Kerala High Court
Ramachandran Nair vs Gopinathan on 25 March, 2003
Equivalent citations: 2003(2)KLT694, 2003 A I H C 3016, (2003) 2 KER LT 694, (2003) 2 RENCR 181, (2003) 2 KER LJ 321, (2003) 2 RENCJ 375
ORDER Cyriac Joseph, J.
1. The revision petitioner is the tenant and the respondent in R.C.P. No. 34 of 1985 on the file of the Rent Control Court, Thrissur. The respondent herein is the landlord and the petitioner in the said Rent Control Petition.
2. The landlord filed R.C.P. No. 34 of 1985 under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. In the Rent Control Petition, the landlord contended as follows. The petition schedule building was rented out to the respondent on a monthly rent of Rs. 50/- on the basis of a rent agreement executed by him whereby he had agreed to pay the rent on the 23rd day of every month. A provision was also made in the rent deed to pay interest at the rate of 12% per annum in case of default in payment of rent. There was a previous proceeding for realising the arrears of rent covering the period from 23.12.1972 to 23.1.1975 and the decree amount was paid only recently. The respondent is not in the habit of paying the rent regularly even after the earlier proceedings and the rent from 23.8.1983 is in arrears. The petitioner is at present residing with his wife and children in the house belonging to his father along with his parents. His stay with the parents is not peaceful. Hence, the petitioner needs the petition schedule building for having a separate residence with his wife and children. The other buildings belonging to the petitioner are also in the occupation of the tenants and the petition schedule building is more convenient for the residence of the petitioner with his family. A notice was issued on 13.11.1984 demanding vacant possession of the petition schedule building. The respondent sent a sum of Rs. 100/- and the balance amount is still in arrears. The respondent has not surrendered the building pursuant to the notice.
3. The respondent/tenant filed objection admitting that the rent was in arrears as alleged. However, he contended that the need alleged by the petitioner was not bona fide and that the petitioner's intention was only to dispose of the building after getting the respondent evicted. It was also averred that the landlord had recently sold out three residential buildings. According to the respondent/tenant, the petition schedule building is a small one and it is not suitable for the residence of the petitioner in accordance with his social status. It was further alleged that the petitioner had other buildings outside Kerala and that he was residing there.
4. The Rent Control Court dismissed the R.C.P. holding that the landlord failed to prove the need alleged by him and that the need alleged was not bona fide. The Rent Control Court also held that even though the rent was in arrears as on the date of filing of the petition, the respondent/tenant had cleared the arrears during the pendency of the petition and therefore, the petitioner was not entitled to get eviction on the ground of arrears of rent.
5. Against the order of the Rent Control Court in R.C.P. No. 34 of 1985, the landlord filed R.C.A. No. 77 of 1992 in the Court of the Rent Control Appellate Authority, Thrissur. The Appellate Authority as per judgment dated 12.10.1994 allowed the appeal, set aside the order of the Rent Control Court and ordered eviction under Sections 11(2)(b) and 11(3) of the Act. In his judgment, the Appellate Authority found that the landlord bona fide required the petition schedule building for his own occupation. The Appellate Authority also held that the tenant was keeping the rent in arrears with effect from 13.11.1984 and hence he was liable to be evicted under Section 11 (2)(b) of the Act. Aggrieved by the judgment of the Appellate Authority, the tenant has filed this Civil Revision Petition.
6. Having regard to the pleadings and the evidence in the case, we are inclined to agree with the Appellate Authority that the landlord had proved that he bona fide required the building for his own occupation. The definite case of the landlord in the Rent Control Petition was that he along with his wife and three children were staying with his parents and that the stay with the parents was not happy and comfortable due to various reasons. He wanted to stay with his wife and children in a separate house. Hence, he wanted the petition schedule building for his own occupation. The landlord also adduced sufficient evidence in support of the above case. Though the landlord (PW.1) admitted that after the filing of the petition, he had shifted his residence to Mangalore, he asserted that he wanted to reside in the petition schedule building to have the education of his children at Thrissur. While rejecting the contention of the landlord based on Section 11(3) of the Act, the Rent Control Court had stated that the petitioner had not disclosed the inconveniences he was experiencing during his stay with his parents. In our view, it was not necessary for the petitioner to disclose in more detail the inconveniences he experienced while staying with his parents. Admittedly, the petitioner has a wife and three children. The desire of the petitioner to stay with his wife and children in a separate house is legitimate and reasonable. For seeking eviction of the tenant on the ground that the landlord requires the house for his residence, he was not bound to disclose in more detail or establish the inconveniences experienced by him and his family in the residence of his parents. Hence, the approach of the Rent Control Court was erroneous. Another reason mentioned by the Rent Control Court for rejecting the claim of the landlord was that the landlord had shifted his residence to Mangalore after the filing of the R.C.P. But the landlord cannot be blamed for shifting his residence to Mangalore if he found that his stay in the house of the parents was not happy and comfortable and the building owned by him was in the occupation of the tenant. In such circumstances, what else could the landlord do for a happy and peaceful stay with his family? According to the landlord, he wanted to come back to Thrissur and to stay in Thrissur to educate the children at Thrissur and therefore, he wanted the petition schedule building for his own occupation. There is no material to discard the above claim of the landlord or to doubt the bona fides of the claim. Hence, the Rent Control Court was not right in rejecting the petition of the landlord on the ground that he had shifted his residence to Mangalore after the filing of the Rent Control Petition. Another ground stated by the Rent Control Court for dismissing the petition of the landlord is that the landlord had sold out other tenanted buildings during the pendency of the petition. According to the landlord, the petition schedule building is more convenient for his stay along with his wife and three children. Hence, the sale of other rented premises cannot be a ground for holding that the landlord has not proved that he required the building for his own occupation.
7. It was contended by the learned counsel for the revision petitioner that the petition schedule building was too small for the landlord and that it was not suitable for his residence in accordance with his social status. However, the learned counsel for the respondent relied on the judgment of this Court reported in Eliamma Chacko v. Leela Karunakaran (1999 (2) KLT 174) and contended that it was not for the tenant to decide whether the building was suitable for the use of the landlord. The learned counsel pointed out that as per the schedule to the R.C.P., the petition schedule building has five rooms and a kitchen. We are inclined to agree with the learned counsel for the respondent that the tenant cannot decide or dictate whether the building is suitable for the use of the landlord. If the landlord thinks that a house with five rooms and kitchen is sufficient for a family of five members and that it will not affect his social status, there is no reason to reject the claim that he bond fide requires the building for his own use.
8. Admittedly, the landlord has no other building of his own in his possession in Thrissur and therefore, the first proviso to Section 11 (3) is not attracted in this case.
9. Regarding the eviction under Section 11(2)(b) of the Act, the learned counsel for the respondent conceded that in view of the judgment of the Supreme Court reported in Chinnamma v. Gopalan (1995 (2) KLT 755) the view taken by the Appellate Authority was wrong.
10. In the above circumstances, we uphold the judgment of the Appellate Authority in so far as it ordered eviction of the tenant under Section 11(3) of the Act and set aside the judgment to the extent it ordered eviction under Section 11 (2)(b) of the Act. Consequently, R.C.P. No. 34 of 1985 on the file of the Rent Control Court, Thrissur will stand allowed to the extent of granting the prayer for eviction under Section 11 (3) of the Act.
11. The Civil Revision Petition is disposed of in the above terms.