IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 RCRev..No. 14 of 2008() ---------------------------------- RCA.NO. 86/2004 of DISTRICT COURT, THALASSERY RCP.NO. 332/2002 of ADDITIONAL MUNSIFF COURT, KANNUR .................... REVISION PETITIONER/RESPONDENT/PETITIONER --------------------------------------------------------------------------- VENADAN SHYAMALA, D/O.CHATHU NAIR, AGED 46 YEARS, VENADAN HOUSE, P.O.CHIRAKKAL, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------------------------------------- POTHAN SUDHEER, S/O.RAMAN, B.NO.C-VII, 432A, STATIONERY MERCHANT, NR.BEVERAGES HIGHWAY JUNCTION, PUTHIYATHERU, KANNUR. BY ADV. SRI.P.U.SHAILAJAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.14 of 2008 ---------------------------------------------------- Dated this the 17th day of March, 2011 Order Balakrishnan, J. The landlady has filed this revision against the rejection of her claim for eviction on the ground of bonafide need, reversing the order of eviction passed by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act'). The revision petitioner-landlady contended that her son who was examined as P.W.1 intends to start a two wheeler workshop in the petition schedule building and for accommodating her son, she bonafide needs the petition schedule building. It was also contended that she and her son, P.W.1 have no vacant possession of any other building suitable for the said purpose. It was stated that the respondent is not depending on the petition schedule building for eking out his livelihood and there are other vacant buildings available in the locality for shifting his business. 2. The claim was resisted by the tenant contending that the RCR 14/08 2 landlady's son was doing some other business and that she has absolutely no intention to start a two wheeler workshop. It was also contended that the landlady and her son are having vacant rooms in their possession which are very much suitable for starting the proposed business. Besides, the respondent also sought protection under the second proviso to Section 11(3) of the Act. 3. Before the Rent Control Court, Sreeshan, the son of the landlady for whose need eviction was sought was examined as P.W.1. and Exts.A1 to A4 were marked. The respondent-tenant was examined as R.W.1. The Commissioner's report and plan were also marked as Exts.C1 and C2. 4. In the course of the argument before the trial court, it was contended by the respondent that the name of the landlady's son was written in the petition as 'Sreegath' and not 'Sreeshan'. It was also contended that the petitioner has another son. When that point was raised, a petition was filed by the petitioner to cause amendment of the petition stating that it was a typographical error committed by the office of the Advocate. Besides, ration card was also sought to be produced to prove that RCR 14/08 3 two sons of the petitioner are Sreeshan and Sreejil. The learned Rent Controller felt that the name 'Sreegath' was mistakenly typewritten and for that purpose no amendment is required. Accepting the evidence given by P.W.1, the Rent Control Court found that the need projected by the landlady is bonafide. It was further found that the respondent is not entitled to the protection under second proviso to Section 11(3) since the first limb of that proviso could not be substantiated by the respondent. 5. The learned Appellate Authority found that the need projected by the petitioner is not bonafide. For that purpose, the difference in the name stated in the petition was projected by that court. Besides, in the evidence given by P.W.1 it was stated that just adjacent to the petition schedule building, another vacant room was available. According to the petitioner, that room was in the possession of one Ravindran as a tenant. But that was not accepted by the Appellate Authority. Though the learned Appellate Authority concurred with the view that the respondent is not entitled to the protection under the second proviso, holding that the petitioner could not prove that the need urged by her is bonafide, the order of eviction granted by the Rent Control Court RCR 14/08 4 was reversed. 6. The learned counsel for the revision petitioner would submit that the learned Appellate Authority was not justified in holding that the requirement putforward in the petition was switched over to another and there is lack of pleadings so far as the need of P.W.1 is concerned. It was also argued that the comment made by the learned Appellate Authority regarding the omission on the part of the petitioner to take note of the mistake is also unjustifiable. 7. We have heard the learned counsel for the petitioner and the respondent at length. 8. It is seen that P.W.1 for whose need the petition schedule building was sought to be evicted has given cogent and convincing evidence to prove that it was for his need, namely, to start a two wheeler workshop, the petition schedule building was sought to be evicted. For that purpose, he also deposed before the Rent Control Court that he had been working in a building lying on the other side of the road which also was a workshop evidently as a trainee. In other words, he was a worker/trainee in the workshop lying on the other side of the road. It was stated so RCR 14/08 5 by P.W.1 to convince the court that he had gained sufficient experience so as to enable him to run the two wheeler workshop in the petition schedule building independently. There was no case for the respondent that it was not for P.W.1 the petition schedule building was sought to be evicted nor was there any case for the tenant that the landlady has another son by name Sreegath. It is also important to note that P.W.1 has given evidence to substantiate the plea that he was then aged 20 years and as he had gained experience by working in the workshop, he can start a two wheeler workshop in the said building. So much so, there could be no doubt in the mind of the respondent when P.W.1 was examined that it was for P.W.1 the petition schedule building was sought to be evicted by the petitioner. So much so, it is clear in our mind that in the petition, the petitioner's son was mistakenly typewritten as Sreegath instead of Sreeshan, the actual name of P.W.1. Since P.W.1 was till then working in the nearby building, there could be no confusion for the tenant that the name of P.W.1 was Sreeshan and that it was for his need the building was sought to be evicted. That is so clear since in the petition also it was RCR 14/08 6 specifically stated that the petitioner's son got experience and capacity to conduct the two wheeler workshop. There was no case for the respondent that the petitioner's other son whose name is stated to be Sreejil was working in the workshop or had gained experience for starting a workshop. Therefore, it is crystal clear that the mistake was committed by the office of the Advocate who prepared the petition. 9. It would appear that this mistake was pointed out only by the respondent at the time of argument before the Rent Control Court, evidently because both sides did not notice the typographical error crept in the petition with regard to the name of the petitioner's son. It is also pertinent to note that the contention regarding the change in the name as aforesaid was taken up only at the time of argument. Therefore, in order to explain the position, an application was filed to cause amendment of the petition stating that the actual name is Sreeshan and not Sreegath and that the mistake was committed in the office of the Advocate. Learned counsel submits that in fact an affidavit sworn to by the Advocate was filed in support of that petition for amendment. Besides, the ration card was also produced before RCR 14/08 7 the Rent Control Court to prove that two sons of the revision petitioner are Sreeshan and Sreejil. But the learned Rent Controller found that petition was unnecessary since that court was fully convinced of the fact that the name of the petitioner's son written as Sreegath was only a typographical error. In the light of the evidence and circumstances as mentioned above, we find that the learned Appellate Authority was not justified in taking a pedantic approach to hold that two persons are different and that the revision petitioner had shifted her stand as to who among the sons was the the actual needy person. There was absolutely no reason to warrant such a conclusion. 10. The R.C.P was prepared and typewritten in English. A rustic and inarticulate woman would subscribe her signature in the petition when it is put to her reposing absolute confidence in the Advocate. Court cannot be so blind to those stark realities. It was for the son who gained experience by working in the workshop in the nearby building eviction was sought. It was that son who mounted the witness box and swore in support of that case. That was not effectively challenged at all. There was no case for the respondent that the other son of the petitioner had RCR 14/08 8 gained experience by working in a workshop. If so, how could there be any confusion or prejudice? Learned Appellate Authority did not analyse the evidence in that line. The endeavour of the court should be to do justice to the parties and not to turn down the case on technicalities. The very fact that the amendment petition was found by the trial court unnecessary as it was only a mistake should not have been ignored by the learned Appellate Authority as the trial court had the added advantage of seeing the parties and watching their demeanour in court. We are convinced that the name 'Sreegath' was happened to be mistakenly typewritten. So much so, on that ground the bonafides of the petitioner cannot be doubted at all. 11. The other grounds which was projected by the learned Appellate Authority to turn down the claim under Section 11(3) is that in evidence it was stated that one room situated to the south of the petition schedule building was lying vacant. It was stated by P.W.1 that, that buildings(room) was in the possession of another tenant by name Ravindran. The learned Appellate Authority found that when the Commissioner inspected the property it was not shown to the Commissioner that the said RCR 14/08 9 room was in the possession of Ravindran. It is pertinent to note that there is evidence to show that the room which was alleged to be lying vacant (which according to the revision petitioner is in the possession of Ravindran), is situated on the rear portion of the building. An offer was made to the tenant whether he can occupy the building situated on the rear side. Of course, if the building was in the possession of Ravindran, the offer so made by the landlady cannot be a honest one. But that offer, according to the revision petitioner, happened to be put to the tenant since the tenant was vehemently contending that the claim for eviction should be rejected by virtue of first proviso to Section 11(3). It is pointed out by the learned counsel for the landlady that no specific case was putforward by the tenant that the claim is hit by the first proviso to section 11(3). Even if it is accepted that the possession of another building with the landlady may tell upon the bonafide need projected by the landlady still so far as the case on hand is concerned, it is not disputed by the tenant also that the other building which, according to him, is lying vacant is situated on the rear side. The tenant declined to accept the offer made by the revision petitioner to occupy that room since that RCR 14/08 10 room was not having road frontage. If the tenant cannot occupy that room for the reason mentioned above, it is inconceivable how he can ask the landlady to occupy that room. Therefore, according to the revision petitioner, even if it is accepted that the rear room was not rented out to Ravindran still, that is not a reason to decline eviction sought under Section 11(3) especially because there was no specific case for the tenant that the claim under Section 11(3) is hit by the first proviso thereto. P.W.1 has given evidence as to the bonafides of the need projected by the revision petitioner. He had gained experience by doing work in a workshop. His evidence that he intends to start the two wheeler workshop and that he is depending on the revision petitioner for the purpose of getting the building for the occupation as mentioned above was rightly accepted by the Rent Controller. We made a thorough reappraisal of the evidence. We have no hesitation to hold that the need projected by the revision petitioner is bonafide. 12. The tenant when examined as R.W.1 has stated that he was doing business in hardwares. He had to close down that business as the business went in loss. That was the position as on RCR 14/08 11 the date of filing of the R.C.P. He says that subsequently he started business in soda, cool drinks etc. He did not produce any document to show what was the income he used to derive by doing business in the petition schedule building so as to contend that he was mainly depending on the petition schedule building for his livelihood. The very fact that he closed down the business as it ran in loss would negative the plea raised by him. So much so, it has to be held that the tenant has failed to prove the first limb of the second proviso to Section 11(3). That was the concurrent finding entered by the courts below. 13. In view of what is stated above, we hold that the view taken by the learned Appellate Authority to reject the claim under Section 11(3) is wholly erroneous. The evidence adduced on behalf of the landlady was misconstrued by that court. The mistake crept in the petition was projected out of proportion to decline a just claim made by the revision petitioner. We find that the approach made by the learned Appellate Authority is illegal and as such it warrants interference. The result, therefore, is that the revision petition is allowed. The landlady is granted an order of eviction under Section 11(3) of Act 2 of 1965. The respondent- RCR 14/08 12 tenant is directed to put the landlady in possession of the petition schedule building within one year from today, but on condition that the tenant should file an affidavit within three weeks from today undertaking that he will surrender vacant possession of the petition schedule building to the landlady within one year from today and further that he will discharge the entire arrears of rent, if any, within one month from today. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 14/08 13 RCR 14/08 14