Nellerichalil Govindan (deceased) and others v. Thundikkoth Nuchunthodi Bharathan (deceased) and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 RCRev..No.356 of 2006(B) -----------------------------RCA.13/1997 of PRL. DISTRICT COURT, THALASSERY RCP.204/1995 of ADDL. RENT CONTROL COURT (ADDL. MUNSIFF), KANNUR .................... ## REVISION PETITIONERS/APPELLANTS/PETITIONER: --------------------------------------------------------- 1. NELLERICHALIL GOVINDAN (DIED), S/O.KELAN, AGED 66 YEARS, OCCUPATION NIL, RESIDING AT VALIYANNUR AMSOM, VARAM DESOM, KANNUR TALUK. ## SUPPL.APPELLANTS/REVISION PETITIONERS 2. K.K. JANAKI, W/O.LATE GOVINDAN, AGED 67 YEARS, NO OCCUPATION, RESIDING AT SAJEEV NIVAS, VALILYANNUR AMSOM, VARAM DESOM, KANNUR TALUK. 3. K.N. USHA, D/O.LATE GOVINDAN, AGED 48 YEARS, NO OCCUPATION, RESIDING AT SAJEEV NIVAS, VALIYANNUR AMSOM, VARAM DESOM, KANNUR TALUK. 4. K.N. RAJINI, D/O. LATE GOVINDAN, AGED 45 YEARS, NO OCCUPATION, RESIDING AT SAJEEV NIVAS, VALIYANNUR AMSOM, VARAM DESOM, KANNUR TALUK. 5. K.N. RAJEEVAN, S/O.LATE GOVINDAN, AGED 43 YEARS, BUSINESS, RESIDING AT SAJEEV NIVAS, VALIYANNUR AMSOM, VARAM DESOM, KANNUR TALUK. 6. K.N. SAJEEVAN, S/O.LATE GOVINDAN, AGED 36 YEARS, ELECTRICIAN, RESIDING AT SAJEEV NIVAS, VALIYANNUR AMSOM, VARAM DESOM, KANNUR TALUK. RCRev..No.356 of 2006(B) -2- 7. K.N. SHAJAN, S/O. LATE GOVINDAN, AGED 34 YEARS, NO OCCUPATION, RESIDING AT SAJEEV NIVAS, VALIYANNUR AMSOM, VARAM DESOM, KANNUR TALUK. BY ADV. SRI.C.KHALID SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID [SUPPL. APPELLANTS 2 TO 7 BEING THE LRs OF DECEASED APPELLANT (NELLERICHALIL GOVINDAN) IMPLEADED AS PER ORDER ON I.A. NO.88/2004 AND AMENDED AS PER ORDER ON I.A. NO.90/04 DATED 25/01/2005] RESPONDENT(S)/RESPONDENTS/RESPONDENT: ----------------------------------------------------- 1. THUNDIKKOTH NUCHUNTHODI BHARATHAN (DIED) SUPPL.RESPONDENTS: 2. P.N. RENUKA, W/O.BHARATHAN, AGED 45 YEARS, OCCUPATION NIL, RESIDING AT VALIYANNUR AMSOM, DESOM, KANNUR TALUK. 3. SON P.N. SANOOP, AGED 28 YEARS, OCCUPATION NIL, (DIED) RESIDING AT VALIYANNUR AMSOM, DESOM, KANNUR TALUK. 4. BROTHER P.N. SANIL, AGED 26 YEARS, OCCUPATIONA NIL, RESIDING AT VALIYANNUR AMSOM, DESOM, KANNUR TALUK. 5. BROTHER P.N. SAJITH, AGED 24 YEARS, OCCUPATIONA NIL, RESIDING AT VALIYANNUR AMSOM DESOM, KANNUR TALUK. 6. SISTER P.N. SHITHA, AGED 22 YEARS, OCCUPATION NIL, RESIDING AT VALIYANNUR AMSOM, DESOM, KANNUR TALUK. [SUPPL. R2 TO 6 ARE THE L.R.S OF DECEASED 1ST RESPONDENT (BHARATHAN) IMPLEADED AS PER ORDER ON I.A. NO.1357/99 AND AMENDED AS PER ORDER ON I.A. NO.1358/99 DATED 22/11/1999] RCRev..No.356 of 2006(B) -3- SUPPL.7 SHAMNA C.P., W/O LATE SANOOP. AGED 23 YEARS, OCCUPATION NIL, SHITHA NIVAS, VALIYANNUR, P.O. VARAM, PIN – 670594, KANNUR TALUK. SUPPL. R2 RECORDED AS LRs OF DECEASED R3. SUPPL. R7 BEING THE LRs OF DECEASED R3 IMPLEADED AS PER ORDER ON I.A. NO.1123/03 AND AMENDED AS PER ORDER ON I.A. NO.1124/03 DATED 27/07/2004. SUPPL.8 K. N. PRADEEPAN, S/O LATE K.N. GOVINDAN, AGED 38 YEARS, SAIWA MARBLE AND TILES, P.B. NO.24925, DUBAI. SUPPL.9 K.N.SREERANJ, S/O LATE GOVINDAN, AGED 30 YEARS, 8TH B.N.R.P.S.F.E.Co, CHITHARANJAN T. T. SCHOOL BUILDING, WEST BENGAL STATE. SUPPL. R8 AND R9 IMPLEADED AS PER ORDER ON I.A. NO.89/2004 AND AMENDED AS PER ORDER ON I.A. NO.90/2004 DATED 25/01/2005. ADV. SRI.N.NAGARESH FOR R2,4-6 SRI.K.BABU FOR R2,4 TO 6 SMT.NAMITHA JYOTHISH FOR R8 & R9 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.356 of 2006 -----------------------------------------------Dated this the 15[th] day of October, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ Under challenge in this revision filed by the landlords (legal representatives of the original landlord) is the judgment of the Rent Control Appellate Authority dismissing a Rent Control Appeal preferred by the original landlord against an order dismissing a Rent Control Petition. Though the grounds of arrears of rent and bona fide need for own occupation were invoked, it is submitted at the Bar that in this revision we need be concerned only with the ground under Section 11(3). The need projected by the original landlord R. C. R. No.356 of 2006 -2- under Section 11(3) was that the building is required for occupation by his son Shajan (revision petitioner No.7) so that Sri.Shajan can conduct a provision store. The bona fides of the need was disputed by the tenant who contended that the need is not bona fide. It was also contended that Sri.Shajan is having other sources of income and it was also contended that even if there is need there are other buildings in the possession of the landlord which can be provided to Sri.Shajan. The tenant also claimed that he is entitled to the protection of the second proviso to sub Section 3 of Section 11. Before the Rent Control Court the original landlord was examined as PW1. In fact, the landlord had filed another Rent Control Petition in respect of the adjacent R. C. R. No.356 of 2006 -3- room on the ground that, that room is required for the occupation of this another son who is the sixth petitioner as RCP.206/95 by name Sudikumar. In that case also there was contest and the Rent Control Court tried both the Rent Control Petitions jointly. At trial, evidence consisted of PWs.1 to 5 RWs.1 and 2 apart from Exts.A1 to A12 and B1. Ext.B1 was property tax assessment register maintained by the Chelora Panchayath in respect of four buildings. As per Ext.B1 two rooms are vacant. But Ext.B1 itself showed that these buildings did not belong absolutely to the landlord but it belonged in common to the landlord and his two brothers. The learned Rent Control Court on appreciating the evidence came to the conclusion that the need is not bona fide. According to that R. C. R. No.356 of 2006 -4- court, the very idea of the father requiring two adjacent rooms occupied by the tenants for the purpose of two sons for doing the same business is irrational and not bona fide. The court also relied Ext.B1 and noticed that Room Nos.371 and 372 shown therein are vacant buildings. According to the court, there was no special reason for the landlord to have tried to evict the revision petitioner when those rooms are available. It was found that the need was not bona fide. It was also found that the first proviso to sub Section 3 of Section 11 operates against the landlord. Second proviso however was decided by the Rent Control Court in favour of the landlord. However, in view of the findings regarding the bona fides of the first proviso, the RCP was dismissed. The landlord R. C. R. No.356 of 2006 -5- preferred appeal and the learned Appellate Authority under the impugned judgment has found that the need is bona fide. Referring to the judgment of a Division Bench of this Court in Asher v. Hassankutty Hajee (2004(2) KLT 446) the learned Appellate Authority would reverse the finding of the Rent Control Court in the context of the first proviso. It was held that Room Nos.370 and 371 did not belong absolutely to the landlord and hence, the first proviso will not operate against the landlord. The Rent Control Appellate Authority would confirm the finding of the Rent Control Court regarding the second proviso. In spite of all this, the Appellate Authority did not allow the RCA and order eviction. The Rent Control Appellate Authority noticed that it had not R. C. R. No.356 of 2006 -6- been pleaded in the Rent Control Petition that Shajan/PW2 is a “dependant” of the landlord. According to the Appellate Authority, such a pleading is essential for successfully maintaining a Rent Control Petition under sub Section 3 of Section 11. On that reason alone, the Rent Control Appellate Authority confirmed the negative order passed by the Rent Control Court and dismissed the RCA. 2. In this revision under Section 20, various grounds are raised assailing the judgment of the Appellate Authority and we have heard submissions of Sri.T.P.Sajid, the learned counsel for the revision petitioners and those of Sri.K.Babu, the learned counsel for the respondents. Sri.Sajid would read over to us the R. C. R. No.356 of 2006 -7- Rent Control Petition as well as the statement of objections filed to the same by the tenant. He submitted that it was not contended at all by the tenant that Shajan/PW2 was not a dependant on his father. Dependency in the context of section 11(3) is mainly dependency for getting a building and not for financial dependency. In evidence also it was never suggested even that Shajan is not a dependant of the father. According to Sri.Sajid, it has been contended by the tenant in his objections that if the need is bona fide, it is open to the original petitioner/landlord to accommodate Shajan in any of the two rooms covered by Ext.B1. This contention will reveal that the tenants are admitting that Shajan is a dependant of his father. R. C. R. No.356 of 2006 -8- 3. Sri.K.Babu, the learned counsel for the respondents would support the judgment of the Appellate Authority on the reasons stated therein. Sri.Babu submitted that at any rate, the judgment of the Appellate Authority and the proceeding before the Appellate Authority are vitiated on account of a vital error. Placing strong reliance on the judgment in Sadasivan Chettiar v. Rajendran (2005(1) KLT 653), Sri.Babu submitted that appeal had abated as against the legal representatives of the original tenant. No application for setting aside the abatement had been filed. Only an application for impleadment and another application for consequential amendment were filed. According to the learned counsel, what is stated in para 7 and 8 of the R. C. R. No.356 of 2006 -9- above judgment is that when an appeal abated as against the deceased original tenant merely because an impleadment application was allowed, the effect of the abatement which had already settled will not be got over. Counsel submitted that life cannot be infused into a dead cause by a wrong order passed on the impleadment application and the amendment application. The judgment of the Appellate Authority has become vitiated and according to Sri.Babu the above judgment of the Appellate Authority cannot have any consequence. 4. We have very anxiously considered the rival submissions addressed at the Bar. The first issue that arises is whether in view of the absence of the word “dependant” the petition for eviction R. C. R. No.356 of 2006 -10- filed by the original landlord under Section 11(3) will not become maintainable before the Rent Control Court. We have no hesitation to answer that issue in favour of the revision petitioners. We have scanned the Rent Control Petition as well as the statement of objections. We are convinced that the original tenant through his statement of objections filed by him practically admitted that Shajan/PW2 is a dependant of his father. The tenor of the questions asked to the witnesses PWs.1 and 2 will also indicate that the tenant has no case that the sons were not depending on their father for a building. More importantly the issue of dependency was not there either before the Rent Control Court or before the Appellate Authority. It is trite by various decisions that in Rent Control R. C. R. No.356 of 2006 -11- Proceedings unlike regular civil proceedings strict adherence to the rules of pleadings will not be insisted upon. In a Rent Control Proceedings the consideration is only whether any prejudice has been caused to either party for want of pleadings. When the question is considered through that perspective it is absolutely clear to our mind that no prejudice has been caused to the tenant due to the absence of the word “dependant” in the Rent Control Petition. 5. We notice another aspect of the matter. The original landlord sought eviction for the purpose of PW2. Original landlord is no more. Ownership have now devolved upon PW2 also. This means that PW2 has in his own right become a landlord perhaps along with his brothers and R. C. R. No.356 of 2006 -12- sisters. This aspect also is relied on by us to support the view that we have taken. 6. The learned Appellate Authority reversed the finding of the Rent Control Court on the question of bona fides of the first proviso to sub Section 3 of Section 11 giving cogent reasons. The confirmation of the finding of the Rent Control Court in the context of the second proviso to Section 11(3) by the Appellate Authority was also supported by evidence on record. We feel that having answered all crucial issues in favour of the landlord, it was not proper on the part of the learned Appellate Authority to have non suited the landlord on a hyper technical point and that too without formulating a specific point in that regard. Sub Rule 8 of Rule 11 of the Kerala Buildings R. C. R. No.356 of 2006 -13- (Lease and Rent Control) Rules says that the authorities under the Rent Control Act shall be governed by the principles of justice, equity and good conscience while deciding the causes coming up before them. We are of the considered view that it was inequitable on the part of the learned Appellate Authority to have non suited the landlord on a technical reason after having entered all crucial findings in favour of the landlord. In this context, the learned Appellate Authority should not have missed the judgment of a Division Bench of this Court in Rajamma v Leela (1991(2) KLT 862) wherein it is clearly laid down that in the matter of construing a pleading, a liberal approach is necessary lest justice should become a casualty. The submission of Mr.Babu that the judgment of the Appellate Authority is R. C. R. No.356 of 2006 -14- vitiated as the proceedings had abated against the legal heirs of the deceased tenant and there was no formal petition to set aside the abatement also, does not appeal to us. According to us, it is too late in the day for the respondent to raise such an argument. We find that the legal heirs of the deceased tenant were impleaded on the basis of an application and consequential amendments were also allowed to be carried out on the basis of another application which were decided with notice to the proposed legal heirs. We notice further that after the legal heirs of the deceased tenant were brought on record, the Rent Control Appeal stood posted several times and it was at that juncture that the original landlord passed away. The legal heirs of the original landlord were impleaded some five to six years after the legal R. C. R. No.356 of 2006 -15- heirs of the original tenant were impleaded. All these years the impleaded legal heirs of the deceased tenant were participating in the proceedings before the Appellate Authority. Before the learned Appellate Authority also, the present contention that the proceedings are vitiated due to abatement was never urged. We are not at all inclined to accept the above argument of Sri.Babu in this revision which is filed by the landlord. The result of the above discussion is that the RCR will have to be allowed. We allow the RCR. Setting aside the order of the Rent Control Court and the Judgment of the Appellate Authority, we order eviction on the ground under Section 11(3). 7. As a last plea, Sri.Babu requested that at least nine months' time be granted for surrendering the premises. This request is R. C. R. No.356 of 2006 -16- opposed by Sri.Sajid. He submitted that the Rent Control Petition was instituted in 1995 and two decades have passed. Though we find force in the submission of Sri.Sajid, we feel that considering the totality of the circumstances attending on this case, the respondent can be given seven months' time from today to surrender the premises subject to certain conditions:- 8. The result of the above discussion is therefore, as follows:- The RCR is allowed. Order of eviction is passed against the respondent under Section 11 (3). The execution court is directed to keep in abeyance proceedings for delivery for seven months' from today subject to the following conditions:- The revision petitioner shall file an affidavit R. C. R. No.356 of 2006 -17- before the execution court or Rent Control Court, as the case may be, undertaking to surrender the building peacefully to the landlord within seven months' from today and undertaking further that arrears of rent, if any, due as on date will be discharged within one month and further that with effect from 1[st] November, 2010 till the date of actual surrender the respondent will pay Rs.500/per mensem as occupational charges to the landlord. We make it clear that the respondent will get the benefit of time granted as above only if he files the affidavit on time. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/-