Abdul Jabbar vs Asif Ali

P.B.Suresh Kumar, J.

The tenant in a proceedings for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (the Act) is the petitioner in this revision petition. The landlords in the proceedings are respondents 1 to 3 herein. Though the Rent Control Court dismissed the eviction petition, the Appellate Authority reversed the decision of the Rent control Court and ordered eviction. The tenant is aggrieved by the decision of the Appellate Authority and hence, this revision petition.

The petitioner is running a bakery in the tenanted premises. The premises is one purchased by the respondents while the petitioner was occupying the same and the case set out by the respondents in the eviction petition is that their children namely, Saif Ali Khan, Liyakhat Ali and Haris intend to establish a fruits vending business in the premises. The petitioner contested the eviction petition mainly on the ground that the children of the respondents are not dependent on the respondents for accommodation and there is, therefore, no bona fides in the need set out by the respondents. It was also contended that the respondents have other buildings, and as such, even if it is found that the need is bona fide, the petitioner is entitled to the benefit of the first proviso to Section 11(3) of the Act. The Rent Control Court, among others, found that the respondents have not established that their children are dependent on them for accommodation and also that the petitioner is entitled to the benefit of the first proviso to Section 11(3). On the basis of the findings rendered by the Rent Control Court including the findings aforesaid, the eviction petition was dismissed. The respondents challenged the decision of the Rent control Court in appeal. The Appellate Authority, on a reappraisal of the materials on record, reversed the findings rendered by the Rent Control Court including the findings aforesaid and ordered eviction. As noted, the petitioner is aggrieved by the said decision of the Appellate Authority.

Heard the learned counsel for the petitioner as also the learned counsel for the respondents.

The learned counsel for the petitioner raised two contentions. The first contention is that the materials on record do not indicate that the respondents have established that their children are dependent on them for accommodation. The second contention is that at any rate, the petitioner is entitled to the benefit of the first proviso to Section 11(3) of the Act inasmuch as it has been established that the respondents had a building in their possession in the neighbourhood of the tenanted premises at the time of institution of the eviction petition and that the said fact has been suppressed in the eviction petition. The learned counsel for the respondents resisted the contentions urged by the learned counsel for the petitioner pointing out that even though it is not specifically pleaded by the respondents in the eviction petition that their children are dependent on them for accommodation, the essence of the pleadings in the eviction petition is that the children of the respondents are dependent on them for accommodation, and inasmuch as the petitioner has no case that the children of the respondents are not dependent on them for accommodation, the decision of the Appellate Authority is in order. As regards the contention of the petitioner that he is entitled to the benefit of the first proviso to Section 11(3), it was argued by the learned counsel for the respondents that though there was a vague statement in the objection to the eviction petition that the respondents have other buildings in the locality, the petitioner has not established the existence of any building in their possession which is suitable for the business proposed by their children and that therefore, the petitioner cannot be heard to contend that he is entitled to the benefit of the first proviso to Section 11(3).

We have examined the arguments advanced by the learned counsel for the parties on either side and also perused their pleadings.

As pointed out by the learned counsel for the respondents, the essence of the pleadings of the respondents in the eviction petition is that their children are not academically strong and were unsuccessful in pursuing their studies to secure an appropriate position in life so as to earn their livelihood and inasmuch as they are dependent financially on the respondents, the tenanted premises is required for them to run the proposed business, an area in which the respondents have experience. It is also stated by the respondents in the eviction petition that neither the respondents nor their children are in possession of any other building suitable for the proposed business. True, it is not stated categorically by the respondents in the eviction petition that their children are dependent on them for accommodation. But, as indicated, when it is asserted by the respondents in the eviction petition that their children are financially dependent on them for their livelihood and that they do not have any premises in their possession to conduct the business proposed by them, the dependency of the children on the respondents for accommodation can certainly be inferred from the pleadings. We take this view, as it is now settled that strict rules of pleadings are not applicable to rent control proceedings. The petitioner could not establish that the children of the respondents have other buildings which could be used for their need and that they are, therefore, not dependent on the respondents for accommodation. In the said circumstances, we are unable to find fault with the Appellate Authority in rejecting the contention raised by the petitioner that the children of the respondents are not dependent on them for accommodation.

The first proviso to Section 11(3) of the Act is a restriction on the power conferred on the Rent Control Court to direct the tenant to put the landlord in possession of the building in terms of Section 11(3), 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 is now trite that it is not necessary for the landlord in a proceedings for eviction under Section 11(3) of the Act to disclose in the eviction petition, the particulars of all buildings under his ownership and possession. What the landlord is expected to do while seeking eviction of a tenant from a building while invoking Section 11(3) is to state in the eviction petition that he does not possess any building suitable for the need set out and if the landlord makes such a statement, it is for the tenant to establish that the landlord is in possession of another building in the same city, town or village and if the tenant succeeds in establishing the same, the landlord would be entitled to get an order of eviction only if he is able to satisfy the Rent Control Court that there exists a special reason for not occupying that building in the place of the tenanted premises. In other words, in a given case, where the landlord pleads in the eviction petition that he does not have any other building in the same city, town or village suitable for the need set out in the application, if the tenant does not establish that the landlord holds any other building which is suitable for the proposed need, the tenant is not entitled to the benefit of the first proviso to Section 11(3). Reverting to the facts, in the case on hand, of course, there is a vague pleading by the petitioner in the objection to the eviction petition, without any particulars that the respondents hold other buildings. There was no attempt on the part of the petitioner during the trial to bring on record the particulars of any of the buildings owned by the respondents, by taking out a commission or otherwise. True, during cross-examination, in answer to a question put by the learned counsel for the petitioner, the second respondent who gave evidence on behalf of the respondents in the eviction petition stated that the respondents purchased a building situated on the western side of the tenanted premises about eight years back and the same was sold by them recently. It is based on the said evidence of the second respondent that the learned counsel for the petitioner contended that he is entitled to the benefit of the first proviso to Section 11(3). According to us, the petitioner cannot claim the benefit of the first proviso to Section 11(3) solely on the basis of the said evidence of the second respondent. The scheme of the Act is that in order to claim the benefit of the first proviso to Section 11(3), it is not obligatory for the landlord to furnish particulars of all the buildings owned by him in the eviction petition when he seeks eviction of the tenant from a particular building, but it is obligatory for the tenant to establish the particulars of the other buildings held by the landlord, so as to satisfy the Rent Control Court that there exists a special reason for not occupying the same for the proposed need, if at all there exists a special reason. In the case on hand, as noted, there is only a vague pleading in the objection to the eviction petition, without disclosing any particulars, that the landlords are in possession of other buildings. As noted, there was no attempt on the part of the petitioner during trial to bring on record the particulars of any of the buildings owned by the respondents, by taking out a commission or otherwise. In the above circumstances, we are of the view that merely for the reason that a statement has been made by the second respondent on behalf of the respondents that they purchased a building and the same has been sold, the benefit of the first proviso to Section 11(3) cannot be extended to the petitioner on the assumption that the said building was one suitable for the proposed business and there are no special reasons for the respondents in not occupying the same for the proposed need. Needless to say, the contention of the petitioner that he is entitled to the benefit of the first proviso to Section 11(3) is also liable to be rejected.

In the result, the rent control revision is dismissed.