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High Court of Kerala
R. BASANT & M.C. HARI RANI
Smitha & Others
Versus
V. Krishnan
RCRev.No. 358 of 2010
Decided on : 20-10-2011
Kerala Buildings (Lease and Rent Control) Act - S.11(3), 11(4), 11 (7) and 11(8) - In a claim for eviction under S.11(3), 11(4), 11 (7) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (the Act hereafter), is the landlord bound, after establishing such grounds for eviction, to show further that his claim for eviction is bona fide? Is not the Court under S.11(10) at all bound to consider the bona fides of such claim? Is there serious dichotomy between Aboobacker v. Sahithya P.S.Sangham Ltd. and the decisions of coequal Benches ? Can a litigant claim a further and different relief which is specifically denied to him by subordinate authorities in an appeal or revision under the Act filed by his adversary challenging a part of the order adverse to him when such litigant is, himself not choosing to challenge the rejection of his claim for such specific relief by preferring any appeal/revision or cross objections. Do precedents in Santha v. First Additional District Judge and Ganesh v. Varghese require re-consideration - Held, A reading of Aboobacker reveals that the learned Judges construed the requirement of sub-s.(10) only as insisting that the ground under relevant sub-sections must be established. Inasmuch as the nature of the orders to be passed in a claim under Sections 11(3), (4), (7) and (8) is not specified in the concerned sub-section (unlike S.11(2) and S.11(5)), the learned Judges held that S.11(10) when it spoke of the claim being bona fide was only insisting that the said ground must be established - Even by resort to the principles under O.41 R. 22,or O.41 R. 33 which do not specifically apply to proceedings before the Rent Control Authorities, it is not possible to enable or permit the challenge against a rejected unchallenged order of eviction merely because the other side has chosen to prefer an appeal/revision against a specific and distinct part of the order adverse to him. We feel that such opportunity given to a defeated litigant who does not choose to prefer an appeal/revision or a cross objection would work out injustice unintended by the statute - Provision (or principle thereunder) cannot enable the respondent to claim a different and distinct relief than what has already been granted in his favour, without challenging that part of the order by preferring a cross appeal/revision or cross objection. To hold contra would upset and negate the principle of finality of an unchallenged order - Kerala High Court Act- S.4
Yes, the judgement supports the principle that eviction on the ground of personal necessity requires strict proof of bona fide and reasonable need. The Court emphasizes that the claim of bona fide need must be established convincingly, and that fanciful or pretended necessity is insufficient to justify eviction. The judgement underscores that the legislature intends to prevent unjustified eviction and to ensure that only genuine and honest claims for personal necessity are successful, thereby protecting tenants from arbitrary or false claims of need (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
R. BASANT.J
1. Two questions of moment which have substantial significance in the Rent Control law in the State are raised for consideration in this revenue petition. Challenge is raised against concepts that have occupied the field for a fairly long period of time. Ideal law is the perfect and just law. The quest and the endeavour to achieve that must continue. That concepts have occupied the field for a long period of time is not, by itself sufficient reason to refuse to have a re-look at the law when serious doubts exist about the validity of such entrenched concepts. The questions are:
i) In a claim for eviction under Section 11(3), 11(4), 11(7) and 11(8) of the Kerala Building (Lease and Rent Control) Act (the Act hereafter), is the landlord bound, after establishing such grounds for eviction, to show further that his claim for eviction is bona fide? Is not the Court under Section 11(10) at all bound to consider the bona fides of such claim? Is there serious dichotomy between Aboobacker v. Sahithya P.S.Sangham Ltd. [2004(2) KLT 947] and the decisions of coequal Benches?
ii) Can a litigant claim a further and different relief which is specifically denied to him by subordinate authorities in an appeal or revision under the Act filed by his adversary challenging a part of the orders adverse to him when such litigant is, himself not choosing to challenge the rejection of his claim for such specific relief by preferring any appeal/revision or cross objections. Do precedents in Santha v. First Additional District Judge [1994(1) KLT 516] and Ganesh v. Varghese [2005(1) KLT 282] require reconsideration?
2. A brief reference to vital facts may be relevant. Tenancy is admitted. The landlord claimed eviction against the tenant under Section 11(2) (arrears of rent), 11(4) (i) (contumacious sub-lease) and 11(4)(ii) (destructive and objectionable use of the premises). The alleged sub-tenant, admittedly the brother-in-law of the tenant, was arrayed as the second respondent in the proceedings before the Rent Control Court. The Rent Control Court rejected the claim both under Section 11(4) (i) and 11(4) (ii). The claim under Section 11(2) was allowed. Both the landlord and the tenant went before the Rent Control appellate authorities with appeals. The tenant challenged the order of eviction under Section 11(2) whereas the landlord challenged the rejection of his claim under Section 11(4) (i). The appellate authority, by the impugned judgment, allowed the appeal of the tenant and set aside the order of eviction under Section 11(2). The appellate authority allowed the appeal filed by the landlord; reversed the finding of the Rent Control Court under Section 11(4)(i) and directed eviction under Section 11(4) (i). There was no challenge raised before the appellate authority against the rejection of the claim by the Rent Control Court under Section 11(4) (ii).
3. The landlord did not prefer any revision against the judgment of the Appellate Authority. The tenant and the alleged sub-tenant have preferred this revision petition. They advance a contention that the finding that there was contumacious and objectionable sub-lease/transfer of possession is legally and factually unsustainable and is liable to be vacated. It is further contended that the subordinate authorities have failed to consider the question whether the claim under Section 11(4) (i) is bona fide as insisted by Section 11(10) of the Act. The landlord in turn, though he has not preferred any revision petition (or cross objection in the revision petition filed by the tenant) against the setting aside of the order of eviction under Section 11(2) wants this Court in this revision petition to consider his claim for eviction under Section 11(2) and restore the order of eviction under Section 11(2) passed by the Rent Control Court.
4. Issues: Three issues therefore arise for consideration in this revision petition. They are:
i) Whether the finding that there is objectionable
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