Suresh v. Preethi Kumar

## **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 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944 RCREV. NO. 39 OF 2022** **RCA 43/2020 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP 117/2018 OF RENT CONTROL COURT, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** SURESH, AGED 52 YEARS S/O. HARIDASAN, KIZHAKKEPONNATH, KARUVISSERI P.O., KOZHIKODE 673 010. BY ADVS. A.BALAGOPALAN A.RAJAGOPALAN M.S.IMTHIYAZ AHAMMED M.N.MANMADAN ## **RESPONDENT/RESPONDENT/PETITIONER:** PREETHI KUMAR, AGED 61 YEARS CHEKKU, THAITHOTTATHIL HOUSE, KANANCHERRY, KALLAI P.O., KOZHIKODE 673 003. BY ADVS. T.K.SANDEEP ARJUN SREEDHAR ARUN KRISHNA DHAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RCR No.39/2022 ..2.. ## **ORDER** ## A. MUHAMED MUSTAQUE, J. In this revision, the tenant questions the concurrent finding of order of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short, “the Act”), on the ground of _bona fide_ need of the landlord. 2. The original landlord, Narayani, died. One of her children, viz., Preethikumar, approached the Rent Control Court seeking eviction under Section 11(3) of the Act, on the ground of _bona fide_ need, to occupy the tenanted premises for starting an industry. It appears that he had carried an industry in fiber prior to letting out the building to the tenant in the same premises. Thereafter, he went to gulf and returned from gulf. It is specifically averred in the petition that his siblings have RCR No.39/2022 **==> picture [31 x 8] intentionally omitted <==** consented to file the eviction petition and allowed him to occupy the building after eviction. The Rent Control Court allowed the eviction, which has also been affirmed by the appellate authority. 3. The learned counsel for the revision petitioner/tenant, assailing the order of eviction, argued that in the absence of precise pleading in the petition in regard to the proposed nature of industry, both authorities below could not have allowed the petition under Section 11(3) of the Act. According to the learned counsel, the revision petitioner/tenant must be given an opportunity to discredit the claim of the respondent/landlord in regard to his proposed business. In the absence of any precise pleading in the petition, the tenant has been prejudiced to put forward proper defence, denying _bona fide_ need of the landlord. The RCR No.39/2022 **==> picture [31 x 8] intentionally omitted <==** learned counsel placed reliance on the judgment of this Court in **Mymoon** v. **Dunlop India Ltd.** [2007 (2) KLT SN 37 (C.No.52)], wherein this Court considered the requirement of pleading in the conduct of a petition under Section 11(3) of the Act, as follows; “The vague, hazy and indefinite pleadings regarding the purpose for which the premises is required is not sufficient to support the claim under S.11(3) of the Act. The landlord having not pleaded the specific requirement and nothing is deposed about the business proposed to be started, although it has stated that the premises is required for starting business, would be hardly sufficient to satisfy the _bonafide_ need envisaged under S.11(3) of the Act. It would not be possible for the tenant to properly dispute the _bonafides_ of the alleged need unless the nature of the business or atleast the bare details of the same is not mentioned, if not in the pleadings atleast in evidence; only then the respondent/tenant would be able to expose the hollowness of the claim, if it is so. Only then, the Court can ascertain the _bonafides_ of the need set up by the landlord. The result of such concealment would result in gross prejudice to the tenant.” The learned counsel also argued that without conjunction of other co-owners, the landlord cannot maintain the petition for eviction. 4. In regard to the pleading that what is required in such petition is to convey the RCR No.39/2022 **==> picture [31 x 8] intentionally omitted <==** intention of the landlord, it was specifically pleaded by the revision petitioner/landlord in the rent control petition that he requires the tenanted premises to start an industry. It is true that he had not given the details of the industry. There is no dispute to the fact that in past, he had run an industry in fiber in the same building prior to letting out the building to the tenant. In evidence, he deposed that he wants to run the same business, which he carried on earlier in fiber. The lack of pleading, absence of pleading and insufficiency of pleading will have to be distinguished depend upon the facts of each case. If there is lack of complete pleadings, it can be said, in a particular circumstance of the case, that the tenant would be prejudiced by such lack of pleadings. The court will have to advert to all attendant circumstances while analyzing the pleadings in RCR No.39/2022 ..6.. evidence and find out as to whether any prejudice has been caused to the tenant. It is not the insufficiency of the pleadings that matters, but, the prejudice likely to cause to the tenant, should be the concern of the court. In a matter like this, when a landlord had carried same business industry in the past and he having deposed that he intends to continue the same business, no much prejudice will be caused to the tenant as the tenant cannot put forward any case that the building is totally unfit for such industry. We, therefore, of the view that the tenant has, no way, been prejudiced by not furnishing the precise nature of the industry in the petition for eviction. 5. In regard to other objection that the other co-owners were not joined in the petition for eviction, both authorities below placed reliance on the precedents of this Court and RCR No.39/2022 **==> picture [31 x 8] intentionally omitted <==** the apex court. It is now settled law that one co-owner can maintain the petition for eviction and it is for the tenant to show that the other co-owners have objected to such petition. The tenant also failed to prove both limbs for protection under the 2[nd] proviso to Section 11(3) of the Act. We find no merit in the revision. Accordingly, the revision is dismissed. However, taking note of the fervent submission of the learned counsel for the revision petitioner/tenant, we grant six months' time to surrender vacant possession of the building on the following terms and conditions; a)The revision petitioner/tenant shall file an undertaking that he shall surrender vacant possession of the petition schedule building within six months from today, which shall be filed within four weeks. b)The revision petitioner/tenant shall clear RCR No.39/2022 **==> picture [31 x 8] intentionally omitted <==** off the entire arrears of rent within two months and shall continue to pay rent thereafter till actual vacant possession of the building is handed over to the respondent/landlord. c)On failure to honour the conditions as above, the respondent/landlord is free to execute the order in accordance with law. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** ## **SHOBA ANNAMMA EAPEN** **JUDGE** bka/-