D/O Medapparambath Kunhamma @ Kuttimalu v. A.T. Reghunathan

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 RCRev..No. 372 of 2006() -----------------------RCA.214/2005 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.100/2003 OF RENT CONTROL COURT, KOZHIKODE-II .................... ## REVISION PETITIONER/RESPONDENT/PETITIONER D/O.MEDAPARAMBATH KUNHAMMA @ KUTTIMALU, AGED 67 YEARS, ORUVINGAL, KASABA AMSOM, KARYAKUNNU DESOM OF KOZHIKODE TALUK. BY ADV. SRI.T.R.RAVI SRI.P.S.MURALI RESPONDENT(S): APPELLANT/RESPONDENT A.T.REGHUNATHAN,S/O.THAMPI RAJU, AGED 46 YEARS, VADAKKE ILLATHAI PARAMBIL, KASABA AMSOM, KARYAKUNNU DESOM, KOZHIKODE TALUK. ADV. SRI.V.T.MADHAVANUNNI SRI.V.JOHN SEBASTIAN RALPH SRI.V.A.SATHEESH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ----------------------------------------------- RCR. No. 372 of 2006 ----------------------------------------------Dated this the 15[th] day of December, 2010 ## **O R D E R** ## **Pius C.Kuriakose, J.** Under challenge in this revision filed by the landlady under section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority dismissing an eviction petition filed by the landlady under sub-section (3) of Section 11. In fact, the landlady had invoked the ground of arrears of rent also. The Rent Control Court allowed eviction on that ground as well as on the ground under Section 11(3). The Appellate Authority under the impugned judgment has confirmed the order of eviction passed by the Rent Control Court under Section 11(2)(b), but interfered with the eviction ordered under sub-section (3) of Section 11 relying on the judgment of the Supreme Court in Koyilerian Janaki and others v. Rent Controller (Munsiff) and others, 2000(9) SCC 406 and also on judgment of a Division RCR. 372/06 -2- Bench of this Court in Ismail v. Kesavan, 2004 (2) KLT 56 to which one among us (Pius C. Kuriakose, J.) was a member. The need projected by the landlady was that the building in question which is one residential unit in a larger building consisting of as many as 7 residential units is needed for occupation by her son Rajesh and his family who are presently put up along with her in the family house. Though it had been averred that Rajesh had no building of his own in which he and his family can reside and it had been averred further that the residence of Rajesh and family in the family house is causing considerable inconvenience to them, it had not been specifically averred that Rajesh is a dependent on the landlady. The bonafides of the need projected by the landlady was stiffly disputed by the tenant through the statement of objections he filed. It was contended by the tenant that the tarwad house in which Rajesh is presently put up is big enough for the convenient residence of Rajesh and family. The bonafides of the need RCR. 372/06 -3- was challenged by pointing out that the landlady's mother (Rajesh's grandmother) had on a previous occasion demanded surrender of the building, but did not pursue her request. It is further pointed out in this context that after Rajesh's mother had made the unpursued demand, another residential unit had fallen vacant and the same was let out to somebody else. Before the Rent Control Court, Rajesh himself gave evidence as PW-1. He deposed very clearly in his evidence that he is a dependent of his mother not only for the purpose of a building but even for other purposes. He deposed that his present stay in the tarwad house along with his mother is causing inconvenience. Rajesh's version that he is a dependent of mother was not even challenged in cross examination. 2. However, when the matter came up for arguments before the learned Rent Control Court, the one argument which was most seriously raised before that court was the argument that the rent control petition was liable to fail for RCR. 372/06 -4- want of pleadings regarding dependency of Rajesh on his mother. The argument was fortified by the judgment of the Supreme Court in Koyilerian Janaki's case. The learned Rent Control Court would distinguish the judgment in Koyilerian Janaki's case on facts and would hold that the above judgment cannot have application in the present case where Rajesh is the son of the landlady who was at the time of commencement of the RCP residing along with the landlady. Taking the view that Koyilerian Janaki's case does not apply to the facts the Rent Control Court would accept the evidence of PW-1 and find that the need is bona fide and accordingly order eviction. 3. The learned Rent Control Appellate Authority considered an appeal preferred by the tenant and would reverse the finding of the learned Rent Control Court. According to the learned Appellate Authority, the ratio decidenti of the Supreme Court judgment in Koyilerian Janaki's case was very clear and did not admit of any RCR. 372/06 -5- ambiguity. It did not admit of the interpretation placed by the learned Rent Control Court on the same. The Appellate Authority would hold that in the absence of a specific pleading in the RCP that Rajesh is a dependent on his mother the unchallenged evidence of Rajesh that he was dependent on his mother had to be eschewed as evidence without pleadings. In that view of the matter the learned Appellate Authority interfered with the finding of the learned Rent Control Court. The Appellate Authority would proceed further and observe that the conduct of the landlady in not accommodating Sri.Rajesh in a residential unit which had fallen vacant after her mother had issued an unpursued notice to the tenant, casts clouds of suspicion on the bonafides. Ultimately, the learned Appellate Authority set aside the judgment of the Rent Control Court and dismissed the RCP to the extent it pertains to the ground under subsection (3) of Section 11. 4. We have heard the submissions of Mr. T.R.Ravi, RCR. 372/06 -6- learned counsel for the revision petitioner and those of Sri.V.T. Madhavan Unni, learned counsel for the respondent. Mr. Ravi would cite the judgment of the Supreme Court in Koyilerian Janaki's case as well as the judgment of the Division Bench in Ismail v. Kesavan, 2004(2) KLT 56 before us. He would draw our attention to the pleadings raised by the landlady and by the tenant in the context of the ground under sub-section (3) of Section 11. He would read over to us the evidence of PW-1 to the extent the same referred to the ground under sub-section (3) of Section 11. He submitted that this was a case where the tenant admitted by non-traverse that Rajesh is a dependent of his mother. The contention of the tenant was only that the mother's building in which Rajesh and family were already put up was sufficient enough for accommodating Rajesh and family conveniently. This contention itself amounted to an admission that Rajesh is a dependent of his mother. Mr. Ravi highlighted that Rajesh's evidence that he is a RCR. 372/06 -7- dependent of his mother was not challenged at all. According to Mr. Ravi, Koyilerian Janaki's case is easily distinguishable on facts from this case as that was a case where the question was whether a married daughter and her husband were dependents and whether it was necessary to plead that they were dependents. But in the present case, the needy person is own son and not a son-in-law or a married daughter. 5. Mr.V.T.Madhavan Unni would oppose all the submissions of Mr.T.R.Ravi. He also would read over to us the judgment of the Supreme Court and submit that the ratio of the above judgment is clearly to the effect that in a case where the ground under sub-section (3) of Section 11 is invoked by a landlady for occupation by a family member it is absolutely necessary that it should be pleaded in so many words that the family member is a dependent. In the present case there is total lack of such pleadings and hence the judgment of the Supreme Court has to be followed and RCR. 372/06 -8- the RCP has to be dismissed as is done by the learned Appellate Authority. When we informed Mr. Madhavan Unni that we are thinking in terms of affording an opportunity to the landlady to have the pleadings amended he submitted that the proper course to be done may be to permit the landlady to go in for a fresh RCP. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have examined the ratio of the decisions cited before us, particularly the judgment of the Supreme Court in Koyilerian Janaki's case. We have gone through the rival pleadings raised by the parties in this case. 7. True, the facts which obtained in the present case are not identical to those which obtained in Koyilerian Janaki's case. A careful reading of the pleadings raised by the landlady it can be discerned that her son is presently without any independent building of his own and is dependent on her for the purpose of a building for RCR. 372/06 -9- residence. But the question is whether applying the principle that strict adherence to the rules of pleadings is necessary in rent control proceedings which are proceedings of a summary nature, we should hold that the pleadings presently raised by the landlady are sufficient notwithstanding the judgment of the Supreme Court. We are not inclined to answer that question in favour of the landlady as we notice that the ratio of the judgment of the Supreme Court is that in a case where the need raised by a landlady under sub-section (3) of Section 11 is the need to accommodate a family member there has to be a specific pleading that the family member is dependent on the landlady concerned. We don't think that any prejudice has been caused to the tenant in this matter on account of insufficiency in the landlady's pleadings. Nevertheless, in deference to the ratio laid down by the Supreme Court in Koyilerian Janaki's case we feel that the pleadings raised by the landlady should be allowed to be regularised. Hence we RCR. 372/06 -10- are inclined to dispose of this RCR by remitting the matter back to the Appellate Authority permitting the landlady to have the pleadings in the RCP amended by incorporating a statement that Rajesh, the landlady's son is dependent on the landlady. Under the statutory scheme of the Rent Control Act 2 of 1965 (See Sections 18(3), 23 and 23(1) and Rules 16(2) of the Kerala Buildings (Lease and Rent Control) Rules 1979). The powers of the Rent Control Appellate Authority and the Rent Control Court in the matter of pleadings and adduction of evidence are co-equal. 8. We notice another aspect of the matter. The monthly rent which the tenant is paying for the building in question is just Rs.170/-. According to us, if the building is let out today, the same will fetch far more. Hence we are inclined to re-fix the rent prospectively with effect from 1-1-2011. This re-fixation will be subject to regular fixation of fair rent by the Rent Control Court under Section 5 on application filed by either party. Till fair rent is fixed respondent shall RCR. 372/06 -11- pay rent at the rate of Rs.1000/- per mensem. Result of the above discussion is as follows: The order of the Rent Control Court and the judgment of the Appellate Authority are set aside. The RCA is remanded to the Rent Control Appellate Authority. If the landlady files application before that authority to amend the RCP by incorporating a statement that Rajesh, her son is dependent on her, the application shall be allowed by the Appellate Authority. If the tenant wants to raise counter pleadings (scope for which is limited in view of what has transpired already) the Appellate Authority shall permit the tenant to file an additional counter. The parties will enter appearance before the Rent Control Court on 15-3-2011. If after allowing the amendment of pleadings either party is desirous of adducing further evidence they should be permitted to adduce evidence before the Appellate Authority. Revised judgment will be passed by the Appellate Authority on the basis of the evidence already on RCR. 372/06 -12- record and evidence if any, which comes to be on record further. The Appellate Authority shall pass revised judgment within one month of the court reopening after mid-summer holidays. ## **(PIUS C.KURIAKOSE, JUDGE)** **(N.K.BALAKRISHNAN, JUDGE)** ksv/-