ABOOBACKER Vs. SAHITHYA P S SANGHAM LTD
LAWS(KER)-2003-11-110
HIGH COURT OF KERALA
Decided on November 05,2003

ABOOBACKER Appellant
VERSUS
SAHITHYA P.S. SANGHAM LTD. Respondents

JUDGEMENT

- (1.) The question that has come up for consideration in this case is whether the Rent Control Court after having satisfied that the need of the landlord under sub-s.(3) of S.11 of Act 2 of 1965 is bona fide could still reject the application under S.11(10) of the Act on the ground that the claim is not bona fide.
(2.) Rent Control Petition was filed seeking eviction under S.11(2)(b) and 11(3) of the Act for arrears of rent as well as for bona fide need for starting a super market in the petition schedule building. Petition schedule building situates in the heart of the town of Thrissur facing Post Office Road. Petitioners are partners of a partnership firm by name "Kannamkilakath Rest Palace". They are conducting a lodge having 37 rooms at Thrissur and are also engaged in the business of building materials. The first petitioner alongwith the 7th petitioner who is his son bona fide needs the tenanted premises for starting a super market. They have got the capacity and the ability to start the super market. Petition was resisted by the tenant urging that the need alleged is not bona fide and that the petitioners have no capacity to start super market. Rent Control Court was not satisfied with the need urged under S.11(3) and dismissed the petition holding that the plea of the petitioners is only a mere desire. Petitioners took up the matter in appeal and the Appellate Authority found that the need projected by the landlord is bona fide and also found that the petitioners have got the financial capacity to start super market in the tenanted premises, but rejected the petition. The Appellate Authority while appreciating the bona fide need opined as follows: "Even when I try to approach the need and the claim of the landlords with a doubtful and suspecting state of mind, I am unable to find any specific and particular reason which can persuade me to hold that the landlords need and claim are not bona fide. Inherently and on broad probabilities, I am unable to find anything which can persuade me to hold against the landlords. I am in these circumstances of the opinion that the court below was eminently correct in having come to the conclusion that the landlords have succeeded in establishing their alleged bona fide need." Having come to the conclusion that the landlords have succeeded in establishing that the need and the claim are bona fide, the Appellate Authority proceeded to hold as follows: "In a claim for eviction under S.11(3), it is not enough if the court satisfies itself about the bona fides of the need. It must definitely consider the bona fides of the claim under S.11(10). It would be unrealistic to hold that every claim on the ground of proved bona fide need would be a bona fide claim also. One can certainly visualise cases where though the need is bona fide the claim may not be. In the instant case, the need of the landlord is not definitely a "dire need". Definitely, the evidence indicates as stated earlier, that they can do without starting the proposed business also. But that fact alone cannot be held to be sufficient to persuade this Court to hold that the claim is not bona fide. I am in these circumstances unable to accept the contention that the claim under S.11(3) must be disallowed even if the Court is satisfied about the bona fides of the need". In the earlier and later part of the judgment the Appellate Authority itself has stated that the claim and the need are bona fide and therefore even going by the Appellate Authority's own reasoning S.11(10) would not apply. We fails to see how the Appellate Authority could invoke S.11(10) and reject the petition on the ground the bona fides of the landlord is not definitely a "dire need". Appellate Authority felt that the landlord can eke out livelihood even without starting the proposed business. The reasoning of the Appellate Authority is unsound and wayward. In several cases, we have found that Rent Control Courts and some of the Appellate Authorities are not properly understanding and appreciating the scope of the said provision, just like in this case and put the parties to peril. Before examining the scope of the said provision we may extract the same for easy reference. "11(10). The Rent Control Court Shall, if it is satisfied that the claim of the landlord under sub-s.(3), (4), (7) or sub-s.(8) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application: Provided that, in the case of an application made under sub-s. (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord: Provided further that the Rent Control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate."
(3.) From a reading of the above provision the following aspects emerge, viz., (i) S.11(10) takes in only sub-s.(3), (4), (7) and (8). (ii) Sub-s. (3), (4), (7) and (8) of S.11 only enables the landlord to apply for eviction. (iii) The provision which enable the Rent Control Court to pass orders of eviction is S.11(10) after having satisfied that the claim of the landlord is bona fide under sub-s. (3), (4), (7) and (8) of S.11. (iv) The Rent Control Court has to fix a specific date enabling the tenant to put the landlord in possession of the building. (v) The Rent Control Court may also give the tenant a reasonable time for putting the landlord in possession of the building and may extent such time so as not to exceed three months in the aggregate. (vi) If the Rent Control Court is not so satisfied shall make an order rejecting the application. (vii) Rent Control Court can reject the application under sub-section (8) of S.11 if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord.;


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