P.R. Somasekhara Kurup v Soumya K.M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932** **RCRev..No. 73 of 2007()** **----------------------RCA.50/2005 of DISTRICT COURT, ERNAKULAM RCP.36/2004 of III ADDL. MUNSIFF & RENT CONTROL COURT, ERNAKULAM** **....................** **REVN. PETITIONER/APPELLANT/PETITIONER :-** **--------------------------------------------------------------------** **P.R.SOMASEKHARA KURUP, AGED 57, RESIDING AT HOUSE NO.34/1298, JALANIDHI CHUTTUPADUKARA, EDAPPALLY NORTH VILLAGE, ERNAKULAM.** **BY ADV. SRI.T.K.VENUGOPALAN** ## **RESPONDENT(S)/RESPONDENT/RESPONDENT :-** **------------------------------------------------------------------** **SOUMYA K.M., SP TRADERS, C.C.34/1512, MARKET ROAD, NEAR MAJ HOSPITAL, EDAPPALLY, KOCHI-24.** **ADV. SRI.A.BALAGOPALAN SMT.KALA G.NAMBIAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------R.C.R. No.73 of 2007 ---------------------------Dated this the 15[th] day of December 2010** ## **O R D E R** ## Pius C. Kuriakose, J. Under challenge in this revision filed by the landlord, an Ex-navy man is the judgment of the Rent Control Appellate Authority confirming the order passed by the Rent Control Court declining eviction on both the grounds which were invoked in the RCP. 2. The landlord had invoked the ground of bonafide need for own occupation as well as the ground that user of the building may in a manner as to reduce the value and utility of the building materially and permanently. It is argued before us by the learned counsel for the revision petitioner that the evidence on record may not be sufficient to support an order of eviction to be passed under Section R.C.R. No.73 of 2007 -: 2 :- 11(4)(ii). We, therefore, in this revision, are concerned only with the order of eviction sought for in this revision under Sub section (3) of Section 11. The need projected by the landlord in the context of the ground under Sub section (3) of Section 11 was that he needs the petition schedule building for conducting his own computer business. According to him, while he was in the Navy he was dealing with computers and that after his retirement from Navy, he took up employment in a gulf country where also he dealt with computers and allied equipments. He claimed that he has gained more experience in the field of computer technology and the need raised by him is to establish an institute of imparting computer education and information technology. 3. The revision petitioner should contend that he is entitled to the protection of the 2[nd] Proviso to Sub section (3) of Section 11 as the income derived from the business (Photocopying, STD booth and stationery) which is being R.C.R. No.73 of 2007 -: 3 :- presently conducted by him, is the main source of income for his livelihood and there is no building available in the locality for shifting the business. 4. The Rent Control Court on evaluating the evidence which consisted of Exts.A1 to A4, B1 to B8, oral evidence of PW1 and RWs.1 and 2, came to the conclusion that the petition under Sub section (3) of Section 11 cannot be allowed as there is no proper pleading in the RCP for the bonafide need projected by him. It was also concluded that evidence also is lacking regarding bonafides. However, considering the evidence adduced by the tenant as regards the provisos, the learned Rent Control Court held that tenant was unsuccessful in showing that the RCP was liable to be rejected under the First Proviso. In fact, the Rent Control Court did not elaborately consider the implications of the Second Proviso as according to the evidence, the need was not established. The learned Appellate Authority would reappraise all the evidence and pleadings R.C.R. No.73 of 2007 -: 4 :- considering the appeal preferred by the tenant and concurred with all the findings of the learned Rent Control Court and dismissed the appeal. In this revision, various grounds are raised by the Appellate Authority. 5. Mr.T.K.Venugopalan, the learned counsel for the revision petitioner addressed arguments on the basis of all those grounds. Drawing our attention into the pleadings in the RCP as well as the pleadings raised by the tenant, Mr. T.K.Venugopalan submitted that it is true that the word “bonafide need” is absent in the rent control petition. It cannot be said that any prejudice has been caused to the tenant due to lack of pleadings. The tenant has understood the claim of the landlord correctly. The word “want” used in the RCP was understood by the tenant as referring to a genuine need in the mind of the landlord. 6. Mr.A.Balagopalan, the learned counsel for the respondent/tenant would submit that there is no warrant at all for interfering with the concurrent findings entered by ## R.C.R. No.73 of 2007 -: 5 :- the courts below. He reminded us of the contours of this Court's jurisdiction under Section 20. According to him, this is a case where there are no pleadings and much less evidence regarding any bonafide need in the mind of the landlord. There is no claim that the need of which the landlord seeks recognition, is an honest one. 7. We have considered the rival submissions. We have gone through the pleadings raised by the parties. We have considered the pleadings in the rent control proceedings. It is true that rules of pleadings are not to be meticulously analysed. It is also true that rules of pleadings in rent control proceedings are not to be adhered to strictly The question to be considered is whether any prejudice has been caused to the opposite party due to any insufficiency in the pleadings of his rival. But then, as observed by honourable Supreme Court in **Koyilerian Janaki and others** v. **Rent Controller (Munsiff) Cannanore and others** [(2000) 9 Supreme Court Cases 406] in order that R.C.R. No.73 of 2007 -: 6 :- eviction on the ground of Sub section (3) of Section 11 is established it is necessary for the landlord to plead and prove (if he himself is the needy person as in the present case) that he has a bonafide need. On going through the rival pleadings it is not possible for us to say that no prejudice has been caused to the tenant due to the absence of any pleadings from the side of the landlord that the need is a bonafide one. As for evidence, we find that though the landlord referred to his needs in the examination, he does not claim that the need which he has projected in the Rent Control Court is a bonafide and honest one. We are in agreement with the statutory authority that the present one is a case where there is total absence of pleadings and evidence regarding bonafide nature of the need projected. Situation being so, it is not possible for us to accept the arguments of Mr.T.K.Venugopalan and order of eviction construing the pleadings liberally and holding that no prejudice has been caused to the tenant due to insufficiency R.C.R. No.73 of 2007 -: 7 :- in the pleadings. 8. At the same time, as we went through the evidence adduced by the landlord, we feel that the need projected by the landlord is of a bonafide need. We therefore, are inclined to afford opportunity to the landlord to amend his pleadings so that through proper pleadings he can try to substantiate his need and to establish his claim. 9. We notice another aspect to the matter. The building in question is situated in a very prominent area of Edappally in Cochin Corporation. The rent of Rs.1500/- per mensem which is being paid by the tenant was fixed in 2002. According to us, that rent is far below the rent which the building may fetch now. We therefore, are inclined to refix the rent tentatively giving opportunity to both the parties to approach the learned Rent Control Court for regular fixation of fair rent. Result of the above discussions is as follows :- The judgment of the learned Rent Control R.C.R. No.73 of 2007 -: 8 :- Appellate Authority and the order passed by the learned Rent Control Court are set aside to the extent the same pertains to the bonafide need and the tenant's protection of the Second Proviso to Sub section (3) of Section 11. However, the finding that the First Proviso to Sub section (3) of Section 11 does not apply to this case is confirmed. The RCP is remanded to the Rent Control Court, Ernakulam. That court is directed to permit the landlord to amend his pleadings. If an application of amendment is filed within three weeks of parties entering appearance pursuant to this order, the same will be allowed. If pleadings are amended, counter pleadings can be raised by the other side. Once pleadings are completed the learned Rent Control Court will conduct further enquiry giving opportunity to both sides for adducing evidence. Findings will be entered as to whether the need is a bonafide and whether the tenant is entitled for the protection of the 2[nd] Proviso to Sub section (3) of Section 11. R.C.R. No.73 of 2007 -: 9 :- Rent payable by the respondents for the building in question is fixed tentatively with effect from 1.1.2011 at Rs.3000/- per month. If either party is aggrieved, it is open to them to move the Rent Controller under Section 5 of Fixation of Rent. The respondent shall pay rent at the rate of Rs.3000/- per mensem till fair rent is fixed. The parties will enter appearance before the Rent Control Court on or before 3.1.2011. The Rent Control Court is directed to complete the enquiry and pass revised order within three months of the parties entering appearance. This RCR is thus allowed by way of remand. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt