Vazhayil Keloth Sreemathi vs Murikeloth Govindan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 RCRev..No. 271 of 2006() -----------------------RCA.137/2000 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.71/1998 of MUNSIFF COURT, THALASSERY .................... PETITIONER/APPELLANT/PETITIONER: ---------------------------------------------------- VAZHAYIL KELOTH SREEMATHI, D/O. GOPALAN, AGED 46, NO OCCUPATION, RESIDING AT ERAYINTAVIDA, P.O. PANDAKKAL, MAHE. BY ADV. SRI.P.M.HABEEB RESPONDENT(S): RESPONDENT-RESPONDENT: ------------------------------------- MURIKELOTH GOVINDAN, S/O.KUNHIRAMAN, AGED 61, VAKKANDIYIL, RUNNING BARBER SHOP, OPPOSITE TO READING ROOM, ENGAYIL PEEDIKA, KODIYERI AMSOM, MOOZHIKKARA DESOM,P.O.MOOZHIKKARA, THALASSERY TALUK, KANNUR DISTRICT. ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE FOR R1 SRI.P.K.VIJAYAMOHANAN FOR R1 SRI.O.V.MANIPRASAD FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------** ## **R.C.R. No. 271 of 2006** ## **----------------------------------** Dated this the 23[rd] day of February, 2010 ## **O R D E R --------------** ## **Pius C.Kuriakose,J.** The landlady is in revision. She sought to evict the respondent tenant on the ground of bonafide need for own occupation under Section 11(3) and 11(2)(b) and user of the building in such a manner as to reduce its value and utility under Section 11(4)(ii). All the claims were resisted by the tenant. The Rent Control Court enquired into the matter and after enquiry that court dismissed the Rent Control Petition completely. The landlady preferred an appeal before the Rent Control Appellate Authority. The Appellate Authority appreciating the evidence of landlady came to the conclusion that the need projected by the landlady which was for accommodating her son for conducting a paint shop as well as a stationery shop is a bonafide one. However, reiterating the finding of the Rent Control Court that tenant is entitled to protection of the second proviso to Section 11 (3) the Appellate Authority also confirmed the order **R.C.R.271/2006** -2- dismissing the RCP. Before the Appellate Authority the contention raised by the tenant that Section 11(3) 1[st] proviso applies was negatived in favour of the landlady relying on the judgment of this court in **Asher v. Hassankutty Haji (2004 (2) KLT 446)** . This revision is filed by the landlady assailing the decision of the authorities below to decline the order of eviction on the three grounds. 2. We have heard the submissions of Sri.P.M. Habeeb, learned counsel for the revision petitioner and that of Sri.O.V. ManiPrasad, learned counsel for the respondent. Eventhough Mr. Habeeb assailed the judgment of the authorities below on all the grounds, he would give more thrust to the ground raised in the context of the eviction sought under Section 11(3). Having scanned the order of the Rent Control Court and Appellate Authority we also feel that there is no illegality, irregularity, infirmity or impropriety about the orders of the authorities below declining eviction under Section 11(2)(b) and 11(4)(ii). We are concerned in this revision only regarding the correctness of the order of eviction declined under Section 11(3). Mr.O.V.Maniprasad sought leave to challenge the findings of the Rent Control Appellate Authority that the need is not bonafide even **R.C.R.271/2006** -3- without filing a separate revision or memo of Cross Objection to the revision filed by the landlady. He placed reliance on judgment of the Hon'ble Supreme Court in **Nalakathu Sainuddin vs. Koorikadan Sulaiman (AIR 2002 SC 2562)** . Strong reliance was placed by him on the observations of the Supreme Court in paragraph 16 of the judgment particularly the observations under clause (iii) of that paragraph. The Hon'ble Supreme Court has held in the above judgment as follows:- “(iii). 'Any aggrieved party', the expression employed in Section 20(1) means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not a party aggrieved though the order contains a finding or two adverse to him. The respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.” **R.C.R.271/2006** -4- We feel that the above judgment of the Supreme court applies squarely in this case and the respondent tenant can be permitted to challenge the finding of the Rent Control Appellate Authority that the need is not bonafide. Mr. Maniprasad submitted that the pleadings in the Rent Control Petition are quite insufficient. It is not pleaded that the son for whom the building is sought to be evicted is a dependent of the landlady. He referred to the judgment of the Supreme Court in **Ismail v. Kesavan (2004(2) KLT 56)** which takes the view that when the landlady is seeking eviction under Section 11(3) for the occupation by a dependent family member it is necessary that it is specifically pleaded that the person for whom building is sought for, is a dependent of the landlady. 3. Sri. Habeeb, counsel for the landlady would assail the finding of the Rent Control Appellate Authority that the tenant is entitled to the protection of second proviso to subsection (3). Mr.Habeeb relied on the Full Bench decision of this court in **Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (F.B)).** Learned counsel submitted that the entire burden to show that tenant is entitled for protection of the 2[nd] proviso is on the tenant himself. In this case burden of **R.C.R.271/2006** -5- proof was wrongly cast by the authorities on the landlady. 4. We must notice that there is merit in some of the submissions addressed by the learned counsel on both sides. As for the correctness of the finding entered by the appellate authority that the need is bonafide it has to be noticed that there is no specific plea as required by the Supreme Court in **Koyilerian Janaki & Ors. Vs. Rent Controller, Cannanore & Ors. ((2000) 9 SCC 406)** to the effect that the son for whom the building is sought for is a dependent. It must also be noticed that defacto claimant i.e. the son, was not examined. At the same time it appears to us that the authorities below have not kept in mind the principles laid down by the Full Bench in **Francis v. Sreedevi Varassiar.** It is trite that the burden to establish that tenant satisfies both ingredients of the second proviso to sub-section (3) is on the tenant himself. At the same time we feel that the landlady who stated in evidence that the buildings belong to Shyba, Raghavan and Radha are lying vacant in the locality could have furnished the address of those three persons to the tenant to enable the tenant to cite them as witnesses. 5. We notice yet another aspect of the matter. The building is situated in an area which presently form part of **R.C.R.271/2006** -6- the Thalassery Muncipality. Monthly rent of Rs.10/- found to be payable by the tenant is ridiculously low. The above rate was fixed way back in 1967. The rate is far below the rate which the building will fetch if let out today. We, therefore, are inclined to re-fix the rent payable by the respondent tenant tentatively at Rs.250/- per mensum. Result of the above discussions is as follows:- (i). The order of the Rent Control Court and Appellate Authority are set aside. Rent Control Petition is remanded to the Rent Control Court, Thalassery. That court is directed to allow application if any filed by the landlady for amendment of pleadings. That court is also directed to reconsider the question as to whether the need is bonafide and also as to whether the tenant is entitled to the protection of second proviso to Section 11(3). While taking fresh decision the Rent Control Court will have due regard to the principles laid down by this Court in **Francis v. Sreedevi Varassiar** and all other decisions germane to the relevant issues. If landlady so desires she will be permitted to examine her son as another witness on her side. Both sides will be permitted to adduce whatever evidence they want to for substantiating their rival contentions. **R.C.R.271/2006** -7- (ii). The rent payable by the respondent for the building is re-fixed at Rs.250/- per mensum with effect from 1.3.2010. We make it clear that this fixation of rent is tentative and subject to re-fixation of fair rent at the instance of both parties. 6. Mr.Habeeb made a last submission that the tenant is not presently occupying the petition schedule building at all and also that tenant has parted with possession of the building in favour of another person. This judgment will not stand in the way of landlady filing fresh Rent Control Petition on the ground of cessassion of occupation and subletting or transfer. Parties will appear before the court below on 31.3.2010. Learned Rent Control Court is directed to complete the enquiry and pass revised order at the earliest and at any rate within four months of receiving copy of the order. ## **PIUS C.KURIAKOSE, JUDGE.** ## **C.K.ABDUL REHIM, JUDGE.** okb