K.T. Sreelatha Nambiar v. P.V. Rajeevan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938 RCRev..No. 132 of 2015 -------------------------- AGAINST THE JUDGMENT IN RCA 43/2013 of ADDL.D.C.-1,THALASSERY DATED 13.02.2015 AGAINST THE JUDGMENT IN RCP 14/2011 of MUNSIFF COURT, THALASSERY REVISION PETITIONER/RESPONDENT/PETITIONER: -------------------------------------------- K.T. SREELATHA NAMBIAR, W/O.K.T.R NAMBIAR,RESIDING AT NO.37,JAWAHARLAL NEHRU ROAD,CALCUTTA,NOW RESIDING AT "SRISHTA", PANCHIMANPATTY ROAD,IRUTTPALAM,KARUNYA NAGAR P.O,COIMBATORE 641 114 BY ADVS.SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH SMT.DENNIS VARGHESE RESPONDENT/APPELLANT/RESPONDENT: -------------------------------- P.V. RAJEEVAN S/O.KUNHAPPA,BARBER,PADMANAB,OPP.TOWN HALL,THIRUVANGAD AMSOM,DESOM,CHIRAKKARA, THALASSERY TALUK 670 101 R1 BY ADV. SRI.C.KHALID R1 BY ADV. SRI.N.GOPINATHA PANICKER R1 BY ADV. SRI.N.A.JOSEPH R1 BY ADV. SRI.T.P.SAJID R1 BY ADV. SRI.K.P.MOHAMED SHAFI R1 BY ADV. SMT.K.S.HASEENA R1 BY ADV. SMT.K.REEHA KHADER R1 BY ADV. SRI.PHIJO PRADEESH PHILIP R1 BY ADV. SMT.K.K.NESNA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25-08-2016, ALONG WITH RCR. 133/2015, RCR. 134/2015, RCR. 135/2015, RCR. 136/2015, RCR. 137/2015, THE COURT ON 08-09-2016 PASSED THE FOLLOWING: ## **THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ.** = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = ## **R.C.R.Nos.132, 133, 134, 135,136 & 137 of 2015** = = = = = = = = == = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of September, 2016 ## O R D E R ## **Anu Sivaraman,J.** 1.These rent control revisions are filed by the landlady against common judgment in R.C.A.Nos.43, 47, 48, 49, 50 and 51 of 2013 of the Rent Control Appellate Authority/Additional District Judge-I, Thalassery. The revision petitioner had preferred R.C.P.Nos.13, 12, 14, 15, 16 & 56 of 2011 before the Rent Control Court seeking eviction of respective tenants under Sections 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act,1965 (hereinafter referred to as 'Act 2 of 1965'). The Rent Control Petitions were tried together and the petitions were allowed on both the grounds. In appeals preferred by the respective tenants, by a common judgment dated 13.02.2015, the Rent Control Appellate Authority, reversed the order of eviction. Hence these revision petitions. Since the issues raised are common, parties are referred to herein as they are arrayed in R.C.R.No.136 of 2015. 2 _RCR.132/15 & con.cases_ 2.In the rent control petitions, the contention of the petitioner/landlady was that the petition schedule building belonged to Sreedevi Amma and she leased out the premises to the respondents in the Rent Control Petitions on monthly rent. Sreedevi Amma died and the right of Sreedevi Amma devolved upon the revision petitioner as per a registered Will. After the death of Sreedevi Amma, the respondents in these rent control petitions attorned the tenancy in favour of the revision petitioner. The petition schedule building is old and dilapidated. The petitioner intends to construct a residential cum commercial complex in the place of the existing building and a plan for the proposed construction is approved by the Municipality. The husband of the petitioner is now working as Vice President of ITC at Calcutta. He intends to retire from service, settle down at Thalassery and start professional consultancy services and coaching centre for Chartered Accountancy students. So, the existing old building has to be demolished and a new residential cum commercial building has to be constructed in its place to suit the needs of the husband of the revision petitioner. The _RCR.132/15 & con.cases_ 3 2[nd] floor of the proposed building is to be used for residential purpose and the 1[st] floor is to be used as office room, room for staff, room for conducting classes and room for visitors. The petitioner needs to demolish the existing building and construct a new building to suit the bona fide need of the husband of the petitioner. There are other rooms available in the locality for shifting the business now conducted by the respondents in the petition schedule shop rooms. Moreover, the respondents in these RCPs are having possession of other rooms for doing the business now conducted in the petition schedule premises. On these pleadings, eviction was sought under Sections 11(3) and 11 (4)(iv) of Act 2 of 1965. - 3.The respondents admitted the title and tenancy. They contended that there is no serious damage to the existing building and there is no need for construction of a new building. The existing building is only 35 years old. A portion of the existing building was acquired by the Government for widening of the road. The petitioner had _RCR.132/15 & con.cases_ 4 obtained the plan approved by the Municipality before acquisition proceedings. As per the present Building Rules, no residential building or commercial complex could be constructed at the place where the present building is situated after leaving the road margin. No vacant rooms are available in the locality for shifting the business now conducted in the petition schedule building. The respondents are depending upon the income derived from the business conducted in the petition schedule premises. The petitioner has got other buildings of her own and it could be used for the proposed purpose. The petitioner can construct the proposed building in that area without demolishing the existing building. There is no intention for the husband of the petitioner to come over to Thalassery and settle down. He is getting pension and his children are well off. So, there is no need for starting a professional consultancy of his own. The intention of the petitioner is to evict the respondents and to sell the property to strangers. So, the petitioner is not entitled to get any order of eviction as claimed by her. 5 _RCR.132/15 & con.cases_ 4.The revision petitioner's husband was examined as PW1 and Exts.A1 to A15 were marked. Ext.C1 Commissioner's report was marked. Along with the rent control petition, Exhibit A12 plan showing the plot with the petition schedule building and the place of proposed construction was produced. After considering the evidence on record, the Rent Control Court came to the conclusion that the petition schedule building stands just in front of the proposed construction and without demolishing the petition schedule building, the landlady cannot make use of the proposed building. It was further found that a tenant, examined as RW1, had deposed that for the purpose of providing entrance from Tellicherry-Coorg road, the petition schedule building has to be demolished. It was further found that the bona fide need of the landlady being established, there is no need to wait until the building becomes irreparable or about to collapse to undertake a demolition or reconstruction of the same. In the above circumstances, the rent control petitions were _RCR.132/15 & con.cases_ 6 allowed under Sections 11(3) and 11(4)(iv) of the Act 2 of 1965 and the tenants were directed to surrender vacant possession within one month. 5.The tenants took up the matter in appeal, contending that there is no need for demolishing the building in which they have their respective tenanted premises for the proposed reconstruction. It was urged that going by the evidence of the husband of the landlady as PW1 and Exhibit A12 site plan, the building, where the petition schedule premises are situated, is outside the area where the new building is proposed to be constructed. The new building, as proposed, can be constructed without disturbing the building in which the shop rooms are situated. Apart from the oral evidence of PW1 that demolition is necessary for providing car parking and for convenient access from the main road, such facts are absent in the pleadings. 6. On re-appreciation of the evidence and the pleadings and materials on record, the Appellate Court came to the _RCR.132/15 & con.cases_ 7 conclusion that the need stated by the petitioner in the rent control petitions is not supported by the evidence of PW1 or the other materials on record. It was held that the petitioner cannot be allowed to project a case different from what was set up in the pleadings at the time of evidence. It was therefore held that the bona fide need projected in the rent control petition that the existing building is to be demolished for the construction of the new residential cum commercial building in the property is not proved. The further ground of eviction under Section 11(4)(iv) of Act 2 of 1965 was also found against and the appeals were allowed and the rent control petitions were dismissed. - 7.Heard Sri.M.Ramesh Chander, learned Senior Counsel for the revision petitioner and Sri.T.P.Sajid, learned counsel for the respondents. - 8.The learned counsel for the revision petitioner would submit that the Rent Control Court as well as the Appellate Court have specifically found that the bona fide need projected in _RCR.132/15 & con.cases_ 8 the rent control petitions is genuine and cannot be doubted. The plan approved by the local authority for the construction of a three storied commercial cum residential building on the property had been produced along with the rent control petitions and had been duly proved. The case of the revision petitioner that the existing building is to be demolished for getting access from the Tellicherry-Coorg road is clearly borne out from Exhibit A12 plan and is spoken to by PW1 and admitted by RW1 in his deposition, it is submitted. The pleadings are adequate to indicate the bona fide need. The contention of the revision petitioner having been properly understood by the respondents, the deficiency in pleadings could not have been relied upon by the appellate authority to reverse the finding of bona fide need entered by the Rent Control Court. 9.In support of this contention the learned counsel would place reliance on the decision reported in **Ram Narain Arora v. Asha Rani and others** [(1999) 1 SCC 141] wherein it was held that deficiency or vagueness in _RCR.132/15 & con.cases_ 9 pleadings would not be fatal if both parties understood what the case pleaded was and accordingly placed materials before the court and neither party was prejudiced. It was further contended that once bona fide need was found by the Rent Control Court on the basis of reliable legal evidence, the matter ought to have rested there and the reappreciation of pleadings and evidence to see whether such need had been properly projected in the petition was not called for. The decision of a division bench of this Court reported in **George Varghese v. Ammini Cherian** [ILR 1996 (1) (Ker) 177] is relied upon to contend that when a landlady applied for eviction under Sections 11(3) and 11(4) (iv) and the ground under Section 11(3) is found by the Rent Control Court, there is no need to proceed to the consideration under Section 11(4)(iv) of Act 2 of 1996. The bona fide need for construction of a residential cum commercial building being established, the demolishing of the existing building for the proper utilisation of the new building was an essential corollary and the finding of the Rent Control Court ought not to have been interfered with _RCR.132/15 & con.cases_ 10 the rent control authority, it is contended. The decision of this Court in **Ponan Krishnan v. Bharathan** [2013 (2) KLT 450] is relied upon to contend that there was no necessity for producing the plan in a case where the grounds raised are under Sections 11(3) and 11(4)(iv) of Act 2 of 1965. 10.The learned counsel appearing for the respondents, on the other hand, would submit that the entire focus of the pleading in the rent control petitions was under Section 11 (3) of the Act 2 of 1965. The pleading was to the effect that the demolition of the existing building is necessary for the construction of a new commercial cum residential building. However, Exhibit A12 plan which was produced by the revision petitioner showed that such demolition is not necessary for putting up the construction of the new building as proposed therein. The husband of the landlady who was examined as PW1 deposed that the demolition is necessary for giving road frontage and access to the building and also for providing adequate car parking. Even if the said facts were true, such a need was not part of the _RCR.132/15 & con.cases_ 11 pleadings and the reliance placed by the rent control court on the oral evidence to grant eviction under Section 11(3) was therefore totally misdirected, it is submitted. The findings in the appeal are therefore completely in order and the revision petitions are liable to be dismissed. 11.We have considered the rival contentions in detail and have perused the pleadings and the materials on record. It is clear that the revision petitioner had only pleaded that the demolition of the existing building is necessary for putting up the proposed construction as per Exhibit A12 plan. This was specifically denied by the tenants and it was contended that the demolition is not necessary for putting up the building even going by Exhibit A12. However, the Rent Control Court had relied on the evidence of PW1 to find that the demolition is necessary to give convenient access to the proposed building from the main road as also for convenient parking of vehicles taking into account the purpose for which the commercial part of the building was proposed to be put, going by the pleadings and evidence of PW1. _RCR.132/15 & con.cases_ 12 12.It is true that the nature of the need projected by PW1 in his evidence does not form a part of the rent control petitions. However, it is also admitted by the parties that the entire plot including the proposed building as well as the existing building in which the premises of the tenants are situated has an extent of only about 12 cents. The plot has road access on two sides. It is the common case of the parties that going by Exhibit A12 plan, frontage onto Thalassery -Coorg road would be possible only if the existing building were to be pulled down. A contention is also raised as regards the pendency of acquisition proceedings over a portion of the property and it is stated in evidence that a peg mark is seen affixed on the staircase portion of the existing building. 13.On a consideration of the contentions of the parties, we are of the opinion that the Rent Control Appellate Authority, on coming to a conclusion as to the deficiency of pleadings ought to have given the parties an opportunity to join issues on proper pleadings to be placed on record. In the nature of the _RCR.132/15 & con.cases_ 13 dispute between the parties and the admissions made by the respective parties before the original authority, the landlady was clearly entitled to an opportunity to rectify the deficiency in the pleadings before the Rent Control Court. In the above circumstances, we are of the opinion that this is a fit case where the revision petitioner/landlady should be given an opportunity to amend her pleadings appropriately so that a proper adjudication of the issues involved in the matter is made possible. For this purpose, we set aside the common judgments in Rent Control Appeals as also the Rent Control Petitions and remand the matter to the Rent Control Court for fresh consideration. The revision petitioner shall be allowed to suitably amend the rent control petitions and the matter shall be considered afresh by the Rent Control Court after such due process as may be found necessary. The nature of the acquisition proceedings, if any, on the property and the element of holding of any property or rights by the Government shall also be considered by the Rent Control Court. The parties shall mark appearance before the Rent Control Court on 3.10.2016. _RCR.132/15 & con.cases_ 14 These Rent Control Revision Petitions are ordered accordingly. There will be no order as to costs. sd/- **Thottathil B. Radhakrishnan, Judge** sd/- **Anu Sivaraman,Judge** sj /True Copy/ P.A. to Judge