ORDER
S. Sankarasubban, J.
1. This Civil Revision Petition is filed against the judgment in R.C.A. No. 34 of 1997
of the Rent Control Appellate Authority, Thrissur. Original proceeding is R.C.P. No.
51 of 1994 of the Rent Control Court, Thrissur. Revision petitioner is the tenant. The
facts of the case are as follows:
2. Building No. 13/296 of Thrissur Municipality was taken on lease by the petitioner
on 6.3.1989 for a monthly rent of Rs. 450/- from the predecessor of the respondents
for a period of one year. The petitioner executed a rent deed on 4.3.1989 in favour of
the original landlord. The rental arrangement continued under the same terms and
conditions. Allegations are that the tenant kept rent of the room in arrears from
February, 1994 and also that the adjacent premises in which the landlord resides with
his family was insufficient for their use and that the room occupied by the tenant is
bonafide needed for additional accommodation of the landlord and by carrying out
necessary repairs and alterations the tenanted premises can be made suitable for the
additional accommodation.
3. Ext. A2 notice was issued to the tenant. The landlord filed petition under
Sections 11(2)(b), 11(3) and 11(8) of the Kerala Building (Lease & Rent Control) Act
(hereinafter referred to as ‘the Act’). The tenant opposed the application by filing
objection stating that there was no rent in arrears. The necessity for getting eviction
for additional accommodation was also denied by the tenant. It was also contended
that the tenanted premises is used as a workshop and it is from the income derived
from the workshop that the tenant and his family live and that no other building is
available anywhere near the tenanted premises.
4. Before the Rent Control Court, the petitioner was examined as PW1. Exts. A1 to
A3 were marked on the side of the petitioner. Respondent was examined as RW1.
Two other witnesses, RWs 2 and 3 were also examined. Exts. B1 to B4 were marked
on the side of the respondent. Exts. X1 to X2 are court Exhibits. Eviction
under Sections 11(2)(b) and 11(3) of the Act was rejected. The Rent Control Court ordered
eviction under Section 11(8) of the Act. The respondent preferred appeal, R.C.A. No. 34
of 1997. The appeal who also dismissed. It is against that the present revision is filed.
5. Learned counsel for the petitioner contended that eviction is ordered
under Section 11(8) of the Act, and the relief is granted only for additional accommodation.
The landlord died before the proceedings were closed. According to him, the need
has already lapsed and the proceedings cannot be continued. According to him,
unfortunately, both the Courts did not consider this. Learned counsel submitted that
after the death of the original landlord, the need under Section 11(8) of the Act cannot be
claimed. On the other hand, learned counsel for the respondent submitted that what
the landlord wanted is to accommodate the members of his family and that continues
even now.
6. Before we go into the point to be decided, we shall extract what is stated in the
Rent Control Petition:
It is now admitted that the ground raised is under Section 11(8) of the Act and on that basis
both the Authorities granted eviction. Section 11(8) of the Act is as follows: “A landlord
who is occupying only a part of a building, may apply to the Rent Control Court for an
order directing any tenant occupying the whole or any portion of the remaining part of
the building to put the landlord in possession thereof, if he requires additional
accommodation for his personal use”.
7. In Arjuna v. Eranu, 1991 (2) KLT 279, this Court held that the words “if he
requires additional accommodation for his personal use” are not confined to the landlord
alone, but will also include the use by the members of his family, who want to live with
him. In Shamsudeen v. District Court, 1997 (2) KLT 630, it was held as follows:
“The invocation of Section 11(8) arises only if the landlord is occupying a portion of the
building and the rest of the building is required for additional accommodation. The
word ‘occupation’ has to be understood differently from the word ‘possession’. Unless
the landlord is physically present for a substantial period of time, it cannot be said that
he was in occupation. Where the landlord after discontinuing his business had dumped
some of his belonging in one room and so that room was not let out to the tenant, the
application for eviction cannot be said to be one under Section 11(8)”. Thus, occupation of
the landlord in a portion of the building in sine qua non for invoking the provision
under Section 11(8) of the Act.
8. The question whether bona fide need can be urged by the surviving member
of the landlord came up for consideration before this Court, especially eviction under
Section 11(3) of the Act, in Padmanabhan Nair v. Ulahannan, 1982 KLT 872. There
eviction was ordered on the ground of personal need of the landlord. Pending execution,
the landlord died. It was held that as the right to sue does not survive the legal
representatives are not entitled to get impleaded to continue the proceedings. In
Papanna v. Padmanabhaiah, AIR 1994 SC 1577, it was held that when eviction has
become final and the landlord died thereafter in execution petition the contention cannot
be raised. In Shantilal v. Chimanlal, AIR 1976 SC 2358, it was held that the right to
sue does not survive after the death of the landlord. But there is a distinction that
bonafide need can be for the landlord or in favour of the family. Depending on him
and as need can be continued even after the death of the landlord. But so far as
Section 11(8) of the Act is concerned, what is stated in the Section is “for the personal need
of the landlord”. In P.V. Papanna v. K. Padmanabhaiah, AIR 1994 SC 1577, the
Supreme Court has held that events which take place subsequent to the filing of an
eviction petition under any Rent Act can be taken into consideration for the purpose of
adjudication until a decree is made by the final court determining the rights of the
parties but any event takes place after the decree becomes final cannot be made a
ground for reopening the decree. The finality to the dispute culminating in the decree
cannot be reopened by the executing court for readjudication on the ground that some
event or the other has altered the situation. As a corollary thereto it must also be held
that once the decree became final it becomes a part of the estate of the landlord and
therefore the legal representatives of the deceased landlord would be entitled to execute
the same. In Hasmat Raj v. Raghunath Prasad, AIR 1981 SC 1711, it was held
thus: “it is well settled now that in a proceeding for the ejectment of a tenant on the
ground of personal requirement under a statue controlling the eviction of tenants,
unless the statute prescribes to the contrary, the requirement must continue to exist on
the date when the proceeding is disposed of either in appeal or revision, by the relevant
authority”. In S. Sivasubramanya Iyer v. S.H. Krishnaswamy, AIR 1981 Kerala 57, a
distinction was made between Section 11(3) and Section 11(8) of the Act. Subramonian Poti, J.
(as he then was) observed as follows:
“If the landlord feels that additional accommodation is necessary and if there are sufficient
grounds or justification in support of it and therefore, if he seeks recovery of the part of the
building let out to a tenant under Section 11(8) of the Act, then, it is not for the court to find out whether
even without such additional accommodation, the landlord could somehow manage to carry on.
It may not be that if he could manage to carry on, his claim is not bona fide. If on the other hand
he is intending to seek additional accommodation not to provide such additional accommodation
to his own family members, and if the evidence indicates so, then of course his claim under
Section 11(8) will not be bona fide. In other words, the bona fides of the claim does not normally depend
upon the court being satisfied of the genuineness of the need of additional accommodation.
Then, what has to be considered first is whether the additional accommodation is required for
the personal use of the landlord. Personal use in this context is not necessarily use by himself
but by the members of his family who want to live with him”.
Thus, the words “to accommodate the members of the family” are taken as personal
use. We are highlighting this because, learned counsel for the respondents submitted
that since the need urged is to accommodate the members of the family there is a right
to sue even after the death of the landlord. But what is stated is for the additional
accommodation of the landlord. Stress is for the additional accommodation of the
landlord. Purpose may be accommodate the members of the family. Learned
counsel for the respondents brought to our notice a decision of the Supreme Court
reported in Kamleshwar Prasad v. Pradumanju Agarwal, AIR 1997 SC 2399,
wherein it was observed as follows:
“That apart, the fact that the landlord needed the premises in question for starting a
business which facts has been found by the appellate authority. In the eye of law, it must be that
on the day of application for eviction which is the crucial date, the tenant incurred the liability
of being evicted from the premises. Even if the landlord died during the pendency of the Writ
Petition in the High Court the bonafide need cannot be said to have lapsed as the business in
question can be carried on by his widow or any elder son”.
The facts of that are different from the facts of this case. There, the landlord
was alive when the proceedings are pending before the Authorities. He died only
when the matter was taken under Article 227 of the Constitution of India. It was in that
context that Supreme Court made the above observation.
9. Taking into consideration all the aspects, we are of the view that the bonafide
need of the landlord under Section 11(8) of the Act cannot survive the landlord. In this
case, the landlord died during the pendency of the petition. Hence, according to the
petitioner, the petition ought to have been dismissed on the ground that the need does
not perverse the orders of the court below. Hence, we set aside the order passed
under Section 11(8) of the Act.
10. Civil Revision Petition is disposed of as above.