A landlord's amendment to the need in eviction proceedings is permissible if bona fide; the burden lies on the landlord to prove the necessity and honesty of subsequent changes.

ORDER :

A. Muhamed Mustaque, J.

In this revision petition, the tenant contends that the amendment allowed in the Rent Control Petition filed by the landlord, changing the need, goes to the very root of the case, citing the Division Bench judgment of this Court in Ajithkumar v. M.Asanaru Pillai [2022 (2) KHC 781] . Referring to paragraph No.5 of the judgment, the learned counsel for the tenant submits that the change of the need is not in tune with the proposition of law laid down by this Court in Ajithkumar’s case (supra).

2. The need was originally projected for starting a business by the 1^st respondent. The rent control petition was filed in the year 2017, and it came up for trial only in the year 2019. By that time, the 1^st respondent had become a lawyer. Therefore, he filed an amendment petition to change the need. He stated that he intended to start a lawyer’s office in the tenanted premises. This amendment was allowed, and the parties went on trial. The Rent Control Court found the need to be bona fide. This was also affirmed by the Appellate Authority.

3. The learned counsel for the revision petitioner vehemently argued, relying on paragraph No.5 of the judgment, which reads thus;

“5. The question to be considered is whether it is permissible for the landlord to change the nature of the need advanced if it was later found to be not profitable and whether such change of the nature of the need would take away the bona fides of the landlord, as envisaged under S.11(3) of the Act. If the nature of the need advanced in the petition is found to be not profitable, it is well within the liberty of the landlord to select a suitable one and to change the nature of the need. But it should be satisfied before the Rent Control Court or the Rent Control Appellate Authority, as the case may be, that the change in the nature of the proposed need is bona fide. When there is an intention to change the nature of the business to a new one, rather than what is pleaded initially in the petition, the landlord should prove that the need initially raised was a bona fide one. The landlord should further establish why he had taken a different decision as to the nature of the business to be started. The burden, in such a situation, is heavy on the landlord to prove, (1) that the need advanced in the petition was bona fide, (2) that he had taken a decision to start another business and it was taken under a bona fide belief and good faith supported by sufficient grounds, and (3) that there are sufficient reasons for him not to start the earlier business proposed, otherwise it would fall within the mischief of inconsistency.”

4. We, as coordinate Bench judges, are bound by the Division Bench judgment, though we have serious disagreement with the reasoning stated in paragraph No.5 of the aforesaid judgment. However, it is not the change of need that came up for consideration before the Rent Control Court or the Appellate Authority while deciding an eviction petition under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act , 1965. What is to be looked into is the bona fides of the landlord in seeking eviction in relation to the need. There can be no subjective scrutiny of the need by the Rent Control Court, but rather an objective assessment of the need projected by the landlord. If that be the case, the only question arising for consideration in such circumstances is whether the eviction sought is tainted by any mala fides or not. Therefore, while we record our disagreement with the reasoning stated as above, even by following the above judgment, we are of the view that no prejudice has been caused to the tenant either during trial or otherwise in defending his case, inasmuch as the tenant failed to