PRADEEPKUMAR v. N. SUSEELA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICEP.B.SURESHKUMAR ``` ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS WEDNESDAY,THE12[TH]DAYOFAPRIL2023/22NDCHAITHRA,1945 ``` ## **`RCREV. NO. 341 OF 2019`** ``` AGAINSTTHEORDER/JUDGMENTINRCA105/2015OFIADDITIONAL RENTCONTROLAPPELLATEAUTHORITY,THRISSUR RCP118/2013OFRENTCONTROLCOURT,THRISSUR ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` PRADEEPKUMAR AGED59YEARS S/O.G.BALAKRISHNAN,H.NO.28/346,SASTHA NAGAR,PATTURAIKKALDESOM,THRISSURVILLAGE ANDTALUK,THRISSURDISTRICT. ``` ``` BYADVS. SRI.N.M.MADHU SRI.P.P.HARRIS SMT.C.S.RAJANI ``` ## **`RESPONDENT/RESPONDENT/PETITIONER:`** ``` 1N.SUSEELA AGED93YEARS W/O.EMBRANTHIRI,MADATHILMADHAVAN EMBRANTHIRI,KUTTURVILLAGEANDDESOM, THRISSURTALUK-680013. ``` ``` ADDL.PMPARVATHY R2AGED50YEARS,W/OLATENAGENDRANM, SREEKAILASAM,EMBRANDHIRIMADOM, - PARAKKAD,VELUTHAR,THRISSUR680012. ADDL.NAVANEETHN R3AGED22YEARS,S/OLATENAGENDRANM, SREEKAILASAM,EMBRANDHIRIMADOM, - PARAKKAD,VELUTHAR,THRISSUR680012. ``` RCRev No.341 of 2019 2 ``` ADDL.SREERAJ R4AGED17YEARS,S/OLATENAGENDRANM, SREEKAILASAM,EMBRANDHIRIMADOM, - PARAKKAD,VELUTHAR,THRISSUR680012. (ADDL.R2TOADDL.R4IMPLEADEDASPER ORDERDATED12.04.2023INIA1OF2022 INRCRNo.341OF2019) ADDL.KUMARI R5D/OLATENSUSEELA,EMBRANDHIRI MADATHIL,KUTTURVILLAGE&DESOM, - THRISSURTALUK,THRISSURDISTRICT 680013. ADDL.INDIRA R6D/OLATENSUSEELA,EMBRANDHIRI MADATHIL,KUTTURVILLAGE&DESOM, - THRISSURTALUK,THRISSURDISTRICT 680013. ADDL.RAVEENDRAN R7S/OLATENSUSEELA,EMBRANDHIRI MADATHIL,KUTTURVILLAGE&DESOM, - THRISSURTALUK,THRISSURDISTRICT 680013. ADDL.MEERA R8D/OLATENSUSEELA,EMBRANDHIRI MADATHIL,KUTTURVILLAGE&DESOM, - THRISSURTALUK,THRISSURDISTRICT 680013. ADDL.RAJENDRAN R9S/OLATENSUSEELA,EMBRANDHIRI MADATHIL,KUTTURVILLAGE&DESOM, - THRISSURTALUK,THRISSURDISTRICT 680013. (ADDL.R5TOR9IMPLEADEDASPERORDER DATED12.04.2023INIA1OF2023INRCA No.341OF2019) ``` RCRev No.341 of 2019 3 ``` BYADVS. SRI.K.R.SRIPATHI SMT.ANUPAMASUBRAMANIAN ``` ``` THISRENTCONTROLREVISIONHAVINGCOMEUPFOR ADMISSIONON12.04.2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` RCRev No.341 of 2019 4 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ------------------------------------------- RCRev. No.341 of 2019 ------------------------------------------Dated this the 12[th] day of April, 2023 ## **O R D E R** ## **Sophy Thomas, J.** The tenant who suffered concurrent orders of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred as ‘the Act’), is the revision petitioner herein, and the landlady is the respondent. 2. The landlady filed RCP No.118 of 2013 before the Rent Control Court, Thrissur, for evicting the tenant under Section 11(3) of the Act. The landlady was 83 years old, and her husband was 93 years old. They were residing in their house at Kuttoor. Due to their old age ailments, they used to visit Doctors at Thrissur every week. Since they were residing at Kuttoor, without any help from others, they wanted to shift their residence to the petition schedule residential building at Thrissur. Her son Nagendran, who is a ‘Santhy’ in temples at Thrissur, was residing with his wife and children in a rented building at RCRev No.341 of 2019 5 Eravimangalam. Since the landlady needed the help of her son for going to hospital at Thrissur, she was in bonafide need of the petition schedule house, for residing there, with her son and family. She was not having any other building in her possession in Thrissur Corporation for her residence. The tenant was working in Lakshmi Vilasam Bank, and other residential buildings were available in that locality for him to shift his residence. Though she sent a lawyer notice asking him to surrender vacant possession of the petition schedule building, he was not amenable and hence the RCP. 3. The tenant, though admitted the lease agreement, denied the age of the landlady as well as her ailments. According to him, the landlady was having another house near to the petition schedule house, if she wanted to reside at Thrissur for consulting Doctors. She was not in need of any help from her son Nagendran, and the need projected by the landlady was not bonafide. 4. Before the Rent Control Court, PWs 1 and 2 were examined and Exts.A1 to A20 were marked. RW1 was examined RCRev No.341 of 2019 6 and Exts.B1 to B8 were marked from the side of the tenant. 5. On analysing the facts and evidence, the Rent Control Court found that, the need projected by the landlady was bonafide and so, ordered eviction under Section 11(3) of the Act, directing the tenant to hand over vacant possession of the petition schedule building to the landlady, within two months from the date of order. 6. Aggrieved by the order of eviction, the tenant preferred RCA No.105 of 2015 before the Rent Control Appellate Authority, Thrissur. The appellate court confirmed the order of the Rent Control Court, and dismissed the appeal, against which the tenant preferred this revision. 7. Now we are called upon to find out whether there is any illegality, irregularity or impropriety in the impugned judgment, warranting interference by this Court. 8. Pending revision, the respondent-landlady passed away. Her legal heirs and legal representatives under a will, were impleaded as additional respondents 2 to 9 as per order in I.A No.1 of 2022 and I.A No.1 of 2023. RCRev No.341 of 2019 7 9. Learned counsel for the revision petitioner submitted that, the bonafide need projected by the landlady got abated on her death, and it will not survive, as the need was only for the landlady. He pointed out that, the landlady and her husband wanted to reside in the petition schedule building, for consulting Doctors at Thrissur. Now, the landlady and her husband are no more, and so, the need is no more existing. 10. Learned counsel for the tenant relied on the decision _**Puthampurayil Mariyam and others** vs._ _**Sunenda @ Suganda and others**_ (2013 (2) KHC 213) to substantiate his contention. In that decision it was held that, _‘when the need projected was for the husband, who was depending on the landlord for the building to start a business, when the husband died, the bonafide need would not survive, especially when there was no pleading to the effect that, the need projected was for the business purpose of all the members of the family including the son who was abroad.’_ 11. In _**Jayarajan**_ vs. _**Yesoda**_ (2003 KHC 412), a Division Bench of this Court held that, _‘when the landlady’s husband was_ RCRev No.341 of 2019 8 _in bonafide need of starting a grocery business in the petition schedule building, when the husband died, the proceedings had to abate. After the death of her husband, there was no need for starting the business. So, the need alleged has become abated, after the death of her husband.’_ ## 12. In _**Seshambal (dead) through L.Rs.**_ vs. _**M/s.Chelur Corporation Chelur Building and others**_ (2010 KHC 4104), the Apex Court held that, _‘normally right to relief must be judged by reference to date of suit or when the legal proceedings are instituted. However, subsequent developments having a bearing on right to relief claimed by a party, cannot be shut out from consideration. Courts are expected to examine the impact of such subsequent developments, on the right to relief claimed by a party and, if necessary, suitably mould the relief.’_ 13. In _Seshambal’s_ case cited supra, in paragraph 9, the Apex Court further observed that, _“It is not in dispute that in the eviction petition, the owners had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent_ RCRev No.341 of 2019 9 _about the requirements of any member of the family of the owners-petitioners leave alone any member of their family, who was dependent upon them. That being so, the parties went to trial before the Rent Controller on the basis of the case pleaded in the petition and limited to the requirement of the owners for their personal occupation. Neither before the Rent Controller nor before the appellate authority was it argued that the requirement in question was not only the requirement of the petitioners-owners of the premises, but also the requirement of any other member of their family, whether dependent upon them or otherwise. Not only that, even in the petition filed before this Court, the requirement pleaded was that for the deceased widowed owner of the demised premises and not of any member of her family. Super added to all this is the fact that the legal representatives who now claimed to be the family members of the deceased are all married daughters of the deceased couple, each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependent upon the deceased-petitioner is also a fact undisputed_ RCRev No.341 of 2019 10 _before us. Even otherwise in the social milieu to which we are accustomed, daughters happily married have their own families, and commitments, financial and otherwise. Such being the position, we find it difficult to see how the legal representatives of the deceased-appellant can be allowed to set up a case which was never set up before the courts below, so as to bring forth, a requirement that was never pleaded at any stage of the proceedings. Allowing the legal heirs to do so would amount to permitting them to introduce a case which is totally different from the one set up before the Rent Controller, the appellate authority or even the High Court. The position may indeed have been differentiated if, in the original petition, the petitioners-owners had pleaded their own requirement, and the requirement of any member of their family dependent on them. In such a case, ‘the demise of the original petitioners or any one of them may have made, little difference for the person, for whose benefit and bonafide requirement, the eviction was sought could pursue the case to prove and satisfy any such requirement’.”_ RCRev No.341 of 2019 11 14. Now coming to the case on hand, the landlady, who was 83 years old, filed the RCP in the year 2013 for her residence in the petition schedule building along with her 93 year old husband, as they wanted to consult Doctors at Thrissur. Herself and her husband were residing at Kuttoor, away from Thrissur without the help of their children. The petition schedule building was in Thrissur Corporation and so, she wanted to stay in that house along with her son Nagendran, who was residing with his wife and children, in a rented house at Eravimangalam. It was clearly averred in the petition that, Sri.Nagendran is a ‘Santhy’ in different temples at Thrissur and since he was residing in a rented house at Eravimangalam, it was convenient for him and his family to reside along with the landlady in the petition schedule building, thereby she could get the assistance of her son for going to hospital to consult her Doctors. Moreover, it was convenient for her son Nagendran to attend the temple job, if he stayed with family at Thrissur. So, obviously, the bonafide need projected by the landlady was not for herself but was for her son Nagendran and his family also. RCRev No.341 of 2019 12 15. Admittedly, now the landlady is no more, her husband is no more and her son Nagendran also is no more. Since the bonafide need projected by the landlady was for herself and her son Nagendran and his family, even on the death of the landlady, or even on the death of Sri.Nagendran, the bonafide need will not abate, and the legal heirs of Sri.Nagendran can pursue the relief, as long as they have no house of their own for their residence. Since Sri.Nagendran is no more, his wife and children are all the more in need of a residential accommodation as they are staying in a rented house. So, the bonafide need projected by the landlady for her son and his family, is not abated and it survived through the legal heirs of Sri.Nagendran. So, unlike in _Sunenda’s case_ and _Jayarajan’s case_ cited supra, in the case on hand, there is definite pleading in the Rent Control Petition itself that the bonafide need projected by the landlady was for her son and his family also, and so, on the death of the landlady, that need will not get abated. Since the bonafide need projected was for accommodating her son and his family, who were residing in a rented house, even on the death of her son, that bonafide need RCRev No.341 of 2019 13 will not get abated, as the wife and children of Sri.Nagendran wanted to get an accommodation for them. There is nothing to show that, the wife and children of Sri.Nagendran are having any other residential house of their own to reside. So, even the subsequent event of death of the landlady or the death of her son Nagendran, will not abate the proceedings. 16. The landlady at the age of 83 filed the RCP for residing in her own house at Thrissur, for easy consultation of her Doctors at Thrissur. The Rent Control Petition was allowed as early as on 29.10.2015. The appeal filed against that order by the tenant was dismissed on 14.06.2019. In the year 2019, the tenant filed this revision. Even after 10 years of filing the RCP, the landlady and her son and family could not enjoy the fruits of the eviction order, and by this time, the landlady, her husband and son passed away. 17. The tenant is a Bank employee earning monthly income of more than Rs.60,000/-. He had not adduced any evidence to show that, other suitable residential buildings are not available in that locality, to shift his residence. He also failed to RCRev No.341 of 2019 14 adduce any evidence to show that, as on the date of filing the RCP, the landlady was having other vacant residential building in her possession, to reside there, for consulting her Doctors at Thrissur. The bonafide need projected by the landlady is not abated and it is survived through the legal heirs of her son Sri.Nagendran, and the tenant has not adduced any evidence to show that, he is eligible to get the benefit of the provisos under Section 11(3) of the Act. So, the revision is devoid of any merit and hence liable to be dismissed. In the result, the Rent Control Revision is dismissed, directing the revision petitioner/tenant to surrender vacant possession of the petition schedule building, forthwith. Sd/- ## **P.B.SURESH KUMAR JUDGE** Sd/- ## **SOPHY THOMAS JUDGE** smp