IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 RCRev..No. 463 of 2005() ------------------------ RCA.140/2000 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THALASSERY RCP.70/1998 of RENT CONTROL COURT (MUNSIFF COURT), THALASSERY .................... REVISION PETITIONER/RESPONDENT IN R.C.A./RESPONDENT IN RCP ---------------------------------------------------------------------- KATTENTAVIDA MULLOLI KARUNAN, S/O. GOPI, AGED 57 YEARS, STATIONARY MERCHANT, OPPOSITE OF READING ROOM, ENGAYIL PEEDIKA, KODIYERI AMSOM, MOOZHIKKARA DESOM, P.O.MOOZHIKKARA THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON SRI.ANUB ALIAS SRI.C.K.AJAYAKUMAR SMT.M.C.SANITHA RESPONDENT(S): APPELLANTS IN R.C.A./PETITIONERS IN R.C.P. --------------------------------------------------------- 1. VAZHAYIL KELOTH SREEMATHI, D/O.GOPALAN, AGED 52, NO OCCUPATION, RESIDING AT ERAYINTAVIDA, P.O.PANDAKKAL, MAHE. 2. VAZHAYIL KELOTH GIRIJA, D/O.GOPALAN, AGED 40 YEARS, NO OCCUPATION, RESIDING AT KATTIL PARAMBATH HOUSE, KODIYERI AMSOM, MOOZHIKKARAN DESOM, P.O.MOOZHIKKARA, THALASSERY TALUK, KANNUR DISTRICT. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 & R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. --------------------------------------------- R.C.R. 463 of 2005 --------------------------------------------- Dated: MAY 25, 2009 ORDER Barkath Ali, J. This revision is filed by the tenant under sec.20 of Act 2 of 1965 challenging the judgment of the Rent Control appellant Authority ordering eviction under sec.11(2)(b) and 11 (3) of the Act i.e. for arrears of rent and bona fide need of the landlord, reversing the order of the Rent Control Court dismissing the Rent Control Petition. 2. The case of the landlords/revision respondents as shaped in evidence in brief was this:- The father of the landlords/revision respondents rented out the petition schedule building to the revision petitioner/tenant under a kychit dated March 18, 1960 on a monthly rent of Rs.10/- which was enhanced to Rs.55/- per month. On the death of the father of the revision respondents/landlords, under a will executed by him, the revision respondents obtained the R.C.R. 463 of 2005 -2- petition schedule building and became the persons entitled to receive the rent. The rent upto December 1995 was paid and the rest was in arrears. The son-in-law of the 1st petitioner/ PW.1, required the building for starting a vegetable and grocery business. He is unemployed. No vacant room is available in the locality for him to start the business. 3. The tenant/revision petitioner contended that there was no enhancement of the rent as alleged by the landlords, that the rent was paid upto July 1997, that the son-in-law of PW.1 is employed and that the tenant is entitled to the benefit of the second proviso to sec.11(3) of the Act. 4. Before the Rent Control Court, on the side of the landlords PW.1 was examined and Exts.A1 to A5 were marked. The tenant examined Rws.1 and 2 and produced Exts.B1 and B2. 5. The Rent Control Court, on an appreciation of the evidence, found that the enhancement of the rent as claimed by the landlords is not true, that there was no arrears of rent, that the son-in-law of the 1st petitioner was not a dependent of the revision respondents, that the landlords have another room of their own lying vacant and that the tenant is entitled to the benefit of the second proviso to sec.11(3) of the Act and found R.C.R. 463 of 2005 -3- that the landlords are not entitled to eviction under sec.11(2)(b), 11(3) and 11(4)(ii) of the Act and dismissed the Rent Control Petition. 6. The revision respondents/landlords filed appeal before the Rent Control Appellate Authority challenging the said order. The Rent Control Appellate Authority found that the rate of rent is Rs.10/- per month, that the rent is in arrears from January 1996 onwards as contended by the landlords, that the bona fide need projected by the landlords is genuine, that the tenant is not entitled to the benefit of the second proviso to sec.11(3) and reversed the findings of the Rent Control Court and ordered eviction under sec.11(2)(b) and 11(3) of the Act. The tenant has come up in revision challenging the said judgment of the Appellate Authority. 7. The learned counsel for the revision petitioner mainly argued that there is no pleading or evidence to the effect that the son-in-law of PW.1 is a dependent of PW.1 and on that count itself the claim for eviction under sec.11(3) of the landlords has to be rejected. 8. The learned counsel for the respondents/landlords resisted the above contention of the tenant on the ground that R.C.R. 463 of 2005 -4- evidence was adduced before the Rent Control Court to show that the son-in-law of PW.1 is a dependent of PW.1. 9. In this revision by the tenant, it is mainly contended that the landlords have not pleaded in their petition that the son- in-law of PW.1 is dependent on her and that in evidence also PW.1 has not stated that her son-in-law is dependent on her. The Honourable Supreme Court in Koyilerian Janaki and others v. Rent Controller (Munsiff) Cannanore and others {(2000) 9 SCC 406} has observed that in order to succeed in a plea under sec.11(3) of the Act, the landlord should plead and substantiate three ingredients, namely (1) the person needing the building is a member of the landlord's family, (2) such person is dependent on the landlord, and (3) the need is bona fide, and that if any one of the three ingredients is absent, the landlord's petition would fail. The Apex Court has further observed that the landlord must expressly plead that the member for whom the building is required is dependent on him. 10. We have gone through the pleadings of the landlords and also the evidence of PW.1. Neither in the pleadings nor in the evidence PW.1 has stated that her son-in-law is dependent on her. In the light of the principles laid down in the above decision R.C.R. 463 of 2005 -5- of the Supreme Court and in the circumstances of the case, we have no other alternative but to remand the Rent Control Petition to the Rent Control Court for affording an opportunity to the landlords to amend the Rent Control Petition and to incorporate necessary pleadings. 11. We have also considered the fact that the landlords claimed title over the property under a will which is not produced. The tenant has disputed the genuineness of the will. The learned counsel appearing for the landlords sought an opportunity to produce the will also. Therefore, before the Rent Control Court the landlords are to be given an opportunity to produce the will or file an affidavit of other co-owners or, if necessary, to implead the other co-owners. 12. There is another aspect. On going through the Rent Control Petition it is seen that the building is situated in Kodiyeri within Thalassery municipal area. The rent for the building is Rs.10/- p.m. which, we think, is ridiculously low. Therefore we tentatively fix the rent of the building at Rs.150/- p.m. prospectively with effect from 1.6.2009 and the tenant is directed to pay rent at this rate to the landlord. We, however, clarify that the above re-fixation of rent is subject to fixation of rent by R.C.R. 463 of 2005 -6- the competent court at the instance of any of the aggrieved parties. 13. The Appellate Authority has found that there is arrears of rent with respect to this property and passed an order of eviction under sec.11(2)(b) of the Act. We find no ground to interfere with the said finding of the Appellate Authority. 14. In the result, the revision is allowed. The order of the Rent Control Court dismissing the Rent Control Petition and the judgment of the Appellate Authority ordering eviction under sec.11(3) of the Act are set aside. The Rent Control Petition is remanded to the Rent Control Court for fresh disposal after giving opportunity to both sides to adduce further evidence, if any, and in the light of the above observations. The finding of the Appellate Authority regarding eviction ordered under sec.11(2) (b) of the Act is confirmed. The Rent Control Court shall dispose of the Rent Control Petition as expeditiously as possible. Both parties shall suffer their respective costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-