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PETITIONER: AKKANISSERY GOVINDAN NAMBIAR

       Vs.

RESPONDENT: KARIYATH RAGHAVAN

DATE OF JUDGMENT:       19/08/1998

BENCH: A.S. ANAND, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Appellant is  the landlord.  Respondent is  the tenant. Appellant sought  eviction of  the tenant on the ground that the premises  were required for the bonafide need of the son of the  landlord to  start his  business in  those premises. Initially the  petition of  the landlord  was dismissed  and even  the   appellate  authority  concurred  with  the  Rent Controller. The  main reason  for arriving at the concurrent findings was  that  the  landlord  had  not  stated  in  his petition the exact nature of the business which was required to be carried out by his son in the premises in dispute. The High Court on a revision filed by the landlord, remanded the case to  the appellate  authority for  deciding  the  appeal afresh, keeping in view the bonafide need of the landlord as pleaded by him.      The appellate  authority, after  remand, found that the landlord’s need  to accommodate  his son, Jayarajan, for the bona  fide   need  for   starting   grocery   business   was established. However,  while the  matter was  pending before the appellate  authority, after remand, it appears, that the landlord got  vacant possession  of another premises situate adjacent to the petition schedule building belonging to him. On this  ground, the  tenant advanced  a plea  based on  the proviso to  Section 11(3)  of the  Kerala Buildings (Lease & Rent Control)  Act, 1965  before the appellate authority and urged that  since another  premises  was  available  to  the landlord, his  genuine need  could be  met by  use of  those premises and the ground of bonafide need, to have the tenant evicted, was  no longer  available  to  him.  The  appellate authority with  a view to determine the effect of subsequent development  appointed   a  Commissioner   to  conduct  spot inspection of  both the premises to find out if the building which  had   been  vacated   during  the   pendency  of  the proceedings before  the appellate  authority, was or was not suitable for  the  proposed  business  of  the  son  of  the landlord Jayarajan.  The Local  Commissioner  submitted  his report to  which both  sides filed objections. The appellate authority after taking into account the counter filed by the landlord and the report of the Local Commissioner arrived at the conclusion.

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    "from the  above in  looks that the      building they  got vacated  is  not      contracted as  one  fit  for  doing      grocery trade".      The appellate authority also opined      "hence the  room got vacated cannot      be an  alternative to  the rooms in      the possession  of the  tenant. The      building got vacated cannot be said      to be  suitable  for  the  proposed      business."      The tenant  took the matter to the High Court through a revision petition.  The learned Division Bench of the Kerala High Court  by its  order dated  8th March, 1995 allowed the revision  petition   and  set  aside  the  judgment  of  the appellate authority.  The landlord  is in  appeal by special leave.      There is  no dispute  that during  the pendency  of the eviction proceedings  before the appellate authority another premises belonging  to the  landlord fell vacant of which he took possession.  It is  also not disputed that the premises which fell  so vacant are adjacent to the premises which are under occupation of the tenant. The appellate authority on a consideration of  the material  on the record, including the report of  the Local  Commissioner, came  to the  conclusion that  the  building  which  had  fallen  vacant  during  the pendency of  the proceedings,  was not fit for doing grocery trade and,  therefore, it  could not  be said  that the said premises were  suitable for the proposed business of the son of the  landlord. This  finding of fact was negatived by the Division Bench  of the  High Court  by opining that the draw backs found  in the  premises which  had been vacated during the  pendency   of  the  proceedings  before  the  appellate authority -      "can  easily  be  remedied  by  the      landlord as  the cost  of providing      such a  roof  ceiling  may  not  be      substantial  when  he  proposes  to      make a good investment for starting      a new grocery shop".      We are  afraid this  reasoning does not appeal to us to non-suit the  landlord.  Requirement  of  law  is  that  the building  which  has  been  vacated  should  be  of  such  a character which  would meet the requirements of the landlord and not  that the  building which fell vacant could meet his requirements  after   reconstruction  renovation   etc.  The proviso to Section 11(3) which read thus : -      "11. Eviction of tenants (1)        xxxx         xxxx           xxxx      (3) A  landlord may  apply  to  the      Rent Control  Court  for  an  order      directing the  tenant  to  put  the      landlord  in   possession  of   the      building if  he bona fide needs the      building for  his own occupation or      for the occupation by any member of      his family dependent on him ;      Provided  that   the  Rent  Control      Court  shall  not  given  any  such      direction  if   the  landlord   has      another building  of his own in his      possession in  the same  city, town      or village  except where  the  Rent      Control Court is satisfied that for      special reasons,  in any particular

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    case it  will be just and proper to      do so." when read in conjunction with sub-section (3) of Section 11, unambiguously shows  that the  Rent Control  Court shall not give directions  for eviction of the tenant, if the landlord has another  building of  his own  in his  possession in the same city,  town or  village except  where the  Rent Control Court  is  satisfied  that  "for  special  reasons,  in  any particular case  it will  be just  and proper to do so". The very fact  that the  premises which  fell vacant  during the pendency of the proceedings have been found by the appellate authority, the  final fact  finding authority, to be such as not to  be suitable  for the  proposed business  of  grocery would be  a "special  reason"  within  the  meaning  of  the proviso and  the High  Court, therefore,  fell in  error  in construing the  proviso otherwise.  In our opinion the order of the  appellate authority  was well  merited and sound and should not  have been interfered with. The impugned order of the High  Court under the circumstances cannot be sustained. We, accordingly,  set it  aside  and  restore  that  of  the appellate authority.  The appeal succeeds and is allowed. No costs.      Learned counsel  for the tenant submits that the tenant has been  in occupation  of the  premises for  more than two decades and  sufficient time may be granted to him to vacate and handover  the premises  so that  in the  meantime he may look for some alternative accommodation. Learned counsel for the appellant  does not  oppose the grant of some reasonable time to  the tenant.  We, in the  facts and circumstances of this case,  grant time  to the tenant to vacate and handover the vacant  possession of  the premises  on or  before  31st January, 1999  on tenant’s  filing the  usual undertaking in this Court within four weeks.