2001 JTR(SC) 1336
2001 AIR(SCW) 4075 ; 2002 1 AllCJ 483 ; 2002 1 CurLJ 163 ; 2001 8 JT 244 ; 2002 1 RCJ 16 ; 2001 2 RCR(Rent) 490 ; 2001 2 RentLR 615 ; 2001 6 Scale 610 ; 2001 8 SCC 19 ; 2001 Supp SCR 349 ; 2001 KHC 1169 ; 2001 7 Supreme 341
2001(7) Supreme 341
SUPREME COURT OF INDIA
(From Kerala High Court)
Syed Shah Mohammed Quadri and S.N. Phukan, JJ.
Kizhakkayil Suhara & Ors. -Appellants
versus
Manhantavida Aboobacker (D) by LRs & Anr. -Respondents
Civil Appeal No. 1329 of 1997
Decided on 26-9-1997
Counsel for the Parties :
For the Appellants : E.M.S. Anam, Advocate.
For the Respondents : T.L.V. Iyer, Sr. Advocate, S. Prasad, S.N. Ojha, Ms. Asha Tyagi and Abhay Kumar, Advocates.
IMPORTANT POINT
The question can the landlords be said to need the building bonafide [u/s. 11(3) of Kerala Buildings (Lease and Rent Control) Act, 1965] if it is meant for the occupation of their dependent, married daughter who owns residential and non-residential buildings needs determination, hence, case remanded to the Rent Control Appellate Authority (District Judge) for determination.
Act Referred :KERALA BUILDINGS LEASE AND RENT CONTROL ACT : S.11(3)
(A) The provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, specifically sub-section (3) of Section 11, govern the present dispute. This subsection permits a landlord to seek eviction of tenants if the landlord bona fide needs the building for their own occupation or for the occupation of a family member dependent on them. The provision is read in conjunction with its first proviso, which restricts eviction if the landlord already possesses another suitable building in the same locality, unless special reasons are recorded, and with its second proviso, which protects a tenant whose livelihood depends on the trade or business conducted in the premises if no suitable alternative location is available. The Act mandates that the need of both the landlord and the dependent family member must be bona fide, placing the burden of proof on the landlord to satisfy the Rent Control Court regarding the necessity and legitimacy of the claim.
(B) Key legal principles include that a landlords application under Section 11(3) must establish a bona fide need for the premises, either for self-occupation or for a dependent family member. The burden of proof lies with the landlord, and the claim must be evaluated based on evidence presented before the Rent Control Authorities. The first proviso mandates consideration of whether the landlord has alternative accommodation, while the second proviso safeguards tenants whose business livelihood would be destroyed by eviction without suitable alternative premises. Questions of dependency and the bona fides of the need must be adjudicated on the merits, and any new legal issues must be raised at the appropriate stage to be considered.
Facts of the case:
The appellants are tenants of a shop room, originally a single tenant who has died, with the appellants being his legal representatives. The respondents, the landlords, filed an application under Section 11(3) of the Act seeking eviction on the grounds that they needed the premises for their daughter and son-in-law to set up a business, claiming the daughter and son-in-law are dependent on them. The tenants denied both the dependency and the bona fide need. The Rent Controller found the landlords need to be bona fide and ordered eviction. This decision was upheld by the Rent Control Appellate Authority and later by the High Court. The central question on appeal was whether the daughter and son-in-law, who own residential and non-residential buildings and live separately with three children, could be considered dependents requiring the premises, a point not raised in the lower courts.
Findings of Court:
The High Court noted that the arguments regarding dependency and the bona fide nature of the need for the daughter and son-in-law were not presented in the Trial Court or the Appellate Court. Consequently, the Court could not examine those claims. However, the Court observed that the question of whether the landlords need was bona fide must be assessed based on the dependency and necessity of the family member, and this issue was not properly addressed in the earlier proceedings. The Court held that it was just and proper to remand the case to allow the parties to be heard specifically on whether the daughter and son-in-law could be considered dependents and whether their need for the premises qualifies as a bona fide need under the Act.
Issues:
(1) Whether the daughter and son-in-law of the landlords can be classified as dependents within the meaning of Section 11(3) of the Act, particularly when they own separate residential and non-residential buildings and live independently. (2) Whether the landlords have demonstrated a bona fide need for the premises for the occupation of their daughter and son-in-law, given that the earlier courts did not address this specific contention. (3) Whether the Rent Control Authority properly evaluated the bona fides of the landlords need in light of the tenants counter-allegations regarding the availability of other buildings and the tenants livelihood dependence on the premises.
Ratio Decidendi:
A landlord seeking eviction under Section 11(3) must prove a bona fide need for the premises for either self-occupation or for a dependent family member. The need of a dependent family member must be scrutinized in terms of actual dependency and necessity, and the courts must ensure that such claims are raised and decided at the appropriate judicial level. The appellate court cannot examine a new legal point that was not raised in the lower courts, and the case must be remanded to allow the necessary determination of the factual question regarding dependency and bona fide need.
Result:
The appeal is allowed. The challenged order is set aside, and the case is remanded to the Rent Control Appellate Authority (District Judge) to determine whether the respondents need for the premises for the occupation of their daughter and son-in-law is bona fide under the Act. No costs are awarded.
(A) The provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, specifically sub-section (3) of Section 11, govern the present dispute. This subsection permits a landlord to seek eviction of tenants if the landlord bona fide needs the building for their own occupation or for the occupation of a family member dependent on them. The provision is read in conjunction with its first proviso, which restricts eviction if the landlord already possesses another suitable building in the same locality, unless special reasons are recorded, and with its second proviso, which protects a tenant whose livelihood depends on the trade or business conducted in the premises if no suitable alternative location is available. The Act mandates that the need of both the landlord and the dependent family member must be bona fide, placing the burden of proof on the landlord to satisfy the Rent Control Court regarding the necessity and legitimacy of the claim.
(B) Key legal principles include that a landlords application under Section 11(3) must establish a bona fide need for the premises, either for self-occupation or for a dependent family member. The burden of proof lies with the landlord, and the claim must be evaluated based on evidence presented before the Rent Control Authorities. The first proviso mandates consideration of whether the landlord has alternative accommodation, while the second proviso safeguards tenants whose business livelihood would be destroyed by eviction without suitable alternative premises. Questions of dependency and the bona fides of the need must be adjudicated on the merits, and any new legal issues must be raised at the appropriate stage to be considered.
Facts of the case:
The appellants are tenants of a shop room, originally a single tenant who has died, with the appellants being his legal representatives. The respondents, the landlords, filed an application under Section 11(3) of the Act seeking eviction on the grounds that they needed the premises for their daughter and son-in-law to set up a business, claiming the daughter and son-in-law are dependent on them. The tenants denied both the dependency and the bona fide need. The Rent Controller found the landlords need to be bona fide and ordered eviction. This decision was upheld by the Rent Control Appellate Authority and later by the High Court. The central question on appeal was whether the daughter and son-in-law, who own residential and non-residential buildings and live separately with three children, could be considered dependents requiring the premises, a point not raised in the lower courts.
Findings of Court:
The High Court noted that the arguments regarding dependency and the bona fide nature of the need for the daughter and son-in-law were not presented in the Trial Court or the Appellate Court. Consequently, the Court could not examine those claims. However, the Court observed that the question of whether the landlords need was bona fide must be assessed based on the dependency and necessity of the family member, and this issue was not properly addressed in the earlier proceedings. The Court held that it was just and proper to remand the case to allow the parties to be heard specifically on whether the daughter and son-in-law could be considered dependents and whether their need for the premises qualifies as a bona fide need under the Act.
Issues:
(1) Whether the daughter and son-in-law of the landlords can be classified as dependents within the meaning of Section 11(3) of the Act, particularly when they own separate residential and non-residential buildings and live independently. (2) Whether the landlords have demonstrated a bona fide need for the premises for the occupation of their daughter and son-in-law, given that the earlier courts did not address this specific contention. (3) Whether the Rent Control Authority properly evaluated the bona fides of the landlords need in light of the tenants counter-allegations regarding the availability of other buildings and the tenants livelihood dependence on the premises.
Ratio Decidendi:
A landlord seeking eviction under Section 11(3) must prove a bona fide need for the premises for either self-occupation or for a dependent family member. The need of a dependent family member must be scrutinized in terms of actual dependency and necessity, and the courts must ensure that such claims are raised and decided at the appropriate judicial level. The appellate court cannot examine a new legal point that was not raised in the lower courts, and the case must be remanded to allow the necessary determination of the factual question regarding dependency and bona fide need.
Result:
The appeal is allowed. The challenged order is set aside, and the case is remanded to the Rent Control Appellate Authority (District Judge) to determine whether the respondents need for the premises for the occupation of their daughter and son-in-law is bona fide under the Act. No costs are awarded.
ORDER
In this appeal, by special leave, the order of the High Court of Kerala in C.R.P.No.95 of 1995 dated October 11, 1996, is brought under challenge.
2. The appellants are the tenants of a shop room. The original tenant died and the appellants are his legal representatives (hereinafter they are referred to as "the tenants"). The respondents are the landlords. They filed an application under sub-section (3) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the Act ) for eviction of the tenants on the ground that they bona fide need the premises for setting up business of their daughter and son-in-law who are dependent on them. The tenants contested the petition denying that the daughter and son-in-law are not dependent on the respondent. The tenants also denied the bona fide requirement of the landlords. The learned Rent Controller having considered the material placed on record found that the need of the landlords was bona fide and accordingly ordered eviction of the tenants on December 21, 1993. An appeal against the said judgment was unsuccessful before the Rent Control Appellate Authority (District Judge), Thalassery. The appeal having been dismissed on November 17, 1994, the tenants filed a revision petition vide C.P.P. No. 95 of 1995 in the High Court of Kerala which was also dismissed by the impugned order.
3. The short question that arises for consideration in this appeal is whether the respondents bona fide need the demised premises.
4. The respondents filed petition for eviction of the appellant under Section 11(3) of the Act which is set out hereunder :
11(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 satisfied that for special reasons in any particular case it will be just find 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 suitable building available in the locality for such person to carry on such trade or business;
Provided xxx xxx xxx
Provided xxx xxx xxx
5. A plain reading of the provision of sub-section (3) of Section 11 shows that it enables a landlord to seek possession of the building from his tenant by making an application to the Rent Control Court if he bona fide needs the building for his own occupation or for the occupation by a member of his family dependent on him. The sub-section takes note of not only bona fide need of the landlord but also the need of the members of his family dependent on him. Where the landlords bona fide needs the building not for his own occupation but for occupation of a member of his family, it must be shown that such a member of his family is dependent on him. The mandate of the first and the second provisos is directed to the Rent Control Court. The first proviso directed 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 satisfied, for special reasons, in any particular case, that it will be just and proper to do so, it has to record the special reasons. The legislative mandate contained the second proviso is not to 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. The third and the fourth provisos are not relevant for the present discussion.
6. The question now urged before us, namely, whether the daughter and son-in-law of the landlords, with three children, living separately, could be said to be dependent on the landlords was not put in issue in the Trial Court nor was it urged before the Appellate Court or the High Court. We cannot, therefore, permit Mr. Inam to raise it for the first time in this Court.
7. The next point urged by Mr. Inam is that the daughter of the respondents are having other non-residential and residential buildings of her own and therefore they are not entitled to the benefit of eviction of the building in view of the first proviso to sub-section (3) of Section 11. This plea also cannot be entertained because as pointed out by Mr. lyyer no such plea was urged before the Rent Control Authorities or the High Court.
8. The case throughout proceeded on the ground whether the landlords needed the premises bona fide. On this ground we have heard the learned counsel for the parties. We are of the view that if the need of the landlords for his own occupation has to be bona fide so also need of the members of the family of the landlord dependent on him and should satisfy the test of being bona fide. In the instant case, it has to be determined whether the need of the daughter and son-in-law of the landlords who own non-residential as well as residential buildings, can be said to be bona fide. Mr. Iyyer submits that this aspect was not adverted to in earlier stages of the proceedings. Inasmuch as the parties did not address their arguments on this aspect of the matter, we consider it just and appropriate to remand the case to the Rent Control Appellate Authority (District Judge) to give opportunity to the parties of being heard and decide the question : Can the respondents be said to need the building bona fide if it is meant for the occupation of their dependent married daughter who owns residential and non-residential buildings?
9. In this view of the matter the order under challenge is set aside. R.C.A.No.88 of 1994 is restored to the file of the Appellate Authority for being disposed of in accordance with law. It is needless to mention that the Appellate Authority shall dispose of the case expeditiously.
10. The appeal is accordingly allowed. No costs.
(N.K.R.) Appeal allowed and case remanded.
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