ORDER
J.B. Koshy, J.
1. Revision petitioner is the tenant and respondent is the landlord of the petition schedule building. Landlord filed the petition, R.C.P. No. 115 of 1993, before the Rent Control Court, Ernakulam, for eviction of the tenant under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the Act’). According to the petitioner/landlord, the tenant, who is an advocate, is in default of payment of rent from December, 1992. He has also sublet the room to one Mohan. It was further stated that the room is needed for the occupation of landlord’s younger son who is depending on him. He has completed his B.Sc. Course, Typewriting etc. and is unemployed. The petition schedule room is required for starting a typewriting institute. The ground floor of the building is divided into fifteen small rooms, out of which thirteen rooms are rented out to one M.K. Dandapani. The other two rooms available in the ground floor cannot be made use for any purpose as the said rooms are the sole means of entrance to the other thirteen rooms on the rear side. It is also stated that the tenant has other source of income for his livelihood and that he is an official receiver and has another office room adjacent to the court building. In the amendment application which was allowed, landlord stated that one of the vacant rooms in the ground floor is used as entrance to the other thirteen rooms rented out to Mr. M.K. Dandapani and the other room is subject matter of a dispute between the petitioner and one Retnam Venugopal, who is the owner of the remaining part of the building.
2. PWs. 1 to 3 were examined on the side of the landlord. On behalf of the tenant, the tenant himself was examined. The Rent Control Court found that landlord is entitled to evict the tenant only under Section 11(3) of the Act. After considering the evidence in detail, the qualifications of the petitioner’s younger son, ability to conduct a typewriting institute etc. it was found that the room is bonafide needed for occupation of petitioner’s son who is depending on him. Petitioner was not able to prove the case
for eviction under Section 11(2)(b)and 11(4)(i) of the Act. The eviction was allowed under Section 11(3) of the Act.
3. The contention of the tenant was that he is depending mainly on the income derived from the trade or business conducted in the petition schedule room for his livelihood and no other suitable building is available in the locality was not considered by the Court as advocates cannot claim that benefit. Second proviso to Section 11(3) reads as follows:
“Provided further that She Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:”
The above contention was not considered by the Rent Control Court as the tenant is an advocate and advocate profession cannot be termed as ‘trade or business’. The Appellate Authority upheld the findings of the Rem Control Court,
4. The finding that there is bonafide need for the landlord to occupy the above building for his son is questioned by the revision petitioner. On going through the orders of the Rent Control Court and the Appellate Authority it is very clear that the evidence adduced in the case were considered by both the authorities and the finding that the landlord requires the above building for occupation of his son for starting a typewriting institute is a finding of fact based on evidence and no grounds are made out for interference under Section 20 of the Rent Control Act. It is also contended that during the appellate stage a commission application was filed to prove that the landlord has another building. That application was rejected. We note that valid reasons are given by the appellate authority in rejecting that application. The case was filed in 1993. The Commission application itself was very belated and only to protract the proceedings filed by the tenant. In any event, no grounds are made out for interference under Section 20 of the Act. With regard to the application of second proviso to Section 11(3) on the facts of the case, that was not considered by both courts. It is true that in Sethurama Menon v. Meenakshi Amma (1966 KLT 665) and in Krishnankutty Menon v. Malathi (1985 KLT 6) this Court held that advocate profession is not a trade or business. The Supreme Court in S. Mohan Lal v. R. Kondiah (AIR 1979 SC 1132) held that profession carried on by an advocate can be said to be business. In that decision the Apex Court held as follows:
“It is a common expression which is sometimes used by itself and sometimes in a col location of words as in ‘business, trade or profession’. It is a word of large and wide import, capable of a variety of meanings. It is needless to refer to the meanings given to that term in the various dictionaries except to say that everyone of them notices a large number of meanings of the word. In a broad sense, it is taken to mean, ‘everything that occupies the time, attention and labour
of men for the purpose of livelihood of profit’. In a narrow sense, it is confined to commercial activity. It is obvious that the meaning of the word must be gleaned from the context in which it is used. Reference to the provisions of the Constitution or other statutes where the expression is used cannot be of any assistance in determining its meaning in Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. It is not a sound principle of construction to interpret the expressions used in one Act with reference to their use in another Act; more so if the two Acts in which the same word is used are not cognate Acts. Neither the meaning, nor the definition of the term in one statute affords a guide to the construction of the same term in another statute and the sense in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally. On the other hand, it is sound, and indeed, a well-known principle of construction that meaning of words and expressions used in an Act must take their colour from the context in which they appear.”
In fact, that decision was distinguished by this Court in Krishnankutty Menon v. Malathi (supra) as well as in Hassan v. Mohammed (1994 (1) KLT 502) on the ground that meaning of the words ‘trade or business’ used in the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act which was considered in Mohan Lal’s case (supra) is different from the Kerala Act. But the Supreme Court in Dr. Jess Raphael v. K.L. Regina Joseph (1995 Supp (3) SCC 190) considered the second proviso to Section 11(3) of the Kerala Act and it was held that nursing home run by the doctor is his business. It was further held by the Apex Court that meaning of the word ‘business’ in Andhra Pradesh Act as interpreted in Mohan Lal’s case is applicable to Kerala Act also. Considering the decision in 1995 Supp. (3) SCC 190 this Court in Raghavan v. Balamohan (1997 (1) KLT 202) (one of us was a party to the above judgment) held that in view of the decisions of the Supreme Court in Dr. Jess Raphael v. K.L. Regina Joseph (1995 Supp. (3) SCC 190) and in Mohan Lal v. R. Kondiah, AIR 1979 SC 1132, the decisions of this Court in Hassan v. Mohammed (1994 (1) KLT 502); Krishnankutty Menon v. Malathi, 1985 KLT 6, and in Sethurama Menon v. Meenakshi Amma (1966 KLT 655) are no longer good law. In view of the above, it cannot be now stated that the profession carried on by the tenant is not for the purpose of his business.
5. Learned counsel for the landlord cited the decision reported in V. Sasidharan v. Peter & Karunakar, (AIR 1984 SC 1700). There the Court considered whether a lawyer’s firm can be termed as “commercial establishment”. Purpose of Shops and Commercial Establishments Act is entirely different. Here second proviso to Section 11(3) was enacted for protecting the interest of the tenant who is mainly depending upon the income derived from the business which is carried on by him in the petition schedule room and who is not in a position to get another room. Therefore, purpose of the Rent Control Act is entirely different from the objects of the Shop Act. When the Supreme Court considered the provisions of the Rent Control Act and explained the
meaning of the term ‘trade or business’ in Dr. Jess Raphael’s case (supra) as well as in Mohan Lal’s case (supra), there is no necessity to go into the interpretation of the word ‘commercial establishment’ given in the Shop Act. The word ‘trade or business’ is not defined in the Act. If a statutory provision is open to more than one interpretation, this Court has to choose that interpretation which represents the true intention of the legislature as held by the Supreme Court in Venkataswami Naidu v. Narasram Naraindas (AIR 1966 SC 361 at page 363), It is the duty of the Court to find out the true intention of the legislature – ‘the mens or sententia legis’.
6. Legislature in a modern State is actuated with some public policy to curb some public evil or to effect some public benefit. Second proviso to Section 11(3) is intended to protect a tenant who is occupying the building if the activities carried on there is the main means of his livelihood. Therefore, the word ‘trade or business’ is to be given a wider meaning as to include a profession or occupation carried on by tenant which is the main source of income for his livelihood. As held by the Apex Court in Workmen of Dimakuchi Tea Estate v. Management of Dinakuchi Tea Estate (AIR 1958 SC 353 at Page 356) words of a statute are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. See also U.P. Bhoodan Yagna Samiti v. Braj Kishore and Ors. (AIR J988 SC 2239). Principle behind ‘purposive construction’ or ‘mischief rule’ as enunciated in Heydon’s case ((1584) 3 Co Rep 7A(V) was accepted by the Supreme Court in Bengal Immunity Co. v. State of Bihar (AIR 1955 SC 661). Court has to interpret the word considering the object to be carried out by the enactment or mischief to be remedied by it according to the true intent of the makers of the Act, ‘pro bono publico’. In this connection we refer to Maxwell on the Interpretation of Statutes, Twelfth Edition, page 40 where an example of mischief rule or object of the enactment is explained as follows:
“In the well-known case of Smith v. Hughes. (1960) 1 WLR 830, for example, it was held that prostitutes who attracted the attention of passers-by from balconies or windows were soliciting “in a street” within Section 1(1) of the Street Offences Act, 1959. “Formy part” said Lord Parker C.J. (at p. 832), “I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes.” Viewed in that way, the precise place from which a prostitute addressed her solicitations to somebody walking in the street became irrelevant.”
7. The Supreme Court recently followed the Heydon’s case in the Quarry Owners Association v. The State of Bihar and Ors. (AIR 2000 SC 2870) and held that words are impregnated with and are flexible to connote different meanings when used in different context and Court should adopt that dynamic meaning which will give full thrust and satisfaction to achieve the objectives which the legislature intended.
Purposive interpretation is also explained in Ranjeet Singh v. Harmohinder Singh Pradhan, (1999) 4 SCC 517; in State of T.N. v. Board of Trustees of the Port of Madras, (1999J 4 SCC 630) and in Associated Timber Industries v. Central Bank of India, (2000) 7 SCC 93). The word ‘trade or business’ has given wider meaning by the Apex Court in the matter of interpretation of second proviso to Section 11 (3) of the Act in Dr. Jess Raphael’s case following the decision in Mohan Lal’s case. In view of the above Apex Court decision and this Court’s decision in Raghavan v. Balamohan (1997 (1) KLT 202) we are of the opinion that advocate profession carried on by the tenant is his trade or business for the purpose of second proviso to Section 11(3). Therefore, Court below ought to have considered the plea raised under the second proviso to Section 11(3).
8. In the circumstances, we set aside this part of the finding alone of the Rent Control Court and the Appellate Authority. We remand the matter to the Rent Control Court for considering the question of application of second proviso to Section 11 (3) on the basis of evidence already adduced in the matter. Since petition for eviction was filed in 1993 and the landlord is said to have reached the age of 90, we direct that the Rent Control Court should pass fresh order within six months from today. Parties should appear before the Rent Control Court on 10.6.2002.
The Civil Revision Petition is allowed by way of remand for this specific purpose alone.