K.T.Sankaran, J.
These Revisions were referred to the Full Bench stating that in the decision of the Division Bench in Indian Saree House v. Radhalakshmy (2006(3) KLT 129) the binding judgment in Shaji Varghese v. Cherian (1993 KHC 29 = 1993 (1) KLT 133) was not considered and that there is apparent conflict of views in the various decisions of this Court on the subject.
2. The main conflict of views noticed by the Division Bench is on the question whether Sections 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') are mutually exclusive. In Indian Saree House v. Radhalakshmy (2006(3) KLT 129) and in S.Sivasubramonia Iyer v.
S.H.Krishnaswamy (AIR 1981 Kerala 57), it was held that sub- sections (3) and (8) of Section 11 of the Act are mutually exclusive. In Shaji Varghese v. Cherian (1993 KHC 29 = 1993 (1) KLT 133) and in Muhammed v. Abdul Rahiman (1983 KLT 874) it was held that sub-sections (3) and (8) of Section 11 are not mutually exclusive.
3. For the sake of convenience, sub-sections (3) and (8) of Section 11 are extracted below:
“11. Eviction of tenants.-- (1) .....
(2) ........
(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.
............
(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use.”
4. The first proviso to Section 11(3) of the Act provides that the Rent Control Court shall not give any direction under sub-section (3) if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so. The second proviso to Section 11(3) gives protection to the tenant. Even after holding that the bona fide need is established, the Rent Control Court shall not give any direction to the 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. The third and fourth provisos to Section 11 (3) contain certain other restrictions as well. The first proviso to sub- section (10) of Section 11 states 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. In view of sub-section (10) of Section 11, the landlord has to establish his bona fides in the case of a claim for eviction under sub- sections (3), (4), (7) or (8).
5. The distinction between Section 11(3) and 11(8) was considered in various decisions of this Court as well as the Supreme Court. In Lekshmana Naikan v. Gopalakrishna Pillai (1981 KLT 167), the landlord sought eviction of his tenant from a portion of the building in which the landlord himself was residing. The question was whether the claim for eviction would lie under Section 11(3) or Section 11(8). Justice Subramonian Poti (as his Lordship then was), in Lekshmana Naikan's case, held that the distinction is relevant because the provisos to these sub-sections widely differ and, therefore, the questions that will have to be considered in the context of a claim under Section 11(3) would vary considerably from the questions relevant when assessing a claim under Section 11(8). It was further held thus:
“2. If the case of the landlord is that he is residing in a part of a building and he requires another part of the building in the occupation of the tenant for his occupation so as to have additional accommodation and not to transplant himself from the portion he is residing to the new portion then the case squarely falls within S.11(8). If on the other hand a person is occupying a portion of a building, another portion of the building is in the possession of the tenant and he wants that portion as he prefers to occupy that portion of the building and not the one he had been occupying so far it will be a claim that falls under S.11(3). That is because in that case the portion, surrender of which is sought is not required as any additional accommodation but as accommodation. There may be many reasons why he may not want to live in that part of the building where he had been living. He may think that it is better to live in the portion in which the tenant is living and if the circumstances are such that it can be said that he bonafide needs that portion occupied by the tenant for his occupation in place of the portion which he has been occupying so far, the claim will fall squarely under S.11 (3). To put it in brief where what is sought to be recovered from the tenant is a portion of a building, another portion of which is occupied by the landlord S.11(8) would operate only when - but always when -
the portion occupied by the tenant is sought for the purpose of additional accommodation for the landlord.”
6. In Muhammed v. Abdul Rahiman (1983 KLT 874), a learned single Judge of this Court held that sub-sections (3) and (8) of Section 11 are not mutually exclusive. In that decision, it was held thus:
“4. ....... Sub-sections (3) and (8) of S.11 are not mutually exclusive. If both the grounds are available to the landlord it is open to him to apply for eviction on either of the grounds or on both. The mere fact that there is a specific provision applicable to a situation where the landlord is in occupation of a part of a building and the remaining portion or part thereof is in the possession of a tenant, does not preclude the landlord from seeking eviction under sub-section (3) of S.11 of the Act. It is not a sound principle of statutory construction to place more restrictions on the rights of parties than what is provided for in the Statute itself. There is therefore no substance in the plea that for the reason of the landlord's possession of a part of the building, sub-section (8) excludes the operation of sub- section (3) of S.11 of the Act for a landlord to apply for eviction of his tenant.”
In Muhammed v. Abdul Rahiman (1983 KLT 874), it was also held that Section 11(8) of the Act cannot be invoked where the landlord is not occupying part of the building. Occupation and possession are not synonymous terms. One may possess land or building without occupying the same. It was held that unless the landlord is occupying part of the building, he will not be entitled to invoke sub- section (8) of Section 11 to evict the tenant occupying the remaining part of the building.
7. In Abdul Rahiman and others v. Ramankutty Moothan
(1983 KLT 726), relying on the decision in S.Sivasubramonia Iyer v.
S.H.Krishnaswamy (AIR 1981 Kerala 57), it was held thus: “13. ...... According to me, S.11(3), 11(4)(iv) and 11(8) are independent provisions. In all these cases the requirement should be bona fide. But the nature of the requirement in each section is different. In certain cases, the shades of requirement may overlap. But each section operates independent of the other. It may be that in certain cases the Court may while ordering eviction under S.11(3) permit the landlord to occupy it after necessary alterations or reconstruction. But a combined order for eviction under S.11(3), 11(4)(iv) and 11(8) cannot be passed, for these sections prescribe different post-eviction conditions. I find support for this view in Subramania Iyer v. Krishnaswamy (ILR 1981(2) Kerala 442) by Poti J., where it was thus held, and with respect rightly that S.11(3) and 11(4) are independent provisions ”
8. In S.Sivasubramanya Iyer v. S.H.Krishnaswamy (AIR 1981 Kerala 57), Justice P.Subramonian Poti (as His Lordship then was) held:
“4. In this case there must be considerable confusion in the minds of the courts below as to the scope or applicability of S.11(8) of the Act. In this case eviction is sought on grounds falling under sub-sections (3) and (8) of Section 11 of the Act. These two provisions are mutually exclusive and when the Statute itself provides these two independent provisions, they are capable of being construed as serving independent and different purposes. Sub-section (3) of Sec.11 enables the landlord to apply for recovery of possession if he bona fide needs the building either for his own occupation or for the occupation by any member of his family, who is a dependent on him whereas Section 11 (8) applies to a case where the landlord occupies only a part of the whole building owned by him and he requires additional accommodation for his personal use and therefore seeks the recovery of the remaining part of the whole building, which is in the possession of a tenant. No doubt, he may seek recovery of it for his personal use under other sub-sections of Section 11. But, what he seeks in a petition under Section 11(8) of the Act is the additional accommodation for his personal use. Personal use in this context would mean use by the landlord or by any member of his family, who is a dependent on him.
In this case, petitioner's parents, who are aged are said to be desiring to go over to the petitioner's house in order to stay along with the petitioner. If the petitioner's parents desire to stay independently in the portion of the building let out to the respondent, then, the ground for eviction must necessarily fall under Section 11(3) of the Act. This is so because the building is required not for the occupation of the landlord, but for the occupation of a person or persons dependant on the landlord. If, on the other hand, the parents are to be taken to the petitioner's house so that the membership of the petitioner's family is enlarged, then, it would be a case where the petitioner required the part of the building occupied by the respondent for providing convenient accommodation to the persons who are so added to his family. It is a case where the petitioner requires additional accommodation for himself and the members of his family it would mean that he requires additional accommodation for his personal use. Therefore, the question would be whether he wants to accommodate persons dependant on him independently in the portion sought to be recovered from the tenant. If so, Section 11(3) will apply. If he wants to take his dependants to his own residence and live with them, Section 11(8) will apply.
In other words, in a case where a landlord is occupying a portion of the whole building and his tenant is occupying the other portion if the landlord seeks additional accommodation for the accommodation of another member of his family depending on him and if what he seeks is possession for the independent occupation of such member, it would be governed by sub-section (3) of Section 11 and would be decided by the requirements of Section 11(3). If on the other hand, it is otherwise, it will be a case falling within the ambit of Section 11(8) ”
9. In Arjunan v. Eranu (1991 (2) KLT 279), the question whether Section 11(3) and Section 11(8) are mutually exclusive did not arise for consideration. However, the Division Bench relied on the decisions in S.Sivasubramanya Iyer v. S.H.Krishnaswamy
(AIR 1981 Kerala 57) and Lekshmana Naikan v. Gopalakrishna
Pillai (1981 KLT 167) in another context.
10. In Pakran v. Kunhiraman Nambiar (2004(1) KLT 824), it was held that it is now trite that the standards to decide bona fides of a claim under Section 11(3) and that of a requirement for additional accommodation coming under Section 11(8) are different, the former being more rigorous than the latter. The decisions in Arjunan v. Eranu (1991 (2) KLT 279) and Lekshmana Naikan v. Gopalakrishna Pillai (1981 KLT 167) were relied on by the Division Bench in Pakran v. Kunhiraman Nambiar (2004(1) KLT 824).
11. In S.R.Babu v. T.K.Vasudevan and others ((2001) 8
SCC 110 = 2001 (3) KLT 468 (SC)), the Rent Control Petition was
filed under Sections 11(3), 11(8) and 11(4)(iv) of the Act. In that decision, the Supreme Court held thus:
“11. A perusal of sub-section (8) makes it clear that to invoke this sub-section the landlord must show that: (i) he is occupying only a part of the building; (ii) the tenant is occupying the whole or a portion of the remaining part; and (iii) the landlord requires the additional accommodation for his personal use.
12. The following is the distinction between sub- section (3) and Sub-section (8) of Section 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation.
13. In the instant case, admittedly, the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under sub-section (8) of Section 11 and not under sub-section (3) of Section 11 of the Act.”
12. In Shaji Varghese v. Cherian (1993 (1) KLT 133), a petition for eviction was filed under Section 11(3) of the Act. The Rent Control Court allowed the application not under Section 11(3) but under Section 11(8) of the Act. Before the High Court, the tenant contended that the petition having been filed under Section 11(3), it could not have been dealt with under Section 11(8) of the Act and an order could not have been passed under Section 11(8). The Division Bench held, relying on the notice, reply and pleadings, that the parties understood very well that the claim made by the landlord was under Section 11(8) and that the tenant was not misled into believing that the claim was only under Section 11(3). The Division Bench in Shaji Varghese v. Cherian (1993 (1) KLT 133), relied on the decision in Lakshmana Naikan v. Gopalakrishna Pillai (1981 KLT 167). The Division Bench held that Sections 11(3) and 11(8) are not mutually exclusive, relying on the decision in Muhammed v. Abdul Rahiman (1983 KLT 874). It was further held thus:
“11. S.11(3) and 11(8) being thus not mutually exclusive, and both being intended to subserve a similar purpose, namely occupation by the landlord, the fact that the landlord quoted a wrong provision as the one under which he filed the petition, does not really affect the maintainability of the petition or the order of eviction under the other provision if the pleadings are sufficient to put the tenant on notice of the claim made by the landlord. After all, what the tenant has to deal with and reply are the averments in the body of the petition and not with reference to the section quoted at the heading of the petition for eviction.”
Thus it is clear that the Division Bench in Shaji Varghese v. Cherian (1993 (1) KLT 133) was considering the question whether quoting a wrong provision of law in the Rent Control Petition would actually disentitle the landlord from claiming an order of eviction under the real head which arise on the pleadings and evidence. It was in that context the Division Bench observed that Section 11(3) and 11(8) are not mutually exclusive.
13. In Kusum Devi v. Mohan Lal (dead) by L.Rs. (2009) 11 SCC 594, the landlady filed a suit for eviction of the tenant under Sections 12(1)(a), (c), (e), (g) and (o) of the Madhya Pradesh Accommodation Control Act, 1961. The question was whether the grounds under Sections 12(1)(e) and 12(1)(g) were independent and mutually exclusive and destructive of each other. Under Section 12 (1)(e), the landlord could seek eviction of an accommodation let out for residential purpose if the premises is required bona fide for occupation as a residence for himself of for any member of his family. Clause (g) of Section 12(1) provides a ground for eviction if the accommodation has become unsafe, or unfit for human habitation and is required bona fide by the landlord for carrying out repairs which cannot be carried out without the accommodation being vacated. The Supreme Court held that both under clauses (e) and (g) what the Court is required to see is the bona fide requirement of the landlord. The Supreme Court held thus:
“49. In view of the foregoing discussion, we hold that in a case where eviction has been sought both on the grounds of bona fide requirement by the landlord for occupation of the premises for himself or any member of his family, as required under Section 12(1)(e) of the Act and for carrying out repairs, as enumerated under Section 12(1)(g) of the Act, the court is required to consider both the grounds on merits, as they are mutually exclusive, but not destructive of each other.”
14. A Division Bench of this Court (Justice P.R.Raman and Justice K.T.Sankaran) in Indian Saree House v. Radhalakshmy
(2006(3) KLT 129), referred to the decisions in Lakshmana Naikan
v. Gopalakrishna Pillai (1981 KLT 167), S.Sivasubramonia Iyer v.
S.H.Krishnaswamy (AIR 1981 Kerala 57), Abdul Rahiman and others v. Ramankutty Moothan (1983 KLT 726), Muhammed v.
Abdul Rahiman (1983 KLT 874), Arjunan v. Eranu (1991 (2) KLT
279), Pakran v. Kunhiraman Nambiar (2004(1) KLT 824) and
S.R.Babu v. T.K.Vasudevan and others ((2001) 8 SCC 110 = 2001
(3) KLT 468 (SC)) and it was held thus:
“12. In view of the Supreme Court decision in S.R. Sabu’s case and the principles laid down in the abovementioned decisions (except 1983 K.L.T.874), we are not inclined to accept the view taken by the authorities below that Section 11 (3) applies in the present case. Admittedly, petitioners 4 and 5 in the Rent Control Petition are in occupation of a portion of the whole building (or larger building). They do not want to vacate it and shift that business to the tenanted premises. They want to expand their business activities and for that purpose, the tenanted portion of the building is also required. Therefore, their requirement does not satisfy the ingredients of the expression “bonafide needs the building for his own occupation” under Section 11 (3). On the other hand, the claim comes within the meaning of the expression “he requires additional accommodation for his personal use”. The need for additional accommodation shall be for the “personal use” of the landlord. Of course, personal use includes use by the members of the landlord’s family. At the same time, if the need for personal use is only for the members of the family of the landlord and it is unconnected with the occupation by the landlord of a portion of the building already in his possession, Section 11 (8) may not apply and such a case would be covered by Section 11 (3). The ingredients of sub sections (3) and (8) are distinct and different. They are mutually exclusive. Of course, some of the matters to be proved in order to get an order either under sub clause (3) or sub clause (8) of Section 11 are common. The landlord has to prove that the claim is bona fide in both these situations. If the claim is not proved to be bona fide, it shall be rejected as provided under Section 11 (10) of the Act. The first proviso to Section 11 (3) deprives the landlord to get an order for eviction if he has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that special reasons exist. Such a condition is absent in the case of Section 11 (8). Even if the landlord has another building, it may not have any relevance in an application under Section 11 (8). In an application under Section 11 (8), the landlord need not prove any special reasons as provided in the first proviso to Section 11 (3). Ownership and possession of the landlord in respect of another building is irrelevant in deciding an application of Section 11 (8), except, probably, in deciding the comparative hardship under the proviso to Section 11 (10), that too, depending upon the facts and circumstances of the case. The second proviso to Section 11 (3) mandates that no order under Section 11 (3) shall be passed in favour of the landlord if the tenant is depending for his livelihood mainly on the income derived from any trade or business carried in the building and if there is no other suitable building available in the locality for the tenant to carry on such trade or business. These requirements are absent in Section 11 (8). So also, such protection is not available to a tenant against whom an application under Section 11 (8) is filed. The first proviso to Section 11 (10) states that the Rent Control Court shall reject the application under Section 11 (8) if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. The facts constituting the ingredients of the second proviso to Section 11 (3) may be relevant in certain cases coming under Section 11(8) only for considering the proof or otherwise of the comparative hardship under the first proviso to Section 11 (10). The third and fourth proviso to Section 11 (3) are also not applicable in the case of an application under Section 11 (8). To our mind, the abovementioned items of distinction between Section 11 (3) and 11 (8) would make it clear that they are mutually exclusive. We are of the view that in the light of the S.R. Basu’s case (2001)8 S.C.C. 110 and Pakran’s case : 2004 (1) K.L.T. 824, the view to the contra taken in Muhammad’s case: 1983 K.L.T. 874 does not survive.”
15. It is true that in Indian Saree House v. Radhalakshmy
(2006(3) KLT 129), the decision in Shaji Varghese v. Cherian (1993
(1) KLT 133), was not referred to. In Shaji Varghese v. Cherian
(1993 (1) KLT 133), though the decision in S.Sivasubramonia Iyer
v. S.H.Krishnaswamy (AIR 1981 Kerala 57) was referred to in paragraph 19 in another context, the view taken in that decision that sub-sections (3) and (8) of Section 11 are mutually exclusive was not adverted to. The main thrust in Shaji Varghese v. Cherian (1993
(1) KLT 133) was whether a Rent Control Petition filed only under Section 11(3) could be allowed under Section 11(8) of the Act. While holding that the petition can be allowed under Section 11(8) of the Act, the Division Bench in Shaji Varghese v. Cherian (1993 (1) KLT 133), took the view that the landlord has to establish the bona fides, whether it is under Section 11(3) or under Section 11(8). In that context, it was held that Sections 11(3) and 11(8) are not mutually exclusive. We are of the view that there is no conflict as such between the decisions in Shaji Varghese v. Cherian (1993 (1) KLT
133) and Indian Saree House v. Radhalakshmy (2006(3) KLT 129), except to the extent where in the former it was held that Sections 11(3) and 11(8) are not mutually exclusive while in the latter it was held that they are mutually exclusive. The view taken in Indian
Saree House v. Radhalakshmy (2006(3) KLT 129) that Sections 11 (3) and 11(8) are mutually exclusive can be supported by the judgment in S.Sivasubramonia Iyer v. S.H.Krishnaswamy (AIR 1981 Kerala 57) and Abdul Rahiman and others v. Ramankutty Moothan (1983 KLT 726). The dictum laid down in Indian Saree House v. Radhalakshmy (2006(3) KLT 129) find support from the decision of the Supreme Court in S.R.Babu v. T.K.Vasudevan and
others ((2001) 8 SCC 110). We are of the view that Sections 11(3) and 11(8) are mutually exclusive and independent. However, Sections 11(3) and 11(8) are not always mutually destructive. Even if Sections 11(3) and 11(8) are mentioned in the Rent Control Petitions, the Court would be entitled to consider the question whether Section 11(3) or 11(8) would apply in the facts of the case. The Court would not be precluded from allowing a petition under Section 11(3) even if Section 11(8) alone or also is mentioned in the Rent Control Petition, and vice versa, provided the facts pleaded and proved in the case would justify such a conclusion. With respect, we do not agree with the view taken in Shaji Varghese's case (supra) that Sections 11(3) and 11(8) are not mutually exclusive. We also approve the dictum laid down in Indian Saree House v.
Radhalakshmy (2006(3) KLT 129). The reference is thus answered.
16. When the Revisions were taken up for hearing, all the counsel appearing in the case submitted that, after answering the reference, the Full Bench itself may dispose of the cases on the merits so that judicial time can be saved. Accordingly, we heard all the Revisions in detail.
17. These six Rent Control Revisions arise out of five Rent Control Petitions. R.C.R.Nos.366 and 368 of 2012 arise out of R.C.P.No.26 of 2005 in which eviction was sought under Sections 11 (2)(b), 11(3), 11(4)(i) and 11(8) of the Act. At the time of hearing, the landlord did not press the grounds under Sections 11(8) and 11(4)(i). The Rent Control Court granted eviction under Sections 11(2)(b) and 11(3), which was confirmed in appeal by the Appellate Authority. Respondents 1 and 2 in the Rent Control Petition filed separate revisions before the High Court.
18. R.C.R.No.364 of 2012 arises out of R.C.P.No.31 of 2005 filed by the landlord under Sections 11(2)(b), 11(3) and 11(8) of the Act. The landlord did not press the ground under Section 11(8). The Rent Control Court allowed the Rent Control Petition under Sections 11(2)(b) and 11(3) of the Act, which was confirmed in appeal by the Appellate Authority.
19. R.C.R.No.365 of 2012 arises out of R.C.P.No.30 of 2005, which was filed under Sections 11(2)(b), 11(3), 11(4)(ii) and 11(8) of the Act. The landlord did not press the grounds under Sections 11(4) (ii) and 11(8). The Rent Control Court allowed the Rent Control Petition under Sections 11(2)(b) and 11(3) of the Act, which was confirmed in appeal by the Appellate Authority.
20. R.C.R.No.375 of 2012 arises out of R.C.P.No.36 of 2005 filed under Sections 11(3) and 11(8) of the Act. The ground under Section 11(8) was not pressed at the time of hearing. The Rent Control Court allowed the Rent Control Petition under Section 11(3) of the Act which was confirmed in appeal by the Appellate Authority.
21. R.C.R.No.397 of 2012 arises out of R.C.P.No.37 of 2005 filed under Sections 11(3) and 11(8) of the Act. The ground under Section 11(8) was not pressed and the Rent Control Court allowed the Rent Control Petition under Section 11(3) of the Act, which was confirmed in appeal by the Appellate Authority.
22. The Rent Control Petitions referred to above are in respect of six rooms in the possession of tenants in a storeyed building consisting of several rooms. The building is situated at Kuttippuram and it has frontage to Kuttipuram road and Kuttipuram- Tirur road. According to the landlord, he is in occupation of one room in the ground floor in which he conducts grocery business under the name and style “Raja Traders”. The landlord contended that the tenanted building in R.C.P.No.26 of 2005 was let out to Abdul Nazer and he sublet the same to Alikutty. Both of them were made parties to the Rent Control Petition.
23. In the Rent Control Petition, the landlord stated that he wants to expand his business and to open a supermarket by taking the shop room in his occupation and all the tenanted premises in the occupation of the tenants. The landlord stated that the rooms in the up-stair portion can be used as godown for storing materials and for packing the goods. The tenanted rooms are facing the main road and those rooms are ideal for opening a supermarket. It is also stated in the Rent Control Petitions that the landlord bona fide needs vacant possession of the rooms in the occupation of the tenants and that there are special reasons for the same. It is also averred in the Rent Control Petitions that the tenants are not depending for their livelihood mainly on the income derived from the business conducted by them in the respective petition schedule rooms and that there are other suitable buildings available in the locality to accommodate their business. In the Rent Control Petitions, Sections 11(3) and 11(8) were invoked. However, at the time of evidence, the landlord stated that he was not in occupation of the room in which “Raja Traders” was being run and that the ground under Section 11(8) was not pressed. The Rent Control Court as well as the Appellate Authority considered the cases as Rent Control Petitions filed under Section 11(3) and held that the landlord established his bona fide need under Section 11(3) of the Act. Though the tenants challenged the finding under Section 11(3) in appeal, the Appellate Authority, on facts, held that the landlord established the bona fide need alleged by him.
24. Sri.T.Krishnanunni, the learned senior counsel and Sri.K.B.Arunkumar, the learned counsel appearing for the tenants, submitted that going by the pleadings, the landlord is not entitled to invoke the ground under Section 11(3) and the only ground on which the landlord could seek relief is under Section 11(8) of the Act. They also submitted that the tenants had raised a contention in the counter statement that the landlord was not conducting business under the name and style “Raja Traders” in one of the rooms in answer to the contention that he was conducting business under the name and style “Raja Traders”. However, at the time of evidence, the landlord stated that he stopped that business. It is therefore submitted that the ground under Section 11(8) is also unsustainable.
25. Sri.N.N.Sugunapalan, the learned senior counsel appearing for the landlord, submitted that both the authorities below proceeded to decide the cases under Section 11(3) as the parties wanted trial under Section 11(3) of the Act and the parties realised that the ground under which they have to put forward their case was under Section 11(3). The learned counsel also submitted that though several grounds were taken in the Memorandum of Appeals filed by the tenants, no ground was taken that they were prejudiced in deciding the case under Section 11(3) by the Rent Control Court and that they were misled by the stand taken by the landlord at the time of trial. It is also submitted that even in the memorandum of revision, the ground taken is that the landlord having given up the claim under Section 11(8), he is not entitled to get an order of eviction under Section 11(3) of the Act.
26. Certain facts are not in dispute. The building in question faces Kuttipuram road and Kuttipuram-Tirur road. The building consists of more than seven rooms in the ground floor. There are several rooms in the up-stair portion also. The landlord owns a huge building on the rear side of the building in question. The building on the rear side consists of several rooms and it was being used as a private market. There is access to the building on the rear side and heavy vehicles can be taken to that building. It has come out in evidence that all the tenants who were in occupation of several rooms in the building on the rear side vacated since their business ended in loss. The tenants contended that the landlord is in possession of seventeen vacant rooms in the building on the rear side of the building in question and he can very well utilise those rooms for opening a supermarket. The tenants also raised a contention that though the landlord conducted several types of businesses in the present building to compete with the tenants, the landlord failed in all the businesses and the Rent Control Petition is filed to wreak vengeance on some of the tenants. The tenants contended that they depend mainly on the income derived from the business conducted in the respective rooms in their possession and that there are no other suitable buildings available in the locality to accommodate their businesses.
27. Sri.N.N.Sugunapalan, the learned senior counsel appearing for the landlord, submitted that when both parties understood the case, even if there is any confusion in the pleadings, that is not a ground to reject the claim which is otherwise bona fide and legal. He cited several decisions in support of his contention, which will be referred to hereunder.
28. In Vishwamitra Ram Kumar v. Vesta Time Company
((2007) 14 SCC 374), the Supreme Court held thus:
“We find that the Trial Court and the High Court were, to a great extent, carried away by the fact that the landlord gave up his claim for eviction under S.13(1)(ff) of the Act, even while attempting to pursue his claim for eviction under S.13(1)(f) of the Act. No doubt, there is some confused pleading by the landlord in the plaint by mixing up the claim for eviction under S.13(1)(ff) and S.13(1)(f) of the Act. But all the same, by the time the matter came up for trial, both sides knew that the claim was based solely on the ground under S.13(1)(f), namely, bona fide need for rebuilding after demolition of the existing structure. The landlord had realised his obligation to put the tenants back in possession in terms of S.18A of the Act. Therefore, when the parties went to trial, the issue was really the claim for eviction under S.13(1)(f) of the Act and it was so understood by both the parties.”
29. In Ram Narain Arora v. Asha Rani and others ((1999) 1 SCC 141), the Supreme Court held:
“11. There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the Court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the Court, neither party is prejudiced. If we analyse from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller.”
30. It is well settled that meticulous analysis of pleadings should not be adopted while dealing with the Rent Control Petitions under the Kerala Buildings (Lease and Rent Control) Act. It does not mean that proper pleadings are not required. However, taking note of the entire circumstances of the case, if the Court finds that no prejudice has been caused to the opposite side, it is not proper to deny the relief to the petitioner on the ground of defect in pleadings. See Madhavan v. Leelamma (1991 (2) KLT 32), Narayani and another v. District Judge and others (1991 (1) KLT 646), Fathima Beevi v. Stella John (2006 (2) KLT 285), Abu v. Beebi (1970 KLT 1096). We have carefully gone through the pleadings and the evidence in the case. It is true that a ground under Section 11(8) is made out in the Rent Control Petitions. But the ingredients of Section 11(3) are also available in the pleadings. The landlord had even stated in the Rent Control Petitions the facts which would show that the tenants are not entitled to the benefits of the second proviso to Section 11(3) of the Act, though the particular provision of law as such is not mentioned. The landlord also mentioned about the “special reason”. It is well known that in Rent Control litigations, it refers to the first proviso to Section 11(3) of the Act. It is true that the landlord stated in the Rent Control Petitions that he was conducting a business under the name and style “Raja Traders” in one of the rooms in the building and that he wanted to annex that room along with the tenanted rooms so as to conveniently house a supermarket. The tenants, on the other hand, specifically pleaded that the landlord was not conducting, at the time of filing of the Rent Control Petitions, any business in the building in which the tenanted rooms are part of. Thus the tenants knew that the landlord would not be entitled to claim eviction on the ground under Section 11(8), if it is proved that the landlord was not conducting business in one of the rooms in the building. The landlord stated in evidence that he had stopped the business of “Raja Traders” in one of the rooms. Evidence proceeded on the basis that the landlord claimed the benefit under Section 11(3) of the Act. Both parties understood that they were litigating in respect of a claim under Section 11(3) of the Act. It cannot be said that any prejudice was caused to the tenants by deciding the cases under Section 11(3) of the Act instead of Section 11(8). The tenants also let in evidence in answer to the claim under Section 11(3) and they put forward all their contentions in defence under Section 11(3) of the Act. At no point of time, the tenants raised a contention that prejudice was caused to them by considering the case under Section 11(3). No ground in that regard was taken in the Memorandum of Appeal though it contains more than fifty grounds. In these Revisions also, there is no specific case that any prejudice was caused to the tenants by considering the case under Section 11 (3) instead of Section 11(8) of the Act. Therefore, we accept the submission put forward by the learned senior counsel for the landlord that the courts below were right in considering the case under Section 11(3) and in arriving at a conclusion thereunder and that no prejudice was caused to the tenants.
31. Now the question to be considered is whether the courts below were right in holding that the ground under Section 11(3) has been proved by the landlord. The landlord stated in evidence that the rooms in the possession of the tenants as well as the room in his possession can be conveniently used together for running a supermarket. He expects his three sons to assist him in the business. The tenanted rooms are located in an ideal place in the town and the building has road frontage. The bus stand and railway station are within walkable distance. The landlord never initiated any proceedings for eviction against the tenants though they were inducted several years ago. He stated that he never demanded for higher rent also. The case of rivalry between some of the tenants and the landlord, as put forward by the tenants, was disbelieved by the trial court. Another contention was raised by the tenants that the landlord's conduct, of denying his signature in certain rent receipts, denying the handwriting of his son in those receipts and after receipt of the expert's report, withdrawing that contention and admitting his signature and his son's handwriting, would show that the landlord had no regard for truth. The Rent Control Court also noticed that the landlord made some untrue statements when it came to the question of issue of rent receipts and genuineness of the same. But the Rent Control Court found that the said conduct by itself cannot be a ground to reject the case put forward by the landlord under Section 11(3) of the Act. The Rent Control Court, on facts, arrived at the conclusion that the bona fide need put forward by the landlord was established by him. This finding was confirmed by the Appellate Authority in the appeals filed by the tenants.
32. The tenants contended that the landlord has in his possession several vacant rooms which would attract the first proviso to Section 11(3) of the Act and, on that ground, the landlord is not entitled to get an order of eviction under Section 11(3). It was pointed out that seventeen rooms are vacant in the building on the rear side, which is called as market building, and the landlord could utilise those rooms for running a supermarket. It has come out in evidence that all the tenants who occupied the building on the rear side (private market building) vacated the rooms since their business ended in loss. The building on the rear side has no direct road frontage. Customers would not be able to see that building from the public road and the advantages which the building in question have, would not be available for the building on the rear side. An offer was made by the landlord that the tenants can be given rooms in the building on the rear side so that they can conduct business therein. This offer was not accepted by the tenants on the ground that they would not be able to exhibit their items of business to the notice of the customers. It was also stated by the tenants that the business in the building on the rear side of the building in question would not be profitable to them. The landlord narrated all the relevant facts in evidence to show that the building on the rear side is not suitable for running a supermarket. RW3, one of the tenants, admitted in cross examination that he cannot conduct his business in any of the seventeen vacant rooms in the possession of the landlord, since it would not be profitable and there would not be any “show” for the business. It is admitted by the tenants that there is no supermarket in Kuttipuram town. It is admitted by RW5, one of the tenants, that it is not possible to see from the public road the building on the rear side or the business conducted therein. The Rent Control Court held, on appreciation of the evidence in the case, that the special reasons stated by the landlord under the first proviso to Section 11 (3) are genuine.
33. In Pushkar Singh v. Ansuiya ((2006) 6 SCC 799), the tenant resisted the claim of bonafide need put forward by the landlord stating that the landlord's wife owns another residential accommodation at another place. The landlord replied that the house belonging to his wife is not suitable for his accommodation. The landlord offered to the tenant that accommodation, but the tenant was not willing to accept the offer. In these circumstances, the Supreme Court held that since the tenant herself believes that the accommodation offered to her is not suitable for residence, the landlord's petition for eviction cannot be rejected only on the ground that there is another accommodation in the name of his wife at another place.
34. The tenants raised a contention that they are entitled to the benefit of the second proviso to Section 11(3) of the Act. It is well settled that the burden of establishing both the ingredients of the second proviso is on the tenants. The tenants have to prove that they are depending for their livelihood mainly on the income derived from the business conducted in the tenanted premises and that there is no other suitable building available in the locality to accommodate their business. The Rent Control Court noticed that the tenants failed to produce the accounts of their business to examine whether the income from their business is the main source of their livelihood. Though one of the tenants is admittedly a sales tax assessee, he did not produce the accounts. The Rent Control Court also held that it is not established by any of the tenants that he is depending for his livelihood mainly on the income derived from the business conducted in the tenanted premises. In so far as the second limb of the second proviso is concerned, even according to the tenants, other vacant buildings in possession of the landlord are available in the locality. The landlord was willing to let out those buildings to the tenants, but the tenants are not willing to shift. Vacant buildings belonging to other landlords are also available in the same locality. Thus, the Rent Control Court rightly held that the tenants failed to prove the ingredients of the second proviso to Section 11(3) of the Act, which was confirmed in appeal by the Appellate Authority.
35. The findings rendered by the authorities below under Section 11(3) are concurrent. The findings are findings of fact. The revisional court will not interfere with those findings of fact unless there is illegality, irregularity or impropriety warranting interference under Section 20 of the Act. In the present case, there is no illegality, irregularity or impropriety as stated in Section 20 of the Act.
36. The next question to be considered is whether there is any scope for interference by the revisional court in the findings of the authorities below under Section 11(2)(b) of the Act. As stated above, six rooms are occupied by five tenants. In R.C.P.Nos.36 and 37 of 2005, there is no claim for eviction on the ground of arrears of rent. The details regarding the cases in which eviction on the ground of arrears of rent is claimed, are shown below:
37. In R.C.P.No.26 of 2005, there are two respondents, namely, Abdul Nazer and Alikutty. According to the landlord, the building was let out to Abdul Nazer. In the notice sent by the landlord, he stated that Abdul Nazer subleased the building to one Cheriyathu. However, in the Rent Control Petition, he stated that the sublease was in favour of Alikutty. According to the tenant (Abdul Nazer), he took the building on rent in September 1993 and he vacated the building in October 1999. Thereafter, the landlord granted a lease in favour of Alikutty. The landlord denied this case and he stated that Abdul Nazer never surrendered the building to him. To prove the contentions raised by the tenant, he produced certain rent receipts. In some of the rent receipts, the name of Abdul Nazer is shown while in some others the name of Alikutty is shown. The tenant contended that those rent receipts are in the handwriting of the son of the landlord and those receipts were signed by the landlord. The landlord denied the same. The rent receipts were sent for expert opinion. The expert stated in his report that the signatures in the rent receipts are similar to the admitted signatures of the landlord. At the time of evidence, the landlord shifted his stand and stated that those rent receipts were issued to Abdul Nazer for the purpose of filing Income Tax Returns and that there was no lease in favour of Alikutty. Both parties adduced oral evidence on these disputed questions and the courts below spent much time to resolve the issue. It was found by the Rent Control Court as well as by the Appellate Authority that Abdul Nazer did not surrender the building to the landlord and there was no lease to Alikutty. This finding is a finding of fact. The revisional court would not be justified in interfering with this finding of fact unless the decision is affected by material irregularity, illegality or impropriety. We do not find any such ingredient to interfere in Revision. Hence we confirm the finding of the authorities below in respect of R.C.P.No.26 of 2005 that Abdul Nazer is the tenant and Alikutty is the subtenant.
38. It is true that the landlord did not press the ground under Section 11(4)(i) of the Act. The grounds under Section 11 are distinct and independent. Even if there is a sublease, the landlord need not necessarily seek for eviction on the ground of sublease for various reasons. Simply because the landlord did not pursue his remedy under Section 11(4)(i) of the Act, it cannot be held that the landlord abandoned his contention that there was such a sublease while pursuing the contention under Section 11(2)(b) also. Even after not pressing the ground under Section 11(4)(i), the landlord could successfully contend that the building was sublet by the first respondent to the second respondent and that the landlord is entitled to get an order of eviction under Section 11(2)(b) on the ground that the first respondent failed to pay the arrears of rent.
39. As regards the claim for eviction on the ground of arrears of rent in R.C.P.Nos.30 and 31 of 2005, the courts below held that the tenants have kept the rent in arrears and that the rent payable was at the rate stated by the landlord. The courts below also held that it is very hard to believe that a building having an area of 850 sq.ft. would be let out to the tenant for a monthly rent of ₹400/- as against the claim of the landlord at ₹2,550/- per month. It is also relevant to note that in respect of the other rooms having a lesser area of 170 sq.ft., even according to the tenants, the monthly rent was ₹385/-, while according to the landlord, the monthly rent was ₹750/- and ₹825/- respectively. The finding rendered by the courts below that the building in R.C.P.No.30 of 2005 was let out for a monthly rent of ₹2,550/- is proper and justifiable on the evidence on record. As regards the arrears of rent as well, both the courts below concurrently held that the tenants have kept the rent in arrears. The finding under Section 11(2)(b) in all the three cases referred to above are concurrent and we do not find any ground to interfere with those findings of fact.
40. For the aforesaid reasons, we do not find any ground to interfere with the concurrent findings rendered by the Rent Control Court and the Appellate Authority under Section 11(2)(b) and 11(3) of the Act. The Rent Control Revisions lack merits and they are, accordingly, dismissed.
Lastly, the learned counsel for the tenants submitted that a reasonable time may be granted to the tenants to vacate the respective petition schedule buildings in their possession. Taking into account the facts and circumstances of the case, we are inclined to grant time upto 31.3.2015 to the tenants to vacate the petition schedule building, on condition that the tenants shall file affidavits before the Rent Control Court on or before 20.12.2014, unconditionally undertaking to vacate the premises on or before 31.3.2015 and also on condition that the tenants shall deposit the arrears of rent before the Rent Control Court on or before 20.12.2014 and shall continue to pay the monthly rent on or before 10th of the succeeding months. If the tenants fail to comply with the conditions mentioned above, the order of eviction can be executed forthwith against the respective tenants. If the tenants comply with the conditions, the execution of the order of eviction against the respective tenants shall stand stayed till 31.3.2015.
(K.T.SANKARAN) Judge (P.D. RAJAN) Judge (P.UBAID) Judge ahz/