Sampath S. Pawar v. Chandroth Vennakaloth Ibrahim, Rasheed Kelath and Saheer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 31ST DAY OF OCTOBER 2012/9TH KARTHIKA 1934 ## **RCRev..No. 268 of 2012 (E)** AGAINST THE ORDER IN RCA 52/2010 ON THE FIE OF THE RENT CONTROL APPELATE AUTHORITY, ERNAKULAM IN R.C.P.NO.52/2008 DATED 22.2.2010 ON THE FILE OF THE III ADDITIONAL MUNSIFF'S COURT AND RENT CONTROL COURT, ERNAKULAM. ## **REVISION PETITIONER/1ST APPELLANT/1ST RESPONDENT:** SAMPATH S PAWAR, AGED 34 YEARS S/O.SADASIVA PAWAR, PAWAR HOUSE, 12/728 UNITY ROAD, CHELAKKOTTUKARA, THRISSUR. BY ADVS.SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.K.S.SUMEESH SRI.T.ANCY ## **RESPONDENTS/RESPONDENTS&2ND APPELLANT/** PETITIONERS AND 2ND RESPONDENT: 1. CHANDROTH VENNAKALOTH IBRAHIM S/O.UMMER HAJI, PUTHIYAPURAYIL, AZHIYOOR AMSOM VADAKARA TALUK, PIN - 673 101. 2. RASHEED KELATH, S/O.KUNHIKUTTY ALI HAJI, MADURIMA, C.S.MENON COLONY ERNAKULAM, PIN - 682 018. 3. SAHEER, AGED 42 YEARS S/O.ABUBACKER, PALICKUDY HOUSE, CHERUKARAYATH LANE C.P.UMMER ROAD, ERNAKULAM- 682 018. R2 BY ADV. SRI.M.P.SREEKRISHNAN R2 BY ADV. SMT.SHAHNA KARTHIKEYAN R2 BY ADV. SMT.M.H.BINDU THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1816/2012 IN R.C.R.NO.268/2012 E** DISMISSED SD/- **K.T.SANKARAN, JUDGE** 31/10/2012 SD/- **M.L.JOSEPH FRANCIS, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------R.C.R. NO. 268 OF 2012 E ---------------------------------------------------Dated this the 31[st] day of October, 2012** ## **O R D E R** ## **K.T.Sankaran, J.** The question involved in this Revision is, apart from proving the bona fide need under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, whether it is necessary for the landlord further to prove that the claim is bona fide under sub-section (10) of Section 11 of the Act. 2. The Rent Control Revision is filed by the tenant challenging the concurrent findings of the Rent Control Court and the Appellate Authority under Sections 11(3) and 11(4)(i) of the Act. The landlord had prayed for eviction on the ground under Section 11(4)(ii) as well and the Rent Control Court had allowed eviction on that ground as well. However, the Appellate Authority reversed the same. 3. Sub-section (1) of Section 11 of the Act provides that ## **R.C.R. NO. 268 OF 2012 E** :: 2 :: notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. The Act provides for various grounds for eviction like arrears of rent, bona fide need for own occupation of the landlord or for the occupation by any member of his family dependent on him, that the tenant has sublet the building, that the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently, that the tenant has in his possession another building reasonably sufficient for his requirements, that the building is required bona fide for the landlord to reconstruct the same, that the landlord wants to renovate the building etc. Sub-sections (7) and (8) of Section 11 also provide for other grounds for eviction. Under Section 11(3), the landlord may apply 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. Section 11(4) of the Act contains clauses (i) to (v) providing for eviction on different and distinct grounds. Sub-section (7) of Section 11 applies where the landlord of a building is a religious, charitable, educational or other ## **R.C.R. NO. 268 OF 2012 E** :: 3 :: public institution and the building is needed for the purpose of the institution. Sub-section (8) of Section 11 provides that a landlord who is occupying only a part of the 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. 4. For the purpose of this case, it would be apposite to extract sub-sections (3) and (10) of Section 11 of the Act, which read thus: ## “ **11. Eviction of tenants:--** ...... ....... (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 give 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 ## **R.C.R. NO. 268 OF 2012 E** :: 4 :: satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer **inter vivos** shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument: Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. ..... ...... (10) The Rent Control Court shall, if it is satisfied ## **R.C.R. NO. 268 OF 2012 E** :: 5 :: that the claim of the landlord under sub-sections (3), (4), (7) or sub-section (8) is **bona fide** , make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Rent Control Court, and if the Court is not so satisfied, it shall make an order rejecting the application: Provided that, in the case of an application made under sub-section (8), the Rent Control Court shall reject the application if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord: Provided further that the Rent Control Court may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.” It is also relevant to extract clauses (i) to (v) of sub-section (4) of Section 11, excluding the provisos and explanations: “ (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, -- ## **R.C.R. NO. 268 OF 2012 E** :: 6 :: (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so: (ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; or (iii) if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or (iv) if the building is in such a condition that it needs reconstruction and if the landlord requires **bona fide** to reconstruct the same and if he satisfies the Court that he has the plan and licence, if any required, and the ability to rebuild and if the proposal is not made as a pretext for eviction: (v) if the tenant ceases to occupy the building continuously for six months without reasonable cause.” 5. The bona fide need of the landlord under Section 11(3) ## **R.C.R. NO. 268 OF 2012 E** :: 7 :: would be tested by the Rent Control Court and only if the Court is satisfied that the landlord bona fide needs the building as provided in sub-section (3), an order would be passed. Some of the grounds for eviction do not require the landlord to prove that he bona fide requires it or that the need is bona fide. For example, if there is subletting by the tenant, that by itself is a ground for eviction and, in that case, it is not necessary for the landlord to prove that the need for eviction is bona fide. In the case of clauses (ii) and (iii) of subsection (4) of Section 11 also, the bona fides of the landlord is immaterial. Under clauses (i) to (iii) of sub-section (4) of Section 11, a landlord would be entitled to get an order of eviction on proving the ingredients therein. In the case of sublease, the tenant loses the protection as provided under the Act. The Act also recognizes the right of the landlord to evict a tenant who uses the building in such a manner to destroy or reduce its value or utility materially and permanently. If the tenant acquires possession of another building as provided in clause (iii) of sub-section (4) of Section 11, then also the landlord would be entitled to get an order of eviction. Under clause (v) of sub-section (4) of Section 11 also, the bona fides of the landlord need not be tested. In these instances coming under ## **R.C.R. NO. 268 OF 2012 E** :: 8 :: clauses (i) to (iii) and (v) of sub-section (4) of Section 11, the question of bona fides of the landlord is not relevant at all. On the other hand, the question is whether the tenant has done some contumacious act or whether the tenant has acquired another building or whether he ceases to occupy the building. In the case of reconstruction under Section 11(4)(iv), bona fides of the landlord is a criterion to be established. In sub-sections (7) and (8) of Section 11, the word “bona fide” does not occur. In other words, the word “bona fide” occurs only in sub-sections (3) and 4(iv). However, in view of sub-section (10) of Section 11, it is necessary to show that the claim of the landlord is bona fide. In sub-section (10) of Section 11, mention is made about sub-sections (3),(4),(7) and (8). An argument was developed on the basis of inclusion of sub-section (3) in sub-section (10) that apart from proving the bona fide need under Section 11(3), the landlord has to satisfy the Rent Control Court that his claim is also bona fide. Though sub-sections (3) and (4) provide for eviction in various circumstances, those sub-sections do not provide for passing an order of eviction. Probably that is a reason why in sub-section (10) a specific mention is made about making an order directing the tenant to put the landlord in possession of the building. ## **R.C.R. NO. 268 OF 2012 E** :: 9 :: ## 6. In **Haridas** v. **Mercantile Employees' Association (1975** **KLT 437)** , a Division Bench of this Court held that on a combined reading of sub-sections (7) and (10) of Section 11, there cannot be any doubt that the Rent Control Court is under a mandatory obligation to investigate into the bona fides of the claim put forward by the landlord under sub-section (7). In that case, the Appellate Court took a view that consideration of the question as to whether there was bona fide need for the institution of a petition under Section 11 of the Act was extraneous to the enquiry. The Division Bench held that the said view was manifestly incorrect. In **Haridas** v. ## **Mercantile Employees' Association (1975 KLT 437)** , the Division Bench had no occasion to consider whether to get an order of eviction under Section 11(3), the landlord has to prove not only the bona fide need but also to prove that the claim is bona fide under sub-section (10). ## 7. In **Krishnan** v. **Vijayaraghavan (1977 KLT 1013)** , the question which arose for consideration was whether the landlord has to prove that the claim is bona fide as provided in sub-section (10) of Section 11, in a petition for eviction on the ground of subletting under ## **R.C.R. NO. 268 OF 2012 E** :: 10 :: Section 11(4)(i) of the Act. In that case, Justice V. Khalid (as His Lordship then was) held thus: “Each case has to be decided on its own facts This case, according to me, can be easily distinguished from the cases referred to above. While doing so, I cannot close my eyes to the fact that S.11 (10) takes within its ambit the whold of sub-s. (4) of S.11. I will have to adopt a harmonious construction of the different sections in the Act in dealing with the section. It is significant to note that the ground of arrears of rent is not included in S.11(10) of the Act. The difficulty arises since S.11(10) take in S.11(4) of the Act which subsection has five sub clauses. The question that arises is as to what is meant by the claim being bona fide when a landlord proves and satisfactorily establishes the grounds mentioned in S 11(4)(i), (ii), (iii) and (v). If S.11 (10) is to be applied to clauses (i), (ii), (iii) or (v) of S.11 (4), then it will lead to very unhappy results. What the Legislature intended by enacting S.11(10) including the entire S.11(4) can only be to include S.11(4) (iv) and not the other clauses of that sub-section. This is the only possible construction that can be given to S 11(10). I do not know whether I will be justified in saying that S.11 (10) as a whole is a surplusage because in petitions under S 11(3), 11(4)(iv), 11(7) and 11(8) the ingredient of bona fide has necessarily to be proved. The order for ## **R.C.R. NO. 268 OF 2012 E** :: 11 :: eviction can be made only if the concerned authority is satisfied that the claim is bona fide. Perhaps, under these circumstances, S.11(10) could have been avoided. But since this section remains on the statute bonk, I have to explain it in a reasonable and harmonious manner. To say that the Legislature intended only to include S.11(4)(iv) in S.11(10) as was contended by the respondent's counsel, may perhaps expose me to the charge of judicial legislation. I very strongly feel that the Legislature could have only meant S.11(4) (iv) when it included S.11(4) in S.11(10). However, on the section as it now stands I would hold that when a landlord establishes the ground of subletting as also the grounds under S.11(4) (ii), (iii) and (v) to the satisfaction of the Court, that by itself is proof that the claim is bona fide. I would rest my conclusion on this construction and meet the requirement of S.11(10).” ## 8. In **Azhikode Service Co-op. Bank Ltd.** v. **Narayanan** **(1994(2) KLT 29)** , the landlord filed an application under Section 11 (3) of the Act. The landlord was a co-operative society. The Rent Control Court dismissed the petition. In the appeal, the landlord raised a contention that their claim can be sustained under Section 11(7) of the Act. The Appellate Authority found that the landlord ## **R.C.R. NO. 268 OF 2012 E** :: 12 :: failed to establish the bona fide need whether the claim be construed as one under Section 11(3) or as one under Section 11(7). In that context, the Division Bench held thus: “4. ...... Then the question that arises for examination is what is meant by the claim being bonafide as contemplated under sub-section (10) when the landlord establishes his bona fide need as required under sub-section (3) of S.11. When the bona fide need is established under sub-section (3), can it be said the claim for eviction is ipso facto bona fide? It cannot be said so in all the circumstances because even if the 'bona fide need' is established, the application for eviction need not be honest in all cases. But ordinarily when the bona fide need is established, it necessarily follows the claim for eviction also is bona fide unless it is a subterfuge. In the case of eviction under sub-section (7) the landlord shall establish that his claim is bona fide as required under sub-section (10).” ## 9. Another Division Bench in **Abdul Rahiman** v. **Lakshmi** **(1994(2) KLT 123)** , held that a landlord need not prove that he bona fide needs the building for his own occupation or for the occupation of any member of his family dependent on him, if the petition for ## **R.C.R. NO. 268 OF 2012 E** :: 13 :: eviction is filed under Section 11(4)(iii) of the Act. The Division Bench held thus: “The bona fide need of a landlord for his own occupation or occupation of any member of his family depending on him is a separate ground for eviction. Under sub-section (4), five different grounds are given which would also entitle a landlord to seek eviction of his tenant. The first ground under sub-section (4) is sublease without the consent of the landlord. The second ground relates to the tenant using the building in such a manner as to destroy or reduce its value etc. The third ground is one where the tenant has in his possession another building reasonably sufficient for his requirement. If the petitioner’s contention that in order to get eviction under the third ground, the landlord has to prove bona fide need of own occupation in view of the provision contained under sub-section (10). Then, it would mean that the landlord has to prove such bona fide need even when the tenant sub-lets the building or destroys or reduce its value. So also, even if the tenant ceases to occupy a building continuously for six months, which is the 5th ground under sub-section (4), the landlord will not be able to seek eviction unless he requires for own occupation. Such an interpretation would certainly be absurd. On the other hand, the bona fides of the requirement of the landlord to re-construct ## **R.C.R. NO. 268 OF 2012 E** :: 14 :: the building is made a condition under the 4th ground under subsection (4) for eviction. The provisions contained under the Buildings (Lease and Rent Control) Act are meant not only for the benefit of the tenants and landlord, but it is meant for the benefit of the society at large. If a tenant ceases to occupy the building continuously for six months without reasonable cause, it has to be taken that he has no requirement for the tenanted building. It is certainly against public interest to keep a building vacant. It can be used either by the landlord himself or by another tenant.” ## 10. In **Aboobacker** v. **Sahithya P.S.Sangham Ltd. (2004 (2)** **KLT 947)** , another Division Bench of this Court held thus: “8. In view of the above mentioned discussion the following principles emerge. (1) An order of eviction is to be passed by the Rent Control Court under S.11(10) when a landlord establishes the _bona fide_ need under sub -ss.(3),(4),(7) or sub-s.(8) of S.11. The Rent Control Court is not expected to further examine as to whether the claim is _bona fide_ or not. ## **R.C.R. NO. 268 OF 2012 E** :: 15 :: (2) Rent Control Court while examining the question whether the need urged by the landlord is _bona fide_ or not under sub -ss.(3),(4),(7) or sub-s.(8) is virtually examining the claim itself, that is the ground for eviction. (3) Rent Control Court is legally obliged if it is satisfied that the claim of the landlord under sub -ss.(3),(4),(7) or sub-s.(8) is _bona fide_ to make an order specifying a date for enabling the tenant to put the landlord in possession of the building.” In Aboobacker's case, the Division Bench referred to the decisions in **Azhikode Service Co-op. Bank Ltd.** v. **Narayanan (1994(2) KLT 29)** and **Abdul Rahiman** v. **Lakshmi (1994(2) KLT 123)** . 11. In **Social Service Guild of Assissi Sisters** v. **Ouseph Chacko (2009 (2) KLT 199),** another Division Bench held thus: “Unlike sub-s.(3), the word _'bona fide'_ is absent in sub-s.(7). But, that does not mean that for succeeding in a petition for eviction under sub-s.(7), it is not necessary to establish _bona fides_ of the claim. Sub-s. (7), like sub-s.(8) is qualified by sub-s.(10) of S.11. It is therefore, clear that in order that a landlord succeeds in ## **R.C.R. NO. 268 OF 2012 E** :: 16 :: a petition for eviction invoking ground under sub-s.(7) of S.11, he satisfies the Rent Control Court that his claim is _bona fide._ ” 12. In **Smitha** v. **Krishnan (R.C.R.No.358 of 2010)** , a Division Bench held that there are conflicting views made by the Division Benches and, therefore, it is necessary to refer the case to a Full Bench. The Reference Order is reported in 2011(4) KLT 697. The learned counsel for the petitioner relied on the Reference Order in **Smitha** v. **Krishnan** and contended that we are bound to follow the same and to hold that there are conflicting views by the Division Benches. A Reference Order made by a Division Bench referring the case to a Full Bench is not a judgment and, therefore, it has no value as a precedent. This is so because no conclusive decision would be arrived at in a Reference Order. 13. We have gone through the various decisions referred to in the Reference Order and extracted the relevant portions of the judgments in those cases in the preceding paragraphs. We do not find any conflict between the decisions of the Division Benches. In **Haridas** v. **Mercantile Employees' Association (1975 KLT 437),** ## **R.C.R. NO. 268 OF 2012 E** :: 17 :: the Division Bench said that in a claim under Section 11(7), the landlord must prove the bona fides as provided under Section 11 (10). In **Krishnan** v. **Vijayaraghavan (1977 KLT 1013)** , it was categorically held that when the landlord establishes the ground of subletting as also the grounds under Sections 11(4)(ii), (iii) and (v) to the satisfaction of the Court, that by itself is proof that the claim is bona fide. In the subsequent Division Bench decisions, the decision in **Krishnan** v. **Vijayaraghavan (1977 KLT 1013)** was not referred to. In **Azhikode Service Co-op. Bank Ltd.** v. **Narayanan (1994(2) KLT 29),** while answering the contention that though the petition was filed under Section 11(3) the landlord could invoke sub-section (7) of Section 11 and, therefore, it is not necessary to establish the bona fide need, the Division Bench made an observation that when the bona fide need is established under sub-section (3) that by itself would not be meant that the claim is bona fide. At the same time, the Division Bench said, ordinarily when the bona fide need is established, it necessarily follows that the claim for eviction also is bona fide unless it is a subterfuge. After referring to the decision in **Azhikode Service Co-op. Bank Ltd.** v. **Narayanan (1994(2) KLT 29),** the Division Bench in **Aboobacker** v. **Sahithya P.S.Sangham** ## **R.C.R. NO. 268 OF 2012 E** :: 18 :: **Ltd. (2004 (2) KLT 947)** categorically held that after establishing the bona fide need under sub-section (3) of Section 11, it is not necessary for the Court to further examine whether the claim is bona fide or not. 14. It is well settled that when conflicting views are taken in the decisions of two Benches of equal strength, the decision later in point of time will prevail over the earlier one. [ **See Raman Gopi** v. **Kunju Raman Uthaman (2011 (4) KLT 458 (F.B.)).]** The later decision on the point which deals with all the aspects of the case is **Aboobacker** v. **Sahithya P.S.Sangham Ltd. (2004 (2) KLT 947).** We are of the view that there is no conflict in the views expressed by the various Division Benches as observed by the Division Bench in **Smitha** v. **Krishnan (2011 (4) KLT 697)** . 15. Under Section 11(3) of the Act, the landlord has to prove that he bona fide needs the building. While considering the bona fides, the Rent Control Court would consider all the facts and circumstances which may tend to show whether the need is bona fide or not. Only if the need is bona fide, an order of eviction will be ## **R.C.R. NO. 268 OF 2012 E** :: 19 :: passed by the Rent Control Court. The satisfaction to be arrived at by the Rent Control Court under sub-section (10) of Section 11 is the same as provided in Section 11(3) of the Act. There is not much difference between the claim being bona fide and the need being bona fide. We are of the view that the Legislature never wanted to put a further fetter on the right of the landlord to get an order of eviction on the ground of bona fide need by compelling him to further prove that not only his need is bona fide but his claim is also bona fide. Apart from testing the bona fides under sub-section (3) which necessarily includes testing the bona fides in all angles, further proof of the bona fides of the claim is not required. Proof of bona fide need by itself is proof of bona fides of the claim. In other words, proof of bona fide need under sub-section (3) of Section 11 is the same as the proof of the claim being bona fide under sub-section (10) of Section 11. 16. Respondents 1 and 2 filed the Rent Control Petition against the petitioner and the third respondent under Sections 11(3), 11(4)(i) and (ii) of the Act. The petition schedule building admittedly belongs to respondents 1 and 2. There is also no dispute that the ## **R.C.R. NO. 268 OF 2012 E** :: 20 :: rent payable at present by the tenant is `15,000/- per month. It is stated that the petition schedule building has an area of 1931 sq. ft. consisting of a ground floor and first floor. The building is situated in Broadway, Ernakulam. 17. Herein below the parties are referred to as per their rank in the Rent Control Petition. The petitioners contended that they want to conduct a hotel in the petition schedule building and vacant possession of the building is bona fide required for that purpose. It is stated that the first petitioner is not having any business at present. The second petitioner is running two hotels near South Railway Station, Ernakulam along with others as partners. The petitioners alleged that contrary to the specific stipulation not to sublease, the first respondent/tenant sublet the building to the second respondent. In the petition schedule building textile business is being run under the name and style 'Fashion Bazar'. On 1.5.2001, the building was leased out for conducting either jewellery business or textile business, originally for a period of three years. The period of lease was being extended from time to time and the rent was also increased. The petitioners also alleged that the tenant ## **R.C.R. NO. 268 OF 2012 E** :: 21 :: made alterations in the building which reduced its value and utility materially and permanently. 18. The first respondent/tenant contended that the bona fide need put forward by the landlord is not genuine and it was made as a pretext for eviction. If the petitioners want to do business, they have other buildings suitable for that purpose in the city itself. The tenant claimed the benefit of the first proviso to Section 11(3) of the Act. The first respondent contended that the second respondent is his paid employee and the tenanted premises was not sublet to the second respondent. 19. The Rent Control Court considered the bona fide need in great detail and it was held that the need put forward by the landlord is genuine. A contention was raised by the tenant that the petition schedule building was not suitable for hotel business. The Rent Control Court negatived that contention as well. As regards the first proviso to Section 11(3) of the Act, the Rent Control Court held in favour of the landlord. Though the benefit of the second proviso was not specifically pleaded, the Rent Control Court considered that ## **R.C.R. NO. 268 OF 2012 E** :: 22 :: contention put forward by the tenant as well and it was held that the tenant failed to prove the ingredients of the second proviso to Section 11(3) of the Act. As regards sublease, the Rent Control Court, on the basis of the evidence on record, held that the second respondent is not the paid employee of the first respondent, but he is the subtenant under the first respondent. As regards the ground under Section 11(4)(ii), the Rent Control Court held that the landlord is entitled to get an order of eviction on that ground as well. 20. On appeal by respondents 1 and 2, the Appellate Authority confirmed the finding of the Rent Control Court under Sections 11(3) and 11(4)(i) of the Act. However, the Appellate Authority held that the landlord has not established the ground under Section 11(4)(ii) of the Act. 21. It has come out in evidence that the second petitioner (landlord) is conducting Shazia Hotel and Zanam Restaurant near South Railway Station, Ernakulam. It is the specific case of the second petitioner that the aforesaid business is being carried on by him along with several other persons on partnership basis. The first ## **R.C.R. NO. 268 OF 2012 E** :: 23 :: petitioner is not a partner at all in that partnership. Therefore, running of that hotel and restaurant would not attract the first proviso to Section 11(3) of the Act. Even if the landlord runs other business it would not dis-entitle him to claim eviction of the tenanted premises if he establishes the bona fide need. By the first proviso, it is not meant that a landlord owning a building and conducting business therein would be dis-entitled to claim eviction of his tenant in respect of another building. The only requirement under the first proviso to Section 11(3) is that the landlord has to state special reasons for getting an order of eviction if he has another building of his own in his possession in the same city, town or village. In the present case, Shazia Hotel and Zanam Restaurant are being run by a partnership, of which the first petitioner is not a partner. Therefore, it is not necessary for the petitioners to establish special reasons as provided under the first proviso. A Division Bench in **Chacko P.Mathew** v. **Kuttappan (2002 (1) KLJ 868)** held that the landlord need to explain the circumstances and special reasons before the Rent Control Court only if it is established by the tenant that landlord has got other building of his own. ## **R.C.R. NO. 268 OF 2012 E** :: 24 :: 22. The Appellate Authority considered the documentary evidence while dealing with the case of sublease and it was held thus: “... The respondents produced Ext.B4 series (13 in number) to show that the first respondent himself is the person who conducts the business in the petition schedule building. Some of the bills contain the name of the first respondent and other bills only name of the institution 'Fashion Bazar'. In some of the bills TIN No. of the purchaser is shown as 32071703578. The petitioners produced Ext.A6 which is the dealer details of the dealer Sagheer P.A. who conducts business under the name “Style Plus”. The details are given by Commercial Tax Officer, KVAT Circle III, Ernakulam. TIN No. shown in it is 32071703578. So the TIN No., shown in A6 and B4 series are the same. The name of the second respondent is Sagheer. PW1 said that Ext.A3 is the bill obtained from the shop in the petition schedule building. Even though at the top the name of the shop is shown as “Fashion Bazar” at the bottom it is written as “For Style Plus”. When RW1 was asked whether the receipt was issued from the shop in the petition schedule building he replied that he does not know. He did not deny it specifically. He also said that he does not know whether Sagheer is conducting ## **R.C.R. NO. 268 OF 2012 E** :: 25 :: business under the name “Style Plus” in another building. So considering Exts.A3, A6 and B4 series there is probability that actually business in the petition schedule building is being conducted by the second respondent. Moreover, there is no document from the side of the respondents to see that the second respondent is paid employee of the first respondent.” 23. We do not find any ground to interfere with the well considered order and judgment of the authorities below in respect of the grounds under Sections 11(3) and 11(4)(i). We are also of the view that the Appellate Authority was right in holding that the landlord failed to establish the ground under Section 11(4)(ii). 24. For the aforesaid reasons, the Rent Control Revision is dismissed. 25. Lastly, the learned counsel appearing for the revision petitioner (tenant) submitted that a reasonable time may be granted to the tenant to vacate the premises. The learned counsel submitted that as per the order passed by this Court, a sum of `1,35,000/- was paid to the learned counsel appearing for the landlord on 29.10.2012 ## **R.C.R. NO. 268 OF 2012 E** :: 26 :: towards arrears of rent. This submission is not disputed by the landlord. Taking into account the facts and circumstances, we are of the view that time till 31.1.2013 can be granted to the tenant to vacate the petition scheduled building, on the following conditions: - a) The revision petitioner and the third respondent (respondents 1 and 2 in the Rent Control Petition) shall file an unconditional undertaking before the Rent Control Court within a period of six weeks from today, undertaking to vacate the premises on or before 31.1.2013. - b) The revision petitioner shall continue to pay the monthly rent to the landlord on or before 10[th] of every month till he vacates the premises. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/