K.P. Alavi v. Jameela P.P. and others

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 13TH DAY OF JUNE 2013/23RD JYAISHTA 1935 RCRev..No. 10 of 2013 () ------------------------- AGAINST THE JUDGMENT IN RCA 125/2010 of II ADDL. RENT CONTROL APPELLATE AUTHORITY AND ADDL. D.C. KOZHIKODE- II DATED 22-12-2011 AGAINST THE ORDER IN RCP 40/2009 of RENT CONTROL COURT/ADDL.M.C.,KOZHIKODE-II DATED 27-10-2009 REVISION PETITIONER(S): -------------------------------------------- K.P.ALAVI AGED 72 YEARS ACCOUNTANT & TAX PRACTIONER 14/351 PALATT PARAMBA NEAR AKKARA PALLI PANNIYANKARA AMSOM AND DESOM KOZHIKODE TALUK BY ADVS.SRI.K.M.FIROZ RESPONDENT(S): ---------------------------- 1. JAMEELA.P.P., AGED 63 YEARS W/O.LATE S.M.MUHAMMED KOYA NISHEENI 23/1877 KANNANCHERI POST KALLAI PANNIYANKARA AMSOM & DESOM KOZHIKODE TALUK 673 019 2. P.P.SHANAVAS S/O.LATE S.M.MUHAMMED KOYA NISHEENI 23/1877 KANNANCHERI POST KALLAI PANNIYANKARA AMSOM & DESOM KOZHIKODE TALUK 673 019 3. P.P.SHABEEBA, AGED 37 YEARS D/O.LATE S.M.MUHAMMED KOYA NISHEENI 23/1877 KANNANCHERI POST KALLAI PANNIYANKARA AMSOM & DESOM KOZHIKODE TALUK 673 019 4. P.P.SHERNAS, AGED 33 YEARS S/O.LATE S.M.MUHAMMED KOYA NISHEENI 23/1877 KANNANCHERI POST KALLAI PANNIYANKARA AMSOM & DESOM KOZHIKODE TALUK 673 019 R1,R3 & 4 BY ADV. SRI.R.SUDHISH R1,R3 & 4 BY ADV. SMT.M.MANJU R1,R3 & 4 BY ADV. SRI.K.R.RANJITH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R. No. 10 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 13TH DAY OF JUNE, 2013** ## **O R D E R** ## Ramachandran Nair, J. This revision petition is at the instance of the tenant, aggrieved by the concurrent findings rendered by the Rent Control Court as well as by the Appellate Authority. 2. At the outset, learned counsel for the petitioner submitted that the original landlord died after the appeal was disposed of and therefore the said subsequent event has totally eclipsed the bonafide need pleaded. It is submitted that the deceased original landlord was a retired Professor from Calicut University and actually he wanted eviction of the petitioner tenant to start a publication and library unit for his purpose and for his mental satisfaction. It is also submitted that the finding by both the authorities regarding the plea under Section 11(3) is concentrated on the said need of the deceased original landlord. It is therefore submitted that the respondents who are the legal representatives, are not entitled to bank upon the same. 3. Learned counsel for the respondents submitted that the above RCR No.10/2013 -2- contention cannot be accepted in the light of the specific pleas raised by the original landlord in the eviction petition, the details spoken to by him in his evidence as P.W.1 and other factors. It is submitted that even in the lawyer notice sent by the landlord (Ext.A1) it has been clearly mentioned that the room is required for the purpose of augmenting income and for managing his family and also to start a publication unit with the help of his children. It is therefore submitted that the plea raised by the petitioner cannot be supported. 4. Learned counsel for the respondents further submitted that the petitioner waited for nearly one year for filing this revision petition after the judgment of the Appellate Authority dated 22.12.2001. The revision petition was filed only on 7.1.2013. The contention raised is that the tenant cannot take advantage of the death of the original landlord and deny the fruits of the litigation to the legal representatives. 5. First we will consider the pleadings raised by the original landlord. In Ext.A1 it is clearly stated that the schedule building is required for the landlord for starting a publication unit and library for the purpose of research students, mainly for managing the affairs of the family and that too RCR No.10/2013 -3- with the help of his sons and inlaws. In the eviction petition the crucial averments have been made in para 2. We extract hereinbelow the said paragraph: “2. The petitioner further adds that, the petitioner is in bonafide requirement of the petition schedule shop for own occupation so as to accommodate the publication and library unit which the petitioner intends to start at the premises. The petitioner is a retired History Professor at the Calicut University, the petitioner is also an author retaining a good library. The petitioner being actively involved in the said field receives several offers of publication. The students of the locality and elsewhere are closely associated with the petitioner in their research and other related activities. They are in need and in search of well equipped library and guidance. The petitioner's son by name Shanavas is also dependant on the petitioner as he does not have his own avocation. Petitioner's daughter byname Shemas, even though married, is not engaged in any activities. The petitioner intends to start the aforesaid business at petition schedule property as petitioner is to raise more funds to pull on with the family. The petitioner's experience, contacts and assistance of children in the field would make the proposed business a successful one. the intended publication unit is to take in a Data Text Processing system, Photocopier units, etc. The petitioner's son is also highly RCR No.10/2013 -4- skilled in such activities. The implementation and commencement of the business has a direct nexus to the prosperity and livelihood of the whole family. The petitioner has no other room sufficient to accommodate the business as aforesaid. The space required for occupying the intended business, can be accommodated at the space occupied by petition shop room and adjoining small vacant side room. The petitioner bonafide requires the petition schedule shop room for doing the above said business. The petitioner is having no other shop rooms sufficient and suitable to accommodate the business. The small side room adjacent to petition schedule shop now lying vacant is got vacated by the petitioner and petitioner retains the same with the cherished hope of commencing the above business.” It is clear from the above said paragraph that after pleading that the petitioner is a retired Professor from the Calicut University, is also an author retaining a good library. It is pleaded that his son Shanavas is also a dependent on him, as he does not have any avocation. His daughter Shemas, even though married, is not engaged in any activity. It is clearly stated that he wants to raise more funds to pull on the affairs of his family. Therefore, the averments go to show that there is clear projection about the requirement of the whole family also. RCR No.10/2013 -5- 6. Learned counsel for the petitioner highlighted mainly that the findings rendered by the courts below will show that the need of the original landlord alone has been found which itself will go against the pleas of the legal representatives. 7. We have gone through the orders passed by the Rent Control Court as well as by the Appellate Authority. In paragraphs 11 to 14 of the order passed by the Rent Control Court, various aspects have been discussed. The evidence adduced by the landlord show that he was working in Calicut University and has been a guide to Ph.D. students as well as a writer also. Even though the tenant contended that the son of the landlord was employed in Gulf, after referring to the admission of P.W.1 that his son was abroad till last year, the Court went on to accept the case of P.W.1 that what he requires is the help of the children and according to him, his son is well versed in computer printing. It was found that there is nothing wrong in the petitioner landlord accepting the help of his son and that the purpose is also for getting more income to the family to pull on. He was getting Rs.10,000/- as pension. The Court therefore finally held that from the available evidence the need of the petitioner (landlord) can be RCR No.10/2013 -6- considered as real as well as sincere. It is true that the landlord also pointed out that he will get mental satisfaction from doing the work of publication and library, but the same will have to be taken along with the other findings in the said paragraph. It is not a case where the business is proposed only for the mental satisfaction of the landlord as contended by the learned counsel for the petitioner. Mental satisfaction that is attributed is in doing the particular business, viz. library unit as well as publication and not any other business. 8. In the judgment of the Appellate Authority, in paragraphs 6 and 7 the relevant discussions have been made. True that the Appellate Authority observed that the main intention of the petitioner appears to be to get him engaged in some job to have happiness and mental peace after retirement. Merely because the discussion by the Appellate Authority had concentrated on the said aspect pointed out by the landlord, we cannot accept the plea raised by the learned counsel for the petitioner that both the authorities have only considered the requirement of the original landlord. 9. In a situation like this, what should be the proper test, has been laid down by various derisions of the Apex Court as well as that of this RCR No.10/2013 -7- Court. Of course, the subsequent event which will obliterate and eclipse the need pleaded, can have relevance. Herein, if the plea of the original landlord was only for starting a publication unit for his personal need alone and there was no averment in the petition with regard to the need of the dependents and other members of his family, this Court could have considered the argument raised by the learned counsel for the petitioner. But as we have already noticed, there are proper pleadings in the case with regard to the requirement to augment income for the family. It is in evidence that he was getting only Rs.10,000/- as pension. We will also refer to the chief affidavit wherein in para 3 he has stated that his son and his family and daughter are depended on him and has averred that the son has no job or income. He has further stated that he wants to start the business for looking after the affairs of his son, his own family and for his mental satisfaction and with the help of his children. Finally, it was also stated that his present income is not sufficient for meeting the demands of the whole family and the dependent son and he also wants to augment income of the family after unifying all the activities. 10. It is in this factual setting we will have to examine the RCR No.10/2013 -8- decisions of the Apex Court. First we will consider the decision of the Apex Court in **Seshambal v Chelur Corporation** (2010 (1) KLT 834). There the eviction petition was filed by the landlords, husband and wife. Finally, the husband passed away leaving his wife and three children. While the matter was pending before the Apex Court, the wife died and the three daughters of the landlords sought impleadment. Therein, the Apex Court noticed that the eviction petition was silent about the requirements of his family members. It was observed by the Apex Curt as follows: “If the deceased landlords had any dependent member of the family we may have even in the absence of a pleading assumed that the requirement pleaded extended also to the dependent member of their family.” The above decision was considered by this Court in a similar context, in **Chellarowthar v. Remabhai and others** (2011 (10) KHC 666). After considering the decision in **Seshambal's case** (supra), this Court after going through the pleadings in the said case, in para 6 held as follows: “Bearing in mind the principles adumbrated in the aforesaid decisions it has to be now seen whether the need projected by the original landlord was only of his own need or of his family RCR No.10/2013 -9- members also. It was stated in the pleadings that he was getting only a meagre income from his pension which was insufficient for eking out the livelihood of himself and his family members and so he intends to conduct a stationery business in the petition schedule building. In evidence it was further stated that his eldest son was unemployed and for eking out the livelihood of the family the stationery business has to be conducted. Therefore, the argument advanced by the learned counsel for the revision petitioner that the need ceased on the death of the landlord does not appeal to us.” We find that the situation herein is also similar. 11. The other decision relied upon by the learned counsel for the respondents is **Sumathi T.K. and others v. Kundandavida Rabia** and others (2012 (1) KHC 589). Therein while interpreting Section 11(3) of the Act, it was held that eviction can be sought for either landlord's own occupation or for is family members dependent on him. The Bench had also examined the question whether after the death of the landlord the legal representatives can proceed with the petition. It was held hat they can proceed provided that the need projected by he landlord for his occupation must continue after the death of the landlord for the occupation of any RCR No.10/2013 -10- member of his family dependent on him at the time of death. The above dictum is relied upon by the learned counsel for the petitioner to support the plea that herein the deceased landlord had only tried to establish his own personal need and not the need of any dependent member of the family. 12. In the light of the discussion already made by us above, after adverting to the pleadings as well as the evidence of the original landlord as P.W.1, the said contention cannot be accepted as there is clear plea in the eviction petition and he had given evidence as P.W.1 that he bonafide required the petition schedule room for augmenting of the income of the whole family including his dependent son and family. 13. One of the decisions relied upon by the learned counsel for the respondent is **Kedar Nath Agrawal (dead) and another v. Dhanraji Devi (dead) by Lrs. And another** {(2004) 8 SCC 76}. The same is relied upon to point out that the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. 14. According to the learned counsel for the respondent, subsequent RCR No.10/2013 -11- events may have relevance, and the Apex Court has laid down in para 16 as to how the subsequent events can be considered We extract para 16 hereunder: “16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A court of law may take into account subsequent events _inter alia_ in the following circumstances: (i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) it is necessary to take notie of subsequent events in order to shorten litigation; or (iii) it is necessary to do so in order to do complete justice between the parties. (Re _Shikharchand Jain v. Digamber Jain Praband Karini_ RCR No.10/2013 -12- **==> picture [181 x 14] intentionally omitted <==** In that case also the original landlord died during the pendency of the litigation. It is submitted that the death of the landlord has not eclipsed the need pleaded. 15. Another decision relied upon by the learned counsel for the respondent is **Gaya Prasad v. Pradeep Srivastava** (2001 (1) KLT 753SC) wherein also it was held that the crucial date for deciding as to the bonafides of the requirement of the landlord is the date of his application for eviction. It was further held that the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded should have been completely eclipsed by such subsequent events. 16. Another important decision sought to be relied upon by the learned counsel for the respondent is **Shakuntala Bai and others v. Narayan Das and others** {(2004) 5 SCC 772}. Therein, the Apex Court was of the view, on the facts pleaded in the said case, that the death of the original landlord during the pendency of the appeal preferred by the tenant, will make no difference as his heirs are fully entitled to defend the estate. RCR No.10/2013 -13- Paragraphs 10 and 11 of the said judgment reiterated the above principles in the following manner: “10. The effect of death of a landlord during the pendency of the proceedings has been considered in several decisions of this Court. In _Smt. Phool Rani v. Naubat Rai Ahluwalia_ AIR 1973 SC 2110, the landlord filed an ejectment application under Section 14 (1)(e) of the Delhi Rent Control Act and eviction of the tenant was sought on the ground that the premises were required by the plaintiff "for occupation as a residence for himself and members of his family". The Additional Rent Controller dismissed the application on a preliminary ground that the notices to quit were not valid, without examining the case on merits. The plaintiff died during the pendency of the appeal preferred by him and his heirs were substituted. The case was remanded and the Rent Controller passed an order of eviction. In appeal a contention was raised that the right to sue did not survive to the heirs of the plaintiff, which was rejected by the Rent Control Tribunal but was accepted in appeal by the High Court. This Court held that different result may follow according to the stage at which the death occurs. One of the situations considered in para 13 of the reports is as under : "13. (i) cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour, say, during the RCR No.10/2013 -14- pendency of an appeal filed by the unsuccessful tenant." 10.1 With regard to this category of cases it was held that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and, therefore, the legal representatives are entitled to defend further proceedings, like an appeal, which constitute a challenge to that benefit. Even otherwise this appears to be quite logical. In normal circumstances after passing of the decree by the trial Court, the original landlord would have got possession of the premises. But if he does not and the tenant continues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate court. In such a situation, the well known maxim _'actus curiae neminem gravabit'_ that 'an act of the court shall prejudice no man' shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower Court had decided the matter and had passed the decree for eviction. However, in regard to the case before the Court it was held that the requirement pleaded in the ejectment application on which the plaintiff founded his right to relief was his personal requirement and such a personal cause of action must perish with the plaintiff. On this ground it was held that the plaintiff's right to sue will not survive to his heirs and they cannot take the benefit RCR No.10/2013 -15- of the original right to sue. 11.In _Shantilal Thakordas v. Chimanlal Maganlal Telwala_ , 1976 (4) SCC 417, a larger Bench overruled the decision rendered in _Phool Rani v. Naubat Rai Ahlu-walia_ (supra) in so far it held that the requirement of the occupation of the members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The Court took the view that after the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and occupation of the other members of the family. Thus, this decision held that the substituted heirs of the deceased-landlord were entitled to maintain the suit for eviction of the tenant. The ratio of this decision by larger Bench does not in any manner affect the view expressed in _Phool Rani_ (supra) that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to them under the decree. In fact, the ratio of _ShantilalThakordas_ (supra) would reinforce the aforesaid view. There are several decisions of this court on the same line. In _Kamleshwar Prasad v. Pra-dumanju Agarwal_ , 1997 (4) SCC 413, it was held that the need of the landlord for premises in question must exist on the date of application for RCR No.10/2013 -16- eviction, which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom. Even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son. In _Gaya Prasad v. Pradeep Sri-vastava,_ 2001 (2) SCC 604, it was held that the crucial date for deciding as to the bona fides of requirement of landlord is the date of his application for eviction. Here the landlord had instituted eviction proceedings for the bona fide requirement of his son who wanted to start a clinic. The litigation continued for a long period and during this period the son joined Provincial Medical Service and was posted at different places. The subsequent event i.e. the joining of the service by the son was not taken into consideration on the ground that the crucial date was the date of filing of the eviction petition. Similar view has been taken in _G. C. Kapoor v. Nand Kumar Bhasin,_ 2002 (1) SCC 610. Therefore, the legal position is well settled that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate.” In para 16 of the judgment, the fact that the plaint had been amended to RCR No.10/2013 -17- project the need of the sons, was noticed, and it was held that the view of the High Court that the suit has to be dismissed, is not legal. The principles stated in **P.V. Papanna v. K. Padmanabhaiah** (AIR 1994 SC 1577) is also to the above effect. 17. As far as the special facts of this case are also concerned, as we have already noticed, there are clear pleadings on the part of the landlord in the petition itself that the business is proposed to be started for his own purpose as well as for the members of his family who are dependent on him, viz. his son and family and daughter. He also wanted to augment the income for the whole family. 18. In the light of the above, we cannot accept the plea raised vehemently by the learned counsel for the petitioner that as the findings of both the authorities below have concentrated on the particular need of the landlord, the legal representatives will have to be non suited. 19. We have already noticed that the original landlord died after the disposal of the appeal by the Appellate Authority. As already held above, unlike a case where there was no plea by the landlord with regard to the requirements of any of the members of his family, herein, sufficient grounds RCR No.10/2013 -18- are there. Section 11(3) of the Act also provides that the landlord can file application for eviction for his own occupation or for the occupation by any member of his family dependent on him. This legal requirement also has been satisfied in this case and therefore we reject the contention of the learned counsel for the petitioner. 20. With regard to the applicability of the second proviso to Section 11(3) also, the findings are against the tenant. It is clear from the pleadings that the tenant is carrying on his profession as Tax Consultant and Accountant. But no evidence has been adduced to show that he is depending mainly on the income derived from the business conducted in the petition schedule building. With regard to the availability of other rooms in the locality as provided in the second limb of the second proviso also, the evidence has gone against the tenant. We do not find any reason to interfere with the orders impugned and accordingly, the revision petition is dismissed. Even though learned counsel for the revision petitioner sought for a larger time to vacate the premises, we find that after the order passed by the Appellate Authority, already one year has gone. Therefore, we grant time RCR No.10/2013 -19- upto 31.10.2013 for the tenant to vacate the premises. The same will be subject to the following conditions: i) The entire arrears of rent as on today will be paid/deposited within one month. If deposit is made, the same will be disbursed to the respondents; ii) An affidavit will be filed by the petitioner before the Rent Control Court undertaking to vacate the premises on or before the time stipulated by this Court, within one month from today. iii) Since the rent being paid is only Rs.100/- per month, for the use and occupation of the building upto the date on which the tenant vacates the same, he will pay at the rate of Rs.500/- per month. iii) If the above conditions are not satisfied, the petitioner will not get the benefit of this order. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** k **av/**