IMPORTANT POINT
The landlord in this case bona fide requires suit premises to meet his need of additional accommodation in possession of tenant. The condition in which the additional accommodation is to be used by landlord cannot be dictated by the tenant. However, under Kerala Buildings (Lease and Rent Control) Act, 1965 the said need u/s 11(8) is subject to Section 11(10) first proviso viz. on judgment of comparative hardship and as this aspect is not decided by RC hence case is remanded to R.C. to decide it in accordance with law and then pass appropriate order on the eviction petition.

Headnote:Kerala Buildings (Lease and Rent Control) Act, 1965-Sections 11(3), 11(8), 11(4)(iv)-Landlord s petition for eviction on 3 grounds for bona fide need of additional accommodation - Rent Control decreeing on 1st ground u/s 11(3)-Confirmed by first appellate Court-Reversed by revisional Authority-High Court under Article 227 of Constitution reversing revisional authority and restoring Appellate Authority and RC-Appeal by special leave-Distinction between bona fide need ground u/s. 11(3) and 11(8)-Present case whether falls under Section 11(3) or 11(8)? (the later)-But-Both 11(3) or 11(8) are subject to 11(10) first proviso relating to adjudicate on issue regarding comparative hardship of the parties-This is not done-Result-Appeal allowed but case remanded to R.C. to decide the comparative hardship and then pass appropriate order of eviction.
       Held : On the above contentions the question that arises for our consideration is : whether the requirement of the suit premises by the appellant (sic) (respondent No. 1) for personal use implies its use not only in the existing condition but also on making necessary repairs to or reconstruction of the same. (Para 6)
       The following is the distinction between sub-section (3) and sub-section (8) of Section 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation. In the instant case admittedly the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under sub-section (8) of Section 11 and not under sub-section (3) of Section 11 of the Act. In our view, once it is held that the landlord requires additional accommodation for his personal use he is entitled to utilise it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant. The first respondent may use it as it exists or he may use it after necessary repairs, additions or alterations to suit his requirements. The appellant has no say in such matters. The finding recorded by the Original Authority which is confirmed by the Appellate Authority, as also by the High Court, is that the first respondent bona fide needs the suit premises for his personal use, a fortiori he requires additional accommodation for his personal use. In connection with an order under sub-section (8), sub-section (10) of Section 11 of the Act needs to be noticed. (Paras 11 to 15)
       It provides that if the Rent Controller is satisfied that the claim of the landlord under sub-sections (3), (4), (7) or (8) is bona fide, he has to make an order directing the tenant to put the landlord in possession of the building. However, the first proviso says that the Rent Controller shall reject the application, if he is satisfied that the hardship which may be caused to the tenant by granting the application, will outweigh the advantage to the landlord. Inasmuch as the authorities below, having proceeded on the footing that sub-section (3) of Section 11 of the Act is attracted, have not recorded a finding under the first proviso to sub-section (10) of Section 11 of the Act, it is necessary that the case should be sent back to the Rent. Controller to consider whether requirement of the said proviso is satisfied and if so, to record a finding thereunder, after hearing the parties. We, therefore, allow the appeal, remand the case to the Rent Controller for considering whether the requirement of the first proviso to sub-section (10) of Section 11 of the Act is satisfied and for passing appropriate orders on the eviction petition (R.C.P. No. 11 of 1983), on the basis of the finding arrived at, thereunder, in accordance with law. The appeal is disposed of accordingly. No costs. (Paras 16, 17 & 18)

ORDER

Leave is granted.

2. The appeal is directed against the order of the High Court of Kerala at Ernakulam in O.P. No. 2249 of 1994 dated May 20, 1998.

3. The appellant is the tenant of respondent No. 1 in respect of premises, Ward No. 28, Changanacherry (hereinafter referred to as the suit premises ). The first respondent filed eviction petition (R.C.P. No. 11 of 1983) against the appellant in the court of the Rent Controller, Kottayam, on three grounds : (i) bona-fide requirement for personal occupation - under Section 11(3) of the Kerala Buildings (Lease & Rent Control) (Act), 1965 (Act 2 of 1965) (for short the Act ); (ii) bona-fide requirement for personal occupation after reconstruction under Section 11(8) of the Act; and (iii) under Section 11(4)(iv) of the Act stating that he intends to demolish and reconstruct the portion for his more beneficial use. The appellant denied bona fide requirement of the first respondent and contested the eviction petition on all the three counts.

The learned Rent Controller rejected the claim of the respondent under sub-section (8) of Section 11 as also under clause (iv) of sub-section (4) of Section 11 of the Act. However, he ordered eviction under sub-section (3) of Section 11 holding that bona fide requirement of the first respondent was proved. The findings of the learned Rent Controller were upheld by the Appellate Authority in the appeal, filed by the appellant herein, and the appeal was dismissed on June 23, 1987. The appellant carried the matter in revision before the Additional District Court, Kottayam. The learned Additional District Judge on re-appreciating the evidence held that the bona fide requirement of the first respondent was not proved and reversed the order of the Appellate Authority, on that ground, by allowing the revision on October 18, 1993. The first respondent challenged the said order of the learned Additional District Judge by an application under Article 227 of the Constitution, O.P.No. 2249 of 1994, before the High Court of Kerala at Ernakulam. The High Court set aside the order of the learned Additional District Judge in RCRP No. 16/87 and restored the order of the Appellate Authority in RCA Nos.16 and 17 of 1985 confirming the order of the Rent Controller in RCP 11/83 dated January 30, 1985. The O.P. was thus allowed on May 20, 1998. It is the correctness of that order which is assailed in this appeal.

4. Mr. M.P. Vinod, the learned counsel for the appellant, contends that as the first respondent intends to occupy the suit premises not in its present form but after reconstruction, so it cannot be said that he bona fide requires the suit premises.

5. Mr. S. Prasad, the learned counsel for the first respondent, contends that as all the courts below except the Additional District Court found the need of the respondent for the suit premises for his personal occupation is bona fide it is immaterial whether he utilises it as it is or repairs or reconstructs the same to suit his requirements.

6. On the above contentions the question that arises for our consideration is : whether the requirement of the suit premises by the appellant (sic) (respondent No. 1) for personal use implies its use not only in the existing condition but also on making necessary repairs to or reconstruction of the same.

7. Before proceeding further it will be useful to notice the distinction between sub-sections (3) and (8) of Section 11 of the Act. It is necessary to refer to them here :

" (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

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