SURENDRAN Vs. GOPAKUMAR

JUDGEMENT

(1.) Landlords as well as the tenant are in revision being aggrieved by the judgment of the Rent Control Appellate Authority ordering eviction (partial eviction) of the premises which were subject matter of the rent control proceedings. R.C.R. No. 534/2005 is the revision filed by the landlords and R.C.R. No. 479/2005 is the revision filed by the tenant. The landlord sought to evict the tenant on the ground of arrears of rent under Section 11(2)(b), for bona fide need for own occupation under Section 11(3), on the ground of user of the building in such a manner as to reduce its value and utility under Section 11(4) (ii), and the ground that the tenant acquired possession of an other building under Section 11 (4)(iii). The Rent Control Court allowed the petition under Section 11(2)(b) and 11(3). The Appellate Authority confirmed the order under Section 11(2)(b) and modified the order under Section 11(3) so as to order eviction only of a portion of the building, ownership of which stood allotted to the first revision petitioner in R.C.R. No. 534/2005, under a partition deed. In the revision filed by the landlords they assail the order of partial eviction while in the revision filed by the tenant he assails not only the order of partial eviction but also the order of eviction passed on the ground of arrears of rent. After hearing both sides for some time regarding the correctness of the order of eviction passed under Section 11(2)(b) Sri. R.S. Kalkura, learned Counsel for the landlords submitted that as the order of eviction under Section 11(2)(b) is only tentative the landlords are not worried about that order. In view of the above stand taken by the learned Counsel for the landlord we are upholding the submissions of Sri. M.C. Madhavan, learned Counsel for the tenant and we vacate the order of eviction under Section 11(2)(b).

(2.) The only issue now surviving for consideration is whether the order of partial eviction passed by the Appellate Authority under Section 11(3) is sustainable.

(3.) The case of the landlords who are brother and sister in the context of the ground under Section 11(3) is that landlord No. 1 is a retired Medical Practitioner who wants to occupy the entire petition schedule building for starting his own clinic in Paediatrics. The bona fides of the need was disputed by the tenant who contended that the landlord's idea was to evict the tenant by hook or by crook. At trial by the Rent Control Court landlord No. 1 got himself examined as PW1. Despite cross examination he stood firm on his case that he needs to occupy the entire building for starting his clinic. His evidence inspired the Rent Control Court very much. That court would hold that the need is bona fide and ordered eviction. The ground which was seriously pursued before the Appellate Authority was that the tenancy already stood split up and hence the needy person, landlord No. 1 cannot aspire to have eviction over that portion of the building, ownership of which stood vested in his sister, the 2nd petitioner in the R.C.P. The Appellate Authority was very much impressed. The Appellate Authority noticed that petitioner No. 2, Smt. K. Premakumari, had not mounted the witness box to prove the claim projected in the R.C.P. According to the Appellate Authority Smt. Premakumari was the landlord in her own right in respect of half portion of the building allotted to her under the partition deed between the brother and sister and Dr. Gopakumar, brother will never qualify as dependent on her for the purpose of Section 11(3). The Appellate Authority, however found nothing in the evidence to doubt the correctness of the finding entered by the Rent Control Court that the need projected by Dr. Gopakumar to start his own clinic was a bona fide one. Therefore what the Appellate Authority did was to confirm that finding and to order partial eviction on the basis of his view that Gopakumar is entitled for an order of eviction only in respect of that portion of the building obtained by him towards his exclusive share under the partition.