ORDER
Ramachandran Nair, J.
This revision petition is one filed by the landlord of the building aggrieved by the reversal of the order passed by the Rent Control Court. The landlord sought eviction of the petition schedule room in occupation of the first respondent herein, raising mainly three grounds; Section 11(3)(bonafide occupation for starting a business for the dependent son), 11(4)(iii) (tenant has in possession of another building) and 11(4)(v) (the tenant ceased to occupy the building continuously for six months), of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short ‘the Act’). After considering the evidence in detail, the Rent Control Court allowed eviction under Section 11(3) of the Act and disallowed the grounds pleaded under Sections 11(4)(iii) and 11(4)(v) of the Act.
2. The case of the landlord is that the respondents have taken on rent the schedule room as per registered rent deed dated 19.9.1987 and the present monthly rent is Rs. 1430/-. The schedule room is numbered as 29/332 and two other rooms, viz. 29/333 and 29/334 of the same building have also been let out to the tenants. The petitioner's son Balesh Bal is a Mechanical Engineering (Diploma) holder. The petitioner bonafide requires the schedule room for the purpose of doing business for him and they have no other vacant shop room in their possession.
3. The first respondent filed an objection contending that initially the rooms were obtained by both the respondents when they were conducting trade on partnership basis and the second respondent retired from the partnership in the year 1994. The second respondent remained ex-parte. Regarding the bonafide need pleaded, it was contended that the son is employed and the petitioner has other shop rooms in his possession and the attempt is only to evict the tenant without any justification. It is also contended that the tenant is depending mainly on the income derived from the business in the petition schedule shop room.
4. The Rent Control Court, apart from finding that the bonafide need has been established by the landlord, it was also found that the landlord is not having any other rooms in his possession and therefore the limbs under the first proviso to Section 11(3) of the Act are not against the pleas of the landlord. With regard to the benefit of the second proviso available to the tenant, it was found that the tenant has not proved that she is depending mainly on the income from the business conducted in the petition schedule room for her livelihood. It was found that she is having business in other locations. It was also found that the tenant has not discharged the burden to prove that other buildings are not available in the locality.
5. When we go through the judgment of the Appellate Authority, the main ground on which it was reversed is that the son has a building on co-ownership right; he was not examined in the case which is fatal to the aspect of dependency and the notices sent by the landlord on different occasions, create some doubt with regard to the bonafide need.
6. We heard Shri O. Ramachandran Nambiar, learned counsel appearing for the petitioner and Shri M. Gopikrishnan Nambiar for the first respondent.
7. Learned counsel for the petitioner raised the following contentions: The evidence of P.W.1 disclosed the nature of the business of the son, viz. he wants to start a spare parts shop. In the eviction petition it was clearly stated that the son is a Mechanical Engineering Diploma holder and he wants to start a business according to his taste. It is submitted that it is not the law that in rent control proceedings there should be meticulous pleadings. It is also submitted that in the notices sent by the landlord the bonafide need was specifically shown. In the objections this plea was not specifically denied by the tenant and in the cross examination of the landlord also the same was not disputed. Therefore, it is submitted that the reasoning adopted by the Appellate Authority cannot be supported. It is also submitted that this Court in various decisions has held that dependency is not at all financial dependency and a member of the family of the landlord will clearly be a dependent with regard to the availability of building. Therefore, the view taken by the Appellate Authority that the dependency has not been proved, is not correct. It is also contended that merely because the son is a co-owner of a building and the said building is also not in vacant possession, but is occupied by other tenants, the right of the landlord to seek eviction cannot be denied. Learned counsel, by relying upon various decisions of this Court, argued that the findings of the Appellate Authority are perverse and therefore are liable to be reversed in these proceedings.
8. The cross examination of P.W.1 will show that three rooms have been let out to the first respondent, out of which one room alone is sought to be evicted. The tenant is doing the business in steel. The son is having the qualification of Diploma in Mechanical Engineering and he became qualified 12 years back and got married in the year 2004. He has been doing certain temporary jobs from time to time, upto 2005. He was in Gulf countries for the period 2003-2004 on a temporary assignment. P.W.1 denied the case of the tenant that his son is employed in Phybija Distilleries Private Limited, New Delhi as Sales Manager. An earlier R.C.P No. 51/1997 was filed for his own purposes but since he got some temporary employment in Dubai, the said case was withdrawn.
9. With regard to the plea of the tenant that the landlord is having in his possession another room, viz. Room No. 337-A, he has deposed that the same is in the possession of one Smt. Padmavathi who is storing plywood there and therefore the said room is not kept vacant.
10. In fact, the tenant had contended before the Rent Control Court that that the landlord had sold a building earlier and therefore the plea is not bonafide. With regard to this aspect, what we find from the evidence of P.W.1 itself is that it was the ground floor of a three storied building which was sold in the year 1997. The present eviction petition is filed only in the year 2008. Therefore, the same will not have any impact on the plea now raised.
11. The plea of the tenant pointing out the non examination of the son and the issuance of notices Exts.B1, B3 and B4 and hence the bonafide need pleaded is not genuine, stands rejected by the Rent Control Court in paragraphs 9 and 10 of the order. It was also found that the non examination of the son is not material, since there is nothing to disbelieve the evidence of P.W.1 and the tenant has not succeeded in proving that the son has got any permanent employment or sufficient income. Ext.B1 notice is dated 8.8.1996, Ext.B3 is dated 12.5.1997 and Ext.B4 is dated 21.0.1999 and the finding is that they were issued on different grounds, and will not affect the genuineness of the bonafide need.
12. The Appellate Authority was of the view in para 14 of the judgment that P.W.1 has admitted in his evidence that in his residential property which is near the petition schedule shoproom, there is a commercial building belonging to him and his children. Therefore, the Appellate Authority concluded that the son of the petitioner who is having co-ownership right in the building, cannot be said to be a dependent of his father. Learned counsel for the petitioner is right in submitting that the said finding is perverse. Merely because a person is having a co-ownership right in a building, it cannot be said that he is having exclusive possession of that building for starting a business. In the decisions relied upon by the learned counsel for the petitioner in Asher v. Hassankutty Hajee (2004 (2) KLT 446) and Paul v. Pradeep (2006 (2) KLT 20), a similar plea raised by the tenant has been rejected.
13. In Asher's case (2004 (2) KLT 446), the Division Bench has held as follows while interpreting the legal requirements under Section 11(3) of the Act. Paragraph 7 reads as follows:
“7. The above legal proposition would show that the expressions “his own”“in his possession” used in the first proviso to S.11(3) would show one's exclusive ownership and possession. Words “his own”“in his possession” excludes all others from the ownership or possession of the property. In other words, the test is that a landlord who has building of “his own”“in his possession” has the right of possession, right to enjoy and right to dispossess, i.e, jus sibi habendi and jus alteri non habendi or jus prohibendi. If he is a co-owner along with others he may have only restricted power of dispossession. Since each co-owner is interested in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with the others.”
In paragraph 8 it was further held as follows:
“We hold exclusive ownership and possession are sine qua non for invoking the first proviso to S.11(3).”
14. In Paul's case (2006 (2) KLT 20) in para 9 a similar view was taken and we extract the relevant findings in para 9 hereinbelow:
“The co-ownership right in the building where the hotel is being run would not disentitle the landlord from claiming eviction of the revision petitioner. The first proviso to S.11(3) would apply only if the landlord has another building of his own in his possession. The fractional interest of the respondent/landlord in the hotel business could not be a ground for denying the claim for eviction of the tenant from the petition schedule building. Even if the landlord is having other business that is not a ground to doubt the bona fide need put forward by him to start a business in the petition schedule building.”
Therefore, the finding of the Appellate Authority against the petitioner cannot hold good. It cannot be said that merely because the son is a co-owner along with the father in respect of another building, the dependency is lost.
15. The next question is whether the non examination of the son is fatal to the case of the landlord. The Appellate Authority in this context, was of the view that the said son Balesh Bal had acquired Engineering diploma 12 years back and he is also a co-owner of another building and therefore he cannot said to be dependent on the father and his non-examination is fatal on the aspect of dependency.
16. The evidence adduced will show that even though the tenant contended that the son is employed in New Delhi, no documentary evidence could be produced. On a perusal of the deposition of RW.1 it is seen that she had fairly admitted that she has not produced any such document that the son of the landlord is employed in Delhi. She also admits that the son has been in Gulf countries during 1997 and 2003 and for the last three years he is available here. Therefore, there is no evidence to show that the son is permanently employed. The evidence of P.W.1 will show that the wife of the son alone is employed with a Government job and nothing could be elicited in cross examination in support of the plea of the tenant that the son himself is employed. Therefore, the sum and substance of the evidence is only that he was having temporary employment on different occasions upto 2003-2004. Hence, we are satisfied that the evidence on this aspect favours the plea of the landlord. The son is a diploma holder in Mechanical Engineering and the plea is for starting a spare parts shop for him. We have already rejected the finding rendered by the Appellate Authority that the right as a co-owner will defeat the need pleaded for the son.
17. With regard to the aspect of dependancy, learned counsel relied upon various decisions of this Court to show that what is required is not financial dependancy but the landlord need only show that the son is a dependent on him for the building. The decisions relied upon are: Eliamma Chacko v. Leela Karunakaran (1999 (2) KLT 174), Ismail v. P.K Kesavan & Others (2004 (2) KLT 56), Prathapan v. P.R Rama Warrier (2004 (2) KLT 559), Thalayodi Raghavan v. Kooraritavitta Kelappan & Others (2006 (1) KLT 1 - FB) and Albert Mendez v. Rema Chandran (2007 (3) KLT 23).
18. In Raghavan's case (2006 (1) KLT 1 - FB), after considering all the earlier decisions referred to above, the Full Bench has explained the principles relevant, in para 6 thus:
“The word “dependent” as such is not defined in the Act. “Dependant” means one who depends on another for support or otherwise, state of being dependant. The word “dependant” carries with it undue help of depending upon on another person.
In other words there is some nexus between the dependant and the person on whom he depends. Dependancy does not mean financial dependency. The word “dependant” in the context of Rent Act is generally considered as dependant on the landlord for the building. In short, it would not be possible to give a clear cut definition as to who all will fall within the expression “member of the family dependant on the landlord”, which depends upon variety of factors including relationship landlord has with his members of the family. Courts dealing with rent control matters have to make a pragmatic approach on the issue depending upon the facts and circumstances of each case and it would not be possible to give precise and definite meaning to that expressions in the context of S.11(3) of the Act.”
In para 8 it was further held as follows:
“8. The expression used in S.11(3) of the Kerala Act is also “own occupation”. Therefore the occupation of a member of the family dependant on the landlord may also in a given case would fall within the expression “for his own occupation”. We have already indicated, the question as to whether the requirement of a dependant of a family would be the requirement of the landlord himself and would fall within the expression “for his own occupation” would depend upon variety of factors such as inter relationship and inter dependence, economic or otherwise in the background of social, socio religious and local customs and obligations of the society or region to which they belong and other of other circumstances.”
If the evidence in this case is analysed in the light of the above dictum, we have no doubt in our mind that the landlord has succeeded in proving that the son is a dependent on him for doing his business. There is no evidence to show that the landlord or his son are having any other vacant building in their possession for starting the business. The evidence is not lacking in this case at all with regard to dependency pleaded. Therefore, the view taken by the Appellate Authority on this score is also not correct and is perverse. In fact, the Appellate Authority also commented that P.W.1 had sold the ground floor of one building and the first floor and second floor have been let out. In fact, the evidence of P.W.1 will show that the ground floor was sold way back in 1997 and the present rent control petition is filed in 2008. Therefore, nothing turns upon the said fact, so as to affect the bonafide need pleaded.
19. Then the question is whether the non examination of the son is material. Herein, learned counsel for the petitioner relied upon the consistent view taken by this Court in a case that the non examination of dependent may not be material. In Koroth Ayadathil Mustafa Haji v. Koroth Umbichi (2004 (2) KLT 1110), in para 3 the said legal position was examined and the Division Bench rejected a similar contention in the following manner:
“We are of the view when once the landlord has stated that his son has no other business and that he is dependent on the landlord for the tenanted premises it is for the tenant to disprove the same by adducing evidence. Appellate Authority was carried away by the fact of personal dependency rather than the dependency on the building. Landlord's son is dependent for the building and not financial dependency.”
We respectfully agree with the same. In the facts of this case where the father himself is the petitioner and has spoken in detail the requirements of his son, the mere non examination of the son will not be fatal.
20. The further question is whether there is any merit in the contention of the tenant and as argued by the learned counsel for the first respondent herein that the landlord did not specifically point out in the Rent Control Petition the particular business which the son is proposing to start.
It is submitted that what is pleaded is only that he wants to start a business according to his taste. The Rent Control Court found that in his evidence as P.W.1, he has clearly explained that the son is proposing to start an automobile spare parts shop and we have noticed that he is an Engineering diploma holder. Learned counsel for the petitioner relied upon a series of decisions of this Court taking the view that the precise nature of the business proposed need not be pleaded but it is a matter for evidence. In Narayani v. District Judge (1991 (1) KLT 646) in para 6 the Division Bench has held as follows:
“It is clear from this decision that the precise nature of the business proposed to be conducted is not required to be stated in the pleading and that is a matter for evidence.”
The decision relied on therein is Kochappan Pillai v. Chellappan (1976 KLT 1).
21. It was held in Rajamma v. Leela (1991 (2) KLT 862) in para 13 that a liberal approach is necessary in construing pleadings. It was held thus:
“13. It cannot be denied that issuance of a notice, except in a case covered by S.11(2) of the Act, is not mandatory for eviction under S.11(3) of the Act. The court has to consider the claim in the light of the evidence and circumstances to find whether the plea is bona fide or not, which is a question of fact. In our view in considering the plea of the landlord a realistic and not a pedantic approach is what is called for. Even in the matter of construing the pleadings a liberal approach is necessary, as otherwise there would be the risk of justice becoming a causality.”
The same view has been taken in Shaji Varghese v. P.C Cherian (1993 (3) KLT 133) wherein the view taken is that “pleadings in rent control petitions are not to be analysed meticulously or in such a way as to lead to failure of justice.” Another Division Bench in Madhavan… v. Leelamma…. (1991 (2) KLT 32) has taken the view that “if no prejudice is caused to the tenant, the relief should not be denied.”
22. Herein, we find that even in the notice issued by the landlord marked as Ext.A3, it has been clearly stated that the son need to start an Engineering workshop in the schedule shop room. In the Rent Control Petition it was clearly mentioned in para 5 that the son is a Mechanical Engineering Diploma holder. He is married and is having a child. He is not having any permanent employment or regular income and therefore he wants to start a business, especially in accordance with his taste. The said aspect has really been explained in the evidence of P.W.1 and no prejudice has been shown by the tenant in this matter. Therefore, we are of the view that the Appellate Authority has acted perversely in holding that the non examination of the son is fatal to the plea of the landlord. Therefore, the reasons stated by the Appellate Authority cannot be supported on the evidence and on the legal aspects. The view taken being perverse, the same is liable to be interfered with by this Court in the revisional jurisdiction.
23. With regard to the requirement of the proviso to Section 11(3) of the Act, we have already held that the finding of the Rent Control Court is against the tenant. The Appellate Authority has not gone into the question since the plea under Section 11(3) of the Act has been rejected. We heard learned counsel on both sides on these aspects. There is nothing to show that the landlord is having another building in his possession. We have already analysed the contention with regard to room No. 337-A which the landlord has explained that the same is in possession of one Smt. Padmavathi and she is storing plywood there. As rightly found by the Rent Control Court, the tenant has not succeeded in proving that the landlord is having vacant possession of any other building. Therefore, with regard to the requirement of the first proviso to Section 11(3) of the Act, we confirm the finding rendered by the Rent Control Court.
24. The second proviso to Section 11(3) insists that if the 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 Rent Control Court shall not give any direction to a tenant to put the landlord in possession.
25. The burden is on the tenant to prove the above aspect. It is in evidence that the tenant/first respondent herein has placed on record Exts.B79 to B81 audit report of the business. When examined as RW.1, she deposed in the cross examination that she has got another establishment by name Asha Salokem and it has got a factory at Chennamangalam in Cherode Panchayat. She has also stated that she has started construction of a shopping complex at Cherode Panchayat. She did not lead evidence with regard to her income from the establishment Asha Salokem. Therefore, the Rent Control Court rightly found that it cannot be concluded that the main source of income of the first respondent is from the business in the petition schedule building.
26. With regard to the availability of other rooms in the locality also no worthwhile attempt has been made by the tenant to discharge her burden, which is the finding by the Rent Control Court. What is produced is a chart along with the proof affidavit showing the position of buildings near and around the petition schedule shop room. No other positive evidence was adduced in the matter. We also concur with the Rent Control Court on this aspect.
27. As rightly pointed out by the learned counsel for the petitioner, even though three rooms are in the possession of the tenant, only one room alone is sought to be evicted by the landlord. Therefore, the same coupled with other circumstances, will only advance the case of the landlord that the building is needed bonafide for the purpose of his son.
28. We therefore allow the revision petition and reverse the findings of the Appellate Authority and restore the order passed by the Rent Control Court. The first respondent is granted three months time from today to vacate the premises on the following conditions:
The first respondent will deposit the entire arrears of rent within a period of three weeks from today and will continue to remit or pay at the rate of the monthly rent to the landlord for use and occupation of the premises till she vacates the premises within the time prescribed above. The first respondent will file an undertaking before the execution court incorporating the above terms within a period of two weeks from today. If any of the conditions are violated, the first respondent will not get the benefit of this order.
No costs.