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Case Number

CRP No. 1965 of 2001 G

Attorney(S)

For the Appellant: S.V. Balakrishna Iyer, P.B. Krishnan, Advocates.
For the Respondent: C. Khalid, N. Gopinatha Panicker, M.K. Sumod, Advocates.

Judges

J.B Koshy
K.P Balachandran, JJ.

Acts

BOMBAY RENTS HOTEL AND LODGING HOUSE RATES CONTROL ACT 1947
Order XXII, rule 4, sub-rule (2) of the Code of Civil Procedure.
Rent Control Act, section 146 and Order XXII of CPC
provisions of section 11(3) of the Rent Control Act,
section 3(f) of the Hindu Succession Act, 1958
Order XXII, rule 4, sub-rule (2) of CPC
Rent Control) Act (for short the Act)
section proviso to section 11(3)
M.P Accommodation Control Act
section 2 (6) of Kerala Act.
Rent Control Act.
section 11(2)(b)

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Smart Summary

Structured Summary of the Opinion (Kerala Rent Control matter)

Factual and Procedural Background

The rent control proceedings began with R.C.P. No. 103 of 1986 filed by the first respondent (landlord) seeking eviction of the petition-schedule building. The landlord alleged non-payment of rent from October 1965 and sought eviction under section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act (the Act). He also alleged a bona fide need under section 11(3) on the ground that he was employed in Saudi Arabia with uncertain future employment, intended to start a garment business in the premises, had funds and no other building for that business.

The rent control court allowed the petition on the arrears ground under section 11(2)(b) by order dated 26-8-1987 but did not grant eviction under section 11(3). On appeal (R.C.A. No. 223 of 1989) the appellate authority confirmed the order. During pendency of the appeal the landlord returned permanently from Saudi Arabia and filed an affidavit and documents to that effect; some of these were not considered by the appellate authority initially. A revision (C.R.P. No. 529 of 1992) was filed; during the revision the original tenant died and his widow and children (heirs) were impleaded. This Court remitted the matter to the Rent Controller for fresh consideration of the ground of eviction, permitting additional evidence and pleadings.

After remand, both parties adduced further evidence. The rent controller found that landlord had established bona fide need for own occupation but held that the tenant was protected by the second proviso to section 11(3). The appellate authority allowed the landlord's appeal, agreeing that bona fide need was proved and rejecting a claim under section 11(17), but also held that legal representatives could not take up defences not available to the original tenant by reference to Order XXII Rule 4(2) CPC. The present revision (filed by one of the sons of the original tenant, impleaded as 6th respondent) challenges that outcome.

Legal Issues Presented

Whether a legatee under a Will can claim the status of a tenant if he is also one of the legal heirs.
Whether a statutory tenant's heir can claim all the benefits and protections available to the statutory tenant under the Act.
What is the effect of subsequent events (including the landlord's return and the original tenant's death) in a rent control petition based on bona fide need under section 11(3) of the Act — i.e., what date(s) are material?
Whether the protection of the second proviso to section 11(3) is available to the present tenant (the revision petitioner) and, if so, whether the tenant discharged the burden of proof for that protection.
Whether the tenant is entitled to the benefit of section 11(17) of the Act (possession before 1940).
Whether the appellate authority was correct in treating impleaded heirs only as legal representatives who cannot take up defences unavailable to the original tenant by operation of Order XXII Rule 4(2) CPC.

Arguments of the Parties

Landlord's Arguments

Eviction sought under section 11(2)(b) for arrears of rent (no rent paid since October 1965).
Eviction sought under section 11(3) on bona fide need: landlord was employed in Saudi Arabia with uncertain future; intended to return and start a garment business in the premises; had funds and no other building suitable for that business.
At one stage the landlord contended that the original tenant could not claim protection under the second proviso because he had other business interests and did not prove dependence on income from the petition premises (did not produce account books of other businesses).
Argued that impleaded heirs are only legal representatives and therefore cannot take up defences which were not available to the deceased original tenant (reliance on Order XXII Rule 4(2) CPC and section 146 and Order XXII of CPC being applicable to rent control proceedings).
Contended that the critical facts should be evaluated as of the date of filing of the eviction application (or other crucial dates) and that subsequent events should not oust rights already crystallised.

Tenant / Revision Petitioner's Arguments

The revision petitioner (one of the heirs who continued in occupation following the original tenant's death) contended that he steps into the shoes of the tenant as an heir and can claim protections available to the statutory tenant.
The revision petitioner argued that subsequent events (including the original tenant's death and the landlord's return) should be taken into account and that he, as the impleaded heir and occupant, could plead matters arising after the original filing.
The tenant relied on the second proviso to section 11(3) (dependence on income from trade carried on in the premises and absence of suitable alternative premises) and on factual evidence after remand to seek protection from eviction.
The tenant also asserted entitlement to contest eviction and to rely on defences available under the Act despite being impleaded after the original tenant's death.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Damadilal v. Parashram ((1976) 4 SCC 855 : AIR 1976 SC 2229)	Held that a statutory tenant has a heritable interest in the premises (even under Acts without a specific provision like section 2(6) of Kerala Act).	Used to support the conclusion that heirs step into the shoes of a statutory tenant and have heritable interest; corroborates interpretation that heirs become statutory tenants.
Gantusa H. Baddu v. Meerabai G. Pai ((2000) 4 SCC 586)	Same view: statutory tenant's interest is heritable under a Rent Control Act (Karnataka Act considered).	Reinforces that heirs of a statutory tenant acquire the tenant's status and protections under the Act.
George Peter v. Sasi & Anr. (ILR 1999 (1) Ker. 529)	Decision of Division Bench of this Court on related issues (referred).	Referred as supporting authority in the discussion that heirs become tenants under the Kerala Act.
Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis ((1994) 3 SCC 481)	Held that the word 'heir' in the context of a rent control statute should not be interpreted to include a legatee under a Will; a legatee (possibly a stranger) should not be inducted as a tenant merely by testamentary disposition.	Applied to hold that a legatee under a Will is not necessarily an 'heir' for the purposes of claiming statutory tenant status; the court distinguished heirs from legatees.
Karthiayani v. Anandan (2004 (2) KLT 575)	Division Bench held that unless statute specifically includes testamentary heir, 'heir' should be interpreted in its popular sense; testamentary legatee cannot claim status of statutory tenant; expression 'heir' tested by personal law.	Applied to conclude that a legatee under a Will cannot claim statutory tenant status; the court relied on personal law definitions of 'heir' (Hindu Succession Act) where relevant.
Pushpa Rani v. Bhagwanti Devi (1994 Supp (3) SCC 76 : AIR 1994 SC 774)	On death of original tenant, an heir continuing in occupation because others surrendered their rights can prosecute the case; once an eviction order is passed against such heir, other heirs cannot later challenge it.	Applied to the facts where other heirs surrendered rights to the revision petitioner; supported that the revision petitioner stepped into the tenant's shoes as a natural heir (not as a mere legatee).
Smt. Gian Devi Anand v. Jeevan Kumar ((1985) 2 SCC 683 : AIR 1985 SC 796)	Constitution Bench held that heirs of statutory tenants are entitled to the same protection against eviction as afforded to a tenant under the Act; termination of contractual tenancy does not change the tenant's statutory estate absent contrary provision.	Relied upon to hold that heirs of statutory tenants can claim the same statutory protections as the original tenant (subject to statutory language).
Ganpat Ladha v. Sashikant Vishnu Shinde ((1978) 2 SCC 573 : AIR 1978 SC 955)	Earlier decision that was subsequently overruled by the Constitution Bench in Gian Devi Anand.	Noted as overruled; the court relies on the later binding pronouncement which establishes heirs' entitlement.
Kamaleshwar Prasad v. Pradumangu Agarwal ((1997) 4 SCC 413)	Principle that the 'crucial date' is often the date of filing of the application for eviction when considering rights in eviction proceedings.	Used in the analysis of which date(s) (filing, disposal, subsequent events) are material when adjudicating bona fide need and proviso claims.
Hasmat Rai v. Raghunath Prasad ((1981) 3 SCC 103)	Where ejectment is sought on ground of personal request, the request must continue to exist till final decision on appeal or revision.	Referred in the context of considering whether subsequent events affect a bona fide need claim.
Gaya Prasad v. Pradeep Srivastava ((2001) 2 SCC 604)	Held that where there is undue delay, subsequent events need not be considered unless they overshadow genuineness of the claim.	Relied upon to explain that courts may disregard later changes unless they fundamentally affect the bona fides of the claim.
Vallampati Kalavathi v. Haji Ismail (2001 (2) KLT SN Case No. 97)	Observed that litigation lingering for years produces factual developments; not all are relevant; but where bona fide need is pleaded subsequent events should be considered for adjudication with reference to pleadings.	Applied to justify considering the landlord's actual return from Saudi Arabia as corroborative of his original pleaded bona fides.
Kedar Nath Agrawal v. Dhanraji Devi (2004 AIR SCW 5789)	Summarised that while rights should be determined on the cause of action as at commencement, courts may consider subsequent events in limited circumstances (e.g., relief becomes inappropriate, to shorten litigation, to do complete justice).	Used to formulate the parameters under which subsequent events may be considered in rent control litigation based on bona fide need.
Kochappan Pillai v. Chellappan (1976 KLT 1)	Division Bench view that conditions under section 11(3) must exist on the date of filing the application and that facts for the second proviso must likewise exist on that date; otherwise an applicant cannot be disadvantaged by subsequent change.	Relied on as authority that the material time for determining availability of alternate accommodation may be the date of application; but the court held that a straight-jacket rule is not always appropriate and facts of each case matter.
Chacko v. Lakshmi (1997 (1) KLT 12)	Expressed a similar view to Kochappan Pillai on the material date question.	Referred to support the proposition that the material date issue depends on factual matrix and may vary by case.
D.K. Soni v. P.K. Mukerjee ((1988) 1 SCC 29)	Held that unless statute expressly prohibits, cautious recognition of subsequent events to mould relief is permissible.	Applied to justify consideration of subsequent events (such as landlord's return) as relevant to mould the relief appropriately in this case.
Francis v. Sreedevi Varassiar (2003 (2) KLT 230 - Full Bench)	Full Bench held that burden lies on tenant to prove both limbs of the second proviso to section 11(3); provided guidelines on assessing suitability of alternate accommodation and tenant's capability to meet rent.	Adopted as authoritative guidance: court reiterated that tenant must prove dependence on income from the business and absence of suitable alternatives; the bench declined to repeat the Full Bench's detailed guidelines but applied them.
Scaria Kuncheria v. Rita (1999 (2) KLT SN 2)	Held that account books maintained by the tenant are the best evidence to prove dependence on business income; absence of such proof may attract an adverse inference.	Applied to find that the revision petitioner failed to produce account books or other proof and thus suffered an adverse inference on the first limb (dependence on income).
P.M. Narayanan & Others v. P.K. Shalima (2003 (2) KLT 317 - Full Bench)	Full Bench held protection under section 11(17) is available only to a tenant who was in possession on or before 1940 and cannot be claimed by a legal heir who succeeded after 1940.	Applied to determine that the tenant (original and successors) did not prove possession before 1940 and thus section 11(17) did not apply.
Rameshwar v. Jot Ram ((1976) 1 SCC 194 : AIR 1976 SC 49)	Referenced for principles concerning supervening circumstances and fixed rights (as relied upon by landlord).	Referred in argument; the court addressed the landlord's reliance by analyzing relevant authorities and facts, concluding rights and material dates must be decided case-by-case.

Court's Reasoning and Analysis

The Court's analysis proceeded in distinct steps, strictly grounded in statutory text and precedent as articulated in the opinion:

Definition and status of "tenant": The Court examined section 2(6) of the Kerala Act, which expressly includes "the heir or heirs of a deceased tenant" within the definition of 'tenant'. On that basis and following Supreme Court authorities, the Court held that legal heirs step into the shoes of a statutory tenant and acquire heritable interest.
Legatee under a Will vs. heir: The Court distinguished a legatee under a Will from an heir for purposes of the Act. Relying on Supreme Court and Division Bench authorities, it held that a testamentary legatee is not necessarily an 'heir' under the Act and cannot claim statutory tenant protection merely by virtue of being a legatee; the expression 'heir' must be tested by relevant personal law where the statute is silent.
Who may prosecute / assume rights after the tenant's death: The Court accepted authority that an heir continuing in occupation (with surrender by other heirs) can prosecute and step into the shoes of the tenant as a natural heir (not merely as a legal representative). In the present case other heirs had no objection to the revision petitioner continuing as tenant; hence he assumed tenant status.
Heirs' entitlement to benefits of a statutory tenant: The Court adopted the Constitution Bench principle that heirs of statutory tenants are entitled to the same statutory protections as the tenant, subject to the statutory wording; therefore the appellate authority's view restricting impleaded heirs to the role of mere legal representatives (unable to raise new defences) was not sustainable.
Effect of subsequent events and material date(s): The Court surveyed authorities on whether courts may consider subsequent events when eviction is sought for bona fide need. It reiterated settled principles: rights are generally determined on the cause of action as at institution, but courts may, in limited circumstances, consider subsequent events (e.g., if relief becomes inappropriate, to shorten litigation, or to do complete justice). The Court emphasized a case-by-case approach rather than a rigid rule.
Application to present facts — bona fide need: The landlord's original pleading alleged employment insecurity in Saudi Arabia and desire to start a business; the landlord's later return corroborated his original pleaded bona fides. The Court found bona fide need established as pleaded at the time of filing and continuing thereafter.
Second proviso to section 11(3) — burden of proof and assessment: The Court reiterated that the tenant bears the burden to establish (1) dependence on income from the trade/business in the premises for livelihood, and (2) absence of suitable alternative premises in the locality. It relied on the Full Bench (Francis v. Sreedevi Varassiar) and related authorities to set the standard for assessing suitability (no requirement of mathematical equivalence; consideration of tenant's ability to pay higher rent, smaller area, etc.).
Application of the proviso to evidence adduced: The tenant (revision petitioner) failed to discharge the first limb: he did not produce account books or other documentary evidence to show main dependence on income from the petition premises; in cross-examination he admitted not producing documents to show he derived his livelihood from that business. The Court applied the principle from Scaria Kuncheria v. Rita that account books are best evidence and that absence justifies an adverse inference.
Alternate accommodation (second limb): Because the first limb was not proved, the Court found no necessity to decide suitability of alternate buildings. The landlord had produced municipal assessment receipts (Exts. A8–A10) to show vacancies; the Court considered but did not need to decide this limb in the tenant's favour since the first limb failed.
Section 11(17): The Court found no evidence that the original tenant (or his successors) were in possession before 1940; citing Full Bench authority, the Court held section 11(17) protection was not available to the tenant(s).
Relief and moulding: The Court accepted eviction under section 11(3) as all ingredients were satisfied (landlord's bona fide need proved; tenant did not establish second proviso or section 11(17)). Recognizing long occupation (about four decades) and hardship from immediate eviction, the Court afforded six months to vacate subject to undertaking and conditions (filing affidavit within one month undertaking to vacate within six months, continue paying rent, and not induct third parties).

Holding and Implications

Holding: The Court dismissed the revision petition and declined to interfere with the appellate authority's order of eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. It held that the landlord proved bona fide need for own occupation and that the revision petitioner (tenant) failed to discharge the burden of proof required by the second proviso to section 11(3). The tenant was also not entitled to protection under section 11(17).

Implications:

The direct consequence is that the eviction order under section 11(3) stands and the tenant must vacate the premises within six months subject to the specified conditions (file an affidavit within one month undertaking to hand over vacant possession within six months, continue paying rent till vacation, and not induct third parties).
The Court reaffirmed legal principles (heirs of statutory tenants step into tenant's position; testamentary legatees are not automatically heirs for the Act; heirs can invoke defences available under the Act) and confirmed the tenant's evidentiary burden to prove dependence on the business income and unavailability of suitable alternatives under the second proviso. These are applications of existing precedent rather than statements of new legal principle.
The opinion does not purport to create a new landmark precedent; rather it applies and reconciles existing authorities to the facts before it and emphasises a fact-sensitive approach to questions of material dates and consideration of subsequent events.

Disposition: Revision petition dismissed; eviction order affirmed with conditional six-month vacating period as described above.

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C.K Prasannan v. T.P Haris & Others

Koshy, J.:— Can a legatee under the Will claim the status of a tenant if he is also one of the legal heirs, can a heir of the statutory tenant claim all the benefits entitled to the statutory tenants, what are the effect of subsequent events in a rent control petition under the Kerala Buildings (Lease and Rent Control) Act (for short ‘the Act’) etc. are some of the questions to be decided in this case. Before dealing with the above issues, we may, briefly, narrate the facts. R.C.P No. 103 of 1986 was filed by the first respondent herein seeking eviction of the petition schedule building contending that no rent was paid from October, 1965, and therefore, tenant is liable to be evicted under section 11(2)(b) of the Act. It was also contended that first respondent herein was employed in Saudi Arabia and his future in Saudi Arabia was uncertain. Since his employment would be terminated at any time, he wanted to start a garment business in the petition schedule building. He had necessary funds for starting the business and he had no other building for starting the said business. Hence, he sought eviction under Section 11(3) of the Act. The rent control petition was allowed under section 11(2)(b) on the ground of arrears of rent by order dated 26-8-1987. But, no order of eviction was granted under section 11(3). In R.C.A No. 223 of 1989 the rent control appellate authority confirmed the order. During the pendency of the appeal petition, landlord returned from Saudi Arabia as his services were terminated. He came back permanently to settle down in Kannur. In the affidavit filed before the appellate authority, the landlord affirmed as follows:

“My service has already been terminated by the company with effect from 29-2-1986. Pursuant to the termination of my service, I have returned to India on 13-11-87. The period of my passport is over and I am not holding any passport now. Since I have returned from Jiddah in 1987 I am residing in Cannanore. My visa is cancelled and the period of my passport is over and I have not applied for renewal of the passport. I have decided to spent my life in Cannanore itself. To prove that my service has been terminated I am produced herewith the certificate issued by Administrative Manager, Saddik Mohammed Attar Co. I am also producing my passport which will show that the period of passport is over. In page 10 of the passport it will be seen that my resident permit is cancelled. It is written in Arabic.”

2. The appellate authority did not consider that affidavit also. An I.A was filed before the appellate authority producing documents to show that he returned permanently from Saudi Arabia.

3. A revision application was filed as C.R.P No. 529 of 1992. During the pendency of the revision application, original tenant died and his widow as well as his children (heirs) were impleaded. This court remanded the matter back. While remanding the matter, a Division Bench of this court observed as follows:

“9. The circumstances of the situation have left this to be done by us in this proceedings unfortunately after a period of six years thereafter. In our judgment the petitioner landlord deserves this by way of an opportunity to speak for himself with regard to his bonafide need of the situation. There is yet another aspect for which also the situation requires a fresh look altogether. In both the judgments we find that the authorities having dealt with the situation in accordance with all the necessary provisions of section 11(3) of the Rent Control Act, in accordance with the pleadings of the parties in regard thereto. We find that what has been considered in only the question of bonafide and that too erroneously as we have observed hereinbefore.”

4. It was further observed as follows:

“…… The proceedings stand remitted as R.C.P No. 103/86 to the court of the Rent Controller, Cannanore, for decision according to law, afresh in view of the above observations, with regard to the ground of eviction.”

5. Both parties were allowed to file additional evidence and pleadings.

6. After remand, the landlord was examined as PW2 and marked Exts.A5 to A10. Exts.A1 to A4 documents were marked in the original proceedings. Revision Petitioner was again examined and marked exts.B1 to B5 documents. He also examined RW2 after remand. Exts.C1 to C3 documents are commissioner's report and plan. The rent controller found that the landlord has established the bonafide need for own occupation, but, refused eviction finding that tenant is entitled to protection under the second proviso to section 11(3) of the act. Tenant's plea of getting protection under Section 11(17) was rejected, the landlord filed appeal. Cross objection was filed by the tenant. The appellate authority allowed the appeal filed by the landlord. While agreeing with the rent control court that bonafide need of the landlord was proved and tenant is not entitled to the benefit of section 11(17), it was held that legal representative, even though can prosecute the claim, cannot take the defences which were not available for the original tenant in view of Order XXII, rule 4, sub-rule (2) of the Code of Civil Procedure. Under the Rent Control Act, section 146 and Order XXII of CPC are applicable to the rent control proceedings also, and therefore, impleaded parties as legal representatives of the tenant cannot take up the defences which were not available to the original tenant and original tenant was not entitled to the protection under the second proviso to section 11(2) and hence eviction was ordered under Section 11(3) of the Act. Against this, this revision application was filed by the petitioner who was impleaded as the 6th respondent, one of the sons of the original tenant.

7. First question to be considered is whether a statutory tenant has heritable interest in the leased premises. Answer to the question is found in the statute itself. The word tenant has been defined under section 2 (6) of the Act as follows:

“(6) ‘tenant’ means any person by whom or on whose account rent is payable for a building and includes:—

(i) the heir or heirs of a deceased tenant, and

(ii) a person continuing in possession after the termination of the tenancy in his favour,…………”

8. Provisions of the Act show that the word ‘tenant’ includes the legal heirs of deceased tenant. Apex Court in Damadilal v. Parashram ((1976) 4 SCC 855 : AIR 1976 SC 2229) held that statutory tenant has heritable interest in the premises. Apex Court was considering the question under M.P Accommodation Control Act where there was no specific provision like section 2 (6) of Kerala Act. Same view is taken by the Apex Court in Gantusa H. Baddu v. Meerabai G. Pai ((2000) 4 SCC 586) while considering Karnataka Rent Control Act. In view of Section 2(6), on the death of the statutory tenant, his legal heirs stepped into his shows and legal heirs will become statutory tenants. In this connection, we also refer to the Division Bench judgment of this court in George Peter v. Sasi & Anr. (ILR 1999 (1) Ker. 529).

9. The next question to be considered is who is a legal heir and whether a legatee under the Will is a ‘heir’ so as to claim protection of statutory tenant under the Act. Apex Court in Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis ((1994) 3 SCC 481) while considering the question under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 held that, considering the context of the object and scheme of the Act, intention of the legislation is not to give right to the legatee of the Will. Apex Court held as follows:

“If the word ‘heir’ is to be interpreted to include a ‘legatee’ even a stranger may have to be inducted as a tenant for there is no embargo upon a stranger being a legatee”.

in Karthiayani v. Anandan (2004 (2) KLT 575), it was held by a Division Bench of this court while considering Kerala Act that “unless the statute specifically includes a testamentary heir we have to interpret the word ‘heir’ in its popular sense” and a legatee under a testamentary dispossession cannot claim the status of a statutory tenant and “the expression ‘heir’ has to be tested in accordance with the personal law of the tenant.” In Kerala Rent Act, the expression ‘heir’ is not defined. Hence, natural meaning has to be adopted to that word. The word ‘heir’ is defined under section 3(f) of the Hindu Succession Act, 1958 as follows:

“(f) ‘heir’ means any person, male or female, who is entitled to succeed to the property of an interstate under this Act.” All the heirs who are entitled to succession in clause (1) of the schedule were impleaded and 6th additional respondent, one of the heirs, filed the revision application. Therefore, even if the Will produced is not genuine or not proved and subsequently created for the purose of the case as contended by the landlord, all the legal heirs were impleaded in the proceedings and it was also affirmed by all legal heirs that all of them have no objection in continuing the revision petitioner as the tenant and conduct business in the petition schedule building. In Pushpa Rani v. Bhagwanti Devi (1994 Supp (3) SCC 76 : AIR 1994 SC 774) the Apex Court held that on the death of original tenant one of the heirs continuing in occupation of and carrying on business in the premises because other heirs surrender the rights, he can prosecute the case. However, once an order of eviction is passed against him, it cannot be challenged by other heirs at the time of eviction. In this case, other heirs surrendered their rights to the petitioner, and therefore, revision petitioner stepped into the shoes of the tenant not as a legatee; but, as a natural heir.

10. Next question to be considered is whether a ‘heir’ of the statutory tenant, on his death, can claim all the benefits and protections that are available to the tenant in the petition schedule building as per the statutory provisions. Answer to the above question is beyond controversy. A Constitution Bench of the Supreme Court while overruling the decision in Ganpat Ladha v. Sashikant Vishnu Shinde ((1978) 2 SCC 573 : AIR 1978 SC 955) held in Smt. Gian Devi Anand v. Jeevan Kumar ((1985) 2 SCC 683 : AIR 1985 SC 796) that heirs of statutory tenants are entitled to the same protection against eviction as afforded to a tenant under the Act. The Apex Court held as follows:

“……… The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contracy.”

11. Thereafter, the Court held that in the absence of any statutory restrictions, “the right of the statutory tenant would devolve on all the heirs of the ‘so called statutory tenant’ on his death and the heirs of such tenant would in law step into his position.” The definition of ‘tenant’ in the Kerala Act makes no room for doubt in this regard and the tenant and heirs of the statutory tenant can also claim all the benefits available to the original tenant and observations of the appellate authority in this case that since they are impleaded only as legal representatives and they cannot take any defence which is not available to the deceased tenant as they assume the character of legal representative as provided under Order XXII, rule 4, sub-rule (2) of CPC is not tenable. The impleaded tenant also can take up the appropriate defences if available under the Act.

12. Next question to be considered is what is the effect of subsequent events in a rent control petition when claim for eviction is based on bonafide need. The matter is now settled by various decisions of the Apex Court. Normally, ‘crucial date’ is the date of filing of application for eviction when the tenant is faced with the liability of being evicted from the premises as held by the Apex Court in Kamaleshwar Prasad v. Pradumangu Agarwal (1997) 4 SCC 413). In Hasmat Rai v. Raghunath Prasad ((1981) 3 SCC 103), the Apex Court held that in a proceeding for the ejectment of a tenant on the ground of personal request, the request must continue to exist till the matter is finally decided in the appeal or revision. In Gaya Prasad v. Pradeep Srivastava. ((2001) 2 SCC 604), Apex Court held that if there is undue delay, subsequent events need not be considered unless it overshadow the genuiness. In Vallampati Kalavathi v. Haji Ismail. (2001 (2) KLT SN Case No. 97), the Apex Court observed that when the litigation lingers on for years certain factual developments are bound to take place and all such developments are not necessarily relevant for adjudication of the case. But, if bonafide need is pleaded, subsequent events should be looked into for proper adjudication with reference to pleadings in the case. The issue is summarised by the Apex Court in Kedar Nath Agrawal v. Dhanraji Devi (2004 AIR SCW 5789) as follows:

“The basic rule is that the rights of the parties should be determined on the basis of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A Court of law may take into account subsequent events inter alia in the following circumstances; (i) The relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) It is necessary to take notice of subsequent events in order to shorten litigation; or (iii) It is necessary to do so in order to do complete justice between the parties.”

13. In this case, it was contended by the landlord in the original pleading itself that he is employed in Saudi Arabia and as his job is not permanent, he wants to start a business. During the pendency of the proceedings, he lost his job. He produced passport and other documents to shown that he came back permanently from Saudi Arabia. Therefore, his actual return from Saudi Arabia i only show that his original plea is bonafide. It only supports the original pleading. Even if a person is employed elsewhere, he may bonafide wish to start a business considering the earnings or likelihood of termination of employment and he need not resign the job and wait till the eviction proceedings are over. His intention was mentioned in the original pleadings itself. His actual return from Saudi Arabia is only an additional factor to prove his bonafides and that was correctly taken into account by the courts. As far as the tenant is concerned, the original tenant died and all the legal heirs were impleaded actually. In this case, death of the original tenant is a vital circumstance to take note of. All the legal heirs stepped into the shoes of the tenant. All other legal heirs allowed the revision petitioner to continue as tenant. The fact that landlord returned from Saudi Arabia and revision petitioner stepped into the shoe of the tenant are matters that has to be taken note off. How far subsequent events have to be considered in the matter of protection available to the tenant under the second proviso to section 11(3) can be considered separately.

14. Last question to be considered is whether the protection of second proviso to section 11(3) is available to the present tenant, that is, the revision petitioner. The burden is on the tenant to prove that he is entitled to the benefit of second proviso. A perusal of the second proviso to section 11(3) shows that it caves out an exception to the rule that the landlord can evict a tenant for bonafide need. It provides a protection to the tenant despite a finding that the need of the landlord is bonafice. To claim the above protection, the necessary facts, which have to be proved, before the Court are:

(1) That the tenant is dependent on the income derived from the trade or business carried on in the building in dispute for his livelihod; and

(2) That there is no other suitable building available in the locality for such person to carry on the trade or business he is engaged in.

15. The consistent view of this Court is that it is the burden of the tenant to prove both the above ingredients to establish that he is entitled to get the above benefit. (See: Kochappan Pillai v. Chellappan (1976 KLT 1), Goutami v. Indira Kunjamma (1994 (2) KLJ 201), Krishnankunju Raveendran v. Sukumara Pillai (1999 (3) KLT 373) and Varghese Eapen v. Varghese (2001 (1) KLJ 957 : 2001 (2) KLT 263)). A Full Bench of this Court has considered the matter in detail in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 - FB) and held that:

“22. In view of the above, it appears fair to say that the second proviso carves out an exception to the rule embodied in S. 11 (3). The burden of proving the relevant facts lies on the tenant. The tenant has to prove that he is dependent on the income from the trade or business being carried on by him in the premises in dispute fr his livelihood. He is to further prove that a suitable alternative accommodation is not available. While adjudging the suitability of the alternative accommodation, the court shall not insist upon a mathematical equivalence of the area of rent. The only thing that the court has to see is that the tenant should be able to carry on his existing activity in the new premises. The area may even be less. Still further, the rent should be almost equal to that which the premises in dispute would fetch at the relevant time. Truly, it is not possible to visualise all situations. It may happen that a building as old ad that occupied by the tenant is not available. The rent for the new building is likely to be higher. In such situation, the court shall be entitled to consider - Can the tenant pay the higher rent? Can he do his business in a lesser area? The mere fact that the rate of rent is higher shall not be enough. The relief shall be denied to the landlord only when it is found that the tenant cannot under any circumstances pay for or carry on his business in the new premises.”

16. Therefore, it is the duty of the tenant to prove that ingredients of second proviso to section 11(3) are satisfied in this case. Clear guidelines are given in the above Full Bench decision regarding the manner in which the tenant should prove the above ingredients. Therefore, we are not repeating the same.

17. It was argued by the landlord that the original tenant was unable to prove this plea as he was having other business and he did not produce the account books of other three business he was having to prove that he is mainly depending upon the income from the business in the petition schedule building for his livelihood. But, this Court in the CRP remanded the matter for reconsidereation of the matter for a ‘fresh look’ considering the return of the landlord from Saudi Arabia. After remand, landlord was examined as PW2 and revision petitioner also again gave additional evidence. According to the revision petitioner, just like the landlord, he is also entitled to plead the subsequent events which was vital to the issue. We have already held that subsequent event of petitioner becoming the tenant after the death of the original tenant is a factor to be considered. But, whether all subsequent events after filing of the petition especially when the proceedings are pending for a long time in Court is the question to be considered on the facts of each case.

18. It was argued on behalf of the revision petitioner that the language of section shows that Rent Control Court shall not give any direction to vacate the premises if the tenant is depending mainly on the income derived from the business conducted in the petition schedule building for his livelihood if no other suitable building is available in the locality. Hence, it was contended that it is enouhg to prove that both limbs of section proviso to section 11(3) are in existence at the time of filing the petition or at the time of order of eviction. In other words, if, at the time of order of eviction, suitable building should be available to shift the business, court shall not grant order of eviction, if first limb of the second proviso is satisfied. It is argued on behalf of the landlord that when notice for eviction or at least notice on the petition is received. It is for the tenant to find out alternate suitable accommodation in the locality to do the business. Therefore, as far as protection under the second proviso, the facts as on the date of filing of the petition alone need be considered. The matter was considered in detail by a Division Bench of this Court in Kochappan Pillai v. Chellappan (1976 KLT 1). The Division Bench observed as follows at paragraph 11:

“As proviso is a part of the section itself the words “direction to a tenant to put the landlord in possession” occurring in the second proviso to S. 11(3) should mean the same direction that is referred to in the principal enacting provision in S. 11(3). Under S. 11(3) application for an order for eviction is contemplated based on the circumstances which exist on the date of the filing of the application and not on the date of its disposal. The landlord is not expected to file application in anticipation of change of circumstances in his favour by the time the application is disposed of. As the conditions mentioned in S. 11(3) have to exist on the date of the application to make the provisions of S. 11(3) applicable, to resist such an application based on the provisions of the second proviso which is a part of S. 11(3) the facts referred to in that proviso must also exist on that date. Consequently the point of time material for determining availability of other suitable building is the date of the application under S. 11(3) and not the date of the order for eviction. Any other interpretation is likely to lead to injustice. Ordinarily an application under S. 11(3) takes a long time for disposal and by the time it is finally disposed of in revision several years would have passed after the filing of them application. In the instant case itself although the application under S. 11(3.) was filed on August 19, 1963 it is being finally disposed of only now, more than 12 years after. There may have been several alternative suitable buildings in the locality for the tenant to shift in 1963 but not one now. In such a case the fault for not having shifted in 1963 to one of the alternative buildings is of the tenant and not of the landlord.”

19. Same view was expressed by another Division Bench of this Court in Chacko v. Lakshmi (1997 (1) KLT 12). We are of the opinion of that this is a matter to be considered based on facts of each case, nature of subsequent events, pleading of the parties, time lag to dispose of the petition for eviction etc. and a straight jacket formula cannot be given. While moulding the relief, court can consider subsequent events also if they are very fundamental. In D.K Soni v. P.K Mukerjee ((1988) 1 SCC 29), the Apex Court held that unless the Statute expressly prohibited, cautious recognition of subsequent events to mould the relief should be taken note off. As far as the facts of this case is concerned, we have seen that bonafide need existed at the time of filing the petition and it continues till now also. In the original pleading itself, it was contended by the landlord that there is no job security in Saudi Arabia and he wants to come-back to set up a business in the petition schedule building. Subsequent event of his return from Saudi Arabia only proved the bonafides of his original pleading and it is not against the original pleading. At the time when the case was filed, the then tenant had three business and it was not proved or established that he was mainly depending on the income from the business in the petition schedule building for his livelihood. On 31-5-1991, I.A No. 684 of 1991 was filed by the landlord in R.C.C No. 223 of 1989 stating that his service is terminated and he also produced documents on that day to establish that the he has returned to the native place permanently. Even at that time, original tenant was alive. Even if that is considered as a crucial date as the subsequent event noticed by the Court, at that time also, tenant was not able to prove that he was mainly depending on the income derived from the business in the petition schedule building for his livelihood. Therefore, at the time when he received the notice of the petition or when the matter was pending before the rent control court or before the appellate authority or when he received the copy of the petition containing the plea that the landlord returned from Saudi Arabia, tenant was not entitled to get the benefit under the second proviso. Only during the pendency of the revision petition, C.R.P No. 525 of 1992, that is, on 3-11-1994, original tenant died. It was condended on behalf of the landlord that the right of the tenant when eviction is sought for for bonafide need is fixed under the proviso to section 11(3) and it cannot be uprooted by supervening circumstances on the principles laid down by the Apex Court in Rameshwar v. Jot Ram ((1976) 1 SCC 194 : AIR 1976 SC 49).

20. Now, assuming that the relevant date is the date of order of eviction, we will consider the question whether the present tenant is entitled to protection even after the death of the original tenant on the basis of the evidence adduced after remand taking all subsequent events. Second proviso to section 11(3) has two limbs and it is the duty of the tenant to prove that both limbs are satisfied as held by the Full Bench of this court in Francis v. Sreedevi Varassiar (supra). The second proviso chalks out an exemption to the rule empowering 11(3). Here, the burden of proof lies on the tenant to show that he is entitled to exemption. While adjudging the suitability of the alternate accommodation the Court shall not insist on a mathematical equivalence of the area or rent. The area may be little lesser or rent may be higher depending the present will have to be paid. It was not proved that he has not produced the balance sheet or profit and loss account of the business run in the premises. Whether the business was carried on profit is a necessary element to consider whether he was depending mainly on the income for carrying on the business. If that was not a profit-making business, it cannot be contended that he was depending mainly on the income derived from the business for his livelihood. Whether he was getting any income from the business or whether he was paying any income tax etc. are not on record. As held in Scaria Kuncheria v. Rita (1999 (2) KLT SN 2), the account books maintained by the tenant is the best evidence to prove that he is depending upon the income from the business in the petition schedule building. If it is not proved, he must suffer an adverse inference. After the matter was remanded, present revision petitioner tenant was examined. It was after the death of his father. In cross-examination, he deposed as follows:

“………. I have not produced any document to show that I am eking out my livelihood from the income derived from the business done in the petition schedule building.”

21. Mere assertion in the chief examination is not enough. It is true that the appellate authority did not consider these points on the assumption that the leval heir of the tenant has got only the right of a legal representative in a suit. Under section 20 of the Act, the revisional court can consider the evidence for finding out the legality and propriety of the matter and the rent control petition was filed in 1986 and almost two decades are over. Therefore, there is no need for remanding the matter for that purpse. From the evidence available, it is seen that the revision petitioner/tenant has not discharged the burden that he was depending mainly on the income derived from the business conducting in the petition schedule building for his livelihood.

22. Since first limb is not proved, there is no necessity to consider whether alternate suitable building is available in the locality for shifting the business of the tenant. The landlord has adduced evidence to show that there are vacant buildings and relied on Exts.A8 to A10 series of assessment receipts of the Municipality to show that during 1995 to 2000 suitable buildings were available in the same locality. The rent control court was of the opinion that material point of time is the filing of the petition. It held as follows:

“Ext.A8 to A10 relates to the period 1995 to 2000. This petition is filed in the year 1986. So in the light of the above ruling it is pertinent to note that the availability of the building must be as on the date of application under section 11(3).”

23. But, for the application of first limb, rent control court considered the position after the death of the original tenant in November, 1994 and legal heirs were impleaded only in 1996. It cannot be contended by the tenant that crucial date for application of first limb is the date of order of eviction and second limb is the date of filing the petition. The petition was filed in 1986. In 1986, the original tenant was not able to prove that he was entitled to the benefit of second proviso to section 11(3) as he has got other business and he was not depending mainly on the income from this business. It is the case of the tenant that subsequent even as on the date of order shall be considered. The original tenant died and his legal heir, present tenant, became the tenant only in 1997, and therefore, Exts.A8 to A10 cannot be discarded because the assessment registers of Kannur Municipality belongs to the years 1996 to 2000. According to the rent control court, even if new buildings are available rents will be too exorbitant etc. cannot be taken as a ground. Exts.C2 and C3 are the plans and Ext.C1 is the commission report In cross-examination after remand he deposed as follows:

“……… I enquired with one Kunhiraman who is a property broker. Kunhiraman is alive. On the southern side of the petition schedule building, facing station road is Old Madras Hotel. There a new building has come up and vacant buildings are available in that building. A multi-storeyed building is constructed in the Bharathi Hotel site.”

24. That also shows that alternate rooms are available. According to the rent control court, it was not proved by the landlord that they are not suitable to the tenant. It is not necessary that alternate accommodation available should be exactly similar with the same plinth area. The rent control court held as follows:

“The petitioner-landlord has not been able to prove by any concrete evidence that there are other vacant buildings available in that locality which would suit the requirements of the respondent. Under these circumstances I find that though there is some evidence to show that there are other vacant buildings available in that locality there is no evidence to show that there are other buildings available in that locality to suit the needs of the respondents or to shift the entire business to a hew premises.”

25. It shows that the rent control court caste the burden on the landlord to prove that the tenant is not entitled to the benefit of second proviso to section 11 (3). It is settled law that the burden is on the tenant to prove that alternate buildings are not available and even if alternate buildings are available, it is not suitable for him. In any event, only after satisfying the first limb, second limb need be considered and we have already held that it is not proved that he is mainly depending upon the income derived from the business in the petition schedule building for his livelihood, and therefore, second proviso to section 11(3) is not applicable.

26. Last question to be considered is whether the tenant is entitled to the benefit of section 11(17) of the Act. For getting the benefit under section 11(17), one has to be in possession of the building before 1940 as a tenant. It has come out in evidence that in 1963 Bata Shoe Company Limited was the tenant in the petition schedule building and the original tenant came into possession only after 1963. Further, no documentary or admissible evidence was adduced by the tenant to show that even the original tenant was in continuous occupation of the building before 1940. Production of a calendar without any details cannot establish that he was in continuous occupation of the building from a date anterior to 1940 till the date of the petition. Further, in P.M Narayanan & Others v. P.K Shalima (2003) (2) KLT 317 FB), a Full Bench of this Court held that protection under section 11 (17) can be claimed only by a tenant who was in possession of the building on or before 1940 and it cannot be claimed by his legal heir who succeeded the original tenant after 19400 as it is a personal right. It was concurrently found on the basis of evidence that even the original tenant was not in possession of the building in 1940, and therefore, the tenant is not entitled to the benefit of section 11(17).

27. In the above circumstances, we hold that the bonafide need is proved and the revision petitioner/tenant was not able to prove that he is entitled to the benefit of second proviso to section 11(3). All the ingredients for ordering eviction under section 11(3) are satisfied. The tenant was also not able to prove that he is entitled to protection under section 11(17)

28. In the above circumstances, we are not interferring with the order of evictrion passed by the appellate authority.

29. We note that petitioner and his predecessor were in occupation in the building and were conducting business in the building for about four decades and an immediate eviction will cause problem. In the above circumstances, we grant six months' time to the revision petitioner/tenant for vacating the premises on condition that he will file an affidavit within one month from today before the rent control court undertaking:

(1) that he will hand over vacant possession of the building on or before the expiry of six months from the date of this judgment;

(2) that he will continue to pay the rent till he vacates the premises; and

(3) that he will not induct any third parlies to the building.

30. The revision petition is dismissed subject to the above observations.

C.K Prasannan v. T.P Haris & Others

Structured Summary of the Opinion (Kerala Rent Control matter)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Landlord's Arguments

Tenant / Revision Petitioner's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

C.K Prasannan v. T.P Haris & Others

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