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S. Sivasubramanya Iyer Vs. S.H. Krishnaswamy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 781 of 1979-B
Judge
Reported inAIR1981Ker57
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 2, 11(3) and 11(8)
AppellantS. Sivasubramanya Iyer
RespondentS.H. Krishnaswamy
Appellant Advocate T.S. Venkiteswara Iyer and; P.K. Balasubramoniam, Advs.
Respondent Advocate M.B. Rajendran Nair, Adv.
Cases ReferredAntony Joseph v. Vareethu Francis
Excerpt:
.....11(8) applies to case where landlord occupies only part of whole building owned by him require additional accommodation for personal use - under evidence court to consider petitioner's claim for personal use under section 11(8) - application to be considered as under section 11 (8) - order set aside and remitted to rent controller for deciding under section 11 (8). - - the petitioner had, on the other hand, clearly averred that he required the portion of the building occupied by the tenant for the purpose of bringing his aged parents to his house. this, according to me, is clearly an erroneous view. in other words, the bona fides of the claim does not normally depend upon the court being satisfied of the genuineness of the need of additional accommodation. but, even if he could..........ground that he required such building for his residence along with his aged parents and also for additional accommodation for himself and his family including such aged parents. this claim was made both under sub-section (3) and sub-section (8) of section 11 of the kerala buildings (lease and rent control) act, (hereinafter referred to as the 'act'), because, according to the petitioner the building in the possession of the respondent-tenant was really a portion of the entire building, the rest of which was in the possession and occupation of the petitioner-landlord. originally these two portions had been rented out separately and while so the petitioner, who was the occupant of one of the two portions of the entire building as a tenant purchased the whole building from the then owner.....
Judgment:
ORDER

P. Subramonian Poti, J.

1. The petitioner in this revision petition is the landlord of a residential building. He moved the rent control court seeking surrender of the building occupied by the respondent-tenant on the ground that he required such building for his residence along with his aged parents and also for additional accommodation for himself and his family including such aged parents. This claim was made both under Sub-section (3) and Sub-section (8) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, (hereinafter referred to as the 'Act'), because, according to the petitioner the building in the possession of the respondent-tenant was really a portion of the entire building, the rest of which was in the possession and occupation of the petitioner-landlord. Originally these two portions had been rented out separately and while so the petitioner, who was the occupant of one of the two portions of the entire building as a tenant purchased the whole building from the then owner and at that time the respondent was occupying a portion of the building as tenant, which is the portion now sought to be recovered from the tenant by the petitioner.

The petitioner's case was that for many years past his parents had been living in another building taken on rent by them and that his brothers and sister were also living with such aged parents. Now that the accommodation in the house occupied by his aged parents was insufficient for all he proposed to take his aged parents also to his residence so that they may live with him. On this plea eviction was sought under Sub-section 11 (3) of the Act stating the bona fide need as occupation along with his parents and also under Section 11 (8) of the Act as additional accommodation for him- The respondent-tenant opposed the claim of the landlord for eviction on the ground that there was no such need or requirement on the part of the landlord and therefore the claim put forward by the landlord had to be dismissed. The tenant also contended that the portion of the building occupied by him and the portion occupied by the petitioner-landlord were independent buildings having individual existence and self-contained with different municipal numbers and more or less equal in size and form. In other words, according to him, Section 11 (8) of the Act would not apply for the reason that what was sought to be recovered from him by the landlord was not a part or portion of one and the same building, the rent of which was in the possession of the landlord, but an independent building.

The rent control court took the view that the sale deed taken by the petitioner showed that the portion in the possession of the respondent-tenant was really part of the building and that the tenant himself being a signatory to the sale deed as a witness thereto, he was bound by the statement contained in that sale deed. It further relied upon Ext. C-1 Commissioner's report which indicated that the occupation by the respondent-tenant was of a portion of the same building and not of an independent building. But, on the question of applicability of Section 11 (8) of the Act, the rent control court was not prepared to accept the case of the petitioner as it did not find that he required additional accommodation for his personal use. It was in the discussion of the evidence and in the conclusion it reached that the rent control court seems to have taken the view that the accommodation required by the landlord was for him, his wife and three children.

The petitioner had, on the other hand, clearly averred that he required the portion of the building occupied by the tenant for the purpose of bringing his aged parents to his house. No doubt, the petitioner has put forward a plea under Section 11 (3) of the Act also. But, in view of the averments made out, it had necessarily to be taken that the requirement of additional accommodation claimed by the petitioner had also to be considered in the light of his plea that he required such further accommodation for the family consisting of his aged parents also since it was his definite case that he wanted to bring them also to his residence. That aspect was not considered by the rent control Court.

2. The appellate authority made an erroneous approach. It look the view relying on the decision reported in 1977 Ker I.N 82 that going by the definition of 'building' in the Act each portion of a building is a separate building and therefore even if the respondent was in occupation of a portion of the building, he had to be found to be in occupation of a separate building and as such. Section 11 (8) of the Act will not be applicable. This, according to me, is clearly an erroneous view. If the approach made by the appellate authority is to be accepted, then, practically there will be no case at all to which Section 11 (8) of the Act will apply. Going by the wording of the section, in every case where the tenant is sought to be evicted on the ground that additional accommodation was necessary, the tenant would be in occupation of only a portion of the same building, the rest of which is occupied by the landlord.

If the portion let out to the tenant is to be treated as a separate building for the purpose of Section 11 (8) of the Act, it would be a sufficient answer in every case where Section 11 (8) of the Act is invoked that since the portion of the building let out to the tenant is to be treated as an independent building in view of the definition of the term 'building' contained in the Act, eviction cannot be ordered under Section 11 (8) of the Act. The definition of the term 'building' in Section 2 (1) of the Act no doubt defines 'building' to mean 'any building or hut or part of a buliding or hut let or to be let separately for residential or non-residential purposes.' But, I must notice that the definition section starts with the expression 'un-less the context otherwise required'.

It goes without saying that the context of Section 11 (8) of the Act requires that the term 'building' should be read in the sense in which it is understood in the common parlance. It may be that for the purpose of other sections of the Act a part or portion of a building independently let out to a tenant may be a 'building' and not a part of a building. But, for the purpose of Section 11 (8) such part or portion of a building occupied by a tenant, though a building within the definition, would continue to be a part or portion of a building, lince the context other-wist requires. There is nothing to the contrary in the decision reported in the Kerala Law Notes, (1977 Ker LN 82) to which reference has been made by the appellate authority. It is not evidently a decision made in the context of Section 11 (8) of the Act. I may in this context advert to the observations made by Govindan Nair, J. in the decision reported in Antony Joseph v. Vareethu Francis, (1965 Ker LT 1113). After referring to the decision in (1955) 2 Mad LJ 206, the learned Judge observed as follows :

'The definition of the term 'building' in the Act is specifically made 'subject to the context'. It appears to me that in the context in which the word 'building' is used in Section 11 (8) it is capable of only one meaning namely 'the whole building' meaning thereby the whole structure. I say so for the reason that the sub-section refers to 'a part of a building'. Reading that part of the section atone the building' there must mean 'the whole building'. Further reference to a 'building' in the section is not to 'any building' or to 'a building' but to 'the building' which according to the ordinary meaning of the language must refer to 'the building' that has been referred to earlier. The wording of the section seems to me to compel the interpretation that 'building' used in the section means the whole building. Apart from that if the view is taken that part of a building is 'building' because of the definition of the term building contained in the Act and therefore there is no 'part of a building' involved, Section 11 (8) becomes nugatory. Such an interpretation must be avoided.'

I agree with the learned Judge that the contrary view expressed by Mr. Justice Mack in the Madras decision does not appear to be sound. In that view the appellate authority wrongly concurred with the decision of the rent control court regarding the claim put forward by the landlord under Section 11 (8) of the Act.

3. In revision, though the revisional authority took a different view and accepted the petitioner's case that Section 11 (8) of the Act would arise for application, it seems to have considered that the question that is to be decided is whether the claim of the petitioner for additional accommodation for Ms family as provided under Section 11 (8) of the Act was bona fide. No doubt Section 11 (10) of the Act indicates that the Court has to find that the requirement by the landlord under Sub-section (8) of Section 11 is also bona fide. But, it is one thing to say that the claim is not bona fide because the landlord could some-how manage even without the additional accommodation and another thing to say that the claim is not bona fide because it is a pretext on the part of the landlord for eviction.

If the landlord feels that additional accommodation is necessary and if there are sufficient grounds or justification in support of it and therefore, if he seeks recovery of the part of the building let out to a tenant under Section 11 (8) of the Act, then, it is not for the court to find out whether even without such additional accommodation, the landlord could somehow manage to carry on. It may not be that if he could manage to carry on, his claim is not bona fide. If on the other hand he is intending to seek additional accommodation not to provide such additional accommodation to his own family members, and if the evidence indicates so, then of course his claim under Section 11 (8) will not be bona fide. In other words, the bona fides of the claim does not normally depend upon the court being satisfied of the genuineness of the need of additional accommodation. Then, what has to be considered first is whether the additional accommodation is required for the personal use of the landlord. Personal use in this context is not necessarily use by himself but by the members of his family who want to live with him.

If his aged parents are to be taken into his, house, and if that is a proposal honestly made by the landlord, then, the question whether in the changed context, he would require additional accommodation is a matter which must call for decision not by considering whether he could some how manage without that additional accommodation, but whether it will be extravagant on his part to make such a claim or whether it will be unnecessary for him to seek such additional accommodation. It should be normally expected that in the normal course he would not have had such a desire or intention to have such additional accommodation. In other words, where the court is called upon to assess the need of a person for additional accommodation, the test may be more rigorous. If he could do without such accommodation, the court may say so. But, even if he could do without such additional accommodation, but such accommodation would normally enhance the convenience of his living, then he can very well require such convenience. This is to be found at the first stage. If the court finds that such claim is not bona fide in the sense that it is not honestly made, either because he wants to evict the tenant on this ground or for other ulterior purposes, then, the court can rightly reject the claim of the landlord. This distinction has not evidently been borne in mind by the revisional court in passing the order impugned in this revision.

4. In this case there must be considerable confusion in the minds of the courts below as to the scope or applicability of Section 11 (8) of the Act. In this case eviction is sought on grounds falling under Sub-sections (3) and (8) of Section 11 of the Act. These two provisions are mutually exclusive and when the Statute itself provides these two independent provisions, they are capable of being construed as serving independent and different purposes. Sub-section (3) of Section 11 enables the landlord to apply for recovery of possession if he bona fide needs the building either for his own occupation or for the occupation by any member of his family, who is a dependent on him whereas Section 11 (8) applies to a case where the landlord occupies only a part of the whole building owned by him and he requires additional accommodation for his personal use and therefore seeks the recovery of the remaining part of the whole building, which is in the possession of a tenant. No doubt he may seek recovery of it for his personal use under other subsections of Section 11. But, what he seeks in a petition under Section 11 (8) of the Act is the additional accommodation for his personal use. Personal use in this context would mean use by the landlord or by any member of his family, who is a dependent on him.

In this case, petitioner's parents, who are aged are said to be desiring to go over to the petitioner's house in order to stay along with the petitioner. If the petitioner's parents desire to stay independently in the portion of the building let out to the respondent, then, the ground for eviction must necessarily fall under Section 11 (3) of the Act. This is so because the building is required not for the occupation of the landlord, but for the occupation of a person or persons dependant on the landlord. If, on the other hand, the parents are to be taken to the petitioner's house so that the membership of the petitioner's family is enlarged, then, it would be a case where the petitioner required the part of the building, occupied by the respondent for providing convenient accommodation to the persons who are so added to his family. It is a case where the petitioner requires additional accommodation for himself and the members of his family it would mean that he requires additional accommodation for his personal use. Therefore, the question would be whether he wants to accommodate persons dependant on him independently in the, portion sought to be recovered from the tenant. If so, Section 11 (3) will apply. If he wants to take his dependants to his own residence and live with them, Section 11 (8) will apply.

In other words, in a case where a landlord, is occupying a portion of the whole building: and his tenant is occupying the other portion if the landlord seeks additional accommodation for the accommodation of another member of his family depending on him and if what he seeks is possession for the independent occupation of such member, it would be governed by Sub-section (3) of Section 11 and would be decided by the requirements of Section 11 (3). If on the other hand, it is otherwise, it will be a case falling within the ambit of Section 11 (8). It cannot he an application both under Section 11 (3) and 11 (8) as the petitioner's counsel represented in this case. It, therefore, follows that the application will have to be considered as an application under Section 11 (8) of the Act. That means that the court will have to consider afresh the whole issue regarding the petitioner's claim for personal use, additional accommodation, the bona fide of the claim and the applicability of the provisos to Sub-section (8). 5. In the circumstances, I set aside the order of the Rent Control Court, the appellate authority and the revisions authority and sent back the matter to the rent control court for proper disposal of the case in the light of what has been said in this judgment and in accordance with law. No costs.


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