ORDER
K.S. Radhakrishnan, J.
1. Is the non-examination of the dependent son of the landlord is fatal to a petition filed under Section 11(3) of Act 2 of 1965 is the question that is germane for consideration in this case. The Rent Control Appellate Authority placing reliance on the Division Bench decision of this Court reported in Thomas v. Kochammini Amma (AIR 1995 Ker. 4) took the view that it is fatal to a plea under Section 11(3) since the need urged is for the bona fide need of the son of the landlord.
2. Eviction was sought for, for the bonafide need of the landlord’s son Majeed
who is married and has got three children. For eking out his livelihood, Majeed wanted
to start a stationery business. No other suitable building is in their possession. It was
pleaded by the landlord that his son is dependent on him. He is not having any other
building of his own or any other avocation. Landlord also contended that rent is in
arrears since March 1993. Tenant resisted the petition contending that attempt of the
landlord is only a ruse to evict him. Further it was also stated that the landlord’s son
is assisting the landlord for the conduct of his trade. Landlord is a butcher and a vendor
in meat and son is in total control of the said business. Consequently son has no intention
to start any stationery business. Further it is also stated that he is not dependent on the
landlord. Further tenant submitted that he is entitled to get benefit of second proviso
to Section 11(3).
3. Landlord got himself examined as PW. 1 and gave oral evidence according to the averments in the Rent Control Petition. Landlord produced A1 and A2 documents. Tenant was examined as RW.1. Rent Control Court after considering oral and documentary evidence came to the conclusion that the need is bona fide and also found that landlord is entitled to get rent from April 1993 onwards. Tenant took up the matter in appeal. Appellate Authority took the view that the non-examination of landlord’s son is fatal to the petition filed under Section 11(3) of the Act. Appellate Authority held that the contentions raised by the tenant could be satisfactorily explained only if the son is examined and record the following reasonings.
“According to the learned counsel facts revealed in this case would further show that a father comes forward to establish the bona fide need of his son who is having wife and three children, so according to the counsel son would be the best person to reveal all the facts before Court to establish his bona fide need. There is some force in this contention. PW. 1 has baldly stated that his son has no other business and no source of income. It remains unexplained as to how Majeed lived till this time and maintained a family consisting wife and three children without a job or source of income of his own. These facts could have been explained by him in a more satisfactory manner. Hence I find that non-examination of Majeed is fatal to the bona fides put forward by the landlord.”
We find it difficult to support the above reasonings of the Appellate Authority. Rent Control Petition was filed by the father claiming eviction for his son. Landlord has specifically pleaded that son has no other income of his own. The tenanted premises is required for the purpose of starting a stationery business for his son. We are of the view when once the landlord has stated that his son has no other business and that he is dependent on the landlord for the tenanted premises it is for the tenant to disprove the same by adducing evidence. Appellate Authority was carried away by the fact of personal dependency rather than the dependency on the building. Landlord’s son is dependent for the building and not financial dependency.
4. The Apex Court in Gulraj Singh Grewal v. Dr. Harbans Singh ((1993) 2 SCC 68) was dealing with Section 13(3)(a)(i)(a) of E.P. Rent Restriction Act, examined the question whether non-examination of the son as such would be fatal to the petition for eviction. Apex Court held as follows:
“Respondent 1 who is the father of respondent 2, has supported and proved the need of respondent 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, respondent 2 is at present carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlord’s need. In these circumstances, the non-examination of respondent 2 also, when respondent 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened.”
We may in this connection refer a Bench decision of this Court in Devayani v. Pulickaparambil Hamsa Haji (1997 (1) KLJ 230) wherein this Court held that merely because landlord’s son was not examined it cannot be said that bona fide requirement cannot be proved. Whether bona fide need is established on the basis of the evidence is a question depending upon the facts of each case. We are in agreement with the above mentioned reasoning of the Division Bench in Devayani’s case. The reasoning of the Division Bench in Thomas’s case (supra) cannot have any universal application, but depending upon the facts of each case. So far as this case is concerned we are convinced that non-examination of the son is not fatal to the petition. Landlord has specifically pleaded that his son has no other avocation. They have no other building of their own and the son is dependent on the father for conducting business in the tenanted premises. We are therefore in agreement with the reasoning of the Rent Control Court. Consequently the order passed by the Appellate Authority is set aside and that of the Rent Control Court would stand restored. In the facts and circumstances of the case we are inclined to grant time to the tenant upto 30.9.2004 for vacating the premises on condition that he would file an undertaking in the form of an affidavit before the Rent Control Court within one month stating that he would vacate the premises within the aforesaid time and that he would pay arrears of rent if any, and also future rent.