RCR 381/19

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 04TH DAY OF OCTOBER 2019 / 12TH ASWINA, 1941** **RCRev..No.381 OF 2019** **AGAINST THE ORDER IN RCA 15/2016 OF ADDITIONAL RENT CONTROL APPELLATE AUTHORITY - V, KOTTAYAM AGAINST THE ORDER IN RCP 3/2013 OF RENT CONTROL COURT, VAIKOM** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **RAMESAN AGED 50 YEARS, S/O. RAGHAVAN, RESIDING AT THOTTATHIL HOUSE, KULASEKHARAMANGALAM VILLAGE, VAIKOM TALUK.** **BY ADVS. SRI.S.RAMESH(VAIKOM) SMT.KAVYA P.PRASAD** ## **RESPONDENTS/RESPONDENTS/ADDL.PETITIONERS:** **1 M.R.RAGHAVAN PILLAI (DIED) AGED 62 YEARS, S/O. RAMAN PILLAI, MALIYEKKAL HOUSE, KULASEKHARA MANGALAM VAIKOM TALUK NOW RESIDING AT VISAKHOM HOUSE BODHI NAGAR 107, THOTTAMALA P.O. PALATHARA KARA, VADAKKEVILA VILLAGE, KOLLAM TALUK, KOLLAM 691 020.** RCR 381/19 **-:2:-** |**2**|**VALSALA,**| |---|---| ||**AGED 59 YEARS,**| ||**W/O. LATE REGHUVARAN PILLAI,**| ||**MALIYEKKEL HOUSE,**| ||**KULASEKHARA MANGALAM**| ||**VAIKOM 686141.**| |**3**|**RATHEESH REGHUVARAN,**| ||**AGED 37 YEARS**| ||**S/O. LATE REGHUVARAN PILLAI,**| ||**RITHUNIVAS, NADAKKAVU P.O.,**| ||**UDAYAMPEROOR 682307.**| **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCR 381/19 ## **-:3:-** ## **ORDER** **This revision petition has been filed challenging the findings of the Rent Control Court, Vaikom whereby the said court has granted an order of eviction under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short) and confirmed by the Appellate Authority in appeal. The parties are referred to as in the Rent Control Petition.** **2. The landlord-tenant relationship is not disputed. The petitioner/1[st] respondent herein filed R.C.P. No.3 of 2013 before the Rent Control Court, Vaikom seeking an order** RCR 381/19 ## **-:4:-** **of eviction under Section 11(2)(b) and 11(3) of the Act. According to him, the rent is in arrear from 28.1.2013 onwards. Though he had issued a statutory notice under Section 11(2)(b) of the Act calling upon the respondent/petitioner herein to pay off the arrear of rent, he has not responded to the same. Therefore the petitioner/1[st] respondent herein is entitled to get order of eviction under Section 11(2)(b) of the Act. The second ground is that he bonafide needs the petition schedule building to start a stationary shop to eke-out his livelihood, as he has no other sources of income except his pension. He was working as an employee in the United Electricals, Kollam and retired in January, 2012 and that thereafter he is getting only Rs.1,000/- as monthly** RCR 381/19 ## **-:5:-** **pension. He has no other building in his possession to start the said business. According to the petitioner/1[st] respondent herein, the respondent/petitioner herein is not depending upon the income from the business in the disputed premises and several other buildings are available in the locality.** **3. The respondent/petitioner herein resisted the said contention contending that the need projected is not bonafide and that he is entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act. Further, as regards the arrear of rent, he** **contended that though on 6.4.2013 he contacted the petitioner/1[st] respondent herein and requested him to receive the rent arrear, he was not ready to receive the** RCR 381/19 ## **-:6:-** **same. According to the respondent/petitioner herein, he had repaired the rolling shutters of the petition schedule room and expended Rs.2,000/- for the same and he is liable to adjust the said amount in the rent. With the aforesaid contentions, he prayed for dismissal of the original petition.** **4. On the rival pleadings, both parties adduced evidence. After considering the evidence on record, the courts below concurrently found that the need projected by the petitioner/1[st] respondent herein is bonafide and the respondent/petitioner herein is not entitled to get protection under the 2[nd] proviso to Section 11(3) of the Act and thereby the petitioner/1[st] respondent** **herein is entitled to get an order of eviction under Section 11(3) of the Act. As** RCR 381/19 ## **-:7:-** **regards the claim for eviction under Section 11(2)(b) of the Act also, the courts concurrently found that rent was in arrear from 28.1.2013 and the respondent/petitioner herein has not cleared the rent arrear, despite receipt of statutory notice issued under Section 11(2)(b) of the Act. The legality and propriety of the aforesaid findings are challenged in this rent control revision.** **5. Heard the leaned counsel for the respondent/tenant.** **6. The sum and substance of the argument advanced by the learned counsel for the respondent/petitioner herein is that after the passing of the impugned order by the rent control court, the petitioner/1[st] respondent herein died and thereby the need** RCR 381/19 **-:8:-** **projected has ceased to exist and therefore, the Appellate Authority went wrong by confirming the order of eviction passed under Section 11(3) of the Act. As regards the order of eviction under Section 11(2) (b), it is contented that the petitioner/1[st] respondent herein has not approached the respondent/petitioner herein to collect rent. So he did not pay the rent.** **7. The question to be considered is whether there is any illegality or impropriety in the findings of the Appellate Authority that the subsequent death of the landlord, after passing the order of eviction under Section 11(3) of the Act, is of no consequence at all while considering the appeal. Going by the impugned order passed by the Appellate Authority, we find** RCR 381/19 ## **-:9:-** **that the aforesaid point was raised before the Appellate Authority and the said authority has elaborately considered that point and rejected the said argument on the basis of the decision of the Supreme Court. The Appellate Authority has relied on the decision of the Supreme Court in Shantilal Thakordas and Others v. Chimanlal Maganlal Telwala (AIR 1976 SC 2358), Kamleshwar Prasad v.Pradumanju Agarwal (AIR 1997 SC 2399), Gaya Prasad v. Pradeep Shrivastava (AIR 2001 SC 803), and Shakunthala Bai and Others v. Narayan Das and Others (AIR 2004 SC 3484). The proposition laid down in the aforesaid decisions is that the bonafide need of the landlord has to be examined as on the date of institution of the proceedings and if a decree for eviction is** RCR 381/19 ## **-:10:-** **passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference, as his legal heirs are fully entitled to defend the estate.** **8. It is not disputed that the landlord passed away leaving his wife and son and that bonafide need was projected for eking out livelihood for their family. Therefore, this Court also finds that the need projected by the landlord has not ceased to exist by the death of the landlord. In the above view, we find that there is no illegality or impropriety in the finding that the subsequent death of the landlord, after passing the order of eviction by the rent control court, is of no consequence at all, so long as the need of the family** **-:11:-** RCR 381/19 **exists.** **9. As regards the order of eviction under Section 11(2)(b) of the Act, it is the case of the respondent/petitioner herein that the petitioner/1[st] respondent herein has not approached him demanding arrears of rent after 2013. At the same time, the respondent/petitioner herein himself has admitted that he received the statutory notice issued under Section 11(2)(b) of the Act, but he has not responded to the said notice either by denying the arrear of rent or by paying off the arrear of rent. It follows that though the rent was in arrear and the petitioner/1[st] respondent herein has claimed the arrears of rent in terms of Section 11(2)(b) of the Act; but, he has not paid the same. Therefore, there is no** RCR 381/19 ## **-:12:-** **illegality or impropriety in the concurrent findings of the courts below that rent was in arrear from 28.1.2013; but, the respondent/petitioner herein has not paid the same and the petitioner/1[st] respondent herein is entitled to order of eviction under Section11(2)(b) of the Act. The impugned judgment under challenge is confirmed. It is needless to say that the order of eviction passed under Section 11(2)** **(b) is subject to Section 11(2)(c) of the Act.** **10. The learned counsel for the** **respondent/petitioner herein sought for some time to vacate the tenanted premises.** **11. Having regard to the aforesaid facts and circumstances of the case, the respondent/petitioner herein is given six** RCR 381/19 ## **-:13:-** **months time from today to vacate the tenanted premises, on condition that the respondent/petitioner herein shall file an affidavit undertaking that he will surrender the shop room, within the time specified above i.e., within six months, and he shall deposit the entire arrears of rent before the Rent Control Court within one month from the date of receipt of this order and continue to pay the rent without default till the expiry of six months stated above. The affidavit also shall be filed within a period of one month from the date of receipt of a copy of this order. The respondents 2 and 3 herein are allowed to realise the arrears of rent, if deposited by the respondent/petitioner herein. In the event of failure, the respondents 2 and 3 herein** RCR 381/19 **-:14:-** **are allowed to execute the order of eviction** **forthwith.** **This rent control revision is accordingly** **dismissed.** **Sd/-** **K.HARILAL, JUDGE** **Sd/ANNIE JOHN, JUDGE** **vps**