KOCHAPPAN PILLAI Vs. CHELLAPPAN

JUDGEMENT

(1.) This case has come up for hearing before us on reference made by a learned single judge, who on hearing it doubted the correctness of the decision in Ikkorakutty v. Hariharan, 1973 KLT 986 , a single judge's decision under the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965.

(2.) An application under S.11 of the Act was filed in the present case before the Rent Control Court, Trivandrum, for eviction. One ground mentioned in it for eviction was bona fide requirement of the building as contemplated by S.11(3) for use of the landlords son who was dependent on the landlord. One contention raised by the tenant was that he was depending for his livelihood mainly on the income from the lodging and taxi business he carried on in the building and that as there was no other suitable building available in the locality for him to carry on that business eviction could not be ordered as per the provisions of the second proviso to S.11(3). The Rent Control Court ordered eviction. That order was confirmed in appeal by the Subordinate Judge, Trivandrum. In revision therefrom the District Judge, Trivandrum, followed the single judge's decision in Thomas Baby v. Cherian Thressiamma 1973 KLT 1043 regarding casting of burden of proof of availability of other suitable building in the locality on the landlord and set aside the order for eviction. It is aggrieved by that order that this revision petition has been filed.

(3.) The first question requiring consideration is about the bona fide requirement of the building for occupation of the landlord's son. The evidence consists of the depositions of the landlord's brother, P.W.1 and the tenant, C.P.W.1. There are 10 to 16 rooms in the building which is near the Railway Station and the Bus Stand. C.P.W. 1 admitted that the landlord's son was a sick person. The evidence of P.W.1 shows that that sick son is unemployed and that the landlord and her family are entirely depending for their livelihood on the income from this building unlike the tenant who owns two buildings and two taxis. The first two courts have in their decisions referred to the fact that the landlord's son is handicapped by physical deformity. It is true that that fact is not borne out by the evidence. But it was admitted before the Subordinate Judge that he was an invalid and that was why the Subordinate Judge proceeded on that basis. C.P.W. 1 although at first pretended as not even knowing whether the landlord had such a son later admitted that he was a sick person. When asked as to whether he was unemployed C.P.W. 1 again pretended ignorance. When further asked as to whether he bad enquired about it the answer was in the negative. According to him even after the filing of the application for eviction he had not considered it necessary to enquire about it. The District Judge has observed that pleading is wanting in respect of the particular requirement of the building for the landlord's son and his physical deformity. It is specifically stated in the application that the landlord's son is dependent on the landlord, that he desires to conduct business in the building and that the building is required for his personal use. As to what is the business he proposes to conduct there and whether he is handicapped on account of physical deformity they are all matters for evidence and not for pleading. And the evidence is that it is lodging business that the sick son of landlord proposes to conduct in the building. The first two courts were right in acting on the evidence of PW. 1 and finding in favour of the landlord on the question of bona fide requirement of the building for the occupation of the landlord's son who is dependent on the landlord.