IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 RCRev..No. 15 of 2009() ----------------------- RCA.54/2005 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THALASSERY RCP.234/2003 of RENT CONTROL COURT, PRL.M.C.,KANNUR. .................... REVISION PETITIONERS: APPELLANTS/RESPONDENTS 1,2,4,5,6 & 8: ------------------------------------------------------------------------------------------------------ 1. ANTHONY AMMA, W/O.ALEXANDER JAONICLOS, RESIDING AT DOOR NO.110E BURNASSERY, KANNUR. 2. ANTONY J.NICHLOS, S/O.ALEXANDER.J.NICHLOS HOUSE NO.110E, BURNESSERY, CONTONMENT, KANNUR. 3. LILLY J.NICHLOS, HOUSE NO.110E, BURNESSERY, CONTONMENT, KANNUR. 4. DEVADAS.J.NICHLOS, S/O.ALEXANDER,.J.NICHLOS, HOUSE NO.110E, BURNASSERY, CONTONMENT, KANNUR. 5. BABU J.NICHLOS, S/O.ALEXANDER.J.NICHLOS, HOUSE NO.110E, BURNESSERY CONTONMENT, KANNUR. 6. LEENA.J.NICHLOS, D/O.ALEXANDER J.NICHLOS, HOUSE NO.110E, BURNASSERY, CONTENMENT, KANNUR., BY ADV. MR.M.V.AMARESAN Kss ..2/- ....2..... RCR.NO.15/2009 RESPONDENT(S): RESPONDENTS:PETITIONERS:RESPONDENTS 3 AND 7: -------------------------------------------------------------------------------------------------------------- 1. P.P.SUHARABI, W/O.AKBAR ALI, RESIDING AT ISMATH MANZIL, ANAYIDUKKU, KANNUR. 2. RAJU.J.NICHLOS, HOUSE NO.110E, BURNESSERY, CONTONMENT, KANNUR. 3. ROBERT.J.NICHLOS, HOUSE NO.110E, BURNESSERY, CONTONMENT, KANNUR. R1 BY ADVS. MR.A.MOHAMED MUSTAQUE, MR.K.R.AVINASH (KUNNATH). THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23/03/2009 ALONG WITH RCR NO. 23 OF 2009 AND RCR NO. 24 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- RCR.NOs.15,23 & 24 of 2009 --------------------------------- Dated this the 23rd day of March, 2009 ORDER Abdul Rehim,J. The above revision petitions arise out of a common judgment of the Rent Control Appellate Authority, Thalassery, in RCA.Nos.50,54 and 61 of 2005. The appeals were filed from the judgments in RCP Nos.288/2002,234/2003 and 292/2002 respectively, of the Rent Control Court, Kannur. The landlady, who is the respondent herein, filed the rent control petitions mainly on the ground of bonafide need for own occupation, under section 11(3) of the Kerala Building (Lease and Rent Control) Act. The need projected is that, the petition schedule building is in need for residence of her daughter, Smt.Minas, who has no house of her own and is at present residing at her parental house. According to the landlady, her daughter is intending to start residence in all the three rooms (petition schedule buildings) after making slight modifications thereon. It is specifically pleaded that neither the landlady nor her daughter RCR.15,23 & 24 /2009 2 has no vacant building in their possession suitable for the above purpose. A lawyer notice was caused on this ground to all the three tenants demanding vacation of the buildings. The tenants/respondents resisted the rent control petitions alleging that the need projected is not true and genuine. It was contended that it is not true and correct that the daughter of the landlady wants to set up independent residence along with her husband, and therefore there is no bonafides in the need projected. The daughter of the landlady, with respect to whom the need is claimed, was examined as PW1, and Exts.A1 to A8 documents were marked. The respondent in RCP Nos. 288/2002 and 234/2003 were examined as RW1 and RW2. Exts.B1 to B10 were marked from the side of the respondents. PW1 had sworn in evidence about the need projected, that she is a married lady having three children and she requires separate accommodation. Ext.A3 ration card was produced to prove that she is now residing with her parents. Eventhough eviction was sought for under section 11(2) (b) also, the ground does not survive at present and arise for consideraiton in these revision petitions. 2. The serious contention raised by the Revision RCR.15,23 & 24 /2009 3 petitioners is that there is lack of pleadings in the Rent Control petitions to the effect that PW1 is dependent on the petitioner (landlady) for the requirement of the building for setting up her residence. The findings of the Rent Control Court in this regard is that, the averments of the petition is to the effect that neither the petitioner nor her daughter has any other independent building suitable for accommodating PW1 and therefore the purpose for which the eviction was sought for is sufficiently pleaded. It is found that PW1 is depending upon the petitioner for accommodation, can be spelled out from the averments in the petition. The Appellate Authority found that even though the technical jargon is not specifically stated, there are sufficient pleadings to the effect that PW1 does not possess any vacant accommodation of her own and the petition schedule buildings are required for her separate residence. According to the Appellate Authority such pleadings are indicative of the dependency for accommodation. 3. The learned counsel appearing for the petitioners brought to our attention the decision of the Honourable Supreme Court in Koyilerian Janaki and others vs. Rent Controller RCR.15,23 & 24 /2009 4 (Munsiff) (2000(9) SCC 406). It is held by the Honourable Supreme Court that, section 11(3) without any ambiguity makes it clear that landlord must plead and substantiate three ingredients: (i) person needing the building is member of landlord's family; (ii) such person is dependent on the landlord; and (iii) the need is bonafide. If any one of the three ingredients is absent,the landlord's petition would fail. In the said case the Honourable apex court found that, there was pleading to the effect that the building is needed for the married daughter and son-in-law of the landlady. But it is found that no pleading as regards the fact that the married daughter and the son in law are dependent on the landlady. It is observed that the landlady has to further plead and substantiate that the daughter and son-in-law are dependent on her, and only if it is pleaded that, the married daughter and son in law are dependent on the landlady, a petition under section 11(3) of the Act can succeed. On the mere allegation that the building is needed for occupation of the married daughter and the the son-in-law is not sufficient, is the finding. Due to lack of such pleading the Honourable Supreme Court found that allowing eviction on the ground under RCR.15,23 & 24 /2009 5 section 11(3) was not justified and it should not be said that the landlady bonafide required the building for occupation of her married daughter. 4. For an evaluation of the contention regarding the pleadings, in view of the dictum laid by the Honourable Supreme Court in the decision cited supra, we had gone through the averments in the RCP, a copy of which was made available to us by the counsel appearing for the respondents. Even though we found that in so many words the need of the married daughter of the landlady was explained, there is clear lack of pleadings regarding the dependency of the daughter upon the landlady for the particular need. On a perusal of the evidence of PW1 also, we could not find any specific statements to the effect that she is dependent upon the landlady for the need projected. 5. For the above reasons we are constrained to hold that there is lack of pleadings with respect to the aspect of dependency. In view of the settled precedent of the Honourable apex court cited above, we could not agree with the findings of the courts below that the pleadings which are indicative to effect that the married daughter of the landlady with respect to whom RCR.15,23 & 24 /2009 6 the need urged is dependent on the landlady for the purpose avowed, is sufficient to grant eviction. Counsel for the petitioners also pointed out the decisions of this court in Ismail s. Kesavan (2004(2) KLT 56) and Albert Mendez vs. Ramachandran (2007(3) KLT 23) in order to support the above legal preposition. Considering the legal position in all the rulings cited, we are constrained to hold that there is clear lack of pleadings and that the findings of the authorities below are illegal and improper. Therefore, we set aside the decisions of the Rent Control Court and the Appellate Authority. 6. Counsel appearing for the respondent/landlord appealed before us that the landlady may be afforded with an opportunity to make necessary amendments in the pleadings and to contest the case further on the basis of the same ground for eviction. The counsel appearing for the revision petitioners/tenants opposed the above request on the ground that the landlady need only be permitted to file fresh rent control petitions. Considering the fact that the Rent Control petitions are of the year 2002 and 2003, we are inclined to allow the request of the landlady. We feel that in order to meet the ends of justice it is necessary that RCR.15,23 & 24 /2009 7 the landlady should be given opportunity to bring necessary amendments in the pleadings and to prosecute the rent control petitions further. In the result, the revision petitions are disposed of as follows:- 7. Common judgment in RCA.Nos.50,54 and 61 of 2005 dated 22.9.2008 of the Rent Control Appellate Authority, Thalassery and the common judgment in RCP.Nos.288/2002,234/2003 and 292/2002 dated 24.1.2005 of the Rent Control Court, Kannur are hereby set aside. The cases are remanded to the Rent Control Court, Kannur, for fresh disposal after affording opportunity to the respondent/landlady to amend the pleadings in the rent control petitions, in view of the observations made above. It is needless to say that on such amendment being allowed the tenants will have to be afforded with opportunity to refute such contentions, by filing additional objections. The Rent Control Court should also afford opportunity to both sides to adduce evidence, if found necessary, on the aspect of dependency of the daughter of the landlady with respect to the need projected. Considering the fact that the rent control petitions are of the year 2002 and 2003, the rent control RCR.15,23 & 24 /2009 8 court will take all earnest steps to dispose of the matter at the earliest possible, at any rate within three months from the date of reopening of the court after mid-summer holidays. 8. It is brought to our notice that with respect of all the three buildings, the rate of rent now being paid is only Rs.50/- and Rs.60/- per month. Since we feel that the rate of rent prevalent today in the locality will be much higher considering the commercial importance of the area concerned, we are inclined to tentatively refix the rate of rent as Rs.450/- per month for each of the tenanted premises in the RCPs. The rate of rent fixed above is purely on provisional basis and the same will be subject to the right of either parties to approach the appropriate court for fixation of fair rent. The rate of rent fixed as above will be having prospective effect only from 1.4.2009 onwards. PIUS C.KURIAKOSE ,JUDGE C.K.ABDUL REHIM,JUDGE pmn/ RCR.15,23 & 24 /2009 9