IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 RCRev..No. 180 of 2010() ------------------------ RCA.72/2006 of RENT CONTROL APPELLATE AUTHROITY ,ERNAKULAM RCP.105/2005 of RENT CONTROL COURT, ERNAKULAM .................... REV.PETITIONER/RESPONDENT INRCA.72/07 RES IN.RCP. --------------------------------------------------------------------- GOPALAKRISHNAN.G, S/O.LATE S.G.KAMMATH, RESIDING AT HOUSE NO.41/943, MASTERS COMPOUND, MASTERS COMPOUND LANE, PULLEPPADY, ERNAKULAM, KOCHI-682 018, KANAYANNUR TALUK, ERNAKULAM VILLAGE BY ADV. SRI.M.P.RAMNATH RESPONDENT(S): APPELLANT IN RCA.72/06/PETITIONER IN RCP.105/06 -------------------------------------------------------------- NOOHU FATHIMA BEEVI, D/O.LATE MUHAMED UMMAL BEEVI, AGED ABOUT 80 YEARS, HAVING ADDRESS IN THE PROCEEDING AS MASTERS HOUSE, MASTERS COMPOUND LANE, PULLEPPADY, ERNAKULAM, KOCHI-682 01 8, KANAYANNUR TALUK, ERNAKULAM VILLAGE. ADV. SRI.S.SREEKUMAR FOR R THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 180 OF 2010 ------------------------ Dated this the 13th day of October, 2010 O R D E R Gopinathan, J. The tenant/respondent in RCP No.105/2005 on the file of the Rent Controller, Ernakulam is the revision petitioner. The respondent herein, who is an octogenarian, filed the above petition before the trial court against the revision petitioner seeking order of eviction under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965, hereinafter referred to as the Act. It was pleaded that the respondent, who is a widow without issues, had been residing along with her elder sister. She owned the petition schedule building along with three other similar residential buildings attached to the petition schedule building. The sister of the respondent along with whom she was staying was ailing and the sister was being taken care of by a home nurse and that there was no sufficient space in the sister's house in the changed circumstance to accommodate the respondent also. It was further alleged that the other buildings RCR.No.180/2010 2 were not in the possession of the respondent. Hence she sought for eviction of the revision petitioner under Section 11(3) of the Act on ground of bona fide need. 2. The revision petitioner in his objection denied the bona fide need alleged and contended that the petition is only a pretext for evicting the revision petitioner and that the respondent was comfortably staying along with her sister and that the other three buildings were lying vacant and that there is no bona fide need at all and that even if the respondent is desirous of having a separate residence, she, having possession of other similar residential units, could occupy any one of it and prayed for dismissal of the petition. 3. During the course of enquiry, the respondent was examined as PW1. The revision petitioner and another were examined as RWs1 and 2. On the side of the respondent, Exts.A1 and A2 were marked. On the side of the revision petitioner, Exhibits B1 to B7 were marked. 4. The Rent Controller on appraisal of the evidence arrived at a finding that the need urged by the respondent is not a bona- fide one. Consequently, the petition was dismissed. Aggrieved RCR.No.180/2010 3 by the above order dismissing the petition, the respondent preferred R.C.A. No.72/2006 before the Appellate Authority/Additional District Judge, Ernakulam. The Appellate Authority on reappraisal of the evidence on record arrived at a finding that there is nothing to suspect about the bona fide need urged and that at the time of evidence the respondent's sister died and she had been residing along with sister's daughter and that the desire of the respondent to have a separate residence in her own house can no way be doubted and that she had got sufficient balance in the bank account and could manage to live independently even by engaging home nurse and that the other buildings mentioned by the revision petitioner are no more in existence. Consequently, the appeal was allowed and the revision petitioner was directed to handover the the possession of the petition schedule building under Section 11 (3) of the Act. 5. The legality, regularity and propriety of the above order are assailed in this revision under Section 20 of the Act. 6. We heard the learned counsel Sri.M.P.Ramnath appearing for the revision petitioner and Sri.S.Sreekumar RCR.No.180/2010 4 appearing for the respondent. We have also gone through the judgment impugned. Alleging that the findings of the authorities below are divergent on facts and that the findings of the appellate authority is perverse, illegal and unsustainable, the learned counsel for the revision petitioner took us through the relevant portions of the evidence of the 1st respondent. 7. Going by the evidence on record, mainly for three reasons we find that, exceptionally in this case, there are much change of circumstances that may effect the relief sought in the petition one way or other and those facts are to be brought into pleadings and parties to adduce evidence touching that pleadings. Therefore, for that reason, we could not avoid a remand of the case to the Rent Controller for fresh disposal after allowing the parties to amend pleadings and to adduce further evidence. One reason is that at the time of the petition, the respondent was residing along with her sister and alleging that there was no sufficient space available in the house of the sister, who was laid up and assisted by home nurse to accommodate the respondent, the need was urged. Pending the proceedings before the Rent Controller, the sister died and the respondent RCR.No.180/2010 5 shifted the residence to the house of the daughter of the sister. The house in which the respondent was earlier residing and belonging to the sister was already disposed of. Whether the daughter of the sister of the respondent could accommodate the respondent in the present house or whether the daughter of the sister of the respondent is finding it difficult to accommodate the respondent or whether the respondent bonafide desired to shift from there are matters of facts to be pleaded and proved. Since the respondent shifted her residence to the house of the daughter of the sister pending proceedings, there was no pleadings at all in the petition regarding the convenience available at the house of the daughter of the sister or regarding the intention of the respondent to shift from the present house . 8. The second reason is that at the time of petition, the respondent was said to have been aged 75 years and she has now crossed 80. It is revealed out in evidence that she is now very sick and not able to manage herself by staying alone in a house of her own. Whether the relatives of the respondent is prepared to allow the respondent to reside separately is a matter to be pleaded and proved. We feel so, because for the last 35 RCR.No.180/2010 6 years the respondent had been living along with her sister though she had independent houses of her own and was looked after either by the sister or her children all along even in her good days. The evidence of PW1 would show that she was well looked after. In that circumstance there is little likelihood of the children of the sisters allowing the respondent to go and live separately, that too when affectionate assistants are required. Even in her good days she was not accustomed to live independently. The Appellate Authority found that the respondent had got sufficient funds to engage one or two home nurses and to manage with. The finding of the appellate authority on that aspect is not even pleaded. Whether the respondent is willing to have stay of her own by engaging home nurse is also a matter to be pleaded and countered and the parties are to be allowed to adduce evidence on that aspect. The revision petitioner should have been given opportunity to cross examine the respondent with reference to such pleadings and evidence. 9. It is the very specific case of the respondent that at the time of the petition no other building suitable for her residence was in her possession. It is revealed out in evidence that three RCR.No.180/2010 7 other identical houses belonging to the respondent had come into her possession subsequent to the filing of petition. Now, it is alleged that those buildings were demolished to make it appear that the respondent has no other building of her own to reside. In the event any of those buildings could be used to meet the requirement of the respondent, according to the learned counsel for the revision petitioner, eviction of the revision petitioner could have been avoided. It was further submitted that the land where those buildings are situated were sold and the eviction of the building in dispute is also for demolition and for sale and not for own occupation. On the other hand, it was argued by the learned counsel for the respondent that it is for the landlord to decide as to where the landlord shall stay and it is not at all for the tenant to dictate and that other buildings were very old and were not fit for residence and it is in that circumstance those buildings were demolished. It is true that the landlady can pick and choose as to where she has to stay and the tenant cannot dictate. But, on the same time, in view of the 1st proviso to Section 11 (3), in the event landlady had got possession of other buildings, she is bound to show special RCR.No.180/2010 8 reasons for seeking eviction in respect of the building for which the eviction was sought. That is a mandate of the statute. We find that it is a very important provision with intent to protect the tenants from arbitrary and whimsical eviction. Such right cannot be so lightly denied. Since it was alleged that other buildings were not in the possession of the respondent at the time of petition, the respondent has not at all shown special reasons for seeking eviction in respect of the petition schedule building. When the other buildings came into the possession of the respondent subsequent to the petition, it was for the respondent to amend the pleadings to incorporate special reasons for not occupying those buildings and insisting for the eviction of the petition schedule building. In that event, the revision petitioner also could have raised counter pleadings and evidence also should have been adduced. This is the third reason that persuade us to remand the case. 10. The above reasons we stated are subsequent events sufficient enough to tilt the decision one way or others. Since those subsequent events were not part of pleadings, the revision petitioner could not counter and had no occasion to RCR.No.180/2010 9 adduce evidence, we find that the mater requires remand to the Rent Controller for amending the pleadings and to allow the parties to adduce evidence. The appellate authority lost right of the above very relevant materials. It omitted to consider the changed circumstances, especially the fact that the landlady had got possession of three identical buildings, which otherwise prima facie appear to be sufficient for the occupation of the landlady. It that is so, because of the 1st proviso to section 11(3), the judgment of the appellate authority granting eviction is illegal and unsustainable and the eviction petition ought to have been dismissed. The appellate authority avoided answering the benefit of the proviso by simply stating that those buildings are not existing at the time of judgment. The appellate authority omitted to note that in deciding the bonafides of the need, the failure or omission to show special reasons for not occupying the vacant building or subsequently vacated building is a very important criteria. If we visualize the legislative intention behind the first proviso, we find that it could be quite appropriate to answer the bonafides against the landlord when no special reasons are not shown for seeking eviction of the RCR.No.180/2010 10 disputed premises without occupying the vacant or subsequently vacated building. The failure of the appellate authority to appreciate the case in this back ground had not only prejudiced the revision petitioner but also the conclusions arrived at is erroneous and improper. In such event, this court is justified in interfering with the judgment of the appellate authority. But in the peculiar fact and circumstances of the case, we find that before non suiting the respondent, it would be appropriate in the interest of justice to allow the respondent to amend the pleadings and to adduce further evidence. In this view of the matter, we are not proposing to go into the merit of the bonafide need urged at this stage because, what we stated earlier have much say in determining the bonafides of the respondent. 11. In the result, the revision petition is allowed and the matter is remanded back to the trial court with liberty to the parties to amend pleadings and to give opportunity to adduce further evidence, if so decided. Incidentally, we notice that the present rent of the petition schedule building is only Rs.75/-. It was fixed as early as in 1984 and it is very low and only a RCR.No.180/2010 11 pittance when compared to the current rate of fair rent. Therefore, it requires some provisional re fixation. The building, though small, is situated in the heart of the city of Kochi. Having due regard to the existing rate of rent and the year in which contract rate was determined, we tentatively fix the fair rent of the petition schedule building at Rs.1500/- per month payable with effect from 1/11/2010 with liberty to either party to move the Rent Controller for fixing the fair rent. Till the fair rent of the petition schedule building is so fixed by the Rent Controller on an application by either party, the rent which we provisionally fixed above shall remain in force. The parties are directed to appear before the Rent Controller on 29/10/2010. No costs. Transmit the records forthwith. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk