IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 RCRev..No. 345 of 2004() ------------------------ RCA.57/1997 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.72/1996 OF RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER/RESPONDENT/PETR. & LANDLORD. -------------------------------------------------------------------- 1. KALLAKKANDY SAKEENA, W/O. AHAMMEDAJI, AGED 47 YEARS, OCCUPATION NIL, NOW RESIDING AT PALLIKUNNU AMSOM, CHALAD DESOM. 2. DAUGHTER NASEENA, AGED 32 YEARS, OCCUPATION NIL, NOW RESIDING AT DO. DO. 3. YOUNGER BROGHER BASHEER,AGED 30 YEARS, RESIDING AT DO. DO. 4. YOUNGER SISTER RAMALATH, AGED 29 YEARS, DO. DO. 5. YOUNGER SISTER SAHIDA, AGED 27 YEARS, DO. DO. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.M.K.SUMOD RESPONDENT(S): RESPONDENT ------------------------- K.RATHNAVELU, S/O. GURUSWAMY, AGED 59 YEARS, TRADER RESIDING AT H.NO.P.M.247 PAYYAMBALAM WARD, KANNUR. ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-12-2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ RCR. No. 345 of 2004 ------------------------------------------- Dated this the 11th day of December, 2009 O R D E R Pius C. Kuriakose, J. Under challenge is the judgment of the Rent Control Appellate Authority dismissing the Rent Control Petition filed by the revision petitioner landlord after setting aside the order of eviction passed by the Rent Control Court on the ground of bona fide need for own occupation. The parties will be referred to as landlord and tenant. The landlord sought to evict the tenant on other grounds also, but those grounds no longer survive. The need projected by the landlord in the context of subsection (3) of Section 11 was that he bona fide needs to occupy the building for residential purpose. On a reading of the rent control petition, it would appear at the first blush as though the need projected is the need to have the building for leading a solitary life by the landlord. The bonafides of the need RCR No. 345/04 - 2 - was disputed by the tenant who contended that at Thalikavu and surrounding areas the landlord is having several buildings, some of which are vacant. The Rent Control Court enquired into the matter. The landlord testified before the court that the life, which he proposes to have in the petition schedule building is not a solitary life but a life along with his wife. However, it became evident that at that time the landlord and his wife were residing in the “wife's house”. It also became evident that at Thalikavu the landlord's wife was having two quarters of her own. The Rent Control Court took the view that the need of the landlord who was examined as PW1 to reside in a building which belongs to him rather than to his wife is bona fide. Accordingly order of eviction was passed under Section 11(3). The tenant preferred an appeal. During the pendency of the appeal, the landlord petitioner passed away. The learned Appellate Authority on analysing the averments in the rent control RCR No. 345/04 - 3 - petition came to the conclusion that the need which is projected in the RCP is the need of the landlord to lead solitary life. Landlord's evidence that his wife will also join him in the petition schedule building once eviction is obtained was not accepted for the reason that the evidence is not founded on the pleadings. Noticing the demise of the landlord the Appellate Authority would conclude that the need on the basis of which the RCP was instituted had ceased to exist. In that view of the matter, the Appellate Authority set aside the order of eviction and dismissed the rent control petition. 2. In this revision under Section 20, various grounds have been raised challenging the decision of the Appellate Authority and we have heard the submissions of Sri.Mohamed Mustaque, learned counsel for the revision petitioner and those of Mr.V.R.K.Kaimal, learned counsel for the respondent tenant. Mr.Mustaque submitted that the RCR No. 345/04 - 4 - averments in the rent control petition were not properly appreciated by the Rent Control Appellate Authority. According to him it is not disputed by the tenant that the landlord and his wife are on very cordial terms and were living at the relevant time peacefully in the tarwad house of the wife. The plea in the RCP was that the family wants to shift to the petition schedule building which belongs absolutely to the landlord, the head and breadwinner of the family rather than continue in the tarward house of the wife. This was how the Rent Control Court which had the advantage of seeing the witnesses and recording their testimonies appreciated the pleading and the evidence. The judgment of the Appellate Authority, according to Mr. Mustaque is vitiated by illegality, irregularity and impropriety. 3. Mr.V.R.K.Kaimal, learned counsel for the respondent would oppose all the submissions of Mr.Mustaque. He drew RCR No. 345/04 - 5 - our attention to a recent judgment of this Court in Narayanan v. Tahira, 2009(3) KLT 749 to which one of us (PCK(J) is a party. He submitted that in the above case this court has taken the view, distinguishing an earlier decision of this Court in Aniyeri Jayarajan v. Valiya Kooleri Koorma Yesoda, 2003(2) KLT 325 and relying on a judgment of the Supreme Court in Kamaleshwar Prasad v. Pradumanju Agarwal, AIR 1997 SC 2399 that the need of the landlord petitioner to have a residential building for occupation for the purpose of residence, can survive him. The facts in Narayanan's case, Mr.Kaimal argued, are distinguishable from the facts which obtain in this case. He pointed out that in Narayanan's case after demise of the petitioner in the RCP the surviving legal heirs had got the RCP amended so as to incorporate pleadings to the effect that the building is required for their purpose also. In the absence of such pleadings the above decision cannot be applied in this case. RCR No. 345/04 - 6 - 4. We have considered the rival submissions addressed at the Bar. We are unable to agree with the learned Appellate Authority who says that the case pleaded by the landlord petitioner is to have the building for leading a solitary life for himself. Nevertheless, we feel that it could have been ideally pleaded by the landlord that the building is required for the residence of not only himself but also his family. But then we notice that it was brought in cross examination of PW1 that the need of the landlord is to have residence along with his family. We also notice that in the cross examination itself it is brought out that the wife of the petitioner who is the first revision petitioner is having two residential quarters at Thalikavu. It is not clear from the evidence as to whether those residential quarters are lying vacant. If they are lying vacant, the revision petitioners will have to establish that there are special reasons to order eviction under subsection (3) of Section 11 even if the need RCR No. 345/04 - 7 - is found to be a bona fide one. The revision petitioners are presently put up in a building where the first revision petitioner has got apparent occupancy rights. This aspect of the matter also will have a bearing while deciding whether the revision petitioners bonafide need to occupy the petition schedule building for their residence. We are of the view that the issue can be directed to be reconsidered by the Rent Control Court and opportunity can be given to the revision petitioners to amend their pleadings if they so desire with permission to the respondent to raise counter pleadings. 5. The result of the above discussions is as follows: The order of the Rent Control Court and the judgment of the Appellate Authority are set aside. RCP. No. 72/96 is remanded to the Rent Control Court, Kannur. If the revision petitioners file an application for amendment of the rent control petition within three weeks of their entering RCR No. 345/04 - 8 - appearance before the Rent Control Court, the application will be allowed by that court. If the RCP is amended as directed above, the Rent Control Court will permit the respondent to file additional objections. Once pleadings are ready the Rent Control Court will special list the RCP for trial and try the RCP and take a fresh decision on the basis of the evidence already on record and the further evidence which may adduce by the parties. Parties are directed to enter appearance before the Rent Control Court on 12-1-2010. Retransmit the records forthwith to the Rent Control Court, Kannur. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-