T.K.Sumathi and Others v. Kundantavida Rabia and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 13TH DAY OF DECEMBER 2011/22ND AGRAHAYANA 1933 RCR.No. 462 of 2011 ( ) ----------------------RCA.6/2003 of RENT CONTROL APPELLATE AUTHORITY THALASSERY RCP.35/1999 of RENT CONTROL COURT, KUTHUPARAMBA REVISION PETITIONERS/APPELLANTS/RESPONDENTS: ---------------------------------- 1. T.K.SUMATHI W/O.LATE SREENIVASA PANICKER,EDUPPIL HOUSE PUNNAD P.O, IRITTY,KANNUR DISTRICT PIN 670 703. 2. T.K.VINOD, S/O.LATE SREENIVASA PANICKER -DO- 3. T.K.VIJAYAKUMAR,S/O. -DO-DO- 4. T.K.VENUGOPALAN, S/O. -DO-DOBY ADVS.SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S)/RESPONDENTS/PETITIONERS: -------------------------- 1. KUNDANTAVIDA RABIA W/O.LATE MOIDEEN,SIVAPURAM THALASSERY TALUK KANNUR DISTRICT, PIN 670 702. 2. KUNDANTAVIDA THANSEERA D/O.LATE MOIDEEN 3. SISTER KUNDANTAVIDA SHAMLA AGED 15 YEARS, (MINOR), SIVAPURAM. -DO- -DO- 4. KUNDANTAVIDA SHAFEENA,D/O. -DO- - -DO- PIN 670 702 5. KUNDANTAVIDA MUHAMMED, S/O. -DO-DO- PIN-670 702 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **CR** ## **PIUS C.KURIAKOSE & K.HARILAL, JJ. -----------------------R.C.R NO. 462 OF 2011 ------------------------** Dated this the 13th day of December, 2011 ## **O R D E R** ## Harilal, J. The unsuccessful tenants before the courts below have come up in revision challenging the judgment in RCA No.6/2003 passed by the Rent Control Appellate Authority (the Additional District Judge, Thalassery). The petition was filed under Section 11(3) of the Kerala Buildings ( Lease and Rent Control) Act. The landlord died during the pendency of the proceedings in the Court of the Rent Controller. The legal representatives got impleaded in the petition and supplemental amendments were made in the petition. 2. The respondent/original landlord who had been working in Saudi Arabia and was constrained to give up his job due to heath problem is now living without any kind of job or income to meet livelihood for himself and his family. The need alleged in the petition was for conducting a stationery business in the RCR No.462 /2011 2 petition schedule building to eke out livelihood for himself and his family. In the petition, it is alleged that the income derived from the business carrying on in the petition schedule shop room is not the only source of income of the tenants/revision petitioners for their livelihood and suitable buildings are available in the locality to shift the business. After the death of the original landlord supplemental petitioners have been impleaded and sufficient amendments were made in the rent control petition. They contended that by the death of the original landlord, they are put to impecuniousness and hence the members of the family decided to start the business which their deceased father has already desired to start in the management of Latheef, the husband of the 3[rd] suppl. petitioner. The said Latheef is ready and willing to manage the stationery business for and on behalf of the other legal representatives of the original deceased landlord. Thus, after the death of the landlord sufficient pleadings were incorporated in the petition to show that the need already alleged in the petition is continuing. 3. The revision petitioner/ tenant entered appearance and filed a counter contending that the need projected in the petition RCR No.462 /2011 3 is only a ruse to evict him and no other buildings are available in the locality to shift the business. Further contended that he is depending for his livelihood mainly on the income from the business carried on in the petition schedule building. In the additional counter, the revision petitioner/tenant further contended that by the death of the original landlord bona fide need stated in the petition ceased to exist and legal representatives of the deceased cannot prosecute the petition on the same ground. According to the tenant, the remedy available to the petitioner is to file a fresh petition advancing the bona fide need of the legal representatives,if any. 4. On the basis of the rival contentions PWs1 and 2 were examined and Ext.A1 to A11 were marked for the petitioner and RW1 was examined and Exts.B1 to 3 were marked for the tenant. 5. Sri.K.V.Sohan, the learned counsel appearing for the revision petitioner contended that the impugned judgment is vitiated by illegality, irregularity and impropriety . The court below committed illegality in finding that the need raised by the landlord is genuine and bona fide. The learned counsel further RCR No.462 /2011 4 contended that the court below committed illegality in finding that alternate buildings are available in the locality to shift the business of the tenant. The present need is for the occupation of the son in law of the landlord to conduct the business and there is no evidence to show that the son- in -law is a dependent of the original landlord or supplemental landlords. It is further contended that by the death of the original landlord bona fide need ends there and the petition was liable to be dismissed. 6. We have given our anxious considerations to the argument advanced by Sri.K.V.Sohan. On an analysis of the pleadings, it could be seen that after the death of the original landlord, the legal heirs were impleaded and sufficient amendments were made in the petition so as to project the continuance of the need already alleged in the petition. Therefore, from the additional pleadings it could be seen that after the death of the original landlord, the additional landlords claim that the need survives. 7. In view of the rival contentions, the questions which emerge for consideration are (1) whether bonafide need survives after the death of the landlord, if he died before 5 RCR No.462 /2011 securing the order of eviction. (2) Whether legal representatives of the deceased landlord have the right to proceed with the same petition in such cases. Almost similar questions were considered in **Santhilal Thakordas & Others v. Chimanlal Maganlal Telwala** (AIR 1976 SC 2358). In that case the landlord, who sought for eviction under Section 11(3), died after securing order of eviction, during the pendency of the appeal. The Apex Court held that “ after the death of the original landlord, the senior member of his family takes his place and he is well competent to continue the suit for his occupation and occupation of the other members of the family”. Besides, the Apex Court overruled the decision in **Phoolran's** case (AIR 1973 SC 2110) wherein the Bench consisting of two learned Judges took the view that right to sue does not survive after the death of the landlord in a petition on the ground of bonafide need. The decisions in **Kamaleswar Prasad v. Pradymanju Agarwal** (1997 (2) KLT SV 11), **Gayprasad v. Pradeep Srivasthava** (2001 (1) KLT 753) are also in the same line holding that crucial date for deciding as to bonafide requirement of the landlord is the date of application for eviction. Relying on the above RCR No.462 /2011 6 decisions, in **Narayanan v. Tahiba** (2009 (3) KLT 749), this Court held that “if a decree for eviction is passed, the death of the landlord during the pendency of the appeal does not make any difference and the need claimed by the legal representatives will survive and the legal representatives have the right to proceed with the appeal. The only difference with the case on hand is that, here the landlord died before securing the order of eviction. 8. On the above context, we may have to look at Section 11(3), which reads as follows: “A landlord may apply to the Rent Control Court, for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any members ” of his family dependent on him . When we focus at the Section, on a plain reading itself, it could be seen that the landlord has the right to apply for eviction under Section 11(3), either for his own occupation or for the occupation by any member of his family dependent on him . Obviously, the occupation of any member of the family was also taken into consideration by the legislature, equally as RCR No.462 /2011 7 that of the occupation of the landlord himself . Thus the need for the entire family comes within the ambit of Section 11(3). On an analysis of Section 11 (3), in the light of the above decisions, we hold that the bonafide need will survive, even if the landlord died before securing order of eviction and the legal representatives have the right to proceed with the petition, provided that the need projected by the landlord for his occupation must continue after the death of the landlord for the occupation of any member of his family dependent on him at the time of death. The death of the original landlord who filed a petition under Section 11(3) before securing eviction, shall not cause the bonafide need to be abated automatically. It is also incumbent on the legal representatives to make necessary amendments in the petition to the effect that the need is continuing. Whether the need continues or not is a factual issue depending upon the facts and circumstances of each case. 9. Another contention raised by the tenant is that PW2 is not dependent on the landlord. In **Prathapan v. Rama Warrier** (2004 (2) KLT 559), this Court observed that “there may also be cases where sisters, brothers, brothers-in-law, RCR No.462 /2011 8 sisters-in-law be treated as members of the family. It all depends upon the family relations and family bonds. A domestic servant who served the family through out his life also in a given situation be treated as member of the family. Further in **Raghavan v. Kelappan** (2006 (1) KLT 1), a Full Bench of this Court held that “the word 'dependent' in the context of BRC Act is generally considered as dependent on the landlord for the building. In short, it would not be possible to give a clear definition as to who all will fall within the expression “member of the family dependent on the landlord, which depends upon variety of factors including relationship the landlord has with his members of the family. Courts dealing with rent control matters have to make a pragmatic approach on the issue depending upon the facts and circumstances of each case and it would not be possible to give a precise and definite meaning to that expression in the context of Section 11(3) of the Act. “ 10. PW1, the wife of the original landlord has stated that her husband genuinely required the petition schedule building for starting the stationery business for the income of the family and 9 RCR No.462 /2011 with the death of the husband his legal representatives are put to a pathetic situation and they wanted to start the proposed business for the livelihood of the entire family. PW2, the husband of the supplemental petitioner No.3, was also examined and proved that bona fide requirement continues even after the death of the original landlord. He expressed his willingness to manage the proposed stationery business for the livelihood of the entire family. In view of the evidence of PWs1 and PW2 the courts below concurrently and rightly found that the need projected by the landlord is bona fide and we are also satisfied with the above findings in the absence of any valid contra evidence. 11. Coming to the first proviso to sub section (3) Section 11, there is no evidence to show that the landlord is in possession of other vacant rooms of his own to conduct the business. Therefore, the need projected by the landlord is not hit by the first proviso to sub section (3) of Section 11. 12. Coming to the second proviso, admittedly the tenant is a pensioner earning a sum of Rs.5,900/- per month. While examined as RW1, the tenant stated that he had been getting a RCR No.462 /2011 10 sum of Rs.8,000/- per month from the business in the petition schedule building. But he further stated in the cross examination that after deducing the expenditure, the monthly income from the business is only Rs.1200/- per month. Besides, he admitted that for the last 4 to 5 years, his elder son is running the business. He further stated that his son is maintaining the accounts of income and expenditure in respect of the business and he is not aware of such things. Coming to the second limb of the second proviso, RW1 has admitted that he has not made any sincere enquiry regarding the availability of alternative building in the locality. His another contention is that for the purpose of acquiring another building, he has to pay heavy sums as deposits. We also find no merit in the above contention of the tenant in the light of the decision reported in K.P.Komalan v. Muhammed and others ( ILR 2001 (3) Kerala 390) . In this decision, this court held that “the benefit of the 2nd proviso to sub section (3) of Section 11 cannot be availed of on the contention that for the alternate accommodation high pagidi and rent are required”. Thus, the court below concurrently and rightly found that the tenant is not entitled to get the RCR No.462 /2011 11 benefit under the 2nd proviso to Section 11 (3) and the tenant miserably failed to discharge the burden under the 2nd proviso to sub section (3) of Section 11. 13. Considering the limited jurisdiction under Section 20 of the Buildings (Lease and Rent Control) Act 1968, the question is whether there is any illegality, irregularity or impropriety in the findings of the court below. We are of the view that there is no irregularity, or illegality or impropriety in the findings of the court below and we are satisfied with the concurrent findings of the courts below. In the result, this revision fails and stands dismissed. ## **PIUS C.KURIAKOSE,JUDGE** **K.HARILAL, JUDGE.** dpk /True copy/ P.A.to Judge. RCR No.462 /2011 12