Revision vs By Advs.Sri.S.Vinod Bhat on 28 March, 2014

[Cites 20, Cited by 3]

Kerala High Court

Revision vs By Advs.Sri.S.Vinod Bhat on 28 March, 2014

1.The revision petitioner herein is the petitioner in R.C.P.No.159 of 2010 on the file of the III Additional Munsiff and Rent Control Court, Ernakulam. The said petition was filed seeking eviction of the tenant raising the grounds under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (referred to as 'the Act' for brevity).

2.Facts which led to the filing of the petition seeking eviction are that the petitioner is the owner of building bearing Door Nos. C.C.XXXIX/4444 and XXXIX/4445, which was let out to the 1st respondent, a partnership firm. In R.C.Rev. No.169/2014 2 continuation to the earlier arrangement, the lease was renewed on 23.6.2008 and the period expired on 30.4.2009. The monthly rent was fixed at 17,325/-. As per the stipulation in the lease agreement, rent payable for the period commencing from 1.5.2009 to 31.3.2010 was Rs.18,191/- together with service charge of Rs.1874/-. The respondents committed default in paying the rent from April, 2010 to July, 2010. The statutory notice issued demanding arrears did not yield any result. According to the petitioner, he is the Managing Director of M/s.Pulickal Medical Foundation which runs Medical Trust Hospital. He is well acquainted with businesses, which are ancillary to the medical field. The wife of the petitioner, Smt.Rosily Antony is the proprietress of M/s. Pulickal Surgical Distributors. Smt.Rosily Antony wants to start an outlet of her proprietary concern in the Medical Trust Hospital Complex. The petition schedule shop rooms are R.C.Rev. No.169/2014 3 ideal for commencing the said business. She is not having any vacant building in her own name in the Medical Trust Hospital Complex and hence she is dependant on him for the shop rooms. He contended that the need is bona fide and that he is not having any suitable shop room in his possession for putting it to the above use. He also contended that the respondents are not entitled to the benefit of the second proviso to sub section (3) of Section 11 of the Act.

3.The 1st respondent partnership firm remained ex parte. The 2nd and 3rd respondents filed separate objections controverting the contentions of the petitioner. According to the 2nd respondent, he is the proprietor of "Swastik Sweets" and has been conducting business independently in shop room No.XXXIX/4444 since the year 1990. Though the tenancy had commenced in the year 1974 in the name of a partnership firm, the firm was dissolved in R.C.Rev. No.169/2014 4 the year 1990 and the room was allotted to the 2nd respondent. He denied that the rent was in arrears and contended that rent at the rate of Rs.10,835/- together with service charges was paid on 10th of October, 2010 for the period upto September, 2010. According to him, the filing of the petition is only a stratagem of the petitioner to evict him and he resolutely challenged the bona fides of filing the petition. He contended that he was entitled to the benefit of the second proviso to Section 11(3) of the Act.

4.The 3rd respondent in his objection contended that he was doing independent business in readymade garments in shop room bearing No. XXXIX/4445. He is the proprietor of the said business and denied having any connection with the business being run by the 2nd respondent. He admitted that Rs.18,191/- is the rent payable for both the shop rooms; but according to him, his share for the rent R.C.Rev. No.169/2014 5 works out to 46% of the above amount. According to him, rent upto the month of September, 2010 has been paid. He also denied the bona fides of the petitioner in filing the petition. According to him, the wife of the petitioner is having her own independent building in the city and the likelihood of the petitioner's wife commencing business in the petition schedule shop room is remote. He also contended that he is entitled to the benefit of the proviso.

5.The Rent Control Court framed the necessary issues for consideration and the parties were permitted to let in evidence. The petitioner entered the box and gave evidence as PW1 and his dependent wife was examined as PW3. The Manager of the petitioner gave evidence as PW2. On his side, Exts.A1 to A6 were marked. The respondents 2 and 3 tendered evidence and on their side Exts.B1 to B18 were marked. Exts.C1 and C2 are the R.C.Rev. No.169/2014 6 Commission reports, which were marked.

6.On an evaluation of the materials, the Rent Control Court came to the conclusion that the respondents had kept the rent in arrears and the petition was allowed under section 11(2)(b) of the Act. The courts below held that the first proviso to section 11(3) will not be attracted. It was also held that the tenants failed to prove that they are entitled to the protection under the second proviso to section 11 (3). However, holding that the evidence reveal that the requirement was that of the petitioner/landlord and not of his dependent wife, the claim was rejected.

7.Against the above order, the petitioner preferred R.C.A. No.44 of 2012 before the Appellate Authority. After re-appreciating the evidence, the Appellate Authority concurred with the view of the Rent Control Court and held that the materials reveal that the need was that of the husband/petitioner and not of the dependent wife and R.C.Rev. No.169/2014 7 therefore the need cannot be said to be bona fide. However, the findings insofar as the first and second proviso to section 11(3) of the Act was found in favour of the landlord. Consequently, the appeal was dismissed with costs. The above concurrent findings are challenged in this revision petition filed under section 20 of the Act.

8.Heard Sri.R.D.Shenoy, the learned Senior Counsel appearing for the petitioner, as instructed by Sri.S.Vinod Bhat, Sri.M.Hari Sharma, learned counsel appearing for the 2nd respondent and Sri.A.Dinesh Rao, learned counsel appearing for the 3rd respondent.

9.The learned Senior Counsel would initially submit that though, ordinarily, the finding of fact arrived at by the two fact finding courts are immune from challenge in a revision petition filed under section 20 of the Act, if the conclusion arrived at by the courts below is so unreasonable that no person acting with objectivity could R.C.Rev. No.169/2014 8 have reached such a conclusion, this Court would be justified in considering the materials in exercise of its revisional powers. The petitioner as well as his wife entered the box and asserted that their need is genuine and bona fide. It had come out in evidence that the petitioner was the Managing Director of a reputed Hospital and his wife was running an establishment for the past several years in medical ancillaries. The specific case of the petitioner was that the shop room occupied by the respondents, right in the precincts of the hospital complex was required for starting a retail outlet. The dependency was proved by letting in evidence. However, some minor discrepancies in the evidence of PW3 was blown beyond proportion by the Courts below to non suit the petitioner. The learned Senior Counsel took us through the provisions of the Act and went on to submit that the bona fide need that is to be proved is always that of the landlord and it is R.C.Rev. No.169/2014 9 for him to show that the possession of the building is required either for his own occupation or for the occupation of any member of his family dependant on him. Placing reliance on the decisions of the Apex Court in Harbajan Singh v. Press Council of India and Others (2002(3) SCC 722) and Guru Jambeshwar University through Registrar v. Dharam Pal (2007 (2) SCC 265) it was contended that the words of a statute must prima facie be given its plain and literal meaning and that the language should not be artificially strained or extended to make it impossible for the landlord to get an order of eviction. When the husband and wife are living together as a unit, the need of the wife is the need of the husband and merely because the wife stated in cross examination that her husband would be helping her in the business would not, by any manner, diminish the rigour or dependency of her need. Reliance was also placed on the R.C.Rev. No.169/2014 10 decision of the Apex Court in Sarala Ahuja v. United India Assurance Co.Ltd. (AIR 2009 SC 100) to bring home the point that when the landlord asserts that he requires the building bona fide, the rent controller shall proceed on the presumption that the requirement is bona fide. The learned Senior counsel would also rely on the decisions of this Court in Sheela v. KAMCO Employees Union [2010 (2) KLT 435], Mohamood Haji v. Devootty Amma [2004 (2) KLT 248] and Basheer M. v. Remani Gopalan and Another [2014 (1) KHC 436] while advancing his arguments. According to the learned Senior counsel, a perverse finding has been rendered by mis- appreciating the evidence and hence the same is open to correction in exercise of powers under Section 20 of the Act. Reliance was placed on a Constitutional Bench decision of the Apex Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh [2014 (9) SCC R.C.Rev. No.169/2014 11 78].

10.Sri.Hari Sharma, the learned counsel appearing for the 2nd respondent took us through the evidence and contended that both the courts below placed themselves in the chair of the landlord and after analysing the evidence, came to the conclusion that the need advanced was not natural, sincere and honest. The dependant, who was examined as PW3, stated in unequivocal terms before court that the need to commence the business was that of the husband and not of the dependant. According to the learned counsel, the dependency should be pleaded and proved and the fact that the wife is a member of the family will not presuppose that the wife is dependent on her husband and thus satisfy the requirement of section 11 (3). The learned Counsel would rely on the decisions of this Court in Albert Mendez V. Rema Chandran and Others (2007 (3) KLT 23), Puthampurayil Mariyam R.C.Rev. No.169/2014 12 and Others V. Sunenda @ Suganda and Others (2013 (2) KLT 226), Mymoon K.S. and Others V. The Dunlop India Ltd (ILR 2009 (2) Ker. 258), Kizshakkeyil Suhara and Others V. Manhantavida Aboobacker (Dead) By Lrs and Another, Regy v. Edathil V. Hubert Leslie D'Cruz (2016 (2) KLJ 164) to support his submissions.

11.Sri.Dinesh Rao, the learned counsel appearing for the 3rd respondent would submit that the pleadings would form the back bone of every case and when the evidence let in militates against the pleadings raised, no reliance can be placed on the same. The pleadings in the petition portrayed that eviction was sought for occupation of the business run by the wife. However, the dependent had no such case. It is further submitted by the learned counsel that it had come out in evidence that the petitioner as well as the dependent were in possession of vacant premises which were suitable for their use quite near to the petition R.C.Rev. No.169/2014 13 schedule shop room and their failure to accommodate the retail outlet in the said vacant premises would tell upon the bona fides of the claim raised. Much reliance was placed on the decision of the Apex Court in Joginder Pal v. Naval Kishore Behal (2002 (5) SCC 397) to bring home the point that the fact finding courts have rightly rejected the petition, finding that the intention of the petitioner was only to secure an order of eviction by some means. Reliance was also placed in the case of Bhargavi Amma P. V K.P. Ajayakumar (2016 (1) KHC 347) to contend that the non disclosure of the landlord of the availability of buildings in his possession will cut the bona fides of the need projected by the landlord. It was also submitted by the learned counsel that the revisional jurisdiction is narrow and limited and that this Court will not be justified in re-appreciating the evidence and differ from the conclusions arrived at concurrently by the courts R.C.Rev. No.169/2014 14 below.

12.We have considered the submissions advanced and we have gone through the evidence adduced by the parties.

13.We shall remind ourselves that under Section 20 of the Act, the consideration or examination of evidence by this Court is confined to find out whether the finding of fact recorded by the authorities below is according to law and does not suffer from any error of law. Only in cases where, the finding of fact arrived at by the authorities below is perverse and/or has been arrived at without consideration of material evidence or such finding is based on a misleading of evidence or is grossly erroneous, will this Court be justified in interfering with the orders to correct the same. Our endeavour precisely is to ascertain whether the findings of the courts below that the order under Section 11(3) of the Act is to be refused, as according to the courts below, the evidence let in revealed R.C.Rev. No.169/2014 15 that the need was that of the petitioner/husband and not of the dependent/wife, is justified or not.

14.We shall briefly advert to the evidence of PW1 and PW3 to have a picture of the need set up by the petitioner. The petitioner stated that he is the Managing Director of M/s.Pulickal Foundations which runs Medical Trust Hospital. His wife is the proprietress of Pulickal Surgical Distributors, which establishment is situated at Ravipuram. There is also no serious objection or a contention that Rosily Antony is not the proprietress of the business, which is being run in a building having an area of about 3000 square feet, that the said business is being run for the past 6-7 years and that its annual turnover is about 3 Crores. There cannot be any doubt that the business run by the dependant on medical ancillaries is intimately connected with the hospital business run by the petitioner. It has also come out in evidence that supplies R.C.Rev. No.169/2014 16 and deliveries are made to various Hospital including Medical Trust Hospital by the establishment run by his wife.

15.The wife of the petitioner, Rosily Antony was subjected to searching cross examination with regard to all the aspects in connection with her business. Repeated questions on intricate aspects of the business yielded unsatisfactory answers, according to the respondents. For instance she was asked about the items which were being dealt with by her. Though she gave the names of some of the items, she was not able to furnish the entire details. In the same manner, when she was asked about the details of the various hospitals to which the supplies are made and also the names and details of all the employees working in the establishment, the answers were found wanting. This aspect was highlighted by the respondents to contend that the business was actually run by the R.C.Rev. No.169/2014 17 petitioner and not the wife, who is nothing but a name sake. PW3 had fairly stated in her evidence that all the intricate affairs including tax matters in connection with her business were dealt with by her husband. The critical decisions in connection with the business are taken by her husband. To a pointed question in cross examination, she stated that the eviction was sought to enable her husband to commence the business. She stated that all the other business are run as family concerns and her husband wanted to run some business in his own right. However during re-examination, PW3 clarified her statement and stated that eviction was sought for housing her business and stated that her earlier statement was not correct.

16.The trial court after appreciating the evidence of PW1 and PW3 have concluded as follows:

"So, from the evidence it can be seen that it is not the requirement of PW3 to start a business of her own. There is no wrong in starting a business R.C.Rev. No.169/2014 18 venture jointly by the husband and wife. Here, PW1 has no such case. He has also no case that the requirement of starting an outlet is that of him."

17.The Appellate Authority took the same view and in paragraph No.13 it was held as follows:

"It is clear from the available evidence that the decision has been taken by her husband to start a business in surgical equipment and the RCP has also been filed as decided by her husband. In view of the materials available on record it is clear that the bona fide requirement is not that of PW3 but the requirement is that of the appellant to start a new business. The appellant has also no case that he intends to start a joint venture business along with his wife. He has also no case that he intends to start a business of his own. In view of the materials discussed above, it is clear that it is the desire of the appellant and not the actual need of his wife to start a business by evicting the respondents from the tenanted premises. Therefore, the need pleaded by the appellant cannot be treated as bona fide need as rightly held by the court below."

18.It is obvious from the above findings that the rent Control Court as well as the appellate authority were clearly swayed by the testimony of PW 3 in her cross R.C.Rev. No.169/2014 19 examination which tended to show that the need was that of the landlord to commence an outlet and not that of the dependant . It also appears that the Courts below were not impressed with the clarification given by the dependant in her re-examination.

19.At this juncture a brief reference to S.11(3) of the Act will be apposite. It reads as under .

Section 11(3):A 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 by any member of his family dependent on him:

Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so:

Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business R.C.Rev. No.169/2014 20 carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:

xxxxx xxxx

20.A plain reading of the provision of sub-section (3) of S.11 shows that it enables a landlord to seek possession of the building from his tenant by making an application to the Rent Control Court, if he bona fide needs the buildings for his own occupation or for the occupation by a member of his family dependant on him. The sub-section takes note of not only bona fide need of the landlord but also the need of the members of his family dependant on him.

Where the landlord bona fide needs the building, not for his own occupation, but for occupation of a member of his family, the landlord is required to plead and substantiate three ingredients. Firstly, a person for whose need the premises is required is a member of the landlord's family. Secondly, such member of the family is dependent on the R.C.Rev. No.169/2014 21 landlord and thirdly, there is bona fide need. In the absence of any of the three ingredients, the petition by a landlord under Section 11(3) of the Act would fail. The mandate of the first and the second provisos is directed to the Rent Control Court. The first proviso directs that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied, for special reasons, in any particular case, that it will be just and proper to do so, it has to record the special reasons. The legislative mandate contained in the second proviso is not to give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such R.C.Rev. No.169/2014 22 trade or business. If the need projected is that of the dependant , the same also will have to satisfy the test of being bona fide.(See Kizhakkekkayil Suhara and Others V Manhantavide Aboobacker ( Dead ) by Lrs and Another [2001 (8) SCC 19]; Koyilerian Janaky and Others v. Rent Controller (Munsiff), Cannanore and Others [2000 (9) SCC 406]).

21.The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire. Further, such requirement must be bona fide which is intended to avoid a mere whim or desire. The "bona fide requirement" must be in praesenti and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire. The Judge of facts should place himself in the arm chair of the landlord and ask the question to himself - whether in the given facts substantiated by the R.C.Rev. No.169/2014 23 landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant would be enough to persuade the court to deny its judicial assistance to the landlord. (see Deena Nath v. Pooran Lal [2001(5) SCC 705] ; Shiv Sarup Gupta v. Mahesh Chand Gupta [AIR 1999 SC 2507].

22.Whether bona fide need is established or not on the basis of the evidence is a question depending upon the facts of each case. A reading of the statutory provision would reveal that it is for the landlord to apply to the Rent Control Court and it is for him to show that the need is R.C.Rev. No.169/2014 24 bona fide; the need projected may be that of the landlord or for the dependent. In other words, the requirement to establish the bona fides of the need is squarely on the landlord. As held by this Court in Devayani v. Pulickaparambil Hamsa Haji [1997 (1) KLJ 230] by placing reliance on Narasimhachari v.

Kanakasabhapathi [1964 (1) MLJ 256], the bona fides of the need may be proved in an ordinary way like any other fact.

23.In the case on hand, the dependant for whose non- residential occupation eviction is sought, is the wife of the petitioner. According to the petitioner, the building is required for the purpose of opening an outlet for the ancillary medical equipments business run by the wife. The fact that the petitioner's wife is the proprietress of Pulickal Surgical Distributors is undisputed . The landlord has also given evidence that the outlet of the proprietory R.C.Rev. No.169/2014 25 concern of PW 3 has to be commenced in the Hospital complex itself. We find from the objection filed by the 2ndrespondent, that there is only a general denial. We also find that in the objection filed by the 3rd respondent, the contention is that probability of the wife of the petitioner commencing such a petty business in the tenanted premises is very less. In other words, competency and capability of PW 3 in running the said business remains unchallenged. Evidence has also been let in that the business is being run by his wife for the past 7 years and that the total turnover is about Rs.3 Crores.

24.But when PW 3 was subjected to cross examination , the counsel appearing for the tenants were able to bring out that she was a person who was depending on the skills of her husband for running her business . Though in her examination in chief , she stated that she wanted to start R.C.Rev. No.169/2014 26 a retail outlet of her proprietary concern in the premises surrounding the Medical Trust Hospital Complex itself, and that she is dependant on her husband for the above need, while she was cross-examined she stated that it was the petitioner who takes all the decisions in connection with the business. She also deposed that she would not oppose the decisions of the petitioner and that the decision to file the rent control petition was taken by the petitioner. In the fag end of her cross-examination by the learned counsel appearing for the 3rd respondent, she stated that the eviction petition was filed to enable the husband to commence the business. However, in re- examination , she clarified and stated that the business, which is intended to be commenced in the tenanted premises, was her own and that the mentioning of her husband's name in cross-examination was a mistake. Both the courts below have concluded that the petitioner is not R.C.Rev. No.169/2014 27 entitled to an order of eviction as the requirement is not that of PW 3 but that of the landlord himself.

25.We find it difficult to accept the conclusions of the courts below. We find that the above conclusion is a product of gross misinterpretation of the evidence let in. It is true that she had stated that it is for the need of her husband that the petition was filed. Though this is clearly against the pleadings, we find that in re-examination, the witness had clarified her earlier statement and had deposed in tune with her pleadings. Section 138 of the Indian Evidence Act, 1872 states that re-examination shall be directed to the explanation of matters referred to in cross- examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. In other words, the party who called the witness may, if he likes, and if it be necessary, re-examine his witness. The right R.C.Rev. No.169/2014 28 of re-examination after the conclusion of cross- examination is directed to the explanation of any part of his evidence during cross-examination and which is capable of being construed unfavorably to the party applying for re-examination. The object is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination in chief and cross- examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity. Here we find that PW3 had lost no time to clarify her position and to explain the statement made by her in cross examination.

26.Even otherwise, we are of the view that the materials brought out in cross examination was not of such a nature as to reject the case of the petitioner. From the tenor of her evidence it appears that a decision was taken by the husband to commence a retail outlet in the same Hospital R.C.Rev. No.169/2014 29 Complex of which he is the Managing Director. This is not a case in which the wife is unemployed or is inexperienced in business. Materials reveal that she is the proprietress of a business which is being run successfully. We cannot forget the fact that the dependant is none other than the wife of the petitioner and she is a person who is socially and economically dependant on him and whose responsibility the petitioner has accepted by marrying her. The institution of marriage in India is the social unit and it is of great public importance to keep it together. The Division Bench of the Andhra Pradesh High Court in B.Balaiah v. Chandoor Lachaiah (AIR 1965 AP 435) have held that the expression "landlord" and "his" in the pari materia provisions contained in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 must include all normal emanations of the landlord so as to include his wife and children though on a strict R.C.Rev. No.169/2014 30 construction of the expression they may not be available to be included within landlord himself. The need projected here is that of the landlord himself though it is for the occupation of the business of the dependant. The need of the landlord is linked with the occupation of those premises by his own wife and if that be the case, the courts below were not justified in rejecting the petition holding that the need was that of the petitioner and not his wife.

27.In Joginder Pal (Supra), the Apex Court had occasion to determine as to what construction should be placed on the phrase "his own use" in the Urban Rent Restriction Act, 1948 (East Punjab). Unlike Act 2 of 1965, the 1948 Act contained no provision for eviction of tenant for the occupation of any member of the family of the landlord dependent on him. In Joginder, the landlord had filed a petition seeking eviction of the tenanted premises on the R.C.Rev. No.169/2014 31 ground that it was required for the office of his son who was a chartered accountant residing with the landlord himself. The question was whether the phrase "his own use" in the Act should be assigned a narrow meaning that it is the individual requirement of the landlord or in other words, the requirement of the landlord and landlord alone or whether a wide and liberal meaning should be given to the expression by treating it as a vibrant one so as to respect the context in which it has been used feeling the pulse of the object behind the provision. After surveying a plethora of case law under different state legislations, it was held by the Apex Court that the judicial opinion leans entirely in favour of assigning the expression "his own"

requirement of the landlord a liberal, wide and useful and even an extended meaning as that would advance the purpose of enacting the provision discarding a narrow interpretation.

R.C.Rev. No.169/2014 32

28.It was held in para No.24 that the expression 'for his own use' as occurring in S.13(3)(a)(iii) of the Act cannot be narrowly construed and the expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. The pari materia provisions in various state Acts were interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as "his" or "his own" requirement R.C.Rev. No.169/2014 33 and user. The Apex Court had taken note of the social or socio religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and / or the landlord. It was held that if the landlord requires the tenanted premises to discharge the said obligation, such requirement would be the requirement of the landlord.

29.As held in Shiv Sarup Gupta V Dr Mahesh Chand Gupta [199(6) SCC 222] , the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life and an approach either too liberal or too conservative or pedantic must be guarded against.

30.We find that in Joginder Pal (Supra), the Apex Court R.C.Rev. No.169/2014 34 held that the courts are bound to enquire and act with circumspection when the need projected is the requirement of the premises by a person other than the landlord himself. The courts were directed to ask themselves the following questions:

(i) whether the requirement of such person can be considered to be the requirement of the landlord, and

(ii) whether there is a close inter relation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query.

It was observed that the answer to the above questions would, in its turn, depend on :-

(i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as "his own" and the person who would actually use the premises.

(ii) the circumstances in which the claim arises and is put forward and R.C.Rev. No.169/2014 35

(iii) the intrinsic tenability of the claim. The courts on being satisfied of the reasonability and genuineness of the claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlords claim.

(iv) while casting its judicial verdict , the court has to adopt a practical and meaningful approach guided by the realities of life.

31.It is by now settled that dependency does not mean financial dependency but dependency for the building which belongs to the landlord/husband. The requirement of the wife, in view of the degree of relationship between the parties, has to be considered to be the requirement of the landlord himself. There is a close interrelationship and identity nexus which is unchallenged. There is no reason to doubt the tenability of the claim in view of the fact that the wife was running an established business for the past several years. It does not appear to us that the filing of the petition is a ruse to evict the tenants. We find that R.C.Rev. No.169/2014 36 both the courts below have missed the forest for the trees. The petitioner was bound to prove his bona fides by all measures possible and merely because the wife had stated that she was assisted in all aspects of the business by her husband would not belittle the claim of either the landlord or the dependent disqualifying them to seek eviction on the ground of bona fides. We are unable to sustain the findings of the courts below that the need of the petitioner is to be isolated and segregated and placed in a different compartment from the need of the dependant wife. We also find that the courts below were unduly harsh in relying on certain statements made during cross examination by the wife to hold that the need projected was that of the husband and not that of the wife.

32.We are aware that the consideration of examination of evidence by this Court in revisional jurisdiction is confined R.C.Rev. No.169/2014 37 to finding out whether the finding of fact recorded by the authorities below are according to law and does not suffer from any error of law. However, if the finding of facts recorded by the court below is perverse or has been arrived at without considering the material evidence or if such finding is based on misreading the evidence or of the same is grossly erroneous and if the same is allowed to stand, it would result in gross miscarriage of justice, it is open to correction as it would not be a finding in accordance with law. After having tested the orders passed by the authorities below and after having reappraised the evidence for this limited purpose, we are of the view that the orders passed by the Rent Control Court is wholly unreasonable and that no reasonable person acting with objectivity could have reached the above conclusion. The Appellate Authority have taken the same stand overlooking the statutory provisions and the R.C.Rev. No.169/2014 38 binding legal precedents.

33.We were also extensively addressed by the learned counsel with regard to the first proviso to section 11(3) of the Act. The trial court in para No.17 of the judgment came to the conclusion that there were no suitable premises which could be used to satisfy the need of the petitioner. It was held that it is only on proof of the said requirement that the landlord would be called upon to furnish special reason for not preferring the said building. On its basis it was held that the first proviso to section 11(3) would not apply to the facts. The Appellate Authority re-appreciated the evidence afresh. It was found in para No.16 of the judgment of the Appellate Authority that the first proviso to section 11(3) would not apply in this case. At the time of hearing, much argument was advanced by the learned counsel appearing for the respondents to challenge the said finding arrived at by the R.C.Rev. No.169/2014 39 courts below. According to the learned counsel appearing for the 2nd respondent several shop rooms belonging to the petitioner were lying vacant at Pulickal avenue wherein HSBC bank is housed. Much reliance was also placed on the report of the Commissioner Advocate to bring home his point. However, it has come in evidence that the entire premises has been leased out to the HSBC bank and the mere fact that some of the rooms in the said building were found closed is no reason to conclude that there are vacant rooms in the possession of the landlord. Further, we note that the specific case of the petitioner is that space is required in the Medical Trust Hospital Complex itself. The tenant cannot dictate to the landlord that he should squeeze himself into unsuitable premises so as to enable him to occupy the tenanted premises. Having regard to the above, we uphold the findings of the courts below that the first proviso to section 11(3) is not R.C.Rev. No.169/2014 40 attracted in this case.

34.Insofar as the second proviso to section 11(3) is concerned, both the trial court as well as the Appellate Court has held that the tenants will not be entitled to the protection. No serious argument was advanced before us in so far this finding is concerned. We are of the view that there is no reason to conclude otherwise.

35.For the above reasons, we are of the view that the petitioner has succeeded in establishing that the respondents are liable to be evicted from the petition schedule premises under section 11(3) of the Act. We overturn the findings in R.C.P. No.159 of 2010 as confirmed in appeal by the V Additional District Court, Ernakulam in R.C.A. No.44 of 2012. The Revision Petition will stand allowed.

36.However, we are of the view that the R.C.Rev. No.169/2014 41 respondents/tenants who are occupying the premises be given a breathing time to vacate the premises. On a consideration of the entire facts and circumstances, we grant time till 31.12.2017 to surrender vacant possession of the tenanted premises to the landlords subject to the following conditions:

(a) The entire arrears, if any, shall be paid by the respondents to the revision petitioner/landlord within one month from the date of receipt of a copy of the order and the receipt thereof shall be produced before the Rent Control Court or the Execution Court, as the case may be.

(b) The respondents shall file affidavit within three weeks from today before the Rent Control Court or the Execution Court, as the case may be, undertaking to surrender vacant possession of the petition schedule building peacefully to the landlord on or before 31.12.2017 and that they shall continue to pay occupational charges at the current rate till the date of actual surrender of the building to the landlord.

(c) Unless conditions (a) and (b) are complied with, the tenants shall not be entitled to the benefits of the time granted R.C.Rev. No.169/2014 42 as above and the landlord shall be free to execute the order in accordance with law.

Sd/-

K.HARILAL, JUDGE sd/-

RAJA VIJAYARAGHAVAN V. , JUDGE Ps/2/3/2017

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