ORDER

1. THE TENANT IS IN APPEAL. THE RESPONDENT LANDLADY TILED AN EVICTION PETITION SEEKING EVICTION OF THE APPELLANT TENANT (FOR SHORT "THE APPELLANT") UNDER SECTIONS 11(2)(A) AND (B) AND SECTION 11(3) OF THE KERALA BUILDINGS (LEASE AND RENT CONTROL) ACT, 1965, HEREINAFTER REFERRED TO AS "THE ACT", ON THE GROUNDS OF ARREARS OF RENT AND FOR BONA FIDE NEED FOR OCCUPATION BY HER ELDER SON FOR CONDUCTING STATIONERY BUSINESS IN THE COURT OF RENT CONTROLLER, KANNUR. THE APPELLANT TENANT IN HIS WRITTEN STATEMENT CONTESTED THE CLAIM OF THE APPELLANT AND SOUGHT PROTECTION OF THE SECOND PROVISO TO SECTION 11(3) OF THE ACT WHICH PROVIDES 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 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.

2. THE RENT CONTROLLER DISMISSED THE EVICTION PETITION. THE APPEAL FILED BY THE RESPONDENT LANDLADY WAS ALSO DISMISSED.

3. AGGRIEVED AGAINST THE ORDER PASSED BY THE RENT CONTROLLER AND THE FIRST APPELLATE COURT, THE RESPONDENT LANDLADY FILED CIVIL REVISION PETITION NO. 1338 OF 1992 IN THE HIGH COURT OF KERALA AT ERNAKULAM. THE HIGH COURT BY ITS IMPUGNED JUDGMENT SET ASIDE THE JUDGMENTS AND ORDERS PASSED BY THE COURTS BELOW AND ACCEPTED THE PLEA OF THE LANDLADY FOR EVICTION ON THE GROUND OF BONA FIDE NEED.

4. THE RENT CONTROLLER AS WELL AS THE FIRST APPELLATE COURT AFTER ANALYSING THE EVIDENCE OF PW 1 DISMISSED THE NEED UNDER SECTION 11(3) OF THE ACT. IT WAS HELD THAT SINCE THE RESPONDENT AND HER ENTIRE FAMILY WERE LIVING IN BOMBAY FOR THE LAST 34 YEARS, ONE CANNOT HOPE AND VISUALISE THAT THE LANDLADYS SON WILL COME TO CHIRAKKAL IN KANNUR AND START A FRESH BUSINESS. IT WAS FURTHER HELD THAT THE BUILDING, BEING AN OLD TILED BUILDING, WAS NOT SUITABLE FOR ACCOMMODATING A MODERN BUSINESS CONCERN. ANOTHER REASON GIVEN WAS THAT THE SON FOR WHOM THE BUILDING WAS REQUIRED WAS NOT EXAMINED AS A WITNESS.

5. THE HIGH COURT WHILE SETTING ASIDE THE ABOVESAID FINDINGS CAME TO THE CONCLUSION THAT IF THE VIEW TAKEN BY THE COURTS BELOW WAS TO BE ACCEPTED, THEN NO PERSON LIVING OUTSIDE KERALA WOULD COME BACK TO KERALA AND GET BACK HIS BUILDING EVEN ON THE GROUND OF PERSONAL NECESSITY. THE HIGH COURT TOOK JUDICIAL NOTICE OF THE FACT THAT PERSONS GO OUTSIDE IN THE PURSUIT OF THEIR PROFESSION AND COME BACK AFTER RETIREMENT OR FOR SOME OTHER PURPOSES OR FOR THAT OF THEIR CHILDREN. THAT IN THE PRESENT CASE, THE HUSBAND OF THE RESPONDENT WHO WAS IN SERVICE OF THE RAILWAYS HAD DIED AND, AFTER HIS DEATH, THE RESPONDENT THOUGHT IT PROPER FOR HER SON TO COME BACK TO HIS NATIVE PLACE AND START A BUSINESS WHERE A BUILDING WAS AVAILABLE. THAT SIMPLY BECAUSE A PERSON WAS AWAY FOR A NUMBER OF YEARS IS NO GROUND TO DEPRIVE HIM/HER FROM GETTING BACK THE BUILDING ON THE GROUND OF PERSONAL NECESSITY. MERE NON-EXAMINATION OF THE PERSON FOR WHOSE NEED THE BUILDING WAS REQUIRED BY ITSELF WAS NO GROUND TO NON-SUIT THE LANDLADY. IN A NUMBER OF DECISIONS (THIS FACT IS ACKNOWLEDGED BY THE FIRST APPELLATE COURT ALSO), IT HAS BEEN HELD THAT IT IS NOT NECESSARY TO EXAMINE THE PERSON FOR WHOSE NEED THE PREMISES ARE REQUIRED. IT DEPENDS ON THE FACTS AND CIRCUMSTANCES OF EACH CASE.

6. COUNSEL FOR THE APPELLANT HAS CONTENDED THAT THE RESPONDENT LANDLADY HAD SOLD ONE BUILDING TWO YEARS PRIOR TO THE EXAMINATION OF THE RESPONDENT IN COURT. SALE OF SUCH A BUILDING DEMONSTRATED THAT THE NEED WAS NOT BONA FIDE. HAD THE NEED BEEN BONA FIDE THEN THE RESPONDENT WOULD NOT HAVE SOLD THE BUILDING OF WHICH VACANT POSSESSION WAS AVAILABLE. WE DO NOT FIND ANY SUBSTANCE IN THIS SUBMISSION. THE BUILDING HAD BEEN SOLD TWO YEARS PRIOR TO THE EXAMINATION OF THE RESPONDENT. ADMITTEDLY, ON THE DATE OF FILING THE EVICTION PETITION, THE BUILDING WAS NOT AVAILABLE TO START THE BUSINESS. IT HAS NOT COME ON RECORD THAT THE SAID BUILDING W