the finding against him in the Court below in respect of any issue ought to have been in his favour. Such a contention is being raised on the basis of the pleadings already raised and also by the oral and documentary evidence already adduced. We are therefore in complete agreement with the principle laid down by the Division Bench of this Court in Santha v. Ist Addl. District Judge, 1994(1) KLT 516. We therefore hold even without filing an appeal under S.18 of the Act before the Appellate Authority, he can still challenge the findings adverse to him in the appeal and later in a revision preferred under S.20 of the Act."

26. The Division Bench in Ganesh v. Varghese (2005 (1) KLT 282) approved the view taken in Santha v. First Additional District Judge (1994 (1) KLT 516).

R.C.R. No.358 of 2010

:: 36 ::

27. In Susheela v. Balakrishnan (2014 (1) KLT 1004), the question involved in the Revision was whether it was necessary for the tenant to file a memorandum of cross-objection against the finding of the Rent Control Court in favour of the landlord under the second proviso to Section 11(3) of the Act, when the landlord challenges in appeal the order of the Rent Control Court holding that the landlord has not established the bona fide need under Section 11(3) of the Act. This question was answered by the Division Bench (in which Justice K.T.Sankaran was a party) holding that the Appellate Authority was not right in holding that the tenant should have filed a memorandum of cross-objection challenging the finding against him. The Court held thus:

"10. We are of the view that the Appellate Authority was not right in holding that the tenant should have filed a Memorandum of Cross-objection challenging the finding against him under the second proviso to S.11(3) of the Act. Even in a civil proceeding before the Civil Court, R.22 of Order XLI enables the respondent in an appeal to challenge the finding of the Trial Court against him, while supporting the ultimate conclusion arrived at by the Trial Court. The respondent R.C.R. No.358 of 2010 :: 37 ::

can do so in an appeal filed by the opposite party. He need not file a Memorandum of Cross-objection for that purpose. (See Naseer Ahmed v. State Bank of Mysore (2007 (2) KLT 369 (SC) = AIR 2007 SC 989); Ravinder Kumar Sharma v. State of Assam (AIR 1999 SC 3571); Puthumana Meenakshi Amma v. Puthumana Kalliani Amma & Ors. (2010 (4) KLT SN 27 (C.No.32) = ILR 2010(4) Ker. 449); Muhammad v. Chandrika (2010 (3) KLT 306)).

11. There is no provision in the Act to prefer a Memorandum of Cross-objection in an appeal filed before the Appellate Authority. S.18 of the Act provides for appeal. Sub-section (3) of S.18 provides that the Appellate Authority shall send for the records of the case from the Rent Control Court and after giving the parties an opportunity of being heard, and if necessary, after making such further enquiry as it thinks fit either directly or through the Rent Control Court, shall decide the appeal. Sub-section (4) of S.18 provides that the Appellate Authority shall have all the powers of the Rent Control Court including the fixing of arrears of rent.

S.20A of the Act confers power on the appellate and revisional authorities to remand the case for fresh disposal. S. 22 of the Act states that the provisions of s.146 and Order XXII of the Code of Civil Procedure R.C.R. No.358 of 2010 :: 38 ::

shall, as far as possible, be applicable to the proceedings under the Act. Under S.23, the Rent Control Court and Appellate Authority shall have the powers which are vested in a Court under the Code of Civil Procedure, in respect of the matters mentioned in clauses (a) to (k). The power of remand is specifically conferred on the Appellate Authority, which is one of the powers available to the Civil Court under S.107 and Rr.23 and 23-A of Order XLI the Code of Civil Procedure. The finding under the second proviso to S.11(3) of the Act is not a separate order on any of the grounds in the Rent Control Act, but it constitutes a finding which forms part of an order under S.11(3) of the Act. When the Rent Control Court found that the landlord did not establish the bona fide need and also found that the tenant failed to establish the ingredients of the second proviso to S.11(3) of the Act, the necessary consequence is dismissal of the Rent Control Petition. The tenant cannot file an appeal against the finding under the second proviso to S.11(3) of the Act, since the ultimate finding in the Rent Control Petition in respect of the ground under S.11(3) is in favour of the tenant."

28. In B. Prabodhini v. P. Rajammal (1991 (1) KLJ 113), a learned single Judge of this Court held thus: R.C.R. No.358 of 2010

:: 39 ::

"8. ...... The landlord has separate and distinct rights under the various clauses of section 11 to get the tenanted premises recovered. If the landlord applies for recovery on two or more grounds and recovery is ordered only on one ground, the landlord if wants to get recovery on the ground which is declined has to challenge the order in that regard before the revisional court. The tenant who has been directed to put the landlord in possession of the premises on one of the grounds if challenges the same in revision, the landlord will not be having the right to sustain the order of eviction on another ground, without preferring a separate revision. ....."

The decision in Prabodhini v. Rajammal (1991 (1) KLJ 113) was overruled in Santha v. First Additional District Judge (1994 (1) KLT 516).

29. In Indian Saree House v. Radhalakshmy (2006 (3) KLT

129) it was held that sub-sections (3) and (8) of Section 11 are mutually exclusive though some of the matters to be proved in order to get an order either under sub-section (3) or under sub-section (8) of Section 11 are common.

R.C.R. No.358 of 2010

:: 40 ::

30. In Abdul Rahiman and others v. Ramankutty Moothan (1983 KLT 726), it was held thus:

"13. ...... According to me, S.11(3), 11(4) (iv) and 11(8) are independent provisions. In all these cases the requirement should be bona fide. But the nature of the requirement in each section is different. In certain cases, the shades of requirement may overlap. But each section operates independent of the other. It may be that in certain cases the Court may while ordering eviction under S.11(3) permit the landlord to occupy it after necessary alterations or reconstruction. But a combined order for eviction under S.11(3), 11(4)(iv) and 11(8) cannot be passed, for these sections prescribe different post-eviction conditions. I find support for this view in Subramania Iyer v. Krishnaswamy (ILR 1981 (2) Kerala 442) by Poti J., where it was thus held, and with respect rightly that S.11(3) and 11(4) are independent provisions. ......"

31. In Kunhammi v. Abdullakutty (2015 (1) KLT 795 (F.B.)) (in which Justice K.T.Sankaran was a party), the decision in Indian Saree House v. Radhalakshmy (2006 (3) KLT 129) was followed. The Full Bench held that Sections 11(3) and 11(8) are mutually R.C.R. No.358 of 2010 :: 41 ::

exclusive and independent. However, Sections 11(3) and 11(8) are not always mutually destructive.

32. The Kerala Buildings (Lease and Rent Control) Act provides for different grounds for eviction, namely, (1) Arrears of rent - Section 11(2)(b); (2) bona fide need for own occupation or for the occupation of any member of his family - Section 11(3); (3) Sub- letting - Section 11(4)(i); (4) The tenant using the building in such a manner as to destroy or reduce its value or utility materially and permanently - Section 11(4)(ii); (5) The tenant acquiring possession of a building sufficient for his requirements - Section 11(4)(iii); (6) Landlord bona fide requiring the building for re-construction - Section 11(4)(iv); (7) The tenant ceasing to occupy the building continuously for six months without reasonable cause - Section 11(4)

(v); (8) The building owned by a religious, charitable, educational or other public institution, if needed for the purpose of the institution - Section 11(7); (9) Additional accommodation for the personal use of the landlord - Section 11(8). Each ground is distinct and separate. The ingredients to be proved for attracting the particular ground for eviction are also distinct and different though some of the R.C.R. No.358 of 2010 :: 42 ::

ingredients in respect of different grounds may overlap. The burden of proving the ingredients in respect of different grounds under Section 11 may also vary. In respect of some grounds, the burden may be on the landlord while in respect of the other, the burden of proof may be on the tenant. The standard proof to attract different grounds for eviction is also not the same. On a meticulous consideration of the aforesaid decisions, we approve the principles laid down in paragraph 9 of the judgment of the Division Bench in Santha v. First Additional District Judge (1994 (1) KLT 516). With respect, we are not in a position to agree with the findings in paragraph 10 of the said judgment in Santha's case. The decision of the single Judge in Prabodhini v. Rajammal (1991 (1) KLJ 113) was overruled in Santha v. First Additional District Judge (1994 (1) KLT 516). We concur with the view taken by the single Judge in Probodhini's case that in a case where the landlord applies for eviction on two or more grounds and eviction is ordered only on one ground and if the landlord wants to get recovery on the ground which is declined, he has to challenge the order in that regard. We also agree with the view taken in Probodhini's case that the tenant, who has been directed to put the landlord in possession of the premises R.C.R. No.358 of 2010 :: 43 ::

on one of the grounds, if challenges the same in revision, the landlord will not be having the right to sustain the order of eviction on any other ground without preferring a separate revision. For the same reasons, we respectfully disagree with the view taken by the Division Bench in Ganesh v. Varghese (2005 (1) KLT 282). In Susheela v. Balakrishnan (2014 (1) KLT 1004), the position was different from that in Ganesh v. Varghese (2005 (1) KLT 282) or in Santha v. First Additional District Judge (1994 (1) KLT 516). In Susheela's case, the Rent Control Court found that the landlord did not establish the bona fide need put forward by him in a petition under Section 11(3) of the Act. It was also found by the Rent Control Court that the tenant failed to establish the ingredients of the second proviso to Section 11(3) of the Act. The result was that the Rent Control Petition was dismissed. In the appeal filed by the landlord, the question which arose for consideration was whether in an appeal filed by the landlord the tenant could support the ultimate decision of dismissal by opposing the finding under the second proviso to Section 11(3) of the Act. The Division Bench held that the tenant could do so, by invoking Rule 22 of Order XLI of the CPC. That situation is quite different from a case where the respondent in an R.C.R. No.358 of 2010 :: 44 ::

appeal/revision challenges the correctness of an order passed by the Rent Control Court/Appellate Authority against him on a distinct ground without filing an appeal/revision. If a finding in respect of a particular ground for eviction is against the respondent in an appeal/revision, he could support the ultimate order of the court below on that ground, by even challenging the finding against him in the order/judgment of the court below. By that process, the respondent in an appeal/revision is only supporting the order/judgment in his favour for reasons other than on which the decision was rendered by the court below. That situation is quite different from a party challenging an order/judgment on a distinct or different ground of eviction in an appeal/revision filed by the opposite party, without filing a separate appeal/revision and without filing a memorandum of cross-objection. (In this order, we are not deciding the question whether a memorandum of cross-objection would lie in a Revision under Section 20 of the Act.)

33. For the aforesaid reasons, we are of the view that a party in a Rent Control Petition is not entitled to challenge the order/judgment of the court below against him on a distinct and R.C.R. No.358 of 2010 :: 45 ::

separate ground of eviction, in an appeal or revision filed by the opposite party challenging the order/judgment against him on another ground of eviction. In other words, though the respondent in an appeal/revision can support the ultimate conclusion on a distinct ground by even opposing the finding in respect of that ground, he cannot challenge an order on a distinct and different ground which was decided against him by the court below, while opposing the appeal/revision filed by the opposite party. Order XLI Rule 22 or the principles thereunder can be invoked by the respondent in an appeal/revision only to support the ultimate conclusion in his favour granted by the lower authority in respect of a ground of eviction which is the subject matter of the Appeal/Revision. A respondent cannot invoke Order XLI Rule 22 of the CPC in an appeal/revision filed by the opposite party, for the purpose of getting an order in favour of the respondent on a distinct and different ground of eviction which was denied to him by the lower authority.

The questions referred to the Full Bench are answered accordingly. Since the Revision has become infructuous on account of the settlement of the case out of Court, it is not necessary to R.C.R. No.358 of 2010 :: 46 ::

arrive at a finding on the facts of the case. The Revision is disposed of accordingly.

K. T. Sankaran Judge P.D.RAJAN Judge P.UBAID Judge ahz/1/12/2016

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