JUDGMENT
Balanarayana Marar, J.
1. Revision is directed against the judgment of Rent Control Appellate Authority, Additional District Judge, Ernakulam in R.C.A. 20/91. That was an appeal against the order of Rent Control Court, Ernakulam in R.C.P, 5/86 filed by respondents 1 to 4 (hereafter referred as landlords) against deceased 5th respondent (hereafter referred as tenant) and revision petitioner who is alleged to be in possession on the strength of a sublease or transfer by the tenant. The original lease was admittedly in favour of the tenant and the subject matter of the lease is a residential-cum-scooter workshop situated at Valanjambalam at Ernakulam and Cochin Corporation. The landlords sought eviction on the ground of sublease, bona fide occupation for respondents 2 to 4 and reconstruction. A business under the name and style “Tyre Resoles (India)” was conducted by the tenant. By A1 letter dated 10-5-1960 the tenant informed the first respondent that he had closed down the business and was intending to start a new business in the name “Scooter Garage”. By Ext. A2 letter dated 10-7-1966 the first respondent was informed that the tenant had started the new business and requested her to send all future communications and rent receipts in the name of Proprietor, Scooter Garage. Rent receipts were therefore issued in the name of the proprietor of Scooter Garage. The monthly rent was since then enhanced. A shed is alleged to have been constructed unauthorisedly without the knowledge and consent of the landlords. They required the tenant to surrender the premises for their own occupation after constructing a residential house in the premises. They came to know from the reply that the tenant had subleased the premises to revision petitioner. Hence the petition for eviction on the three grounds aforementioned.
2. The tenant in his counter statement admitted the entrustment of the building but contended that revision petitioner is the tenant from 1-5-1966 onwards and that rent
thereafter was collected from him. It was further contended that first respondent and her husband knew the proprietor of the Garage, the revision petitioner and rent was received from him. In a separate counter statement revision petitioner, second respondent in the original petition raised identical contentions. In particular, he contended that rent was periodically enhanced and he was paying the rent in his capacity as the Proprietor of Scooter Garage run by him in the premises. He disputed the bona fide of the claim for own occupation and further contended that the building did not require reconstruction.
3. The husband of the first respondent was examined as PW 1. Two other witnesses were examined on the side of the landlords. Both the respondents in the original petition got themselves examined. Large number of documents were also produced on either side. The Rent Control Court by order dated 15-12-1990 rejected the claim for eviction on the ground of bona fide need and sublease. The petition was dismissed with a direction that the landlords will be at liberty to file a separate petition for a reconstruction under Section 11(4)(iv) of Act 2 of 1965. The landlords carried the matter in appeal before the Appellate Authority. The alleged subtenant, revision petitioner herein filed memorandum of cross-objections challenging that part of the order giving permission to the landlords to move the Rent Control Court for eviction on the ground of reconstruction. The Appellate Authority by judgment dated 16-3-1992 set aside the order and allowed the petition on the ground of bona fide need and sublease. The cross-objections were dismissed. Hence this revision by the second respondent in the original petition.
4. Heard counsel on bath sides.
5. Revision petitioner challenges the judgment of the Appellate Authority on the ground that the 5th Additional District Judge, Ernakulam who disposed of the appeal is not an officer or authority conferred with powers of Appellate Authority by general or special order of Government notified in the Gazette under Section 18(1)(a)
of the Act. The impugned judgment is therefore without jurisdiction, according to revision petitioner. It was also submitted that the Division Bench decision of this Court in Sreenivasa Kammath v. Anantha Kammath, (1992) 1 Ker LT 190, does not lay down by the law correctly. The judgment of the Appellate Authority is also assailed on the further ground that the documents produced by revision petitioner, second respondent in the original petition were not properly considered by the Appellate Authority to ascertain whether there had been a transfer of possession or not. The finding on the aspect of bona fide need is also unreasonable, according to revision petitioner and is not supported by the evidence on record. Arguments were advanced at length on these aspects by the counsel on both sides. On the basis of the contention raised the following points require consideration in this revision.
(i) Wheher the Additional District Judge has jurisdiction to act as the Appellate Authority under Section 18 of the Kerala Buildings (Lease and Rent Control) Act?
(ii) Whether the transfer of possession or sublease by the tenant in favour of revision petitioner has been proved by producing satisfactory evidence?
(iii) Whether the finding of the Appellate Authority that the need of the landlord is bona fide is supported by evidence or whether the finding is unreasonable?
6. Point No. 1: A Division Bench of this Court in Sreenivasa Kammath v. Anantha Kammath, (1992) 1 Ker LT 190 held that the Additional District Judges can act. as Appellate Authority under Section 18 of the Act. The question was again raised before another Division Bench in C.R.P. 2152/91. The Bench by the decision in Anthappan v. Fr. Paschal, (1993) 2 Ker LT 423 agreed with the reasoning of this Court in (1992) 1 Ker LT 190. The learned counsel for revision petitioner seeks reconsideration of the matter on the ground that some of the relevant provisions of the Civil Courts Act had not been considered by the Division Bench in (1992) 1 Ker LT 190. Attention is drawn to Sections 3
and 4 of the Kerala Civil Courts Act, 1957. Section 3(2) enables the Government to establish a District Court for each district and to appoint a Judge called the District Judge to such court. Section 4 empowers the Government to appoint one or more Additional District Judges to that court when the state of business pending before a District Court so requires. Sub-section (2) of Section 4 directs that the Additional District Judge shall discharge all or any of the functions of the District Judge under this Act in respect of all matters which the District Judge may assign to him which under the provisions of Section 7 may be instituted before him and in the discharge of those functions he shall exercise the same powers as the District Judge. Section 7 enables the High Court with the approval of the Government to issue, a notification to the effect that all or any class of proceedings arising in any specified local area in a ‘ District which would ordinarily be instituted in the District Court to be instituted before an Additional District Judge of that Court sitting in a place where the District Judge siti. The District Judge, according to learned counsel for revision petitioner is the Judge appointed to the District Court and the Additional District Judge has got jurisdiction only to discharge those functions which are assigned to him by the District Judge. The contention appears to be that the District Judge alone is constituted the Appellate Authority by the notification and such function cannot be assigned to the Additional District Judge. There can thus be only one District Judge for a district and he alone can exercise the powers under the notification. The Civil Courts Act draws a distinction, according to the counsel between a District Judge appointed for a district and the Subordinate Judges appoined for a Subordinate Judge’s Court and Munsiffs appointed to a Munsiff Court. Counsel argues that Section 5 of the Civil Courts Act envisages establishment of such number of Subordinate Judges Courts and Munsiffs Courts as necessarily in each District. In consultation with the High Court Government may fix and from time to time vary the number of Subordinate Judges to be appointed for a
Subordinate Judge’s Court of the number of Munsiffs to be appointed for a Munsiffs Court. The legislature has therefore drawn a distinction between Subordinate Judges and Munsiifs on the one hand and the District Judges on the other, according to the counsel. In the case of a District Court only one District Judge can be appointed, whereas any number of Subordinate Judges can be appointed for a Subordinate Judge’s Court and any number of Munsiffs for a Munsiffs Court. The appointment of Additional District Judge, according to the counsel is envisaged under Sub-section (2) of Section 4 to meet the situation when the state of business pending before a District Court requires one or more Additional Judges. The Additional Judges so appointed are not District Judges of the District whereas they are empowered only to discharge the functions of the District Judge while considering the matters which the District Judge assigned to them. It is therefore contended that District Judge appointed under Sub-section 3(2) of the Civil Courts Act is the Principal District Judge of the district and not the Additional District Judges. Only one District Judge can be appointed to a District Court whereas any number of Subordinate Judges to a Subordinate Judge’s Court and any number of Munsiffs to a Munsiff Court. This distinction was lost sight of by the Division Bench, according to counsel. If the intention of the legislature in directing appointment of a District Judge to a district and more than one Subordinate Judges to a Subordinate Judge’s Court or more than one Munsiff to a Munsiffs Court is taken note of the additional District Judge will not be a District Judge coming under Section 3(2) of the Civil Courts Act and is not empowered to discharge the functions of a District Judge who alone has been constituted the Appellate Authority under the notification, argues counsel. This plea cannot be sustained. The -Division Bench had considered in detail the various judicial pronouncements on this subject by this Court as well as by the Supreme Court and other High Courts. It was after a careful analysis of the various provisions of the Civil Courts Act and those decisions on the subject this Court held that Additional District Judges have also got authority under
the notification to function as the Appellate Authority by virtue of the notification. We are in complete agreement with the views expressed by the Division Bench and the reasons stated thereunder. We therefore feel it unnecessary to embark on a further enquiry on this aspect.
7-8. On a plain reading of the notification we do not think that the notification intended to confer jurisdiction only on the Principal District Judge of the District. The notification reads:
“S.R.O. No. 1631/89 :- In exercise of the powers conferred by clause (a) of Sub-section (1) of Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) and in supersession of all previous notifications on the subject, the Government of Kerala hereby confer on the District Judges having jurisdiction over the areas within which the provisions the said Act have been extended, the powers of the Appellate Authorities for the purpose of the said Act, in the said areas.”
By the notification the powers of the Appellate Authority for the purpose of the Act under Sub-section (1) of Section 18 had been conferred on “the District Judges having jurisdiction over the areas within which the provisions of the said Act have been extended.” The jurisdiction therefore is not on the District Judge in charge of the District or the District Judge appointed for a district under Section 3(2) of the Civil Courts Act. The jurisdiction is conferred on “the District Judges” having jurisdiction over the areas within which the provisions of said Act have been extended. It has only to be seen whether the District Judge mentioned as the Appellate Authority has jurisdiction over the areas in which the subject matter of the appeal is situated. In other words, the first aspect to be looked into is whether the Act has been extended to the area in which the building is situated. It has then to be seen whether the District Judge who hears the appeal under Section 18(1) of the Act has got jurisdiction over the area. It cannot be disputed that the Additional District Judge has jurisdiction over the district to which he has been appointed as an Additional District Judge. Necessarily therefore he will have jurisdiction over the area in which the building is situated in
case the Rent Control Act has been made applicable to that area. The notification therefore confers power on the Additional District Judge also to exercise jurisdiction under Section 18(1) of the Act to hear and dispose of the appeals presented under that section. That the District Judge is empowered to assign work to the Additional District Judge under Sub-section (2) of Section 4 is no reason to hold that the Additional District Judge has no jurisdiction over the area. It may be that such a provision was necessary for the adjustment of the work in the Additional District Court. The Principal District Judge alone is competent to allot business of the court between the Principal Court and the Additional Court. It is only to achieve this purpose that necessary provision is incorporated in Sub-section (2) of Section 4 of the Civil Courts Act. Learned counsel for the revision petitioner would even contend that in case the District Judge does not assign any work to the Additional District Judge there will not be any work for him to discharge. The assignment of the work or the adjustment of the business of the court is a matter for the Principal District Judge who has to discharge the same in accordance with the directions of this court. In this revision we are not concerned about the assignment of the work by the Principal District Judge or the allotment of work between the Principal and Additional Benches. We are only concerned with the question as to whether the Additional District Judge has got jurisdiction over the area where the building is situated. When once the notification confers powers on the District Judges having jurisdiction it is futile for revision petitioner to contend that the Additional District Court has no power to hear an appeal under Section 18(1) of the Act. He having jurisdiction over the area has also been constituted the Appellate Authority under Section 18(1) of the Act has been conferred with the powers of the Appellate Authorities for the purpose of the Act. While discharging such functions he shall have the same powers as a District Judge by virtue of the power conferred under Sub-section (2) of Section 4 of the Civil Courts Act. Revision petitioner cannot have a case that the appeal from which the revision arose was not
assigned to the Additional District Judge by the Principal District Judge in exercise of the power under Section 4(2) of the Civil Courts Act. This is not therefore a case where the jurisdiction has been conferred on the District Judge alone who had assigned that function to the Additional District Judge. The jurisdiction has been conferred on the District Judges having jurisdiction and the consideration of the appeal by the Additional District Judge is only on account of the allotment of the work between Principal District Judge and the Additional District Judge. The plea that the Additional District Judge has no jurisdiction to hear the appeal has therefore to fail and we hold so.
9. Point No. II : The finding on the aspect of sublease is challenged by revision petitioner on the ground that the Appellate Authority has not carefully analysed the documents produced by him. On an appreciation of the evidence the Appellate Authority came to the conclusion that revision petitioner was in possession only on behalf of the tenant and that the transfer in his favour if at all there is any was not recognised by the landlords. According to them, they were mislead by the tenant in believing that he was closing down the business “Tyre Resoles (India)” and was starting a new business in the name of “Scooter Garage” and that was why request was made for issue of receipts in the name of the Proprietor, Scooter Garage. On the other hand, the specific case of revision petitioner was that the Scooter Garage belongs to him and it was he who was conducting the business and was paying rent to the landlords. The rent was received by PW 1 on behalf of the landlords and the receipts issued by the first respondent were sent to him by PW 1 along with a covering letter. The contention is that the landlords had acquiesced in the possession of revision petitioner as a transferee from the tenant. He claimed to be in such possession for a continuous period of 20 years by the date of the petition. To prove such possession he had produced large number of rent receipts accompanied by the covering letters sent by PW 1 on behalf of the landlady as well as other documents. The question to be considered by the Appellate Authority was whether revision petitioner was treated as a tenant or whether receipt were issued to him on behalf of the tenant.
10. In this connection learned counsel for respondents 1 to 4 relied on the plea raised in the counter statement of revision petitioner and the tenant regarding the surrender of the tenancy right by the tenant on 1-5-1966 and a separate entrustment in the name of the revision petitioner on that date. The parties having failed to prove the fact of surrender and the entrustment in favour of revision petitioner the documents produced on the side of revision petitioner cannot be looked into, according to counsel. It is also contended that parties cannot be permitted to adduce evidence against the pleading contained in the counter statement. In support of this contention considerable reliance was placed on Exts. Al and A2. Ext. A1 is a letter sent by the tenant to the landlady on 10-5-1966 intimating her of his intention to close down the business “Tyre Resoles (India)” and to start a new workshop. Another letter was sent as Ext. A2 on 10-7-1966 informing the landlady about the starting of a workshop in the name “Scooter Garage”. By the same letter the landlady was requested to issue receipts in the name of the Proprietor of Scooter Garage. Both the tenant and the revision petitioner contended that the tenants has ceased to be occupation from 1-5-1966 and revision petitioner was the tenant thereafter. If that be so, Ext. A2 letter would not have been sent by the tenant informing the landlady about the starting of a new workshop. From Ext. A2 itself it would appear that , the workshop was started by the tenant and others. The letter does not mention the names of the other persons. On the basis of Ext. A2 rent receipts are alleged to have been issued in the name of the Proprietor of Scooter Garage believing him to be the tenant, according to respondents 1 to 4. No permission was granted either for a sublease in favour of revision petitioner or for a transfer of possession to his name. The realisation of rent from revision petitioner even if it be so will not amount to grant of permission by the landlords
since knowledge of the subletting is essential which is absent in this case. Attention is drawn to the decision in Gappulal v. Shriji Dwarkadheeshji, AIR 1969 SC 1291. The defendant in that case denied the sublease alleged. The Courts below concurrently found that the denial was false and that the tenant has sublet the two shops to his brother-in-law. There was no pleading nor was any issue that the subletting of the two shops was made with permission of the landlord. The defendant had no case that he had obtained the permission of the landlord for subletting the two shops. The Supreme Court observed that in the absence of any pleading and any issue on this point the first two courts were in error in holding that the two shops were sublet with the permission of the landlord. The permission of the landlord for the subletting was not established from the mere fact that the landlord, realised rent after the subletting in the absence of proof that the landlord had then clear knowledge of the sublease.
11. The principle enunciated by the Supreme Court directly applies to the facts of the present case, according to learned counsel for respondents 1 to 4 since the landlords had no knowledge of the sublease and the realisation of rent from revision petitioner will not amount to such permission. From the records it would appear that the plea regarding the entrustment of the building to revision petitioner on 1-5-1966 was not established by proper evidence. But there is material on record to show that the husband of first respondent who was managing the properties on her behalf was receiving rent from revision petitioner and receipts were issued to him accompanied by covering letter sent by PW 1 himself. The question then arises whether the continuous possession of the building by revision petitioner as evidenced by these receipts and covering letters would amount to a grant of permission by the landlady and whether there has been an acquiescence in the possession of the building by the revision petitioner even if there has been a transfer or a sublease by the tenant.
12. The Appellate Authority was taken
through Exts. B5, B6, B7, B8, B9 and all the covering letters Exts. B11 to B49(a) which indicated very close personal relationship between PW 1 and revision petitioner. The rent was enhanced as promised by revision petitioner. PW 1 visited the premises on his request. In one of the letters PW 1 expressed grief over the demise of revision petitioner’s father and offered his condolence. In another he enquired about the wife of revision petitioner. He had even asked for a favour from revision petitioner for getting a job for PW 1 ‘s son Sreekumar, third respondent herein in the Bank of Baroda. He had expressed concern over the theft that took place in the tenanted premises. In one letter he congratulated revision petitioner’s children who had come out successful in rifle shooting. The very same documents are relied on by counsel for revision petitioner before us in support of his contention that these documents would conclusively establish not only possession but recognition by the landlords of such possession as tenant. According to the appellate authority these documents will not show that the landlords were aware of the fact that tenant has nothing to do with the scooter garage or that revision petitioner is the exclusive proprietor of that concern. But the Appellate Authority has lost sight of the fact that issue of the receipt to revision petitioner though in the name of the proprietor. Scooter Garage, has got considerable relevancy in the light of the covering letters sent by PW 1 who was managing the affairs on behalf of the landlady. Respondents 1 to 4 cannot now pretend ignorance of these receipts or the management of PW 1 nor can they contend that the actions of PW 1 are not binding on them. Though the receipts arc seen issued in the name of the proprietor. Scooter Garage, the covering letters are addressed to the revision petitioner and they were in fact received by him. It is seen that some of those letters were even replied by revision petitioner.
13. Apart from the documents aforementioned there, are other documents on the side of revision petitioner to show that he had been asserting possession over the building for a continuously long period. Exts. B51 to 53 are assessment registers in respect of this building. They are for the period from 1971 to
1976, 1976 to 1981 and 1981 to 1986 respectively. In these registers revision petitioner is shown as the tenant of the building for a continuous period of 15 years. The name of revision petitioner thus figures as the tenant in the assessment register maintained by the Corporation in respect of this building. It is seen from Ex. B-54 series that the licence fee was paid by revision petitioner for conducting the workshop in the premises, ft is also noticed that profession tax was paid by revision petitioner for the year 1972 and the notice from the Income-tax Department for the assessment year 1974-75 in respect of business carried on in the premises was issued to the revision petitioner.
14. The specific case set up by revision petitioner is that he was recognised as a tenant and that he had been in possession in that capacity for a continuously long period of 20 years before the petition. By the conduct of the landlords in accepting rent from revision petitioner the right to claim eviction of revision petitioner was waived by the landlords, according to him. Attention is drawn to the decision of Supreme Court in A. S. Sulochana v. Dharmalingam, AIR 1987 SC 242. The Supreme Court observed that the mere fact that for as many as 18 years no objection was raised and no action for possession was instituted notwithstanding the fact that a subtenant was openly in occupation of a part of the rented premises would give rise to an inference that it was never treated as unlawful subletting. There was also no record in that case to show that the subletting which was made in 1952, 18 years before the institution of the suit in 1970, was in violation of the relevant provisions of law. The question for consideration in the present case is therefore whether the principle of waiver can be applied against the landlords on account of the acceptance of rent from revision petitioner for a considerably long period of 20 years and whether there has been a relinquishment of the right to seek eviction of revision petitioner on the ground of sublease or transfer. The lease deed Ext. A-5 executed by the tenant does not confer on him a right to sublease whereas there is an undertaking that he would not create sublease or transfer of possession
of the building. Admittedly there is no consent in writing of the landlord. Relying on the decision of the Supreme Court in Gopulal v. Shriji Dwarkadheeshji, AIR 1969 SC 1291, it is argued by learned counsel for the landlords that permission of the landlord for subletting is not established from the mere fact that the landlord has realised rent after the subletting in the absence of proof that the landlord had then clear knowledge of the sublease. In that case it was not the case of the defendant at any stage of the trial that he had obtained the permission of the landlord for subletting the two shops. The Supreme Court observed that in the absence of any pleading and any issue on this point the first two Courts were in error in holding that the two shops were sublet with the permission of the landlord. In the present case there is no plea of subletting or transfer but the plea is one of separate entrustment in favour of the revision petitioner. That plea as such was not established but the possession of the revision petitioner and the acceptance of the rent by the landlords had been proved beyond doubt. It cannot therefore be said that the landlords had no knowledge of the possession of revision petitioner. It was with knowledge that rent was received from him. The principle of the decision aforementioned is not applicable to the present case.
15. Learned counsel for the landlords would then point out that the decision, (1987) 1 SCC 180 : (AIR 1987 SC 242); Sulochana v. Dharmalingam was distinguished in Pulin Behari Lal v. Mahadeb Dutta, (1993) 1 SCC 629 : (1993 AIR SCW 731). The Supreme Court was considering the question whether waiver can be applied against the landlords merely on account of acceptance of rent. The Supreme Court observed that it was necessary for the tenant to prove that the landlords had accepted the rent being fully conscious that by this act they were relinquishing the right of eviction available to them on the ground of subletting under Section 13(1)(a) of the West Bengal Premises Tenancy Act which contained more or less provision similar to the provisions contained in Kerala Rent Control Act. The Supreme Court held that the Rent Act is for the protection of the rights of the tenants but at the same time it does not permit
the subletting by a tenant without the consent in writing of the landlord and this provision has been kept in public interest for the benefit of the landlords and the same can only be negatived by an act of conscious relinquishment of such right by the landlord. Waiver is a question of fact which depends on the facts and circumstances of each case. The Supreme Court further held that in the case of waiver of any provisions of the statute it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statute.
16. There is overwhelming documentary evidence in this case to show that PW 1 who was looking after the affairs of the landlords was fully aware of the exclusive possession of the revision petitioner from whom rent was received for a continuously long period of 20 years. It may be, that the tenant had informed the landlords by Ext. A-2 about the change of business and the requirement of issuing receipts in the name of the Proprietor, “Scooter Garage.” The Scooter Garage, according to the tenant and the revision petitioner is one owned by revision petitioner who was conducting that business in the premises. We have already referred to the covering letters sent by PW 1 accompanying the rent receipts. The landlords were therefore fully aware of the exclusive possession of revision petitioner who was treated as a tenant from whom rent was received. There has thus been a waiver or conscious relinquishment of the rights of the landlord to seek eviction on the ground of sublease or transfer. The conclusion reached by the Appellate Authority on this aspect is therefore erroneous and against the evidence available on record both oral and documentary. We reverse that finding and hold that the landlords are not entitled to get eviction on the ground of sublease.
17. Point No. iii : The appellate authority has found the need alleged in the petition to be bona fide, in the absence of satisfactory evidence on the side of the landlords. None of the persons for whose need eviction was sought has figured as a witness in the case. Their need is spoken to by their father PW 1 who admittedly is managing their affairs. The
question arises whether the Appellate Authority was right in finding the need to be bona fide in the absence of any evidence by the persons who require the building and by merely relying on the testimony of PW 1. The details of the requirement are contained in paragraph 5 of the original petition. It is alleged that second petitioner and his wife are medical graduates now in U.S.A. and they want to come back and put up practice at Ernakulam. They have no property or building under their possession in Cochin Corporation. Hence the necessity to get the building vacated for the purpose of own occupation. It is also alleged that petitioners 3 and 4 who were then employed at Beyefi Group Company, Calicut and Alind, Mannar respectively were hoping to get transfer to Ernakulam where there are branches of their companies. Petitioners intended to reconstruct the building to accommodate them also. A letter alleged to have been sent by second petitioner from U.S.A. was exhibited as Ext. A-6. It was sent by registered post. According to the Rent Controller that letter was sent at the instigation of PW 1. The Appellate Authority is of the view that it is the substance of that letter which has to be looked into rather than the form or the mode in which it was sent. Had the requirement been mentioned in an ordinary letter sent by the son to the father we could have said the requirement is genuine. But the need is mentioned in a registered letter which can only be for the purpose of creating evidence in the petition for eviction. Apart from that letter, there is nothing on record to show that second petitioner and his wife intend to shift their residence to Ernakulam to have a permanent abode here. They are presently settled in the United States of America. They had not cared to get them examined to speak about their intention to set up residence at Ernakulam. Similar is the case of petitioners 2 and 3 who also had not chosen to tender evidence. The question arises whether the non-examination of petitioners 2 to 4 will disentitle the landlords from getting eviction.
18. A landlord who bona fide needs the building for his own occupation or for the occupation by any members of his family
depending on him can apply to the Rent Control Court for an order directing the tenant to put the landlord in possession. The building admittedly belongs to petitioners 1 to 4. The petition alleges that petitioners are the landlords of the building and that first petitioner was managing the affairs of the other petitioners also. Each of the petitioners is therefore a co-owner. The need may be either the joint need of all the co-owners or the need of any one of them. Here the need alleged is that of three of the four co-owners. In other words, the need alleged is that of the landlord himself for his own occupation and not for the occupation by any member of his family dependant on him. When the landlord approaches the Rent Control Court with a request for eviction on the ground of bona fide need for own occupation it goes without saying that the need has to be established by him by proper evidence. Bona fide, means the state of mind. That state can be manifested only by the person who entertains a desire to have the building for his occupation. The persons who need the building are petitioners 2 to 4. None of them has chosen to speak about his need. It cannot therefore be said that either the landlord has established the need for own occupation or that the need alleged is bona fide. On that sole ground the request for own occupation deserves to be rejected.
19. In this connection learned counsel for the landlords has a contention that it is not essential that a landlord should give evidence in person. Counsel relies on the decision of this Court in Bhaskaranv. Unni, 1984 Ker LT 1016. Therein it was held that it is not an infrastructural requirement of law that the landlord should unnecessarily enter the witness box to give evidence. At the same time it is observed that it would depend upon the facts of each case. In that case the requirement was for own occupation by the landlady and her husband who was at the relevant time employed in Nigeria. The couple wanted to occupy the house on the return of the landlady’s husband whose return was expected to be completed within a short time thereafter. The landlady was not examined as a witness, but her husband tendered evidence. This
Court held that the husband was fully competent to swear to the material facts especially, the specific plea put forward as a ground for eviction. This Court further observed that in a sense the husband was more competent to speak about the material facts such as the termination of his contract of service in Nigeria and the consequent necessity for return to the home State. Moreover, it was he who was corresponding with the tenant and requiring him to surrender the building. Under such circumstances, this Court held that the non-examination of the landlady was not material. That finding was rendered on the facts and circumstances of that case and especially when the need was for the occupation of the husband and the wife of the building owned by the wife. In every case the petitioner need not enter the witness box and depose the requirement, but whether the evidence of the petitioner is required or not wilt depend upon the facts and circumstances of the case. The decision cannot be said to have laid down a proposition that in every case the landlord can dispense with his examination to establish the need alleged by him.
20. Reliance is also placed on the decision in Subaida v. Krishnan, 1986 Ker LT 663. That decision also is of no assistance to respondents 1 to 4. That was a petition filed by a Muslim Pardanishan lady on whose behalf her husband tendered evidence. This Court observed that the husband was fully competent to swear to the material facts to prove the bona fide need of the landlady. It is further observed that in a sense he is more competent to speak about the material facts than the landlady herself since he was attending to all matters on her behalf. It was in those circumstances that this Court held that to insist that even in such a case the landlady herself should appear in Court and give evidence is totally unreasonable.
21. The position therefore is that in every case the petitioner cannot be insisted to tender evidence to speak about the bona fide need for own occupation. But it depends upon the facts and circumstances of each case. In the two decisions aforementioned the husband was speaking on behalf of the wife and the
requirement was for the occupation of both of them. Under such circumstances the husband was competent to speak on behalf of the wife and as observed in those decisions he would be more competent. The question how far the non-examination of the landlord is material has therefore to be determined on the facts and circumstances of each case. In short, what is required is the satisfaction of the Rent Controller that the claim of the landlord is bona fide. That has to be tested on the materials available including the oral testimony to ascertain the state of mind of the person who needs the building for own occupation.
22. Viewed in the light of the principles enunciated above the landlords cannot be said to have satisfied the Rent Control Court as to their bona fide need. None of the persons who require the building for own occupation has spoken about the need. True their father was examined as PW 1, but the desire to occupy the house has to be proved by the sons themselves. The Rent Control Court can direct surrender of the premises by the tenant only if it is satisfied that the landlords require the building for their occupation and such requirement is bona fide. On this aspect there is practically no evidence on the side of landlords. This aspect of the matter was overlooked by the Appellate Authority. The finding on the aspect of bona fide need is therefore unreasonable.
23. The averments in paragraph 5 of the petition do not enable the landlords to sustain the claim for eviction. What has been manifested by those averments is only a desire to occupy the building after reconstruction. P W 1 also has only spoken about the desire of petitioners 2 to 4. It is settled law that a desire of the landlord by itself is not sufficient to claim eviction whereas it should be something more. What is required to be established is the need for occupation though it may not be an absolute necessity. In the present case the landlords have only expressed a desire which by itself will not entitle them to get a direction to the tenant to surrender the premises. This aspect of the matter was also overlooked by the Appellate Authority.
24. Even from the averments in the peti-tion and the testimony of PW 1 it is clear that there is no possibility of petitioners 2 to 4 occupying the building in the near future. Second petitioner is settled in U.S.A. along with his wife. Third petitioner is an Advocate practising at Trichur. His desire to shift his practice to Ernakulam is spoken to by PW 1. But third petitioner has not come forward to speak about his intention to shift his practice. Similarly, the 4th petitioner also is employed elsewhere. At the time of petition third petitioner was employed in some firm. The requirement of a building is for occupation in case they got transfer to their branches at Ernakulam. That requirement has not been proved and does not appear to be true also. Counsel for revision petitioner would also point out that the proposed building is not sufficient for accommodating petitioners 2 to 4 and their families. Reliance is placed on the plan of the building produced by petitioners. In view of our finding that the bona fide need has not been established it is not necessary for us to consider whether the building proposed to be constructed will be sufficient for their requirement. In any view of the matter the need for own occupation has not been proved and much less the bona fides of the claim. On the evidence available the need has not been established. The finding of the Appellate Authority is therefore unreasonable and has to be set aside.
25. Relief on the ground of reconstruction was denied by the Rent Control Court giving liberty to the landlords to file an independent petition on that ground. This finding was challenged by the revision petitioner before the Appellate Authority by a memorandum of cross-objections. The Appellate Authority did not adjudicate on this claim and observed that the counsel for the appellants did not invite the attention of the authority to any decision under Section 11(4)(iv) of the Act. This order is not challenged in revision with the result that the finding of the Rent Controller stands.
For the aforesaid reasons the revision is allowed and in reversal of the judgment of the Appellate Authority the order of the Rent
Control Court is restored. Parties shall suffer their costs.