Writ Appeal No. 172 of 2020 (R.C.R No. 172 of 2020)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA ``` ``` FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 ``` ``` RCREV. NO.172 OF 2020 ``` ``` AGAINST THE JUDGMENT DATED 08.06.2020 IN RCA 20/2018 OF RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT, VATAKARA) AGAINST THE ORDER DATED 30.11.2017 IN RCP 48/2016 OF MUNSIFF ``` ``` COURT, VATAKARA ``` ``` REVISION PETITIONERS/SUPPL.RESPONDENTS 2 TO 7/LR’S OF PETITIONER ``` |**`1`**|**`NEESHMA M.,`**| |---|---| ||**`AGED 50 YEARS,`**| ||**`W/O.GANGAN, KADAVATH HOUSE, NEAR CHOMBAL HARBOUR,`**| ||**`CHOMBALA (PO), KOZHIKODE DISTRICT-673 308.`**| |**`2`**|**`NISLI M.,`**| ||**`AGED 53 YEARS,`**| ||**`W/O.MURALI, MADATHIL HOUSE, PARAPPIL ROAD, EKAROOL`**| ||**`(PO), BALUSSERY, KOYILANDY TALUK-673 574.`**| |**`3`**|**`NEETHI M.,`**| ||**`AGED 50 YEARS,`**| ||**`W/O.BABU, KOYILOTHPARAMBIL HOUSE, CHOMBALA (PO),`**| ||**`MUKKALI, VATAKARA TALUK-673 308.`**| |**`4`**|**`DEEPA NAJEESH,`**| ||**`AGED 55 YEARS,`**| ||**`W/O.NAJEESH BABU, GANGOTRI, MEPPAYIL P.O.,`**| ||**`KOKKANHATH ROAD, VATAKARA TALUK-673 104.`**| |**`5`**|**`NEERAJ,`**| ||**`AGED 26 YEARS,`**| ||**`S/O.NAJEESH BABU, GANGOTRI, MEPPAYIL POST,`**| ||**`KOKKANHATH ROAD, VATAKARA TALUK-673 104.`**| 2 Writ Appeal No. 172 of 2020 ``` 6NIJIL, AGED 21 YEARS, S/O.NAJEESH BABU, GANGOTRI, MEPPAYIL POST, KOKKANHATH ROAD, VATAKARA TALUK-673 104. ``` ``` BY ADVS. K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA EASWARAN ``` ## **`RESPONDENT:`** ``` RAGHAVAN, AGED 69 YEARS, S/O.LATE NAMBI, RESIDING AT PIRAKKINTE MALAYIL, VELUTHA MALA ROAD, PUTHUPPANAM, PUTHUPPANAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 105. ``` ``` BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Writ Appeal No. 172 of 2020 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------R.C.R No. 172 of 2020** **----------------------------------------------------Dated this the 23[rd] day of December, 2022** ## **ORDER** ## **C.S.Sudha, J.** This R.C.R. under Section 20 of the of the Kerala Buildings (Lease & Rent Control) Act, 1965 (the Act) has been filed against the judgment dated 08/06/2020 in R.C.A.No.20/2018 on the file of the Rent Control Appellate Authority (RCAA), Vatakara, which appeal is against the order dated 30/11/2017 in R.C.P.No.48/2016 on the file of the Rent Control Court (RCC), Vatakara. The revision petitioners are supplemental respondents 2 to 7 in the appeal, that is, the legal representatives of the original petitioner-landlord in the R.C.P. The respondent herein is the appellant in the appeal and the respondent-tenant in the R.C.P. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.48/2016 was filed by the petitioner-landlord, namely, Nakulan, seeking eviction under Section 11(2)(b) and 11(3) of the Act. According to the petitioner, the petition schedule building originally belonged to his father, Kanaran, who had let out the premises to the respondent as per 4 Writ Appeal No. 172 of 2020 registered Kachit No.121/1985 of SRO Vatakara. As per the Will executed by Kanaran, the petition schedule room was bequeathed in favour of the petitioner. Kanaran died in the year 1987 and thus the petitioner became the absolute owner of the schedule room. The respondent has attorned to the petitioner. The rent was enhanced to ₹250/- with effect from 18/09/1994. The respondent has paid rent up to 18/12/2015 and has kept the rent for the remaining period in arrears. Earlier, the petitioner for several years was conducting a textile business in a rented building. In the year 1998, the business was changed to a business in ayurvedic medicines and drugs. While so, in the year 2007, the shop room and the property in which it was situated was acquired for the purpose of widening the National Highway. Thereafter, the petitioner was living with his daughter without any occupation. The petitioner's son Najeesh Babu, a practicing advocate, passed away recently due to cancer leaving the petitioner bereft of any support. In such circumstances, it is necessary for the petitioner to earn his livelihood as he does not want to depend on his daughters. Therefore, he _bona fide_ needs the petition schedule room for starting a business in ayurvedic medicines and drugs. The respondent is quite well off and he is not depending on the income from the petition schedule room for his livelihood. He is not entitled to the benefit of the second proviso to Section 11(3) of the Act. Though a lawyer 5 Writ Appeal No. 172 of 2020 notice was issued to the respond demanding vacant possession of the premises, the respondent has refused to do so and hence the R.C.P. 3. The respondent-tenant filed a counter disputing the need alleged and contending that it was only a mere ruse for eviction. He also claimed the protection under the second proviso to Section 11(3). 4. PW1 was examined and Exts.A1 to A7 were marked on the side of the petitioner. RW1 was examined on the side of the respondent. No documentary evidence was produced by the respondent. The RCC on an appreciation of the oral and documentary evidence and after hearing both sides, allowed the R.C.P and granted eviction under Section 11(3) of the Act. The claim for eviction under Section 11(2)(b) was rejected. R.C.A.No.20/2018 filed by the respondent-tenant was allowed by the RCAA reversing the order of eviction passed under Section 11(3) by the RCC. Aggrieved, the legal representatives of the original petitioner-landlord have come up in revision. 5. The only point that arises for consideration is whether the findings of the RCAA suffer from any illegality, irregularity or impropriety. 6. Heard Sri.Lakshminarayanan, the learned counsel for the petitioners and Sri.Rakesh Roshan, the learned counsel for the respondent. Writ Appeal No. 172 of 2020 6 7. During the pendency of the appeal, Nakulan, the landlord passed away. Taking note of the subsequent event, the RCAA held that the need no longer survived and hence reversed the order of eviction granted by the RCC under Section 11(3) of the Act. This finding of the RCAA is challenged in this revision. The only point to be considered now is, whether the need projected in the R.C.P. survives. In the appeal, the wife, daughters and daughter-in-law of Nakulan have been impleaded as additional respondents 2 to 7 (hereinafter referred to as the petitioners). According to the present petitioners, though Nakulan, is no more, the need still survives and therefore they are still entitled to prosecute the case. In support of this argument, they rely on the decisions in **Shakuntala Bai v. Narayan Das, 2004 (5) SCC 772; Sumathi v.Rabia, 2012 (1) KLT 595; Usha P.Kuvelkar v. Ravindra Subrai Dalvi, 2008(1) SCC 330: 2008(1) KLT 398; Narayana v. Thahira, 2009(3) KLT 749; Prema Ramakrishnan v. Salmath, 2006 (3)KLT 284: Gaya Prasad v. Pradeep Srivastava, 2001(1) KLT 753 SC; Alavi K.P. v. Jameela P.P., 2014(1) KLJ 318; Kamaleshwar Prasad v. Agarwal, 1997(4) SCC 413: 1997 KHC 502; Om Prakash Gupta v. Ranbir B Goyal, 2002(2) SCC 256; Rajesh Kumar Agarwal v. K.K.Modi, 2006(4) SCC 385: 2006(3) KLT 192 SC; Usha Balasahib Swami v. Kiran Appaso Swami, 2007 (5) SCC 602.** The argument is that death of Nakulan will not 7 Writ Appeal No. 172 of 2020 automatically result in the _bona fide_ need getting abated. On the other hand, it was submitted on behalf of the respondent-tenant that on the death of Nakulan, the need no longer survives and so the petitioners have no right to the prosecute the matter any further or to get an order of eviction as prayed for. In support of this argument, reference was made to the decision in **Seshambal v. M/s Chelur Corporation Chelur Building, 2010 KHC 4104.** 8. Section 20 of the Act allows the aggrieved party, to challenge the legality, regularity or propriety of the order or proceedings of an Appellate Authority. The revisional authority has to satisfy itself of the legality, regularity or propriety of the order or proceedings of the Appellate Court. This Court can interfere under Section 20 of Act if the view that is taken by the RCC or the RCAA is perverse or when the statutory scheme has not been kept in mind. If the approach made by the authorities is perverse, then this court is in exercise of its jurisdiction under Section 20 can certainly look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the basis of pleadings and evidence on record. 9. **Shakuntala Bai** ( _supra_ ) relied on by the petitioners, is a similar case. That was a case under the Madhya Pradesh Accommodation Control Act. When the matter came up before the Apex Court, 42 years had elapsed since the filing of the suit for eviction on the ground that the landlord required the Writ Appeal No. 172 of 2020 8 building _bona fide_ for his personal need. During the pendency of the proceedings the petitioner-landlord passed away and therefore, it was found that the need no longer survived and so the legal representatives were held not entitled to continue with the proceedings. The Apex Court disagreed with this conclusion of the High Court and held that if subsequent events like the death of the landlord is to be taken note of at every stage till the decree attains finality, there would be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who institutes the proceedings dies, the suit will have to be dismissed without going into the merits. The same thing may happen in a fresh suit filed by the legal representatives and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time. Therefore, there is no warrant for interpreting a rent control legislation in such a manner, the basic object of which is to save harassment of tenants from unscrupulous landlords. Such extreme views erode the faith of people in the judicial system prompting them to take recourse to extra judicial methods to recover possession of their property. The object is not to deprive the owners of the property for all times to come. It has been further held that the legal position is well settled and that the _bona fide_ need of the Writ Appeal No. 172 of 2020 9 landlord has to be examined as on the date of the institution of the proceedings and if a decree for eviction is passed, the death of a landlord during the pendency of the appeal preferred by the tenant will make no difference as his legal representatives would be fully entitled to defend the estate. 10. However, in **Seshambal** ( _supra_ ) relied on by the tenant, the need pleaded by the original petitioner was for his own personal requirement and not for any members of the family whether dependent or otherwise. It was found that none of the legal representatives were dependent upon the deceased petitioner and therefore on the death of the petitioner their right to seek eviction on the ground of personal requirement for demised premises became extinct. It has been held that while it is true that the right to relief must be judged by reference to the date on which the suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted. The dictum in **Shakuntala Bai** ( _supra_ ) was also noticed. However, it was held that Writ Appeal No. 172 of 2020 10 **Shakuntala Bai** _(supra)_ does not lend any support to the proposition that subsequent developments cannot be noticed by the Court especially when such developments have an impact on the right of a party to the relief prayed for. The dictum in **Seshambal** _(supra)_ has been followed in several subsequent decisions of the Apex court. 11. It is true that subsequent events have to be looked into by the Court. Here the need alleged in the R.C.P. is that petitioner-landlord, Nakulan, wants to start a business of his own in the tenanted premises as the death of his only son has left him bereft of any support and also because he does not want to depend on his married daughters. The need projected in the R.C.P. was found _bona fide_ and so the RCC ordered eviction under Section 11(3). During the pendency of the appeal filed by the tenant, Nakulan, passed away. Hence his legal representatives were impleaded. Supplemental respondents 1 to 3 are his daughters; the supplemental 5[th] respondent, his predeceased son's wife and supplemental respondents 5 and 6, her children. The supplemental 5[th] respondent, filed I.A.No.1/2020 under order 6 Rule 17, which application is seen filed on behalf of all the supplemental respondents (hereinafter referred to as the petitioners), for amending the R.C.P. in the light of the death of Nakulan. In the said application, the prayer is to amend the R.C.P. by incorporating the following paragraph which reads- “ _11A. the_ Writ Appeal No. 172 of 2020 11 _Original petitioner in RCP 48/2016, Nakulan died on 14.04.2019. Supplemental Petitioners 2 to 4 are his daughters. Supplemental Petitioner 5 son’s widow and supplemental Respondents 6 and 7 are children. Nakulan has filed RCP 48/2016 for eviction of the Respondent on grounds of his bonafide need. The Supplemental 5[th] Petitioner, is also a practicing lawyer at Vatakara. Her elder son Neeraj is a qualified pilot. However, he has yet to find a job. Her younger son is studying in XII standard. Petitioners 5 to 7 are dependent on the income of 5[th] Petitioner as an Advocate. 5[th] Petitioner doesn’t have an office at Vatakara to accommodate her practice. If she has an office space in Vatakara it would improve her professional standing and circumstances and she will be able to build more work resulting in better income. 5[th] petitioner therefore has the bonafide need to occupy the Petition Schedule Shop room as her professional office.”_ 12. The respondent-tenant filed objection to the amendment application contending that on the death of Nakulan, the need itself has come to an end and therefore, the amendment petition cannot be allowed as it would be introducing a new case which was never there in the original petition. This application has been dismissed by the RCAA. During the course of arguments before us, it was submitted by the learned counsel for the tenant that the daughter-in-law of Nakulan, for whom the need has been put forward in the 12 Writ Appeal No. 172 of 2020 amendment application, has now remarried and hence no purpose would be served even if the amendment application had been allowed, as the new need put forward also no longer survives. The fact that the daughter-in-law has remarried, is not disputed by the other petitioners. However, it was submitted by the learned counsel for the petitioners that the daughter-in-law of Nakulan, namely, Deepa Najesh, still needs the tenanted premises for using it as her office; that the other legal representatives of Nakulan have no objection to the same and so, the mere fact the former has remarried would make no difference as the need still survives. 13. It is true that the Act is meant for the benefit of the tenants so as to protect them from unreasonable evictions. But that does not mean that the tenants can take undue advantage of certain unfortunate events in the family of the landlord. Here Nakulan was successful in getting a favourable order from the RCC. Section 24 of the Act says that the RCC shall as far as may be practical, pass final orders in any proceeding before it within four months from the date of appearance of the parties thereto. Rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 says that the RCC need only make a brief note of the evidence adduced by the parties and witnesses. So, the enquiry conducted by the RCC is expected to be only in a summary manner. However, the aforesaid provisions are more honoured in its breach 13 Writ Appeal No. 172 of 2020 than observed. Had the R.C.P. been disposed of within the time limit specified in section 24 and if further proceedings had also terminated within a reasonable time, in all probability, Nakulan would have got vacant possession of the tenanted premises and started the business. However, after succeeding in getting an order of eviction under Section 11(3) from the RCC, which order has not been shown to be in any way perverse, Nakulan passed away before he could enjoy the fruits of the decree. The death of Nakulan is the sole reason due to which the RCAA reversed the finding of the RCC. To dismiss the R.C.P. and to compel the petitioners to go in for a fresh R.C.P. and then fight the battle with the tenant for another 20 to 25 years would be quite unjust and would be causing grave injustice to the owners of the building. 14. It is no doubt true that subsequent events will also have to be taken into consideration as held by the Apex court. In our opinion the facts in **Seshambal** _(supra)_ can be differentiated from the case on hand. In the said case the owners filed RCP seeking eviction of the tenant under S.11(3) of the Act. The prayer for eviction was opposed by the tenant, _inter alia,_ on the ground that the owners did not require the demised premises and that the tenant would find it difficult to shift its business to any other premises on account of non-availability of a suitable accommodation. The RCC dismissed the R.C.P. holding that the owners had failed to establish their _bona fide_ 14 Writ Appeal No. 172 of 2020 requirement of premises. The RCC held that the owners had shifted their residence from the city in which the tenanted premise was situated and were living with their daughter and son-in-law who were running a nursing home in another city. The appeal and revision filed were also dismissed confirming the order of the RCC. During the pendency of the revision petition before the High Court, the landlord passed away leaving behind his wife as the sole revision petitioner seeking eviction of the tenant. Consequent upon the dismissal of the revision petition, an appeal was filed before the Apex court by the sole revision petitioner alone, who too passed away before the appeal could be heard for final disposal. Substitution of the legal representatives of the appellant on the basis of a Will left behind by the deceased, as per which the property in question devolved upon her three daughters, was allowed. Two of the daughters were living in India, one each at Coimbatore and Bihar and the third daughter was settled in America. The short question in the above backdrop, was whether the proceedings instituted by the deceased-owners of the demised property could be continued by the legal representatives left behind by them. It was not in dispute that in the eviction petition, the owners had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the 15 Writ Appeal No. 172 of 2020 owners–petitioners, leave alone any member of their family who was dependent upon them. Not only that, even in the petition filed before the Apex Court the requirement pleaded was that for the deceased-widowed owner of the demised premises and not of any member of her family. Super added to all this was the fact that the legal representatives of the deceased, were all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependent upon the deceased - petitioner was also an undisputed fact. The Apex Court held that, added to all of the above factors, even otherwise in the social milieu to which we are accustomed to, daughters happily married have their own families and commitments financial and otherwise. Such being the position it was held that the need no longer survived and hence the appeal was dismissed. 15. In the case on hand, all the legal representatives of Nakulan have come on record and filed an amendment application stating that the daughter-in-law of Nakulan requires the schedule room for the purpose of her office. The need projected is not opposed by the other legal representatives of Nakulan. Hence, we are of the opinion that the amendment petition filed by the legal representatives of Nakulan ought to have been allowed by the RCAA. No prejudice would have been caused to the respondent because he can also be 16 Writ Appeal No. 172 of 2020 given an opportunity to contest the need put forward by the present petitioners. If not, as observed by the Apex court in **Shakuntala Bai** _(supra),_ this would become an unending process. It would also lead to rendering the whole proceedings taken infructuous and a colossal waste of public time. The object of the Act is not to deprive the owners of the property for all times to come. If such a view is taken, then the tenants would prolong the litigation for several years by taking frivolous contentions and then succeed in the event of the landlord passing away. The tenant cannot be permitted to take undue advantage of such unfortunate turn of events in the family of the landlord. We also take note of the observation of the Apex court that such extreme views erode the faith of people in the judicial system prompting them to take recourse to extra judicial methods to recover possession of their property. Further, the Apex court in **Seshambal** ( _supra_ ) has not disagreed with the views expressed in **Shakuntala Bai** _(supra)_ . The question whether the need alleged gets completely eclipsed on the death of the landlord depends on the facts and circumstance of each case and it cannot be concluded that death of the landlord in all situations would automatically lead to the need coming to an end. The same will have to be decided on a case-to-case basis. In these circumstances, we think that in the interest of justice, instead of compelling the parties to go in for a fresh R.C.P., an opportunity must be given to amend the R.C.P. 17 Writ Appeal No. 172 of 2020 appropriately to bring in necessary pleadings so that the respondent is also not taken by surprise or prejudiced. In the result, the R.C.R. is allowed. The matter is remanded to the RCC. The legal representatives of Nakulan, the original petitioner, are at liberty to amend the pleadings in accordance with the need put forward by them, if they are so advised. The respondent shall be entitled to file an additional counter in reply to the amended pleadings. Both the parties shall also be given opportunity to adduce evidence in support of their respective claims. As the R.C.P. is of the year 2016, the RCC is directed to dispose of the matter within a period of three months from the date of receipt of a copy of this order. The parties shall appear before the RCC on **01/02/2023** . Interlocutory applications, if any pending, shall stand closed. **SD/-** Jms/20.12