IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 RCRev..No. 119 of 2010() ------------------------ RCA.145/2000 of ADDL. DISTRICT COURT, THALASSERY RCP.32/1998 of MUNSIFF COURT, PAYYANNUR .................... REVN.PETITIONER/APPELLANT/RESPONDENT NO.1: -------------------- C. DEVIDASAN, S/O. KRISHNAN NAMBIAR, AGED 52 YEARS, BUSINESSMAN, RESIDING AT PAUYYANNUR AMSOM, THAYINERI DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S)/RESPONDENTS/PETITIONER&R2: --------------- 1. T.C. RAGHAVAN NAMBIAR, S/O. GOVINDAN NAMBIAR, AGED 69 YEARS, REPRESENTED BY P/A HOLDER P. SUKUMARAN NAMBIAR, S/O. CHINDAN NAMBIAR, AGED 60 YEARS, RAMA NIVAS, PILATHARA.P.O, KUNHIMANGALAM AMSOM DESOM TALIPARAMBA TALUK, KANNUR DISTRICT. 2. M.K. SAJITH KUMAR, S/O. RAGHAVAN NAIR, AGED 37 YEARS,KUNHIMANGALAM AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.119 of 2010 ---------------------------------- Dated this the 19th day of May, 2010 O R D E R -------------- Pius C.Kuriakose,J. The tenant is in revision. He challenges the judgment of the Rent Court Appellate Authority by which that authority has confirmed the findings regarding the bonafide of the needs already entered by the Rent Control Court, and at the same time set aside the eviction order and relegated the question of tenant's eligibility for protection of the second proviso to Rent Control Court. At the very outset Sri. R. Surendran, learned counsel for the revision petitioner would submit that the tenant has become obliged to seek revision since if the ultimate decision of the Rent Control Court goes against him it may not be possible for the revision petitioner to challenge the finding regarding bonafide need unless the finding to that effect is set aside. Even though several grounds have been raised in the memorandum of revision, Sri.R. Surendran, learned counsel for the revision petitioner would highlight before us ground No.C, which is founded on a judgment of the Supreme Court in Koyilerian R.C.R.119/2010 2 Janaki & Ors. Vs. Rent Controller, Cannanore & Others (2000) 9 SCC 406) which was in fact followed by a Bench of this court in Ismail Vs. Kesavan (2004 (2) KLT 56). Mr. Surendran would submit that the three ingredients which are laid down by the judgment of the Supreme Court as mandatory for maintaining a petition for eviction under Section 11(3) have not been pleaded by the landlord/petitioner. Learned counsel submitted that though it is pleaded that PW2 Vinod for whom the building is sought for is the brother-in-law and first cousin of the landlord and that PW2 is a dependent of the landlord, it is not at all pleaded that PW2 is a member of the family of the landlord. In the absence of such a vital pleading any amount of evidence for proving that there is a strong family bond between PW2 and landlord could not have been accepted by the court below. Strong reliance was placed by Mr.Surendran on the judgment of the Supreme Court in Koyilerian Janaki's case. 2. We have considered the submissions of Mr. Surendran. As directed by us Mr. Surendran has placed before us copy of the Rent Control Petition and copy of the R.C.R.119/2010 3 counter statement which was filed by the revision petitioner to the same. It is in paragraph (4) of the Rent Control Petition that the landlord has pleaded about his relationship with PW2 Vinod and also about his need to accommodate Sri.Vinod in the building in question. Translated to English the relevant pleadings are as follows:- “Sri.Vinod, who is the brother of the petitioner's husband and also son of the petitioner's uncle, who has instituted the Rent Control Petition as Power of Attorney Holder of the petitioner is a dependent of the petitioner. Sri.Vinod has studied upto Pre- Degree only. Sri.Vinod is 30 years old. Vinod does not have any job or source of income. The petitioner bonafide and urgently needs the petition schedule building so that Sri.Vinod, who is the petitioner's dependent, brother-in-law and first cousin, can possess the building and conduct stationery business therein.” The averments in paragraph (4) are answered by the tenant in paragraph (5) of the counter statement. Translated to English this is what is contended in paragraph (5). “The statement that, Vinod, who is the petitioner's brother-in-law and first cousin, R.C.R.119/2010 4 being the son of uncle and who is the Power of Attorney Holder of the petitioner needs the building is absolutely false.” This paragraph goes on to contend inter alia that Vinod is not a dependent of the petitioner, who is the owner of the petition schedule building, and that the claim that the petitioner needs the building bonafide was untrue. The need of Vinod, who is the brother-in-law and first cousin of the petitioner is false and has been made only for the purpose of the present Rent Control Petition. The counter statement is very lengthy, running to as many as 11 paragraphs wherein almost all material averments in the Rent Control Petition are denied. But significantly the relationship between the petitioner and Vinod as direct brothers-in-law and first cousins, is not disputed. What is disputed is the landlord's claim that Vinod is a dependent and that the building is needed bonafide for occupation by Sri.Vinod. The question which arises before us for consideration is whether on account of the landlord not specifically pleading in the Rent Control Petition that Vinod is a member of the landlord's family, the Rent Control Petition itself has become unsustainable in law and also whether any legal prejudice R.C.R.119/2010 5 has been occasioned to the respondent due to the absence of such pleading in the Rent Control Petition. In our view, a scrutiny of the counter statement filed by the revision petitioner itself will reveal that in the Rent Control Petition wherein sub-section (3) of Section 11 was specifically invoked as the first ground for eviction the landlord was seeking eviction of the building on the reason that the building is needed bonafide for occupation by Vinod, a family member who is dependent on the landlord. As already stated, it is evident and practically conceded that the landlord and PW2 are Marumakkathayees belonging to a community where the practice of first cousins marrying each other is in vogue. It is significant that while the tenant has taken pains to deny even minute details in the pleading of the landlord, he has not bothered to contend specifically that Vinod, for whom the building is sought for, is not a member of the family. As rightly noticed by the Rent Control Appellate Authority on the basis of the judgment of the Full Bench of this Court in Raghavan Vs. Kelappan (2006 (1) KLT 1) the concept of family in Rent Control jurisprudence has a wider connotation than in Personal Family Laws. It is R.C.R.119/2010 6 trite by various decisions of this court including the judgment in Prathapan Vs. Rama Warrier (2004 (2) KLT 559) that the word “family” appearing in sub-section (3) of Section 11 will include not only the husband and wife and children but also parents, sisters, brothers, brothers-in-law, sisters -in-law, depending on the family relations and family bonds in the particular community to which the parties belong. As already stated it is not disputed that the parties belong to a community which traditionally follows Marumakkathayam Law. There is a custom of first cousins marrying each other in this particular community. The claim was that Vinod is the first cousin of the landlord and also the brother of the landlord's wife. The above claim regarding the relationship between the parties were not disputed. We are of the view that it is too technical on the part of the revision petitioner to contend that the Rent Control Petition should fail for want of a specific pleading that Vinod is a member of the landlord's family. At any rate, it is clear from the pleadings raised by the tenant that no prejudice whatsoever has been occasioned to the tenant due to any insufficiency in the pleadings raised by the landlord. The R.C.R.119/2010 7 judgment in Koyilerian Janaki's case is clearly distinguishable on facts. That was a case where there was no claim that the person for whom the building was sought was a family member or dependent. Relationship with the family had not been spelt out either. But in the instant case details of the relationship with the person for whom building is sought for are spelt out in the Rent Control Petition itself. It was specifically pleaded that PW2 is a dependent of the landlord. We are unable to accept that the petition shall fail for want of pleadings. Result of the above discussion is as follows:- Rent Control Revision is dismissed. The court below is directed to permit the revision petitioner to adduce whatever evidence he wants to for substantiating his contentions on the point which is now relegated to that court by the Appellate Authority. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb