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 23RD DECEMBER 2010 / 2ND POUSHA 1932 RCRev..No. 175 of 2006() ------------------------ RCA.3/2001 OF RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA RCP.8/1996 OF RENT CONTROL COURT, PATHANAMTHITTA .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER -------------------------------------------------------------------- MINI VARGHESE, OTTAMOOTTIL, MYLAPRA MURI & VILLAGE, PATHANAMTHITTA. BY ADV. SRI.JACOB P.ALEX RESPONDENT(S): PETITIONERS: --------------------------- 1. M.G. KURIAN (DIED), MAMKOOTTATHIL HOUSE, AZHOOR MURI, PATHANAMTHITTA VILLAGE. 2. VALSAMMA KURIAN, MAMKOOTTATHIL HOUSE, AZHOOR MURI, PATHANAMTHITTA VILLAGE. 3. ABY M. KURIAN, MAMKOOTTATHIL HOUSE, AZHOOR MURI, PATHANAMTHITTA VILLAGE. 4. ANAND M. KURIAN, MAMKOOTATHIL HOUSE, AZHOOR MURI, PATHANAMTHITTA VILLAGE. ADV. SRI.R.RAJASEKHARAN PILLAI(CAVEATOR) SRI.R.RAJASEKHARAN PILLAI FOR R2 TO 4 SMT.SABINA JAYAN FOR R2 TO 4 SRI.M.S.NISHAD FOR R2 TO 4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23-12-2010, THE COURT ON THD SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO. 2711 OF 2007 DISMISSED. SD/- PIUS C.KURIAKOSE, JUDGE. 23-12-2010 SD/- N.K.BALAKRISHNAN, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- RCR. No. 175 of 2006 ----------------------------------------------- Dated this the 23rd day of December, 2010 O R D E R Pius C.Kuriakose, J. The tenant is the revision petitioner. She impugnes the judgment of the Rent Control Appellate Authority confirming order of eviction passed by the Rent Control Court under sub-section (3) of Section 11 of Act 2 of 1965. 2. The need projected by the original landlords (the second respondent being one among them) is that the building in question as well as the adjacent rooms are required bona fide for the conduct of a hospital by Sri.Anand M. Kurian, one of the sons of respondents 1 and 2 (the 4th respondent herein) who at that time was a medical graduate pursuing post graduate studies in Anesthetics. The Rent Control Court tried the present RCP as well as the connected RCPs together and came to the conclusion that the need projected is bona fide. It was also concluded by that court RCP. 175/06 -2- that the tenant was unsuccessful in showing that she is entitled to the protection of the second proviso to sub- section (3) of Section 11. On the basis of such findings order of eviction was passed not only in the present RCP but also in the connected RCPs. The learned Appellate Authority would make a reappraisal of the evidence considering the appeal preferred by the tenant and confirm all the findings of the Rent Control Court. Accordingly, the RCA was dismissed. 3. In this revision various grounds are raised against the judgment of the Appellate Authority. Though Sri.Jacob P Alex, learned counsel for the revision petitioner addressed arguments on the basis of all the grounds he gave more thrust in his submissions to the following points: i. As per the Kerala Building Rules and the Kerala Municipal Registration of Private Hospitals etc. Rules, 1997, the Municipality will not issue permit for conducting a hospital in the petition schedule building in view of the nature of the occupancy permitted under the Town Planning Scheme. RCP. 175/06 -3- ii. Sri. Anand M. Kurian is now permanently settled down at England with his wife. iii.In the present RCP, there is no pleading that Mr.Anand M.Kurian is a dependent family member of the original landlords. Sri. Rajasekharan Pillai, learned Counsel for the respondent would submit that absence of pleading regarding the dependency is no longer relevant as Dr. Anand M.Kurian has become a landlord in his own right due to the demise of his father, the original landlord Sri. M.G. Kurian. Mr. Rajasekharan Pillai further submitted that it is not a full- fledged hospital that is proposed to be conducted in the building in question. What is proposed is only a clinic. Several such clinics are being conducted in the same area by several doctors without any objection whatsoever from the Municipality in that regard. We record the submission of Mr. Rajasekharan Pillai that what is proposed to be conducted is only a clinic. 4. We have considered the rival submissions. The RCP. 175/06 -4- reason stated by the learned Appellate Authority for ignoring the defect in the pleading is that though in the present RCP pleading regarding dependency is not projected, in the connected RCPs such pleadings are available. We are unable to approve the above view of the learned Appellate Authority. Pleadings in the connected matter cannot be a substitute for pleadings in the present RCP. It was the pleadings in the present RCP alone which the revision petitioner was called upon to answer. True, Anand M.Kurian has now become a landlord in his own right. But that is a subsequent event. The question which the statutory authorities were called upon to decide is whether the need projected by the parents Sri.M.G.Kurian and Smt. Valsamma Kurian, respondents 1 and 2 to accommodate their son Anand M.Kurian is a bona fide one and whether Sri.Anand M. Kurian was a dependant. We feel that the RCP should be remanded to the Rent Control Court for a fresh decision in RCP. 175/06 -5- the context of the points raised by the learned counsel for the revision petitioner. 5. We also feel that the monthly rent which is being paid by the revision petitioner presently is far below the rent the building may fetch if the same is let out today. We therefore are inclined to re-fix the rent tentatively. 6. The result of the above discussion therefore is as follows: The order passed by the Rent Control Court and the judgment of the Rent Control Appellate Authority are set aside to the extent the same pertains to the bonafides of the need under sub-section (3) of Section 11. The finding that the tenant is not entitled to the protection of the second proviso to Section 11(3) is confirmed. The RCP is remanded to the Rent Control Court. The Rent Control Court will allow application if any, filed by the landlords within one month of their appearance before the Rent RCP. 175/06 -6- Control Court for amendment of pleadings in the RCP for incorporating an averment that Sri.Anand M.Kurian was dependent on his parents at the time when the RCP was instituted and a further averment that Sri. Anand M. Kurian has become a joint landlord presently by virtue of demise of his father. If pleadings are amended, that court shall permit the tenant to file counter pleadings. 7. The landlord should be permitted by the court to produce documentary evidence (a certificate or so issued by the Municipality) to the effect that there will not be any objection on the part of the Municipality in the matter of proposed clinic being commenced in the petition schedule room and the adjacent rooms. 8. The rent payable by the revision petitioner is fixed tentatively with effect from 1-1-2011 at Rs.2500/- per mensem. This fixation is tentative. It is open to either party to apply to the Rent Control Court for regular fixation of fair RCP. 175/06 -7- rent under Section 5 of the Act. Till fair rent is fixed by the Rent Control Court, the revision petitioner shall pay rent at the rate of Rs.2500/- per mensem. The parties will enter appearance before the Rent Control Court on 11-3-2011. The Rent Control Court will do the needful in compliance with the above directions early and ensure that revised orders are passed at any rate, within two months of the court reopening after mid-summer holidays. The RCR is allowed by way of remand. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-