(2013) 302 KLR 894

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                 THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR

                                                             &

                 THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

               THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935

                                           RCRev..No. 159 of 2012 ()

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                   RC.(OP).11/1999 OF PRINCIPAL RENT CONTROL, KOLLAM.

RCA.22/2010 OF III ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, KOLLAM.

                                                          ..........

REVISION PETITIONER/APPELLANT/COUNTER PETITIONER:

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           S.R. SREERAJ,

           S/O.P.K. RAJAN, M.C. NO.767/XVI,

           SWAPNA, VADAKKUMBAGOM, KOLLAM.

           BY ADV. SRI.BECHU KURIAN THOMAS.

RESPONDENTS/RESPONDENTS/PETITIONERS:

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        1. BABURAJAN, S/O.SANKARAN,

           'THAMBURU', THEKKEVILA CHERI,

           MUNDAKKAL VILLAGE, KOLLAM-691 010.

        2. JYOTHI, W/O.BABURAJAN,

           'THAMBURU', THEKKEVILA CHERI,

           MUNDAKKAL VILLAGE, KOLLAM-691 010.

           BY ADVS. SRI.V.V.RAJA,

                           SRI.M.T.SURESHKUMAR,

                           SRI.V.V.RAJA.

           THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD

           ON 05-03-2013, THE COURT ON 11-04-2013 PASSED THE FOLLOWING:

rs.

T.R. RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.

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R.C.R.No.159/2012

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Dated this the 11th day of April, 2013

Head Note:-

Kerala Buildings (Lease and Rent Control) Act, 1965 – Sections 18 & 11(3) - Appellate Authority – Production of Evidence - Non formulation of a point - the Appellate Authority has got all powers of a Rent Control Court.

Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 11(1) Second proviso - No tenant should be allowed to compel a landlord to resort to civil suit just because the tenant denied the title of the landlord and the enquiry conducted by the Rent Control Court is expected to be only in a summary manner. Unless there are strong and substantial grounds or sufficient materials and merely because a plea of denial of title is raised, it cannot be said that the said plea is a bona fide one, requiring the Rent Control Court to stop the proceedings.

Kerala Buildings (Lease and Rent Control) Act, 1965 – Section 11(3) - Whether the subsequent events have eclipsed the bona fide need pleaded?

The law on this question has been explained by the Apex Court in various decisions. It was held in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal and others [(2005) 8 SCC 252] in para.7 that the crucial event should be taken as on the date when suit for eviction was filed unless the subsequent event materially changed the ground for relief. Of course, the subsequent events can be considered by courts in moulding the reliefs but the question herein is whether it totally eclipses the reliefs sought. Herein, both the authorities have found that the second petitioner is still working in the school at Mayyanadu and it will be convenient to her if they start residing in the petition schedule building and settle in the town. There is a level cross between their house and the national highway, at the present residential place. The plea raised in the eviction petition is for shifting the entire family. It is therefore, a case where the landlords pleaded for shifting the residence and merely because there is a change of status as far as some of the members of the family, it cannot be said that the subsequent event has totally eclipsed the need projected.

O R D E R

Ramachandran Nair, J.

This revision petition is filed by the tenant, invoking Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, 'the Act') aggrieved by the concurrent findings rendered by the Rent Control Court, as confirmed by the Rent Control Appellate Authority.

2. We will refer to the parties as arrayed in the eviction petition.

3. The petitioners-landlords filed the eviction petition on the ground of arrears of rent and bona fide need. The necessary facts as pleaded by the parties are stated herein. The landlords purchased the plaint schedule premises by sale deed No.3961/1996. This was purchased from the parents of the tenant. On the same date of the sale deed i.e. on 01/11/1996, the respondent-tenant took it on lease after executing an agreement for 11 months, on a monthly rent of Rs.1,000/-, which was subsequently extended on 17/10/1997. The rent was paid upto December, 1997 and from 01/01/1998 onwards, the same is in arrears.

4. The points as raised in the eviction petition are the following: The daughters of the petitioners are studying in Vimalahridaya Girls High School, Kollam and the S.N.College for Women, Kollam. The second petitioner-wife is a teacher in a school at Mayyanadu. It was also pleaded that the mother was residing with the petitioners and was very old and ailing and was in need of frequent medical care. They are residing at Mundakkal Village, Kollam away from the National Highway and having no bus route. There is a level cross blocking proper traffic. The petition schedule building was purchased with the intention of shifting residence and the petitioners, bona fide intend to shift to there. The petition schedule building is situated in the most convenient part of the town. Even though the tenant had agreed to vacate the building by 31/03/1998, a civil suit was filed as O.S.No.359/1998 against forcible eviction and even after sending a notice on 31/12/1998 by the petitioners-landlords, he raised untenable contentions.

5. As per the objections filed by the tenant, his parents had acquired title in respect of 8.5 cents by sale deed No.156/82 of the Kollam Sub Registry. His father is an experienced Physiotherapist who after voluntary retirement on 30/06/1990 from the Kerala Health Services invented a mattress known as "therabed", and a Small Scale Industrial Unit (S.S.I Unit) was registered and a licence was obtained from the Kollam Municipality in respect of the unit in the petition schedule premises. Thereafter, he applied for grant of patent. The terminal benefits of the parents have been invested towards starting of the unit. There are two S.S.I Units by name "Physicrafts" and "Swapna Garments". His father is also running his consultant wing there.

6. With regard to the circumstances leading to the execution of the sale deed, it was contended that the first petitioner is an Abkari Contractor from whom the counter petitioner's father had borrowed huge amounts. The father had executed a document towards security, styled as a sale deed which is not supported by sufficient consideration and only a fraction of the market value is shown as consideration. After the execution of the sale deed also, the parents of the counter petitioner continued in possession, holding title over the plaint schedule property. Another document was obtained on 01/11/1996 by the first petitioner. These documents were executed for repaying the debt in easy monthly instalments of Rs.2,000/- and no rental arrangement was created even though the nomenclature of the document is as a rent deed. Accordingly, Rs.2,000/- is being paid per month by the counter petitioner.

7. It was also pleaded that another creditor of the counter petitioner's father had filed a suit against the parents for declaring the sale deed No.3961/1996 as a void document before the Additional Sub Court, Kollam. O.S.No.359/1998 was filed by the parents of the counter petitioner for an order of injunction

8. The counter petitioner tenant therefore denied the landlord- tenant relationship and contended that the petitioners have no title and the question has to be decided by a competent Civil Court and the Rent Control Court is not having any jurisdiction. It is also pointed out that the petitioners-landlords have two residential buildings within the Eravipuram Panchayat. The counter petitioner is staying in Karnataka State.

9. The Rent Control Court found, on a consideration of the facts pleaded and evidence adduced that the denial of title is not bona fide. It was also held that the petitioners-landlords are entitled for eviction on the plea of bona fide need and, accordingly, the application was allowed. The landlords have produced Exts.A1 to A24 and the tenant has marked in evidence Exts.B1 to B42. Third party exhibits are marked as X1 to X1(c). PW1 was examined on behalf of the petitioners and RW1 to RW3 were examined on the side of the counter petitioner.

10. The Appellate Authority also concurred with the findings and rejected the appeal filed by the tenant.

11. We have heard the learned counsel Shri Bechu Kurian Thomas for the revision petitioner-counter petitioner and the learned counsel Shri Raja Vijayaraghavan for the landlords.

12. We have been informed that the father of the counter petitioner-tenant is no more now and the mother is residing in the petition schedule building. It is also informed that the mother of the petitioners- landlords is no more and the two daughters have completed their studies and the elder daughter is married and the younger daughter is studying in Hyderabad University. The second petitioner in the eviction petition is still working in the School at Mayyanadu.

13. Learned counsel for the counter petitioner-tenant raised various arguments. It is submitted that a fundamental mistake was committed by the Rent Control Court in not raising an issue for consideration, namely, whether the landlords are having other buildings for occupation. It is further submitted that even though the Appellate Authority has raised such a point but considered it and rendered a finding as against the tenant. It should have remanded back the matter to the Rent Control Court for raising a proper issue on this aspect. It is submitted that the question whether the tenant is entitled to the benefit of the first proviso to Section 11(3) of the Act should not have been gone into by the Appellate Authority.

14. It is also submitted by the learned counsel that the tenant had made a clear plea regarding denial of title and hence in the light of second proviso to Section 11(1) of the Act, the Rent Control Court ought to have stopped the proceedings after recording a finding to that effect, and the landlords then should have approached the Civil Court. It is vehemently submitted that the said plea has not been really gone into by the authorities in the correct perspective. Our attention is invited to the documentary evidence adduced by the tenant to contend that actually there was a loan transaction when the property was conveyed as a security and the tenant has been repaying the liability at the rate of Rs.2,000/- per month even though the landlords claim rent only at the rate of Rs.1,000/-. The documentary evidence in support of the plea that a unit was functioning in the premises was also relied upon in that context.

15. Regarding the bona fide need pleaded, the learned counsel submitted that really subsequent events have eclipsed the earlier need. The three requirements pointed out to claim shifting of residence included (a) for a convenient study of the daughters which is no more available; (b) treatment of the mother, which does also not exist as she is no more. It is therefore submitted that the bona fide need pleaded is only a ruse to evict the tenant. The landlords are having a comfortable occupation of the other premises and, therefore, the finding under Section 11(3) of the Act also cannot be sustained. In support of his pleas, the learned counsel relied upon the following decisions: Varkey v. Raman Pillai [1981 KLT 213], Aboobacker v. Girija [1995 (1) KLT 553], J.J Lal Pvt. Ltd. and others v. M.R.Murali and another [(2002) 3 SCC 98] and Dasan v. Janardhanan [2009 (2) KLT 726].

16. Learned counsel for the landlords submitted that none of the arguments of the tenant herein can be sustained on the basis of the pleas raised as well as the evidence adduced and the findings rendered by both the authorities. It is submitted that the findings rendered by both the authorities are not perverse and there is no reason for this Court sitting in revision to interfere with the same. It is submitted that the pleadings of the petitioners-landlords will show that the building is situated in an important locality, namely, 50 metres from the bus stand in the Kollam Corporation. They are staying now at a place called Thekkevilacheri which is two kms. away from the National Highway and there is a level cross in between. They have clearly pleaded in paras.4 and 5 that they have no other convenient building and the entire family wants to shift to the petition schedule building. It is further submitted that the second petitioner is still working in the School at Mayyanadu and, therefore, the fact that the R.C.O.P was filed in 1999 and certain circumstances have resulted in the change of status of the daughters or that the mother died later cannot obliterate the bona fide need pleaded since the important need pointed out is of shifting of the family itself.

17. It is submitted that there is absolute lack of bona fides in the plea raised by the tenant in denying the title of the landlords. It is submitted that the plea that there were loan transactions between the landlords and the counter petitioner's parents is without any substance. The property was notified for sale, by the father-who was examined as CPW1 which fact is admitted by him-one month prior to the sale deed was executed. The execution of the rent deed has also been admitted and there is no dispute about the same which is clear from the objections as well as the evidence of CPW1. It is submitted that the parents had filed two suits which were tried along with another suit filed by a creditor and a common Judgment has been rendered which is produced as Ext.A24. All the suits have been dismissed upholding the rights of the landlords. The two suits filed by the parents of the counter petitioner are O.S.No.44/2003 and the other is O.S.No.420/2003. O.S.No.44/2003 is a suit for declaration and for permanent prohibitory injunction. The learned Sub Judge has clearly found that there is clear landlord-tenant relationship and the rights of the landlords have been clearly established. It is therefore submitted that the argument raised by the learned counsel for the respondent-tenant relying on a plea by the tenant in the written objections with regard to the denial of title need not be countenanced at all, at this stage, as a competent Civil Court has already found against the tenant.

18. The learned counsel for the petitioners-landlords further submitted that after the sale deed was executed, mutation has been effected and documentary evidence including tax receipts have been produced. The original sale deed in the name of the parents of the tenant has been produced and marked as Ext.A19. Ext.XI series of documents proved through the Manager of a Bank will show that original sale deed was received by the landlords after closing the loan. Ext.A20 is the release deed to show that the liability has been discharged. It is therefore submitted that the plea regarding denial of title is without any justification.

19. Learned counsel for the petitioners-landlords also submitted that there is no evidence worth adduced by the tenant to show that the petitioners-landlords are having other residential buildings, which fact has been found against the tenant by the Appellate Authority. It is submitted that merely because a point has not been raised by the Rent Control Court, there is no miscarriage of justice and as the burden to claim the benefit of first proviso to Section 11(3) of the Act is on the tenant, and as it is found by the Appellate Authority that he has not discharged the burden, the matter need not be sent back to the Rent Control Court. The learned counsel also relied upon the following Judgments in support of his pleas: S.S.Gupta v. Mahesh C.Gupta [(1999) 6 SCC 222], Gaya Prasad v. Pradeep Shrivastava [AIR 2001 SC 803], Nabeesa Abdul Khader v. Suresh Kurian [2009 (1) KLT 1020], Retheesh Chandran A.R. v. Sarojini Amma [2010 KHC 1064] and Balan N.K. and Another v. C.Anees and Others [2012 (4) KHC 479].

20. As far as the first point raised by the learned counsel for the respondent-tenant that the Rent Control Court has failed to raise a point with regard to the benefit under the first proviso to S.11(3) of the Act is concerned, the relevant plea by the tenant in the objections is that the petitioners have two residential buildings within the Eravipuram Panchayat and they have a building called "Thampuru". In fact, no evidence has been adduced by the tenant in support of the above plea and no Commission has been taken out also.

21. The Appellate Authority has considered the matter under point No.3 and the finding rendered is clear from para.12. It has been clearly found that though the tenant claimed the benefit of the first proviso to S.11 (3) of the Act, no evidence was adduced to prove that the landlords were in possession of other residential buildings in the same city, town or village. The burden to establish that the landlords are having ownership and are in exclusive possession of another building in the same city, town or village is on the tenant. Accordingly, the Appellate Authority found that the revision petitioner herein, namely, the tenant is not entitled to the benefit of the first proviso to S.11(3) of the Act.

22. We find no reason to accept the plea of the learned counsel for the respondent-tenant that the alleged lapse on the part of the Rent Control Court in not raising a point will vitiate the order. At any rate, the tenant has not raised any such plea before the Rent Control Court, regarding the non formulation of a point. The plea by the tenant is really without any supporting evidence as rightly held by the Appellate Authority. Apart from that Section 18 of the Act will show that the Appellate Authority has got all powers of a Rent Control Court. There is nothing to show that the petitioner wanted an opportunity before the Appellate Authority to adduce evidence. Therefore, we are of the view that there is no miscarriage of justice as rightly pointed out by the learned counsel for the landlords on these aspects. Therefore, we reject the said contention.

23. The next aspect is regarding the bona fide of the plea regarding denial of title raised by the tenant. Shri Bechu Kurian Thomas learned counsel for the tenant submitted by relying upon Exts.B6, B7 series, B9, B10, B10(a) and B11 series to point out that the establishment of the Industrial Unit is clear from the documents like Exts.B6 and B7 series. These will show that the tenant's father was in the said line of business and had obtained a permanent registration as evident from Ext.B9 and registration under the Sales Tax Rules as evident from Exts.B10 and B10(a). It is submitted that the plea that the respondent-tenant has been sending amounts, i.e.Rs.2,000/- that too by demand drafts in favour of the parents for payment to the landlords is clear from Ext.B11 series and letters. It is submitted that from the evidence, it could have been easily seen that there is a clear case of denial of title. The father of the tenant was indebted to the first petitioner-landlord who had advanced money and, therefore, the document was executed only as a security.

24. The legal principles relied upon by the learned counsel for the respondent-tenant to show that the Rent Control Court should have relegated the landlords to the Civil Court are drawn from the decisions of a Division Bench of this Court in Aboobacker v. Girija [1995 (1) KLT 553] and that of the Apex Court in J.J Lal Pvt. Ltd. and others v. M.R.Murali and another [(2002) 3 SCC 98].

25. A reference to the decisions of this Court in Aboobacker's case (supra) will show that the relevant test was reiterated by the Division Bench on the basis of an earlier decision of this Court in Joseph v. Thomas [1987 (2) KLT 1029]. In the said decision, this Court held that no tenant should be allowed to compel a landlord to resort to civil suit just because the tenant denied the title of the landlord and the enquiry conducted by the Rent Control Court is expected to be only in a summary manner. The Division Bench, after referring to these principles laid stress further in the following words in para.5 :

"We too are of the view that the court whose jurisdiction stands ousted must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and the chances of the plea being upheld by the civil court must be fairly on the higher side. In this case we see no such substantial grounds or sufficient materials in support of the plea of the petitioner."

In para.4 it was held that the document of title was found supported by consideration and there is nothing on record to come to a different conclusion.

26. The said principles will show that unless there are strong and substantial grounds or sufficient materials and merely because a plea of denial of title is raised, it cannot be said that the said plea is a bona fide one, requiring the Rent Control Court to stop the proceedings.

27. Learned counsel for the revision petitioner-tenant Shri Bechu Kurian Thomas relied upon para.18 of the Judgment of the Apex Court in J.J Lal Pvt. Ltd. and others v. M.R.Murali and another (supra). The facts of the case show that the Apex Court therein was considering Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. We find on a reference to the provisions of the said Act which is extracted in para.9 that Section 10(2) provides grounds for the landlord to apply eviction and sub section (vii) is that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide. Therefore, therein such a plea is a ground itself for eviction whereas, under the Kerala Act, there is no similar provision. It is in that context in para.18 the Apex Court held that "what amounts to denial of title, and whether such denial is bona fide or not, are the questions to be determined in the facts and circumstances of each case". It was also held that "to operate against the tenant as providing a ground for eviction under Section 10 of the Act, a mere denial of the title of the landlord is not enough; such denial has to be 'not bona fide'. 'Not bona fide' would mean absence of good faith or non-genuineness of the tenant's plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be 'not bona fide'." Their Lordships, on the facts of the case held that no case of eviction was made out on that ground. The statutory setting under which the findings are rendered are totally different from the one herein.

28. Therefore, the principles stated in Aboobacker's case [1995 (1) KLT 553] itself will require that there should be strong or atleast substantial grounds or sufficient materials in support of the plea of denial of title.

29. The learned counsel for the respondent-tenant also relied upon the Full Bench decision of this Court in Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250] which examined the scope of jurisdiction of the Rent Control Court when disputes are raised on denial of title.

30. The decision of the Division Bench, namely, in Nabeesa Abdul Khader v. Suresh Kurian [2009 (1) KLT 1020] relied upon by the learned counsel for the petitioners-landlords Shri Raja Vijayaraghavan, followed the principles stated in Aboobacker's case [supra].

31. In Retheesh Chandran A.R. v. Sarojini Amma [2010 KHC 1064] relied upon by the learned counsel for the petitioners-landlords, this Court considered the nature of the enquiry that is stipulated by the second proviso to Section 11(1) of the Act which requires the Rent Control Court to enter a definite finding as to whether the denial of title of the landlord by the tenant was bona fide or not. This Court reiterated the principles relied upon by this Court in various other earlier decisions in para.17 it was noted as follows:

"It was held that chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract matters."

On the facts of the said case, their Lordships held that the plea of denial of title raised by the tenant is too bleak as after a full fledged trial, the Civil Court has found against the tenant therein.

32. The above dictum was relied upon by the learned counsel for the petitioners-landlords to show that herein a statement in Ext.A24 Judgment of the Civil Court will clinch the issue as against the tenant's plea and therefore it is not necessary for going into such question at this belated stage, even though, an appeal is pending from the said Judgment.

33. We find on a reference to Ext.A24 Judgment in the Civil Suit filed by the parents of the respondent-tenant and by another creditor that the right of the landlords has been upheld. In para.35, it has been held as follows:

"After carefully considering the evidence let in by both sides, I am unable to uphold the plaintiffs case that they have executed Ext.A10 only as a security and they have absolute title and possession over the plaint schedule property. The possession, if the plaintiffs have over the plaint schedule building, can only be as a tenant. I find that there is a landlord-tenant relationship between the plaintiffs and the defendants."

Shri Raja Vijayaraghavan, learned counsel for the petitioners-landlords is therefore, right in submitting that the clinching evidence on which the said findings have been rendered by the Civil Court will go against the pleas of the tenant and the Judgment has been relied upon by both the Rent Control Court as well as by the Appellate Authority.

34. A reading of the Judgment of the Rent Control Court shows that from para.6 onwards, the question has been considered. In para.9 it has been noted that in the written statement filed in O.S.No.359/99, the father of the counter petitioner (tenant) admits that they had given advertisements in many newspapers for sale of the property. A copy of the rent note (execution admitted) has been produced, as well as the extension deed. In both these documents, he admits ownership of the plaint schedule property with the petitioners and further he agrees to give delivery of possession back, after the expiry of the term fixed. Records have been produced to show that the mutation as well as building tax stands in the name of the defendant.

35. In para.10, it has been held that Ext.A3 sale deed is an outright sale for value received and the deficiency or otherwise of the value received is not a ground for challenging an outright sale which has been concluded and completed. In para.11 it has been held that mere denial of title shall not be sufficient to constitute a bona fide denial of title. The documentary evidence adduced by the tenant has also been considered and finally, in para.15, the point has been found against the tenant.

36. The Appellate Authority has considered this point from para.8 onwards as "point No.1". In para.9, it has been found that after the execution of Ext.A1 sale deed, the petitioners effected mutation of the petition schedule property in their names. Exts.A5 and A6 tax receipts , Ext.A13 pass book of property tax, Ext.A15 solvency certificate dated 13/03/1997 and Ext.A16 demand notice issued from the Kollam Municipality. Ext.A17 series building tax receipts and Ext.A18 series land tax receipts produced by the petitioners would go to show that the mutation was effected with respect to the petition schedule property in the name of the petitioners after execution of Ext.A2 sale deed. The mortgage liability with respect to the petition schedule property in connection with three loans availed by the parents of the appellant from the Kollam Co-operative Urban Bank was discharged and the original sale deed of the property in the name of the parents of the appellant was received from the bank by the petitioners-landlords. They have also produced the original sale deed as Ext.A19. RW3 Bank Manager who produced Ext.X1 series documents in support of the discharge of the loans. The sale consideration in the document was Rs.4,75,000/-. Ext.A20 release deed would show that the liability of Rs.3,27,995/- was discharged thereafter for receiving back the original sale deed. Therefore, the execution of the sale deed and the fact that mutation has been effected and the other factors have been relied upon by the Appellate Authority, in addition to Ext.A24 Judgment.

37. The fact that the parents have effected paper publication in several dailies for sale of their property and thereafter the landlords approached them is also referred to in para.10. Accordingly, it was held that the materials on record would go to show that denial of the title made by the appellant/tenant is not bona fide and therefore, the Rent Control Court has the jurisdiction to entertain the petition for eviction. The Appellate Authority therefore held that the Rent Control Court has reached a correct conclusion.

38. While attacking these conclusions, the learned counsel for the respondent-tenant submitted that the discharge of the mortgage liability was with the connivance of one of the Board of Directors of the Bank and, therefore, the same could not have been taken against the tenant. The learned counsel for the petitioners-landlords submitted that the respondent- tenant or his parents had not raised any complaints against the release deed or for releasing the prior title to the landlords by the Bank.

39. In the light of these items of evidence, we cannot hold otherwise that the denial of title was bona fide. Ext.A1 document was supported by consideration, the execution of the rent deed and extension deed have been admitted and the Appellate Authority has clearly found that those two documents were produced along with the eviction petition even though they have not been marked in evidence and the fact of execution has also been admitted by the tenant. We are referring to the above facts since the learned counsel for the respondent-tenant submitted that the rent deeds have not been produced in evidence. When RW1-tenant has admitted in his evidence that the rent deed has been executed and as the landlords have not concealed the same, as rightly pointed out by the learned counsel for the petitioners-landlords, the said argument also fails. We are therefore of the view that the finding rendered by the Rent Control Court and the Appellate Authority on this aspect is not perverse. All the relevant evidence have been considered and the Judgment of the Civil Court Ext.A24 was also relied upon. In such a case, as the Civil Court has already gone into the matter, the landlords need not be relegated to civil remedy again, especially since the parents of the tenant themselves had filed two suits.

40. The next aspect is regarding the bona fide need pleaded under Section 11(3) of the Act. The vehement argument relied upon by the respondent-tenant is that the requirements of daughters of the petitioners- landlords and the mother are no longer there. By relying upon Varkey v. Raman Pillai [1981 KLT 213], it is argued that the point of time to consider the matter is the date when the direction is to be made. It is therefore, submitted that subsequent events have clearly eclipsed the need pleaded.

41. The learned counsel for the tenant further submitted that the distance from the present residence to the Mayyanadu school is convenient for the wife of the first petitioner-landlord and merely because there is a railway cross, it cannot be said that they are totally inconvenienced in the matter.

42. In the Judgment relied upon by the learned counsel for the petitioners-landlords Gaya Prasad v. Pradeep Shrivastava [AIR 2001 SC 803], the Apex Court held that the crucial date for deciding the bona fide is the date of application and the subsequent events occurred can be taken into account only when the landlord is completely eclipsed by such subsequent events. These principles have been stated in paras.10 and 13 of the said Judgment thus:

The crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. It is pernicious, and unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period." 

43. In S.S.Gupta v. Mahesh C.Gupta [(1999) 6 SCC 222], relied upon by the learned counsel for the petitioners-landlords, the meaning of the words "need" and "require" have been analysed in para.12 under the Delhi Rent Control Act, 1958. It was held that the bona fide need refers to state of mind and the requirement is not a mere desire. It was further held in para.13 that "a requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra-distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant".

44. The last of the decisions relied upon by the learned counsel for the petitioners-landlords is Balan N.K. and Another v. C.Anees and Others [2012 (4) KHC 479] wherein a Division Bench of this Court held that if proximate need of landlords continues to exist in spite of subsequent course of events which may or may not have a bearing on the ultimate need, claim of eviction under Section 11(3) of the Act has to be allowed.

45. The view taken by both the authorities based on the evidence is that the bona fide need has been properly proved in evidence. The present residence of the landlords is away from the town and the petition schedule premises is in an important locality in the town itself as pointed out by the learned counsel for the petitioners-landlords. The Rent Control Court in para.16 onwards considered the matter. It was held that the fact that the children had grown up in the intervening period of 11 years cannot be considered as a ground for finding that the bona fide own need ceased to be there. The mother died on 16/09/2003 and the elder daughter of the petitioners-landlords has married and the younger daughter is studying in Hyderabad University. The second petitioner is teaching in a school at Mayyanadu which is 7 kms.away and there is a level cross in between. The fact that the building is located at the heart of the town where from many buses ply towards Mayyanadu is noted in para.19. It has also been held that the second petitioner's need exist even today as she is even now employed in the school at Mayyanadu. Accordingly, the bona fide need was found in favour of the landlords. The Appellate Authority considered this in para.11. It was held that the subsequent event happened due to the long delay in disposal of the rent control petition is not a ground to negative the bona fide need alleged by the petitioners. The fact that the second petitioner is even now working as a teacher has also been relied upon. The evidence of the PW.1 that the need alleged by the petitioners is for own occupation was found to be genuine.

46. The averments in the Rent Control petition are by projecting the need of the family after referring to the status of the daughters and the mother. In fact, the question is whether the subsequent events have eclipsed the bona fide need pleaded. The law on this question has been explained by the Apex Court in various decisions. It was held in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal and others [(2005) 8 SCC 252] in para.7 that the crucial event should be taken as on the date when suit for eviction was filed unless the subsequent event materially changed the ground for relief. Of course, the subsequent events can be considered by courts in moulding the reliefs but the question herein is whether it totally eclipses the reliefs sought.

47. Herein, both the authorities have found that the second petitioner is still working in the school at Mayyanadu and it will be convenient to her if they start residing in the petition schedule building and settle in the town. There is a level cross between their house and the national highway, at the present residential place. The plea raised in the eviction petition is for shifting the entire family. It is therefore, a case where the landlords pleaded for shifting the residence and merely because there is a change of status as far as some of the members of the family, it cannot be said that the subsequent event has totally eclipsed the need projected.

48. In the light of the above, it cannot be said that the view taken by the authorities below is totally perverse requiring interference at the revisional stage.

49. As far as the plea for arrears of rent is concerned, the Appellate Authority in para.13 has found in favour of the landlords. The said view was taken in the light of Ext.A24 Judgment of the Sub Court also as a suit O.S. No.285/1999 was before the Musiff Court, Kollam was filed for claiming arrears of rent which was decreed. It was tried along with the other suits by the Sub Court as O.S.No.82/2006. We concur with the same.

50. For all these reasons, we dismiss the revision petition confirming the orders passed by the authorities below. We grant five months time to the revision petitioner-tenant to surrender vacant possession to the landlords on the following conditions:

(a) the arrears of rent as on today will be paid/deposited within a period of one month from today.

(b) till vacant possession is granted within the time permitted by this Court, amount will be paid at the same rate of monthly rent for use and occupation of the building.

(c) the revision petitioner-tenant will file an affidavit before the execution court within one month from today undertaking to vacate the premises within the period granted by this Court.

It is made clear that if any of the conditions are violated, the counter petitioner-tenant will not be entitled for the benefit of this Order. No costs.

Sd/-

(T.R. Ramachandran Nair, Judge.)

Sd/-

(A.V. Ramakrishna Pillai, Judge.)

ms