Nandakumari v. Ajay Kumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE 24TH DAY OF FEBRUARY 2014/5TH PHALGUNA, 1935 ## **RCRev..No. 425 of 2012 (B)** AGAINST THE JUDGMENT DATED 26-08-2011 IN RCA.NO.11/2009 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY, PALAKKAD WHICH WAS AGAINST THE ORDER DATED 25.11.2008 IN RCP.NO. 28/2008 ON THE FILE OF THE RENT CONTROL COURT, PALAKKAD. REVISION PETITIONER: APPELLANT: PETITIONER: -------------------------------------------- NANDAKUMARI, AGED 65 YEARS, W/O.MADHAVAN, MELEVEEDU, KADAKURUSSI KANNADI AMSOM, PALAKKAD. BY ADV. SRI.BINOY VASUDEVAN RESPONDENT: RESPONDENT: RESPONDENT: ---------------------------- AJAY KUMAR, S/O.LAKSHMANAN, CHELAKKAD, KADAKURRUSSI KANNADI AMSOM, PALAKKAD 678 101. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K.T.SANKARAN & P.UBAID, JJ. ---------------------------------------------------R.C.R. NO. 425 OF 2012 (B) ---------------------------------------------------Dated this the 24[th] day of February, 2014** ## **O R D E R** ## **Ubaid, J.** The concurrent findings of the Rent Control Court and the Appellate Authority against the landlady are under challenge in this revision brought by the landlady under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). She filed R.C.P.No.28 of 2008 before the Rent Control Court (Munsiff's Court), Palakkad, under Sections 11(2)(b), 11(3), 11 (4)(ii) and 11(4)(v) of the Act. Pending the proceedings, the claim under Section 11(2)(b) was abandoned by the landlady. Her case is that she requires the petition schedule building for her son to start a business of his own, that the tenant has caused material damage to the building by his careless user, and the tenant has ceased to occupy the building for more than six months. ## **R.C.R. NO. 425 OF 2012 (B)** :: 2 :: 2. The tenant/respondent herein entered appearance and filed counter statement making a total denial that he has not ceased to occupy the premises, that he has not caused any sort of damage to the building, that the landlady does not require the building for any business purpose of her son, and that the present application brought on a claim of bona fide need is a ruse for eviction. 3. During trial, two sons of the landlady were examined and Exhibits A1 to A3 were marked on the side of the landlady. The respondent was examined as RW1. On an appreciation of the evidence and materials, the Rent Control Court found that the tenant has, in fact, not caused any damage to the building, and that he has not ceased to occupy the tenanted premises. On the claim under Section 11(3) of the Act, the Rent Control Court found, that in the absence of necessary pleadings specifying and explaining the nature of the need projected in the petition, a decision cannot be taken by the Court. Accordingly, the trial court dismissed the eviction petition, by order dated 25.11.2008. 4. The landlady brought appeal before the Rent Control ## **R.C.R. NO. 425 OF 2012 (B)** :: 3 :: Appellate Authority (District Court, Palakkad) as R.C.A.No.11 of 2009. The Rent Control Appellate Authority concurred with the trial court and found no scope for interference on any of the grounds for eviction. Accordingly, the appeal was dismissed by judgment dated 26.8.2011. Now the landlady is before this Court with the contention that she has adduced sufficient evidence to prove her claim, and that her pleading contains the necessary details required under Section 11(3) of the Act. 5. As regards the prayer under Section 11(4)(v) of the Act, we find, on evidence, especially the report of the Advocate Commissioner, that the tenant has not, in fact, ceased to occupy the premises. Admittedly, the business being conducted by the tenant is a business of scrap materials. Such materials could be found in the premises by the Advocate Commissioner, and there is nothing to indicate cessation of occupation. The tenant is also definite in his evidence that he has not ceased to occupy the premises, and that he has actually been conducting business in the premises. We find that the said concurrent finding does not require any interference in revision. ## **R.C.R. NO. 425 OF 2012 (B)** :: 4 :: 6. As regards the ground alleged under Section 11(4)(ii) of the Act, we find that the landlady has not produced any material to prove any sort of damage caused to the building at the hands of the tenant. In the petition or in evidence, the landlady has not explained the nature of damage alleged in the petition. PW1 and PW2 also did not give any satisfactory evidence regarding the alleged damage caused to the building. We find that the said finding of the two authorities below is also right, and we do not find any scope for interference in revision. 7. Now, we have to come to the ground of bona fide need under Section 11(3) of the Act. Of course, the landlady has stated in her eviction petition that she requires the building for her son to start a business of his own. PW2 is said to be the son for whose purpose the landlady seeks eviction. Of course, PW2 has given evidence that he has decided to start a business of his own. We find from the report of the Advocate Commissioner that the Commissioner was, in fact, confused as to who exactly is the son or for whose purpose the landlady seeks eviction. He was, in fact, confused whether it is ## **R.C.R. NO. 425 OF 2012 (B)** :: 5 :: PW1 or PW2. Any way, PW2 came forward with a claim that it is for his purpose the mother seeks eviction. 8. Eviction under Section 11(3) of the Act was disallowed by the Rent Control Court and also by the Appellate Authority, on the ground that the pleading does not contain the necessary details for taking a decision on the question of bona fide. In the petition, the landlady has only casually stated that she requires the building for her son to start a business of his own. It has come out in evidence that she has three sons. She has not specified in the petition, who the said son is, for whose purpose she wants eviction. When the landlady does not tell the name of the son, it will definitely cause prejudice to the tenant because the tenant will have to take effective defence as to whether the said son has any bona fide need or whether the said son has any building of his own for the proposed business. When the tenant is not in a position to make effective defence on the claim of bona fide need, and when the landlady has not provided the necessary details by way of pleadings to take a just decision under Section 11(3) f the Act, the only course possible for the trial court and the Appellate Authority was to disallow the claim. ## **R.C.R. NO. 425 OF 2012 (B)** :: 6 :: 9. The trial court has referred to the decision of this Court in **Mohammed Sageer** v. **Prakash Thomas** : **2005 (2) KLT 400** . In the said decision, this Court has held that contentions which do not find a place in pleadings before the trial court, raised for the first time in revision, cannot be accepted by the Court. We find that the tenant in this case was not in a position to make an effective defence, in the absence of necessary details in the pleadings of the landlady regarding the son for whose purpose eviction is sought, regarding the nature of business, and regarding the other circumstances of the said son for whom eviction is sought. We find that decision was rightly made by the two authorities below and that eviction was rightly disallowed under Section 11(3) of the Act. We find no scope for interference in the findings of the two authorities below on the ground of any illegality, irregularity or impropriety. However, we would like to observe that this decision will not preclude the landlady from bringing another application for eviction with necessary and sufficient pleadings, on change in circumstances, on the grounds available under law. ## **R.C.R. NO. 425 OF 2012 (B)** :: 7 :: In the result, this Rent Control Revision is dismissed. The parties will bear their respective costs. **(K.T.SANKARAN) Judge** **(P.UBAID) Judge** ahz/