Kuthirapparambath Kadar @ Abdul Kadar K.P. v. Sreedharan N.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944** **RCREV. NO. 348 OF 2019** **AGAINST THE JUDGMENT DATED 01.03.2019 IN RCA NO.122 OF 2016 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY WHICH WAS FILED AGAINST THE COMMON ORDER IN RCP NO.146 OF 2007 DATED 16.01.2016 ON THE FILE OF THE RENT CONTROL COURT, THALASSERY** ## **REVISION PETITIONER/RESPONDENT/PETITIONER:** KUTHIRAPARAMBATH KADAR @ ABDUL KADAR K.P. AGED 43 YEARS S/O.MAMMU, SAMEENAS, ANIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT, KERALA STATE 670676 BY ADV R SURENDRAN ## **RESPONDENT/APPELLANT/RESPONDENT:** SREEDHARAN N.K. AGED 59 YEARS S/O.KRISHNAN, BUSINESS, NEELAKUNIYIL.P.O.PULLOOKARA, THALASSERY TALUK, KANNUR DISTRICT, KERALA STATE-670 676. BY ADVS. SRI.K.C.SANTHOSHKUMAR SRI.P.M.SATHEESH THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.No. 348 of 2019 2 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.No. 348 of 2019** **------------------------------------------Dated this the 13[th] day of December, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This rent control revision under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 01/03/2019 in R.C.A.No.122/2016 on the file of the Rent Control Appellate Authority (RCAA), Thalassery, which appeal is against the order dated 16/01/2016 in R.C.P.No.146/2007 on the file of the Rent Control Court (RCC), Thalassery. The revision petitioner is the respondent in the appeal and the petitioner in the R.C.P. The respondent herein is the appellant in the appeal and the respondent in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.146/2007 was filed by the petitioner-landlord claiming eviction under Section 11(3) of the Act. According to the petitioner he is the owner of the petition schedule building, which has been let out to the respondent on 08/08/1980 for a monthly rent of ₹120/-. The petitioner _bona fide_ wants the tenanted premises for starting a mobile phone business in the same. The respondent is not entitled to the benefit of second proviso to Section 11(3) of the Act. R.C.R.No. 348 of 2019 3 3. The respondent filed counter denying the need alleged and contended that it is a mere ruse for eviction. The petitioner is having several business and he is quite an affluent person and therefore there is no necessity for him to start a business as alleged in the petition. The respondent also contended that he is entitled to the benefit of the second proviso to Section 11(3) of the Act. 4. PW1 was examined and Exts.A1 to A3 were marked on the side of the petitioner. RW1 was examined and Exts.B1 to B6 were marked on the side of the respondent. The RCC, on an appreciation of the oral and documentary evidence and after hearing the parties, allowed the R.C.P. and ordered eviction under Section 11(3). R.C.A.No.122/2016 filed by the tenant has been allowed and the order of eviction of the RCC is set aside. Aggrieved, the petitioner-landlord has come up in revision. 5. The only point that arises for consideration is whether the findings of the RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Sri.R.Surendran, the learned counsel for the revision petitioner and Sri.K.C.Santhosh Kumar, the learned counsel for the respondent. 7. It is no doubt true that this Court sitting in revision cannot convert itself into an evidence collecting or fact finding court. The scope of interference by the revisional court is restricted to cases where the RCC or RCAA have relied on an irrelevant consideration, ignored valuable items of evidence or applied wrong principles of law. As held by the Constitution Bench in **Hindustan** R.C.R.No. 348 of 2019 4 ## **Petroleum Corporation Ltd. v. Dilbahar Singh, AIR 2014 SC 3708** _,_ a finding of fact recorded by the RCC or the RCAA if perverse, or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, then it is open to correction, because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the Act is entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself of the correctness or legality or propriety of any decision or order impugned before it. Therefore, we will consider whether findings recorded by the RCAA is in anyway perverse or has been arrived at without consideration of the material evidence or whether it has misread the evidence or whether the findings are grossly erroneous. 8. The RCAA has set aside the order of eviction granted by the RCC mainly on the ground that it is improbable for a person of the petitioner's profile/stature to start the proposed business in the tenanted premises. According to the RCAA - “ _So while appreciating the evidence, I am not convinced about the bona fides of the need urged by the appellant. Under no stretch of imagination it can be assumed that a person of his profile will conduct a petty mobile phone shop in this small petition schedule room. It is clear that the bona fide need urged is a ruse for evicting the appellant from the petition schedule room due to some other_ R.C.R.No. 348 of 2019 5 _reasons.......”_ It was submitted on behalf of the petitioner that this is no ground to reject the need put forward by the landlord. On the other hand, the learned counsel for the respondent submitted that there are no pleadings sufficient to attract the ground under Section 11(3). It was also pointed out by taking us through the testimony of the petitioner examined as PW1 that it is unbelievable that such a person, a millionaire, would start a business in the tenanted premises. 9. Pleadings and particulars are necessary to enable the Court to decide the rights of the parties in the trial. The purpose of pleadings and issues is to ascertain the real dispute between the parties and to narrow the area of conflict between them. In order to have a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. The parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate / higher Courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It is equally well settled that pleadings shall receive a liberal construction. No pedantic approach should be adopted to defeat justice on hair splitting technicalities. R.C.R.No. 348 of 2019 6 Pleadings must be construed reasonably. The contention of the parties must be culled out from the pleadings by reading the same as a whole. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with the strict interpretation of the law. In such a case it is the duty of the Court to ascertain the substance of the pleadings. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings. Then the Court must find out whether in substance, the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on the issues by producing evidence, it would not be open to a party to raise the question of lack of pleadings ( _**Ram Sarup Gupta v. Bishun Narain Inter College**_ **, 1987 KHC 965 : AIR 1987 SC 1242 : (1987) 2 SCC 555)** . 10. In **Bhagwati Prasad v. Shri Chandramaul, 1966 KHC 493 :** **AIR 1966 SC 735 : 1966 (2) SCR 286 : 1966 ALJ 799 : 1967 BLJR 158 : ILR** **1966 (1) All 796** , the Apex Court dealt with the principles to be followed whenever a contention of lack of pleadings is raised. It has been held that a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by it in its pleadings. But in considering the application of this doctrine to the facts of a case, it is necessary to bear in mind the principle that considerations of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by R.C.R.No. 348 of 2019 7 implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule, no doubt, is that the relief should be founded on pleadings made by the parties. But where substantial matters relating to both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings, would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another. Therefore, the enquiry should not be so much about the form of the pleadings as their substance. 11. With the aforesaid priciples in mind, let us consider the case on hand. Paragraph 4 of the R.C.P.No.146/2007 reads - “ _4. The petitioner bonafide wants to start a Mobile phone business in petitions schedule property. The petitioner have got financial capability and will to start_ R.C.R.No. 348 of 2019 8 _such business. The petitions schedule property is in Peringathur Town. The scope of the business is very high. The need of the petitioner is genuine and immediate. On 20-8-2007 the petitioner approached the respondent and made request to vacate the petitions schedule property and to surrender vacant possession of the same to the respondent. The respondent have got such other vacant buildings in the locality to start such business. The respondent is not depending upon the income derived from the said business. The petitioner have got much expense in the business and the petitioner bonafidely expect the successful business in petition schedule property. The respondent is not amenable to surrender vacate possession of the building to the petitioner.”_ This according to us, are sufficient pleadings to attract the ground under Section 11(3) of the Act. The respondent has no case that he had not understood the case that he had to answer or that because of the lack of pleadings, he was unable to properly defend the case. That being the position, the argument of lack of pleadings is only to be rejected. 12. It is true that the petitioner in this case appears to be quite welloff. His testimony shows that he has business in Bangalore as well as in Dubai. His evidence also shows that he is the owner of several high-end cars and that the said cars have fancy numbers. However, that is no ground to reject the need put forward in the R.C.P. Apart from the fact the petitioner is a millionaire, no other grounds have been shown to doubt the _bona fides_ of the need alleged by the petitioner. As held by the Apex court in **Sarla Ahuja v. United India Insurance Company Ltd., (1998) 8 SCC 119)** when the landlord asserts that he requires his building for his own occupation, the RCC shall not proceed on the presumption that the R.C.R.No. 348 of 2019 9 requirement is not _bona fide_ . When other conditions required are satisfied and when the landlord shows a _prima facie_ case, it is open to the RCC to draw a presumption that the requirement of the landlord is _bona fide_ . It was also pointed out on behalf of the respondent that the petitioner was in the custody of Directorate of Revenue Intelligence for a period of 28 days. It was also submitted that the petitioner is a smuggler and therefore his conduct is also to be looked into when the _bona fides_ of his need is considered. We disagree with this argument advanced by the learned counsel for the respondent-tenant. All such factors are immaterial in a proceeding under Section 11(3). The RCC had properly appreciated the evidence and ordered eviction. The RCAA on a misreading and a mis-appreciation of the evidence has wrongly interfered with the findings of the RCC, calling for an interference by this Court. In the result, the impugned judgment is set aside and the rent control revision is allowed. The order of the RCC is restored. The respondent shall vacate the tenanted premises within a period of one month from the date of this order. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **P.B.SURESH KUMAR JUDGE** **Sd/-** **C.S.SUDHA** **JUDGE** Jms/13.12