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2001 Supreme(Ker) 102

Judges : P.K.BALASUBRAMANYAN,T.M.HASSAN PILLAI
Fathima - Appellant
Versus
Saidali Bafakhy - Respondent
Case No : C.R.P. No. 741,1247,507,1529 & 1433 of 1992
Decided On : 02/22/2001
Advocates Appeared :
V.V. Ashokan For Petitioner Sumathi Dandapani For 1st Respondent Prabha R. Menon For Respondents 15 and 16 M.C. Sen, Parvathy Menon, M.P. Sreekrishnan, Shabna Karthikeyan & S. Prakash For 4th Respondent

Headnote:

Kerala, Buildings (Lease and Rent Control) Act 1965Section 11( 3) - Favor - Eviction - Building- Business - Tenant - Evidence - Challenged - Claim was for eviction under sub-section of Section of Act - Application was resisted by tenant and by alleged sub-tenants - Rent Control Court refused to order eviction under sub-section and Section of Act but granted an order for eviction under Section Act - There was no appeal by tenant - But landlords filed R.C.A. of before Rent Control Appellate Authority under Section of Act - Held, It is therefore clear that even though the subletting in favor of predecessor of respondent before Rent Control Court was before commencement of Act of and did not furnish a cause of action for eviction on ground of subletting since other two subletting have furnished the landlord with cause of action landlord would be entitled to an order for eviction in respect of whole of building let out to original tenant predecessor-in-interest of respondents before Rent Control Court - Petition dismissed.

Judgment :-

P.K. Balasubramanyan, J.

All these Civil Revision Petitions filed under S.20 of the Kerala Buildings (Lease and Rent Control) Act arise from R.C.P. 45 of 1982 filed by the landlords of a building, hereinafter referred to as the landlord, though they are two in number. The claim was for eviction under sub-ss.2, 3 and 4(1) of S.11 of the Act. The application was resisted by the tenant and by the alleged sub-tenants The Rent Control Court refused to order eviction under sub-ss.3 and 4(1) of S.11 of the Act, but granted an order for eviction under S.11(2) of the Act. There was no appeal by the tenant But, the landlords filed R.C,A.189 of 1990 before the Rent Control Appellate Authority under S.18 of the Act. The Appellate Authority, on a reappraisal of the materials, confirmed the order of the Rent Control Court disallowing eviction under S 11(4)0) of the Act But the Appellate Authority, reversing the finding of the Rent Control Court found that the bonafide need set up by the landlord was established and ordered eviction under S.11(3) of the Act. Feeling aggrieved by the order for eviction under S, 11(3) of the Act, the tenant has filed C.R.P. 741 of 1992. Feeling aggrieved by the denial of an order for eviction on the ground of subletting under S.11)(i) of the Act, the landlord has filed C.R.R 1247 of 1992. The status of the sub-tenants as such was mo£ disputed, but what was contended was that the creation of those sub-tenancies did not give the landlord a right to evict the tenant under S.11(4)0) of the Act. Feeling aggrieved by the order for eviction under S.11(3) of the Act, the sub-tenant, respondent No. 4 and the legal representative of the sub-tenant respondent No. 5, and she legal representatives of the sub-tenant, respondent No. 6, have filed C.R.R Nos, 507,1329 and 1433 of 1992-respectively. Hence the questions involved in these revisions are, whether the Appellate Authority was legal, regular and proper in ordering eviction under S.11) of the Act and in not ordering eviction under S.11(4)0) of the Act The question whether the sub-tenants are entitled to challenge the order for eviction passed under S.11(3) of the Act, also arises for consideration.

2. No doubt in C.R.R 1247 of 1992, the revision filed by the landlord, the landlord has also sought to raise a question regarding the rate of rent payable by the tenant. The Rent Control Court and the Appellate Authority did not accept the case of the landlord that the rent was Rs. 300 per month, but had accepted the evidence on the side of the tenant that the rent was only Rs. 260 per month. Though an attempt was made on behalf of the landlord to challenge the finding on the rent payable, rendered by the authorities below, we are not satisfied that there is any ground to interfere with the finding that the landlord has not established that the monthly rent payable was Rs. 300 and it was not Rs. 260 as claimed by the tenant. Even after accepting that case of the tenant, an order for eviction under S.11(2) of the Act had been passed, which had not been challenged by the tenant before the Appellate Authority. Since we do not find our way to accept the challenge of the landlord to the rate of rent, no modification of the order for eviction passed under S.11(2) of the Act, is called for.

3. We shall first deal with the challenge of the tenant to the claim for eviction under S.11(3) of the Act. It was pleaded by the landlord that the building was needed for the purpose of starting a trade by the son of the first petitioner landlord. It was pleaded that the son was about 48 years old, that he had no other avocation or business, that he wanted to start a business of his own, that he was dependent on the landlords for a building and that the building was bonafide needed for the starting of a business by him. In the objections filed by the legal representatives of the original tenant, respondents 1 and 2, there was no denial as such of the plea that the son of the first peti








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