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 and proper to do so:
Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:
Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument:
Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.
1. Object
Another ground provided to the landlord to evict his tenant is for his own occupation or for the occupation by any member of his family dependent on him. The bonafide need of the landlord is to be proved and the burden of proof is on the landlord. The Act is basically conceived in the interest of the tenants protecting them from being evicted illegally and arbitrarily. Therefore the onus is heavy on the landlord to establish the bonafide requirement.
The right of the tenant to occupy the property belonging to another person cannot be put above the ground of own requirement of the landlord. The landlord is entitled to get an order of eviction when the conditions imposed by the Act are satisfied.
There are four provisos for this section mentioned along with the relevant section and there is another proviso incorporated in the Act in section 11 (17) each of these five provisos restrict the landlord’s right to get the building for his own occupation. The provisos protect the tenant from eviction under certain circumstances. The circumstances are;
i. The Landlord has another building in his possession
ii. The tenant is depending on the business conducted in the building for his livelihood.
iii. there is no other building available in the locality for conducting the business of the tenant.
iv. Landlord got right of possession within one year
v. Tenancy commenced after 1940
vi. Tenancy period is over.
The provision of the statute cannot be stretched to such an extent that every claim put forward as bonafide need is preordinated to culminate in an order of eviction. The court is to rest its decision on totality of the circumstances. The concept of bonafide personal necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical. Question of bona fides is certainly relevant not only in S.11(3) and S.11(8) but also in S.11(7).
The cause of action for eviction of several tenants occupying different portions of the same building on the ground of S.11(3) is a common or joint cause of action, a single petition is maintainable, especially when no prejudice is caused to tenants.
2. Own occupation
The provisions in this Act enabling the landlord to get possession of the building for own occupation is in public interest, for if the landlord is to be always excluded from occupying his house, persons with money will never invest in houses.
Even if the use may be intermittent or seasonal in nature the landlord cannot be denied his right under section 11 (3). The word “reasonable”, connotes that the requirement or need is not fanciful or unreasonable. The word “requirement” coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It may be a need in present or within reasonable proximity in the future. A landlord need not lose his existing job or resign from it or reach a level of starvation to consider about getting possession of his premises for establishing a business.
It is for the landlord of the building to decide whether it needs reconstruction or whether he should have it for his purpose. It is his property; and he is the best judge on that matter. If a claim is made by the landlord for possession of the building on such a ground, Rent Controller, is not entitled to say that the landlord need not have it for reasons of his own. All that he is entitled to do is to enquire whether the need is bona fide, or whether it is only a pretext to evict a tenant. The right to reconstruct a building or to have it for the landlord’s own purposes is a very valid right attached to the property.
3. Landlord under section 11 (3)
According to the wide definition of “landlord” the building owner himself need not be the landlord. But for the purpose of this sub-section the ownership of the building has to be vested with the landlord. Further trustee landlord can apply under this section, but an agent-landlord cannot.
Though the definition of the landlord is couched in a very wide language, the landlord who is an owner and who would have a right to occupy the building in his own right alone can seek possession for his own use. Company which is a juristic person is also entitled to claim eviction under S.11(3) of the Act.
Requirement of the building for use of the company in which the landlord is a director cannot be considered as bonafide requirement of landlord.
4. Bonafide need
The main condition to be satisfied for an eviction under this sub-section is that the need of the landlord for own occupation is bonafide. For proving the bonafides the landlord may bring evidence of his necessity, desire, the preparations made by him for using the building for his proposed need. The circumstances would show the need is bonafide or not.
The landlord must prove that he genuinely requires the accommodation for the purpose of his own use. The mere desire of the landlord is not sufficient. The finding that the landlord bonafide required the premises for own occupation is one of fact. Bonafide requirement is a question of fact. Just an expression of desire would not entitle the landlord to get a decree for eviction
A bonafide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath v. Pooran Lal (2001 (5) SCC 705) this Court reiterated that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.
It is unnecessary to make endeavour as to how else landlord could adjust himself. The fact that there is cordial relationship between land lady and her daughter-in-law or that she is comfortably residing in present building are not relevant. When a landlady who is living with her own family with her parents thinks that she should have an independent and separate establishment, normally it is a most justified claim. The question whether the son should reside separately after the marriage is a matter, which exclusively depends upon the attitude of the son and Parents it is not always necessary that there should be difference of opinion or quarrel to justify a separate residence.
Persistent demand or even compulsion on the part of the landlord for procuring early eviction does not show that the need projected by the landlord is not genuine. Nature of businesses of the landlord proposes to conduct is a matter of evidence and lack of specific pleadings is not very material. Financial capacity of the landlord is a circumstance that favours the desire to start a business and not a fact against the landlord. The pleading regarding bonafide need should be specific a vague, hazy and indefinite pleading regarding the purpose for which the building si required will result in gross prejudice to the tenant.
Attempt by landlord to sell away the tenanted premises to the tenant is not fatal to the plea under section 11 (3).
It is not for the Rent Control Court to decide whether the house is suited to the requirement of the landlord or not. If the bona fide requirement is established, then the absence of facilities or lack of ventilation, air etc. is not very material as it is for the landlord to live in his own house with all its defects and faults. Landlord is the best Judge of his requirements. The Courts have no concern to dictate how and in what manner he should live. It is for the Landlord to decide what modifications has to be made in the building for the residential purpose and the tenant cannot say that it is not suitable for residential purpose of the landlord.
A building used for a non residential purpose can be claimed for residential purpose of the landlord. It is for the landlord to decide in what manner the space is to be utilized and what are the modifications or additions, alteration etc. have to be made in the building. The tenant cannot dictate in what manner the landlord should make use of the building. It is the landlord who decides as to how the building could be put to their beneficial use. Landlord is the best judge of his requirement, courts cannot dictate how and in what manner landlord should live. It is trite that, it is not for the tenant to dictate to the landlord how to satisfy his need. When the landlord has a sufficiently spacious room owned by it, there is nothing wrong in the landlord wanting possession of the said room for its need.
Gift deed executed only to evict the tenant on facts it was proved to be sham document. There is no bonafide need.
If the need put forward is bonafide, the fact that the pathway made after demolition of the building would be used by others and landlord or by his tenants, will not take away the need. Eviction sought for by the landlord of the tenanted premises so as to use it as a pathway for the proposed multi-storied building will come within the scope of Section 11 (3) and not under 11 (4)1V. Building needed bonefidely to be demolished to make a pathway to buildings belonging to the landlord which are in occupation of landlord’s tenants is a bonafide requirement. It is for the landlord to decide through which portion he is to provide a way to the rear side of the building. The tenant cannot dictate to the landlord that the pathway should be through another portion. The recovery of site of the building for the purpose of the new construction can be said to be coming within the meaning of section 11(3). Landlord intending to demolish the existing building and put up a new building for his own use, the ground is under section 11 (3) and not one under 11 (4)iv. The need under section 11 (3) will encompass need including demolition and using the space for the landlord’s use. The site of the petition schedule building does not form the area where the proposed construction is to be had. The petition schedule building is to provide the main entrance from the State Highway and that if only the petition schedule building is demolished and removed the materials can be taken to the property for construction of the building. It is not at all possible for the landlord to construct the building, without removing the scheduled building. The need is a genuine bonafide need.
Putting the building to better use is a bonafide requirement. The landlord claimed too many purpose. That itself does not negative the bonafides of the landlord.
The personal necessity envisaged under the Act would include repossession of the demised premises by the landlord for the purpose of its demolition so as to widen the entrance to another building belonging to the landlord in the immediate vicinity.
The tenant cannot dictate the terms to the landlord and advice him what he should do and what he should not. It is always the privilege of the landlord. It is for the landlord to decide whether the space is sufficient for the need. Tenant cannot have a dictatorial role in that assessment of the landlord. Sale of other rented premises is not a ground for holding that the landlord has not proved that he required the building for his own occupation. Tenant cannot decide or dictate whether the building is suitable for the use of the landlord. The tenant cannot dictate to the landlord regarding his need or choice of the building.
Claim of landlord that he needs the building bonafide for his personnel occupation cannot be negatived on ground that building requires repairs and alterations before landlord can occupy the same.
The construction of another building is a bona fide need of the landlord and the petition schedule building is sought to be demolished to provide exit for the proposed building and thereby eviction sought can be styled as one for reconstruction, the landlord has no need to occupy the entire reconstructed building. Such being the factual background, the landlord is entitled to seek an order of eviction only under S.11(4)(iv) and not under S.11(3).
If the application is both under S.11 (3) and 11 (4) iv; the circumstance that the building requires reconstruction for the purpose of own use does not affect or alter the bonafide nature of the landlord’s need under Section 11 (3) (See note ‘Sec 11(3) and Sec 11 (4) iv’ under Section 11 4 (iv))
The periodical requests for enhancement of rent as such are not a ground to hold that there is no bonafides in the plea for eviction. The mere fact that landlord demanded higher rent on previous occasions which the tenant declined to oblige is not a reflection of any oblique motive on the part of landlord claiming eviction on the ground of his own need to occupy the building. It is only normal propensity of a landlord to desire increase in the rent for this building from time to time. Such a desire expressed is not a mark of misconduct in landlord-tenant relationship. No presumption of malafides can be drawn just because the tenant declined to increase the rent demanded by the landlord. Demand for increased rent is not a bar for claiming eviction on the ground of bonafide need or any other ground. Demand for periodical increase in rent cannot be so unreasonable and unjust so as to deny an otherwise just and genuine claim for vacant possession. Landlord asking for more rent will not affect the bonafides of claim under section 11 (3).
The bonafide requirement of the landlord should be objectively tested but the landlord need not establish that it is a dire need. In order to constitute Bona fide requirement there must be an element of need as opposed to a mere desire or wish of the landlord.
Eviction ordered on the ground that landlord required the premises bonafide for the purpose of business after demolishing the present building and putting up a new building in place. Since the order of eviction is based mainly under section 11 (3) the obligation to provide accommodation to the tenant in the new building will not arise.
The mere fact that the Landlord had constructed a building in another property and rented it out to another tenant by itself is not a ground to hold that there is no bonafide. Giving some other premises on rent prior to the institution of petition does not lead to a presumption that there was absence of bonafides in a petition under section 11 (3). The need of dependent family member must also be shown to be bonafide. Possessions of other buildings by these dependents are to be considered. Shifting of residence after the petition is not a ground for rejection of petition. The appellant living in a room of the huge building which does not exclusively belong to him, cannot be said that his requirement to occupy the premises for his residence and professional requirements is not reasonable and bona fide.
The eviction was sought on the ground that the premises were required for starting some business. The particulars of the trade were not given in the pleadings. Held that the precise nature of the business proposed to be conducted is not required to be stated in the pleading and that is a matter for evidence.
Landlord is not bound to disclose the details of his bonafide need and inconvenience experienced by him. Landlord was forced to surrender the building he was occupying to KFC. The landlord needs to get his tenanted building is bonafide.
While assessing bonafide need of the landlord court need not consider landlord’s social status, which prohibits him to start a ‘C’ class shop. Discontinuance of the business by the landlord for a temporary period cannot prohibit him from claiming the benefit to his favour.
It is for the landlord of the building to decide whether it needs reconstruction or whether he should have it for his purpose. It is his property; and he is the best judge on that matter. If a claim is made by the landlord for possession of the building, Rent Controller, is not entitled to say that the landlord need not have it for reasons of his own. All that he is entitled to do is to enquire whether the need is bona fide, or whether it is only a pretext not to lease out the building or to evict a tenant, as the case may be. The right to reconstruct a building or to have it for the landlord’s own purposes is a very valid right attached to the property.
Requirement of landlord is to be established as a genuine and bonafide need and not a pretext to get the tenanted premises. Heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. Hence, mere assertion on part of tenant will not be sufficient to rebut the strong presumption in landlord’s favour.
There is no obligation on the part of retired Catholic Priests to reside in common residences provided by the Church. In any case residence in such common house cannot be termed as a matter of faith. The Priests may or may not choose to avail of any such facility which may be provided by the Church. Therefore the need set up by the landlord to retire and to live in the petition schedule building cannot be termed as a irrational need or a ground set up merely for evicting the tenants.
5. Right of Choice
The landlord is entitled to choose the building suitable for his purpose. if there are two or more premises the landlord could choose which one would be preferable to him or her and the tenant cannot question such preference. Power of landlord to pick and choose a particular room from among several tenants cannot be questioned in the absence of an oblique motive.
6. Landlord’s experience to do business
Fact that the landlord is a retired person and has no experience in business does not prevent him from starting his own business. Previous experience is not a precondition for seeking eviction on the ground of bonafide need to conduct business. Lack of experience of the landlord to run the business is not a bar to allow eviction on the ground of own use.
It need not be shown that landlord has know how for starting business. If a person wants to start new business of his own it may be to his own advantage if he acquires experience in that line. Experience can be earned even while the business is in progress. Lack of experience of landlords to run the business, is not a criterion to deny the landlord his building for own use.
Petitioner being a partner of a firm would enable him to evict the tenant for the need of the firm. Question of making arrangement for starting a business in a rented building can arise only after the owners gets possession of the building.
Law does not require that impeanious (poor) Landlord alone can think of starting an income generating activity in order that need set up will pass through the test of bonafide. Law does not insist that a Landlord having other source of income shall not carry on another income earning activity or venture to start a new business.
Examination of Power of attorney holder is not sufficient to prove the bonafide of the landlord. The landlord has neither established his need for own occupation nor that the need alleged was bonafide.
7. Dependent
Mother gifted the building to her daughter and continued to receive rent but it is insufficient to sustain the maintainability of petition for eviction. Previous written consent is necessary. Mother cannot ask for eviction of the tenant for her bonafide need. Or the mother should prove that she is depended on her daughter.
Non examination of dependent son of the landlord is not fatal to a petition for own use and occupation of the son. In order to assess whether the landlord bonafidely or genuinely requires a building can be assessed by court only by examining the landlord or the dependent son. The need for occupation of a dependent of the landlord can be proved on evidence of the dependent as witness.
Dependency does not mean financial dependency. There must be sufficient pleading that they are dependent upon the landlord so that the tenant could disprove the dependency. Dependency does not mean financial dependency. A daughter is dependent on the mother in spite of the fact that she has an independent income. The landlord had left the country three months after the institution of the eviction petition. But, the need projected in the eviction petition was of his wife as well. It cannot be said that the claim for eviction on the ground of bona fide need has extinguished. Landlord can seek eviction of tenant from building for his own occupation along with any of his dependents.
Dependency of the member should be pleaded and proved. Mere fact that husband is a member of the family does not presuppose his dependency on his wife.
The word dependent means a person who would in the normal course look up to the landlord to provide him with the facility of a building possessed by the landlord. A younger brother can also be said to be dependent on the elder brother for his needs. Daughter in law will come within the expression of dependent of landlord in section 11 (3) of the Act. The Act does not put any fetters on the landlord to accommodate his son in law. Dependency is not merely a matter of physical or pecuniary need.
The courts have found that wife, a widowed daughter and her children, married son, married daughter, Son in law, sister’s son, adopted son, husband, even a remote relative in certain circumstances treated as dependent. These relations may not be depended on the landlord financially, they depend on the landlord for the building in his ownership.
Dependency does not mean financial dependency, but dependency for the building which belong to the landlord. There must be sufficient pleading that they are dependent upon the landlord so that the tenant could disprove the dependency.
8. Hardship
The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case. Availability of alternate accommodation is an important but not the decisive factor. Whether serious efforts are made by the tenant to find out alternative building for his purpose is to be taken into account. Where the landlord proves his bonafide requirement and the tenant fails to prove his contention that he tried to find out alternate accommodation, the question of comparative hardship is to be decided in favour of the landlord. The plea of comparative hardship by the tenant is to be rejected when during the pendency of the petition for the last as many as 22 years; the tenant did not make any effort to secure alternate accommodation. Relative financial positions have no relevance while considering the comparative advantages and hardships to the parties.
The relative financial position of parties can be taken into consideration, but cannot be carried to extreme length of holding that the rich man be exposed to denials with a view to be charitable to the poor man, for the simple reason that it is not proper for the courts to be charitable at the expense of the parties. Then an affluent landlord can never get possession of his premises, in spite of his bonafide needs.
Offer by the landlord of alternate accommodation has to be given due consideration.
Where the requirement of the landlord is bona fide and reasonable, fact that tenancy was created before about fifty years back is not be a bar on the landlord for claiming the building for own use.
Long possession has no material bearing on the question of comparative hardship, and is likely to loose thousands of rupees which the customers owned him, it has been held that this is a natural hardship not amounting to ‘greater hardship’. Goodwill built in the premises is not a ground to deny eviction.
The burden of proof is on the tenant to prove the comparative hardship. It must be remembered that the landlord is claiming possession of his own house and that for his own use. Unless the tenant alleges and proves that his hardship is greater than the landlord, the benefit naturally goes to the landlord. Thus it can be said that the burden of proving greater hardship is on the tenant. In an eviction petition on the ground of own use the landlord is not supposed to plead in his plaint his comparative hardship.
The hardship landlord would suffer by not occupying their own premises would be far greater than the hardship the tenant would suffer by having to move out to another place. Whenever a tenant is asked to move out of the premises some hardship is inherent. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation, so that in the meantime he can make alternative arrangement.
9. Section 11 (17) and S.11 (3)
Section 11 (17) is a proviso to section 11 (3) and prohibits the landlord to evict a tenant who is in continuous occupation from 1940 under section 11 (3). This is a personal privilege to the original tenant, heirs of the tenant will not get this personal privilege.
Section 11 (17) or rather this proviso has a proviso which cut short the ambit of this sub section. That proviso allows a landlord to file an application on the ground of own use if the building concerned is a residential building and that the landlord has been living for more than five years in a place outside the city town or village in which the building is situated but this application must be for
1. his own permanent residence, or
2. for the permanent residence of any member of his family, or
3. the landlord is in dire need of a place for residence and has none of his own.
Sub-section (17) is designed to give some additional protection to certain classes of tenants and in that sense it operates as a proviso to Section 11 (3). The burden of pleading and proving that he was in continuous occupation from 1940 is on the tenant. It is for the tenant to establish that he was in occupation prior to 1-4-1940. Execution of a fresh lease deed will not extinguish right under S. 11 (17). The protection under Section 11 (17) given to tenant in occupation from 1940 can be claimed only by a tenant who is sought to be evicted under section 11 (3) and not by a tenant who is sought to be evicted under Section 11 (8).
This section further prohibits the landlord to evict a tenant on the ground of own use where the tenant has been in continuous occupation of the building from 1st April 1940 as a tenant who has been in occupation. This is a personal right and can be availed of by the tenant and not by his successors.
This subsection is a clog on eviction on the ground of own use from tenants who started their occupation prior to 1st April 1940 and has been continuing the same. This is a further proviso to section 11 (3). Detailed discussion under 11 (17).
10. Redelivery of building to the tenant
The tenant has got right to redelivery of the building from which he is evicted, if the landlord who has obtained possession under the ground of own use, and has not occupied the building without reasonable cause within one month or if he vacates the building within six months.
Landlords asserted that there was no other means of livelihood with them and as such they wanted to set up their own business in the disputed premises. It was not necessary for the landlords to reveal the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises.
12. Condition precedent and Subsequent for eviction under S. 11 (3): an aerial view
These are condition precedent as well as subsequent for reserving an eviction under this sub-section. In other words, if the landlord wants an eviction of his tenant on the ground of own use then he has to prove;
1. He bona fide needs the building.
2. He has no other building of his own in his possession, if he has other buildings he has to prove special reasons to have this building.
3. The tenant has other income and that the tenant is not depending on this trade or business carried on in such building for his livelihood. and
4. There are other suitable buildings available in the locality for the tenant to carry on such trade or business.
5. The landlord got his right over the property prior to one year. (if he got the right from a living person)
6. The landlord should not transfer his decreetal right to any other person i.e. he has to execute the eviction order himself, otherwise the transferee has to prove his bona fide need.
7. The tenancy commenced after 1940. (s. 11 (17) ((Personal right of the tenant, hence the legal heirs will not get the protection),
8. If the tenancy is commenced before 1940 the landlord is living outside the city town or village for more than 5 years and, (s. 11(17)
a. Requires the building bona fide for his own permanent residence or, )s. 11(17)
b. For the permanent residence of any member of his family or, (s.11(17).
c. The landlord is in dire need for a place for residence and has none of his own. (s. 11 (17).
9. Landlord who got evicted the tenant on s.11 (3) must occupy the premises within one month of date of obtaining possession and should not vacate it within six months. The court can order redelivery of possession of the tenant under section 11 (12) if the landlord is not able to show reasonable cause for such non-occupation or vacation as the case may be.
Rented Building Owners Association Kerala 
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