IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 RCRev..No. 283 of 2008() ------------------------ RCA.48/2007 of RENT CONTROL APPELLATE AUTHORITY ( II ADDL. DISTRICT COURT), TRIVANDRUM RCP.69/2006 of RENT CONTROL COURT, TRIVANDRUM .................... PETITIONERS/RESPONDENTS/PETITIONERS ------------------------------------------------------ 1. JOY THOMAS, RESIDING AT GREENWAY PARK, YESORAM GARDENS, CHRISTOPHER NAGAR, OLLUR TRICHUR. 2. K.G.LILLY, W/O.JOY THOMAS, RESIDING AT GREENWAY PARK, YESORAM GARDENS, CHRISTOPHER NAGAR, OLLUR, TRICHUR BY ADV. SRI.K.V.SOHAN SRI.RAJESH NAIR RESPONDENT(S): APPELLANT(COUNTER PETITIONER): --------------------------------------------- S.P.BALAKRISHNA PILLAI, S/O.PANKAJAKSHAN PILLAI, RESIDING AT 7A, CHOICE HEIGHTS, MUSEUM BAINS COMPUND, NANTHANCODE, THIRUVANANTHAPURAM. ADV. SRI.S.SREEKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 283 OF 2008 ----------------------------------------------- Dated this the 13th day of March, 2009 O R D E R Pius C. Kuriakose, J. The landlords who are aggrieved by the judgment of the Rent Control Appellate Authority reversing an order passed in their favour by the Rent Control Court are the petitioners in this revision under section 20 of Act 2 of 1965. The respondent in the rent control petition and the appellant before the Rent Control Appellate Authority is the respondent herein. It was the ground under sub-section (3) of section 11 which was invoked by the revision petitioners who will be referred to as landlords, for evicting the respondent tenant. The RCP schedule building is a residential apartment in an apartment complex by name “Choice Heights” possessed by the respondent on the basis of a rental arrangement, the period of which expired by the 2nd March, 2005. The need projected by the landlords RCR. N0. 283/08 -2- presently put up at Thrissur is that they are in dire need of the building for their own occupation since they intend to shift their residence over to Thiruvananthapuram considering the education of their children. The landlords averred that they have no other building of their own in Thiruvananthapuram for accomplishing their need. 2. The bona fides of the need and the claim was disputed by the tenant who contended that the tenancy has been continuing on the original terms and conditions even after expiry of the period fixed. It was contended that the landlords expressed their willingness to sell the schedule apartment to the tenant for a consideration of 1,65,000 Dirhams. Since the landlord insisted for payment of consideration in Dirhams the tenant issued two cheques for 1,00,000 Dirhams and 65,000 Dirhams respectively dated 15-3-2005 and 25-3-2005 to the landlord. The tenant had made all arrangements with his banker, so that the proceeds of the cheque will be promptly realised by the RCR. N0. 283/08 -3- landlord. But the landlord did not present the cheques for encashment with his bankers. It was also contended that the tenant had made improvements in the building expending Rs.3 lakhs. The real intention of the landlords is to dispose of the apartment after getting it vacated. The landlords are residing in a palatial building at Kuttanelloor in Thrissur and they have another building in Kuttanelloor itself. The landlord owns a multi-storeyed shopping complex in Kochi. The tenant's daughters are studying in nearby Christ Nagar School and eviction will upset the education of the tenant's daughters. 3. The Rent Control Court enquired into the petition and at trial the evidence consisted of oral testimonies of Pw.1 and CPW.1 and documents Exts.A1 to A5 and B1 to B6. The Rent Control Court on evaluating the evidence concluded that the need was bona fide and accordingly ordered eviction under sub-section (3) of section 11. The Appellate Authority however, would appreciate the evidence RCR. N0. 283/08 -4- and reverse finding of the Rent Control Court and consequently dismiss the RCP. 4. According to the Rent Control Appellate Authority in a case like the present one, where the landlord is residing with his family at Thrissur and his children are studying at Thrissur it is obligatory that the landlord should state the reason and the necessity behind the landlords' decision. According to that authority the need of education of the children stated in the rent control petition seems to be vague, incomplete and inacurate and does not go into merits or details. Mindful of the trite position that meticulous pleadings are not necessary in the matter of rent control proceedings the learned Appellate Authority would say that the same does not mean that necessary particulars need not be pleaded in the application since otherwise the tenant will not be able to effectively defend the petition for eviction. According to the Appellate Authority, it was necessary that in this case of inter district shifting of RCR. N0. 283/08 -5- residence for the landlord, to have specified the present stage of the children's education and the additional facilities or advanced facilities which the landlord aspires for at the place where to they are shifting. The Appellate Authority holds that none of the decisions relied on by the Rent Control Court will apply to the present case and accordingly set aside the order of eviction and dismissed the rent control petition. 5. We have heard the submissions of Sri.K.V.Sohan, learned counsel for the revision petitioners and those of Sri.S.Sreekumar, learned counsel for the respondent. The revisional nature of our jurisdiction notwithstanding, since the findings of the authorities below are divergent, we allowed the learned counsel to take us through the pleadings and the evidence on record in the case. Mr.Sohan submitted that rules of pleadings are not expected to be strictly and meticulously adhered to in proceedings before the authorities under the Rent Control Act unlike regular RCR. N0. 283/08 -6- civil proceedings. He submitted that the pleaded case in the petition was sufficient enough for the tenant to understand that the case projected by the landlords is that the landlords need to shift their residence from Thrissur to the petition schedule building situated at Thiruvananthapuram for continuing the education of their children. Learned counsel submitted that the tenant had in his counter pleading admitted that his daughters are studying in a well known school situated close to the petition schedule building and had sought to defend the petition inter alia on the reason that eviction will upset the educational career of his children. The learned counsel submitted that bona fides of the need was assailed mainly on the basis of an alleged agreement by the landlord to sell the building to the tenant. The defence based on this alleged agreement had completely fallen to the ground at the time of evidence. Counsel submitted that had it not been for the intention to shift residence to Thiruvananthapuram the revision RCR. N0. 283/08 -7- petitioner would not have purchased the apartment at Thiruvananthapuram since investing in Thrissur itself or nearby cities like Kochi would be more profitable from the view point of either resale value or rental value. No oblique motives could be established by the tenant and hence the Appellate Authority was not justified in upsetting the findings of the Rent Control Court which is the first court under the statutory scheme to decide the disputed questions of fact. Mr.Sohan submitted that it was in evidence that the tenant was owning a two storeyed building in Jawahar Nagar, a prestigious residential area in Thiruvananthapuram city and the order of eviction was not going to cause any difficulty for the tenant a high fly lawyer having practice all over India and even overseas. 6. Sri.S.Sreekumar, learned counsel for the respondent would defend the Appellate Authority's judgment with all his might. He submitted that the essential question to be decided in a petition under sub-section (3) of section 11 was RCR. N0. 283/08 -8- whether the need projected was an honest one or only a ruse for getting eviction. The pleaded case that the landlords intend to shift their residence to Thiruvananthapuram in connection with the education of their children had failed considerably since it is in evidence that the two elder children of the landlord are being educated in a gulf country and that it is only the youngest child who is put up at Thrissur along with his mother. Thrissur is the ideal place for children who aspire to pursue professional education after schooling and families having such children are migrating to Thrissur with the sole purpose of accommodating them in the famous entrance coaching institute conducted by Prof.P.C.Thomas, according to Mr.Sreekumar. Mr.Sreekumar would further submit that the landlord is a person who has invested substantially in real estate all over the State and the investment in Thiruvananthapuram was yet another investment in real estate by the landlord. The present rent control petition RCR. N0. 283/08 -9- also was instituted when the parties failed to agree on the price to be paid by the tenant for the subject apartment. Eviction will result in considerable hardship for the tenant, according to the learned counsel who submitted that the tenant's wife was suffering from serious heart disease and was receiving treatment from specialists in a prestigious hospital at Thiruvananthapuram. The building at Jawahar Nagar was a commercial building and was being occupied for other purposes. Jawahar Nagar was 2 ½ kms. away from the petition schedule apartment. Supporting the view of the Rent Control Appellate Authority Mr.Sreekumar submitted that the pleadings in the petition were inadequate and that because of the inadequacy the tenant was unable to defend the RCP properly. 7. We have considered the rival submissions addressed at the Bar. We are unable to agree with the tenant and the Rent Control Appellate Authority that there is dearth of pleadings on the side of the landlord regarding their need RCR. N0. 283/08 -10- and claim under sub-section (3) of section 11 and that on account of the same, prejudice has been caused to the tenant. The relevant pleading in the context of the need projected in the RCP are in paragraphs 5, 8 and 9 of the rent control petition and we quote those paragraphs below: “5. Petitioners intended to shift their residence to Thiruvananthapuram, which motivated them to purchase the petition schedule apartment. 8. The petitioners are in dire need of the petition scheduled apartment for their own occupation since the petitioners want to shift their residence to Thiruvananthapuram permanently considering the education of their children. 9. The petitioners have no other building of their own in Thiruvananthapuram.” The respondent tenant himself a practising lawyer, has certainly understood the plea of the landlord as one requiring the building for shifting of residence from Thrissur to Thiruvananthapuram and accommodating his school going children in schools in Thiruvananthapuram. The pleadings raised by the tenant will certainly show that no prejudice has been caused to the tenant due to any RCR. N0. 283/08 -11- inadequacy in the landlords' pleadings regarding his need. We are unable to subscribe to the Rent Control Appellate Authority's view that in all cases where a landlord intends to shift residence from one district to another and the education of his child from school in one present district to another district, it is necessary that the landlord should disclose the reasons which weigh with him for deciding to shift residence and should disclose details regarding the current stage of the children's education. It is settled by a line of decisions that strict adherence to rule of pleadings as in the case of regular civil proceedings before regular civil courts is not to be insisted upon in proceedings before the authorities under the Rent Control Act. What is necessary in such proceedings is only to ensure that no prejudice is caused to the opposite party due to insufficiency in the pleadings of the other party. We do not think that there is any ground for legitimate complaint by the tenant in this case that he was taken by surprise when the landlord RCR. N0. 283/08 -12- adduced evidence at trial regarding his need or that prejudice in any other form has been caused to the tenant due to the inadequacy of the pleading of the landlord. A scrutiny of the statement of objections filed by the tenant and the defence that was seriously pursued by the tenant as CPW-1 will show that the tenants endeavour was to attack the bona fides of the landlords' claim by contending that the real purpose behind the petition is not to start residence in the apartment, but instead, to sell the apartment for a high price and thereby reap a substantial return on the investment they had made in purchasing the apartment. The tenant failed miserably in establishing the above oblique motive which he had attributed to the landlords. Even the Appellate Authority does not accept the tenant's case that there was an agreement between the tenant and the landlord for sale of the apartment to him and that he had issued cheques. The document produced by the tenant as Ext.B6 in this context is a self serving one which does not RCR. N0. 283/08 -13- have the junction of the landlord. The case of having issued cheques is not even attempted to be proved seriously. In short, the tenant failed in establishing the oblique motive which he had attributed to the landlord in filing the rent control petition. The first petitioner landlord having been in overseas service all along, is admittedly a substantially rich man. His elder children are attending schools in Dubai. The youngest child, a boy is presently having his schooling in the 7th standard at Bharatiya Vidya Bhavan, Thrissur. He is put up along with his mother, second revision petitioner in their own house at Yesoram Nagar in the outskirts of Thrissur city. The petition schedule building is admittedly situated in a very important locality of Thiruvananthapuram Corporation, Kerala's capital city and at a walking distance from the prestigious Christ Nagar School. The credentials of the above school and the fact that there are other equally good schools in Thiruvananthapuram city is not seriously disputed by the tenant who sought to defend the RCP inter RCR. N0. 283/08 -14- alia on the reason that the education of his daughters will suffer if eviction is ordered. But it has come out in evidence that the tenant has only two daughters and the schooling of the elder daughter is over and the second one is doing her plus two class. The tenant does not belong to the Thiruvananthapuram city. He belongs to Cherthala and his daughters were pursuing education in schools at Cherthala. They were admitted to Christ Nagar School only after the tenant shifted his residence over to Thiruvananthapuram. It is more or less clear from the evidence that though the landlord belongs to Thrissur he having been an NRI and the children including the youngest one presently put up at Thrissur having been born and brought up abroad need not have any sort of sentimental affinity to Thrissur. For them, Thiruvananthapuram is a bigger city and for that matter the capital city. True Mr.Sreekumar is right in his submission regarding the reputation of Prof. P.C.Thomas' Entrance Examination Coaching Institute. But it is not disputed RCR. N0. 283/08 -15- before us by Mr.Sreekumar that Thiruvananthapuram also has institutes which offer very good coaching for students desirous of appearing for entrance examinations for professional courses and there is no gainsaying the truth that for a student who comes out successful in the entrance examination, Thiruvananthapuram offers better facilities for professional education than Thrissur. After all, the law allows considerable latitude to the landlord to plan in his own way as to how and where he should settle down and where his child should be educated. Landlord, it is said, is the best judge of his requirement and the enquiry of the authorities under the Rent Control Act should only be to find out whether the need projected in the petition is actuated by any oblique motive. We are of the view that in the wake of the tenant's failure in establishing the oblique motive he attributed towards the landlord the rent control court was justified in holding that ground for eviction under subsection (3) was made out. Being a residential building, the second RCR. N0. 283/08 -16- proviso to section 11(3) cannot have any application in this case. At the same time, we find that the tenant has a two storeyed building in Jawahar Nagar. May be, presently the said building is put to use for non-residential purpose. But it is in evidence that at least the first floor portion of that building is available for immediate occupation by the tenant. We are only indicating that the tenant who also appears to be a substantial man financially, will not have much difficulty in finding out a suitable alternate accommodation even if it is absolutely necessary that his wife should continue to stay at Thiruvananthapuram in connection with the treatment which she is said to be taking from famous cardiologist in Thiruvananthapuram. In view of the repeated assertion of Sri.Sreekumar that the need projected is not a bona fide one and that the real intention of the landlord is either to sell off the apartment once eviction is obtained or to let out to somebody else receiving much more attractive rent, we enquired of the learned counsel for the landlord RCR. N0. 283/08 -17- Mr.Sohan as to whether his client is ready to suffer restraining orders in this regard from this court. He submitted that he has standing instructions from his client to inform us that they are ready to suffer orders of injunction from this court restraining them from selling the apartment for a reasonable period and from letting out the apartment even permanently. He would also submit that in terms of law such direction may not be necessary since subsection (12) of section 11 provides to tackle the situation where a landlord who obtained eviction on the ground of bona fide need does not occupy the building. We feel that apart from the reasons already indicated, the response of the landlord to our query also demonstrates that the need projected in the above RCP is a genuine need involving elements of necessity and not a mala fide one as alleged by the tenant. 7. The result of the above discussion is that the RCR stands allowed. Restoring the order passed by the Rent RCR. N0. 283/08 -18- Control Court and setting aside the judgment of the Rent Control Appellate Authority order of eviction is passed against the respondent under sub-section (3) of section 11. The revision petitioners are restrained from selling the petition schedule building to anybody for a period of two years from today. They are also restrained from letting out the petition schedule building for a period of 2 years of their getting back possession of the petition schedule building. 8. Considering the last request of Sri.Sreekumar to allow a reasonable long period to the tenant to vacate the premises, the respondent is allowed nine months from today to vacate the premises subject to the following conditions: The respondent shall file an affidavit within one month from today under taking to peacefully surrender the premises on or before 13-12-2009. Through this affidavit he shall undertake further to clear off arrears of rent if any and to pay the rent which falls due subsequently till date of actual surrender as and when the same falls due. Once the RCR. N0. 283/08 -19- execution court notices such an affidavit, that court will adjourn the E.P. to 14-12-2009. RCR is allowed, but in the circumstances the parties are directed to suffer their costs. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) KSV/-