K. V. Hemalatha, K. V. Suma, K. V. Suresh and K. V. Sujitha v. S. P. Nafeesath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 29TH DAY OF FEBRUARY 2012/10TH PHALGUNA 1933** **RCRev..No. 76 of 2012 ()** **------------------------** **R.C.A. NO.11/2010 of RENT CONTROL APPELLATE AUTHORITY,KASARAGOD R.C.P. NO.34/2008 of RENT CONTROL (MUNSIFF) COURT, HOSDRUG** **REVISION PETITIONERS/SUPPL.APPELLANTS/RESPONDENTS:** **--------------------------------------------------** **1. K.V. HEMALATHA, AGED 50 YEARS** **2. K.V. SUMA, AGED 32 YEARS** **3. K.V. SURESH, AGED 28 YEARS** **4. K.V.SUJITHA, AGED 26 YEARS** **(REVISION PETITIONERS 1 TO 4 ARE THE WIDOW AND CHILDREN OF LATE V. RAGHVAN HINDUS, NO.2 IS WIFE OF SURESH, AND NO.4 IS WIFE OF PRADEEP.** **ALL ARE RESIDING AT ORIKKADAVU IN CHERUVATHUR VILLAGE, HOSDURG TALUK, P.O.KAITHAKKADU)** **BY ADV. SRI.M.V.AMARESAN** **RESPONDENT/RESPONDENT/PETITIONER:** **---------------------------------** **1 S.P. NAFEESATH, AGED 31 YERAS, D/O. CHENAMMADATH SHAHUL HAMEED, W/O. C.M.ABDUL KHADER, RESIDING AT AMBALATHARA, PERUMBA, KOROM ROAD, P.O.PAYYANNUR, TALIPARAMBA TALUK, KANNUR DISTRICT. PIN-670 307.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DST** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ** --------------------------------------------- ## **R.C.R No.76 of 2012 --------------------------------------------Dated this the 29[th] day of February, 2012** ## **ORDER** ## Pius C. Kuriakose, J Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against the revision petitioners by the Rent Control Court on the grounds of arrears of rent and bonafide need for own occupation under sub-section (3) of Section 11. As the eviction order is passed under Section 11(2)(b) (arrears of rent) is liable to be vacated by making requisite deposits under Section 11(2)(c), we do not find infirmity at all with that eviction order. We straightaway confirm the eviction order passed under Section 11(2)(b) and leave it to the revision petitioners to get that order vacated by making requisite deposits and filing necessary applications under Section 11(2)(c), within a period of six weeks from today. _**RCR No.76 of 2012**_ -:2:- 2. The need projected under Section 11(3) was that the landlady and her husband is already in a business of plywood and they intend to start a retail outlet for plywood products in the petition schedule building, which is situated at Chervathur. It is specifically pleaded that it is “to cater to the needs of the people at Chervathur because there are no other shops dealing with the business of plywood and allied wood products at Chervathur” that the landlady and her husband have taken the decision to start a retail outlet for plywood products in the petition schedule building. 3. The bonafides of the need was disputed and it was contended that the landlady's husband is doing other businesses in Kannur District and it is absolutely unnecessary for the landlady or her husband to do the business in the petition schedule building which is situated at a distance of 70 km from the place where the other businesses of the landlady's husband are being conducted. It was contended that at any rate the need **a** is not a bonafide one and the same is only ruse to get eviction, under one pretext or the other. The tenants claimed protection under the second proviso to sub-section (3) of Section 11 also. In the enquiry conducted by the Rent Control Court, the evidence consisted of Exts.A1 to A5, B1 to _**RCR No.76 of 2012**_ -:3:- B4 and the oral evidence of PW1 to 3 and RW1. PW1 was the landlady herself, PW2 was the landlady's father and PW3 was the landlady's husband. 4. RW1 was the tenant revision petitioner. On evaluation of the evidence, the Rent Control Appellate Authority came to the conclusion that the need projected is a bonafide one and also that the tenant is also not entitled to the benefit of second proviso to Section 11(3) claimed by him. Accordingly, the order of eviction was passed. The learned Appellate Authority which considered the appeal preferred by the revision petitioners, after making a reappraisal of the evidence on record came to concurrence with the Rent Court Court. Accordingly, the appeal was dismissed. 5. In this revision under Section 20, various grounds have been raised assailing the judgment of the learned Appellate Authority. 6. Shri.M.V.Amaresan, learned counsel for the revision petitioners addressed strenuous and extensive submissions based on all the grounds raised in the revision. Drawing our attention to the pleadings in the RCP, Mr. Amaresan submitted that the need now projected is not the need of _**RCR No.76 of 2012**_ -:4:- the landlady or her husband, but the need is that of the people of Chervathur. Such needs are not contemplated under Section 11(3). Mr. Amaresan then submitted that though what is pleaded in the RCP is that the landlady and her husband intends to conduct a business in the petition schedule building, going by the evidence adduced by PW2, the business will be that of the landlady's husband. If that be so, it was obligatory on the part of the landlady to have pleaded that her husband is her dependent for the purpose of building. In the absence of any such pleading, the RCP is liable to be thrown out. 7. Reliance was placed by Mr.Amaresan to the judgment of the Supreme Court in _**Koyilerian Janaki and others v. Rent Controller (Munsiff), Cannannore, and others ((2000) 9 SCC 406)**_ . Mr.Amaresan then submitted that at any rate it is to be found that there is no genuineness in the need projected. There is not even an element of necessity in the need projected. It has come out in evidence that the landlady's husband PW3 is having so many other businesses in Kannur District. Apart from the business in plywood and allied products, the landlady's husband is having textile business also. Chervathur is a place ## _**RCR No.76 of 2012**_ -:5:- situated at a distance of 70 kilometres from the house of the landlady. It is too much to believe that the landlady will go all the way residing in her house in Kannur District to Cheruvathur for conducting business there. The appreciation of evidence by the statutory authorities, especially the Rent Control Appellate Authority is not at all proper. 8. Mr.Amaresan drew our attention to an observation in Rent Control Court's order that the need to conduct retail outlet for plywood business is a desire and wish of the landlady. Section 11(3) does not contemplate wishes and desires. 9. As requested by us, Mr. Amaresan placed before us the copy of the RCP and the statement of objections filed by the revision petitioners as well as the memorandum of Rent Control Appeal filed by the revision petitioners. We perused them. 10. We have given our anxious considerations to all the submissions addressed before us by Mr.Amaresan. We have carefully gone through the order passed by the Rent Control Court and the judgment of the Rent Control Appellate Authority. The only question which arises for consideration is whether there is warrant for invocation _**RCR No.76 of 2012**_ -:6:- of the revisional jurisdiction under Section 20 to interfere with the judgment of the Rent Control Appellate Authority. According to us, the above question can be answered only in negative. 11. We shall first deal with the argument of Mr.Amaresan advanced as the same is on the judgment of the Supreme Court in _**Koyilerian Janaki and others v. Rent Controller (Munsiff), Cannannore, and others ((2000) 9 SCC 406)**_ that the RCP should fail for want of pleadings regarding dependency. On going through the RCP, what we find is that the case pleaded is that the landlady and her husband together will conduct a retail outlet for plywood products in the petition schedule building. In other words, the business proposed is a business which will belong jointly to the landlady also. PW1, the landlady testified regarding the above need. PW3, the husband in chief examination, however stated that the proposed business will be his business. However, in cross examination it was brought out that the proposed business will be conducted by the landlady's husband and the landlady. In cross examination it was stated by the landlady's husband, PW3 that the landlady will be managing the business though later he _**RCR No.76 of 2012**_ -:7:- conceded that the landlady will not be available through out the day for managing the business and will be present in the shop room for a few hours in the day. 12. We went through the statement of objections. It is not seen pleaded even for a moment that the RCP should fall for want of pleadings regarding the husband's dependency over the wife. On the contrary, the statement of objections show that the tenant understood the case pleaded by the landlady as a case of need of doing business by the husband and wife jointly. 13. We have gone through the memorandum of appeal presented to the Rent Control Appellate Authority, in which five grounds are seen raised. Apart from one ground which pertains to the correctness of the eviction order passed under Section 11(2)(b), all other grounds pertain to the correctness of the findings entered by the Rent Control Court regarding the tenant's eligibility for protection of the second proviso. We do not find even a single ground urging that the RCP is liable to fall for want of pleadings regarding dependency. We find it is not open to the revision petitioners to urge before us for the first time in revision that the _**RCR No.76 of 2012**_ -:8:- RCP should fail for want of pleadings regarding husband's dependency over the wife. We find that no prejudice has been caused to the revision petitioner tenant due to the deficiency in the landlady's pleadings. 14. We should now remind ourselves of the well delineated contours of the jurisdiction under Section 20. In the present jurisdiction, we are not expected ordinarily to make a reappraisal of the pleadings and the evidence for substituting the conclusion on facts arrived at by the fact finding authorities. On going through the appellate judgment we find that the findings regarding the bonafides of the need and also regarding the tenant's eligibility for the protection of the second proviso, are reasonable findings having foundation in the evidence available on record. When reasonable findings on evidence are arrived at by the statutory fact finding authorities, we are not inclined to upset those findings by venturing upon reappraisal. In short, we do not find any warrant for interference. The revision fails. The same is dismissed. Mr. Amaresan, learned for the revision petitioners requested for atleast 18 months time to surrender the premises, in view of the special circumstances which had attained in this case. We _**RCR No.76 of 2012**_ -:9:- do not think that we will be justified in granting so much of time without issuance of notice to the landlady. We confirm the order of eviction. Issue urgent notice by speed post to the respondent to determine the extent of time to be given to the revision petitioners. sd/- **PIUS C. KURIAKOSE** **JUDGE** sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj