R.C.R.No.325 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 RCREV. NO. 325 OF 2019 AGAINST THE JUDGMENT in RCA 18/2017 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM RCP 38/2012 OF ADDITIONAL MUNSIFF COURT,KOCHI REVISION PETITIONER/S:** RAMANAN M.P. AGED 70 YEARS S/O. PADMANABHAN, MOORIYAKKATTU HOUSE, NEAR AGRICULTURAL UNIVERSITY, SOUTH PUTHUVYPU, PIN-682508, ERNAKULAM DISTRICT. BY ADVS. T.N.SURESH V.S.ANU MON DHANUJA VETTATHU ## **RESPONDENT/S:** 1 K.K.SATHYABHAMA AGED 76 YEARS W/O. JINA DEVADAS, KUZHIKKALEZHATHU HOUSE, MURUKKUMPADAM, AZHEEKAL P.O, PIN-682510, ERNAKULAM DISTRICT. 2 K.J. JESSY, AGED 40 YEARS, W/O.V.R. PRAKASHAN, RESIDING AT TINTU VILLA, CHAMBAKKARA, PIN-682504, ERNAKULAM DISTRICT. 3 V.K. SHAJI, AGED 65 YEARS, S/O. LATE KARTHIKEYAN, SHAJI HOTEL, MURUKKUMPADAM, AZHEEKAL P.O, PIN682510, ERNAKULAM DISTRICT, 4 V.K. BABU, AGED 65 YEARS, S/O. LATE KARTHIKEYAN, SHAJI HOTEL, MURUKKUMPADAM, AZHEEKAL P.O, PIN682510, ERNAKULAM DISTRICT, ## **R.C.R.No.325 of 2019** ## **-:2:-** 5 JOBY CHACKO, AGED 50 YEARS, KOTTAKKAL HOUSE, NEAR EAST APPANGADU BRIDGE, NJARAKKAL P.O, PIN-682505, ERNAKULAM DISTRICT. BY ADVS. SRI.M.S.UNNIKRISHNAN SRI.V.S.SREEJITH SRI.K.SUNIL SMT.C.V.VEENA SMT.A.G.NISHA SMT.M.ARDRA KRISHNAN SRI.CHRISTINE MATHEW SMT.SUSAN JACOB (S-3481) SHRI.ANEESH K.R **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25.10.2022, THE COURT ON 28/10/2022 DELIVERED THE FOLLOWING:** ## **A.MUHAMED MUSTAQUE** ## **&** ## **SHOBA ANNAMMA EAPEN, JJ.** ------------------------------------------ **R.C.R.No.325 of 2019** ------------------------------------------ ## **O R D E R** **Dated this the 28[th] day of October, 2022** ## A.Muhamed Mustaque, J. In this revision, the tenant challenges concurrent orders of eviction under Sections 11(3) and 11(4)(iv) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short, the 'Act'). 2. One Jina Devadas leased out the building to the tenant. He executed a Will. The recitals in the Will would show that the tenanted premises were bequeathed in favour of his wife, Smt.K.K.Sathyabhama with right of alienation during her life time. It is further stipulated in the Will that after the demise of Sathyabhama, her daughter Jessy would succeed to the tenanted premises. Sathyabhama and Jessy filed Rent Control ## **R.C.R.No.325 of 2019** ## **-:2:-** Petition for eviction. It is averred that the tenanted premises along with the other buildings adjacent to it are proposed to be demolished and, thereafter, it will be reconstructed. It is stated that after reconstruction, the building is required to be occupied for starting a business (Super Market), by the petitioners in the Rent Control Petition, for augmenting family income. As seen from the pleadings in the petition, the bona fide need put forward under Section 11(3) of the Act is the need of Jessy and her husband. The building is a part of the existing, larger building. It is submitted at the Bar that the landlord occupied the vacant possession of the other tenanted premises and reconstructed the building. It is also submitted that the tenant herein, alone has chosen to contest eviction. 3. If the _bona fide_ need projected is accepted, the claim for eviction under Section ## **R.C.R.No.325 of 2019** ## **-:3:-** 11(4)(iv) will become insignificant. The eviction sought under Section 11(4)(iv), for reconstruction, cannot be independently retained, if the eviction under Section 11(3) is sustained. It is mandated under Section 11(4)(iv) that, after reconstruction, the tenant should be given the first option to occupy the building. 4. The learned counsel for the revision petitioner submitted that the second petitioner in the eviction petition, namely, Jessy has no competency to sue, as she was not the landlord. It is further submitted that the defect which existed at the time of filing the petition, cannot be cured subsequent to the death of Sathyabhama, by Jessy, on her succeeding as the legal heir of Sathyabhama. This aspect has been highlighted by the learned counsel for the tenant, particularly, in the context of the claim for eviction under Section 11(3), for own use. According to the ## **R.C.R.No.325 of 2019** ## **-:4:-** learned counsel for the tenant, since the need projected was not of the landlord, in the absence of any pleadings as to the claim of the dependent, the eviction under Section 11(3) could not have been ordered. The learned counsel also submitted that the original landlord, Sathyabhama, having not been examined in the matter, the non examination is fatal to the claim under Section 11(3) of the Act. The learned counsel had not raised much argument against the ground of eviction under Section 11(4)(iv) of the Act. He placed reliance on the following judgments: - **Kizhakkayil Suhara and Others v. Manhantavida Aboobacker (Dead) by Lrs. and another [2001 KHC 1169]** - **Thomas N.T.v. Suresh Pai [2020 (1) KHC 933 (DB)]** - **Albert Mendez v. Rema Chandran and Others [2007 KHC 3741]** ## **R.C.R.No.325 of 2019** ## **-:5:-** - **Antony P.V. v. M/s.Swastik Sweet House and Others [2017 (2) KHC 951 (DB)]** - **Sudheer V.N. v. S.Raman Menon [2018 (1)** ## **KHC 464 (DB)].** 5. The learned counsel for the respondents-landlords would submit that there is no controversy regarding the validity of the Will and it cannot be disputed by a third party. It is further submitted that the other legal heir of Sathyabhama, namely, Shine Babu was examined as PW4 and that he had not raised any quarrel as to the title of Jessy over the tenanted premises. It is further argued that the bona fide need projected was the need for the family and there is no requirement to specifically plead about the dependancy, as the need itself was for the petitioners in the Rent Control Petition. 6. The Will was marked as Ext.A1. The recitals of the Will would go to show that on the demise of Jina Devadas, the tenanted ## **R.C.R.No.325 of 2019** ## **-:6:-** premises would entirely devolve on Sathyabhama and after her life, the tenanted premises would devolve on Jessy. In same manner, certain other properties were also given to Shine Babu, the brother of Jessy. The Rent Control Petition, admittedly, was instituted by Sathyabhama; and Jessy had joined as the second petitioner. The tenant can question Sathyabhama's competency to sue for eviction. She died after the disposal of the appeal. Though the learned counsel for the tenant argued in regard to the maintainability of the petition, we find that this argument is not meritorious inasmuch as Sathyabhama and Jessy are admittedly the legal heirs of Jina Devadas. Ignoring the Will, they can sustain the petition for eviction. The other legal heir of Jina Devadas supported the case of the landlord by giving evidence as PW4. Therefore, the competency of the petitioners to sue for eviction cannot be doubted. ## **R.C.R.No.325 of 2019** ## **-:7:-** 7. In a petition for eviction, the Court cannot decide on the legality of the recitals in the Will, especially, when the legatees are entitled to succeed to the estate of the original landlord under law. 8. Now, coming back to the claim for eviction under Section 11(3) of the Act, according to the learned counsel for the revision petitioner-tenant, Jessy cannot be a landlord and there should have been pleadings in the petition for eviction that Jessy and her husband are dependent on Sathyabhama. The learned counsel for the tenant relied on the recitals in the Will. He contended that Jessy and her husband, at best, can only be considered as dependants at the time of filing the eviction petition, if the recitals of the Will bequeathing the tenanted premises to Jessy is found legally unsustainable. 9. An eviction can be sought under Section 11(3) for a bona fide need either for ## **R.C.R.No.325 of 2019** ## **-:8:-** the landlord or his/her dependant. The dependant must be a member of the family. Assuming that the argument of the tenant in regard to the invalidity of the bequest made in favour of Jessy holds good under law, nothing prevents Sathyabhama from claiming eviction for Jessy or her husband. 10. We perused the pleadings in the petition for eviction. It is specifically pleaded in para.5 that Jessy's husband is a retired Senior Manager of Union Bank of India and that Jessy and her husband are intending to start a Super Market in the proposed new building. The business will be conducted by Jessy's husband as he is dependant upon the petitioners for the purpose of the building. The dependency, in fact, has to be pleaded specifically. It is also stated that it is in order to augment family income that they propose to start a new Super Market. Son-inlaw is also a part of the family. The ## **R.C.R.No.325 of 2019** ## **-:9:-** occupation of the building after eviction is by Jessy and her husband. If the pleadings necessarily conveyed the intention of the landlord, merely for the reason that in the petition for eviction it was not specifically pleaded that Jessy is dependant upon Sathyabhama for the purpose of building, is not fatal to the claim. As of now, by passage of time, Jessy has become the owner of the building upon the death of Sathyabhama. There is no dispute on this fact. That be the case, taking note of the subsequent event that Jessy became the owner, the pleadings have not caused any prejudice to the tenant. 11. In regard to the claim for eviction for reconstruction, there is no dispute to the fact that the other tenants have vacated and the landlord has reconstructed the building. However, they are unable to reconstruct the building to its full extent for want of the tenanted premises involved in this case. The ## **R.C.R.No.325 of 2019** ## **-:10:-** building is more than 40 years old and in a dilapidated condition. The landlord is having the financial capacity to reconstruct the building. Based on the materials before the courts below, it was found that the landlord is entitled for eviction under Section 11(4) (iv) of the Act. We, therefore, find no reason to interfere with the concurrent findings. The revision is dismissed. The tenant is given two months time to vacate the building on condition that he clears the entire arrears of rent within one month and undertakes that he will vacate the building within the period granted by this Court. The undertaking shall be filed within two weeks from today. ## **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGESd/-** **Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** **ms**