IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 RCRev..No. 367 of 2010() ------------------------ RCA.39/2003 of RENT CONTROL APPELLATE AUTHORIYT THRISSUR RCP.32/2000 of RENT CONTROL COURT .,THRISSUR .................... REVISION PETITIONER/ ADDL.R7/LEGAL HEIR OF RESPONDENT ---------------------------------------------------- SIVAN, S/O.LATE RAMUNNY NAMBIAR, VARIYAM VEEDU, KAIPARAMBU VILLAGE, DESOM, THRISSUR TALUK. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): APPELLANT/ADDL.R 2-6 & 8/PETITIONER -------------------------------------------------- 1. BHASKARAN, S/O.KRISHNAN, PANTHAYIL HOUSE, KAIPARAMBU VILLAGE, THRISSUR DISTRICT.P.O.KAIPARAMBA 680 546 2. SATHYABHAMA, W/O.LATE RAMUNNY NAMBIAR, VARIYAM VEEDU, KAIPARAMBU VILLAGE, C/O.LATE RAJAN, ADAMKAVIL HOUSE, P.O.AMALA NAGAR, THRISSUR.680553 3. DURGADEVI, D/O.LATE RAMUNNY NAMBIAR, VARIYAM VEEDU, KAIPARAMBU, W/O.RADHAKRISHNAN, PEECHAPPILLY HOUSE, PUTTEKKARA P.O., THRISSUR.680 553 4. SINDHU, D/O.LATE RAMUNNY NAMBIAR, VARIYAM VEEDU, KAIPARAMBU, C/O.LATE RAJAN, ADAMKAVIL HOUSE, P.O.AMALA NAGAR, THRISSUR.680 553 5. VASANTHI, D/O.LATE RAMUNNY NAMBIAR, VARIYAM VEEDU, KAIPARAMBU, C/O.LATE RAJAN, ADAMKAVIL HOUSE, P.O.AMALA NAGAR, THRISSUR.680553 6. SATHI, D/O.LATE RAMUNNY NAMBIAR, VARIYAM VEEDU, KAIPARAMBU, W/O.MOHANAN, CHANDANAM KUMARATH HOUSE, P.O.KANJIRAKODE, OTTUPARA, WADAKKANCHERY, THRISSUR.680590 7. JAYA, D/O.LATE RAMUNNY NAMBIAR, VARIYAM VEEDU, KAIPARAMBU, W/O.RAMAKRISHNAN, MAIKATH HOUSE, KAIPARAMBU VILLAGE, DESOM, THRISSUR TALUK. P.0.KAILPARAMBA 680 546 ADV. SRI.K.A.SATHEESA BABU FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.BHAVADASAN, JJ. ------------------------ R.C.R.No. 367 OF 2010 ------------------------ Dated this the 10th day of October, 2011 O R D E R Bhavadasan, J. Against the order of eviction passed by the Rent Control Appellate Authority under Section 11 (3) of the Act one of the tenants has come up in revision. 2. The landlord sought eviction under section 11 (3) of the Kerala Building ( Lease and Rent Control Act)1965 on the ground that his son who is employed in Gulf country lost his employment and he intends to come back to India. The landlord's son needs the petition schedule building for starting a grocery shop on his return. The tenant/revision petitioner contended that the claim of the landlord that his son lost job and he is about to return is incorrect and the claim is only a ruse to evict him. 3. Before the Rent Control Court evidence on the side of the landlord consisted of Ext.A1 to A3 and testimony of PW1. RCR.No.367/2010 2 Contesting respondent was examined as RW1. The Rent Control Court on evaluation of the evidence found that the landlord had failed to establish the bona fide need and dismissed the rent control petition. 4. The landlord carried the matter in appeal to the Appellate Authority. The learned Appellate Authority held that the appellant/landlord had succeeded in establishing the bona fides of the claim put forth by him. Accordingly, allowing the appeal appellate authority set aside the order of the Rent Control Court and allowed the eviction under section 11 (3) of the Act. 5. The learned counsel appearing for the tenant pointed out that there is no averment in the petition to the effect that the son of the landlord for whom eviction is sought for is dependent on the landlord. So also there is no evidence in that regard. The revision petitioner contends that Ext.A2 letter on which much reliance was placed by the courts below was issued after the RCP was filed and could not have been taken into consideration. The learned counsel for the respondent pointed out that it is true that the word 'dependent' is not as such mentioned in the RCR.No.367/2010 3 petition. But, the tenant understood the plea put forward by the landlord and parties went for trial knowing fully well the rival contentions. Therefore, the mere fact that it is not specifically stated in the petition that the son is dependent on the landlord has not caused any prejudice to the tenant. 6. After hearing the counsel in detail, we are unable to agree with the learned counsel for the respondents. In the decision reported in Koyierian Janaki and others v. Rent Controller (Munsiff) Cannanore and others (2000) 9 Supreme Court Cases 406) it is held that when eviction of tenant is sought by a landlord for occupation of any member of his family under Section 11(3), there must be specific pleading and evidence that they are dependent upon the landlord. The said decision was followed by the decision reported in Ismail v. Kesavan (2004 (2) KLT 56) . 7. In the light of the above mentioned mentioned decisions, we are unable to confirm the findings of the Appellate Authority that the landlord has succeeded in establishing the bona fides of the need. Neither in the petition for eviction nor in the proof affidavit there is whisper regarding the dependency of his son RCR.No.367/2010 4 on the landlord. In the light of the decision referred to above, it is a serious infirmity which goes to the root of the matter. However, we feel that in the interest of justice the landlord should be given an opportunity to cure the above infirmity and also that the matter needs fresh consideration. 8. The judgment of the Appellate Authority is set aside. The matter is remanded to the Rent Control Court, Thrissur., to enable the landlord to amend his pleadings and adduce further evidence, if he wants to do so. If the landlord amends his pleadings, the tenant will be at liberty to file additional objections. Both sides are at liberty to adduce further evidence if they so chose. 9. We feel that the rent of Rs.100/- paid by the tenant is too low and it was fixed long ago. Hence we direct the revision petitioner/tenant to pay rent at the rate of Rs.1,500/- per month from 1/11/2011. Parties are at liberty to approach the Rent Control Court for fixation of fair rent. Hence, we set aside the judgment of the Appellate Authority and remanded the matter to the Rent Control Court for fresh disposal in accordance with law and in the light of what has been stated above. RCR.No.367/2010 5 The parties will appear before the Rent Control Court on 2nd November 2011. The Rent Control Court may dispose of the matter as early as possible and at any rate within six month from the date of appearance of parties before that court. PIUS C.KURIAKOSE,JUDGE P.BHAVADASAN,JUDGE. dpk