IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 RCRev..No. 362 of 2007() ------------------------ RCA.98/2006 of DISTRICT COURT/R.C.A.A., ,KOZHIKODE RCP.20/2005 of MUNSIFF COURT/R.C.C., QUILANDY .................... PETITIONERS APPELLANTS/CR.PETITIONERS 2 & 6 --------------------------------------- 1. PARAPPIL CHERIYA PURAYIL ABDULLAKUTTY S/O. IBRAI, AGED 59 YEARS, PANTHALAYANI AMSOM DESOM, KOYILANDY, KOZHIKODE DISTRICT, KERALA STATE 2. PARAPPIL CHERIYA PURAYIL BASHEER S/O.IBRAI, AGED 37 YEARS, PANTHALAYANI AMSOM DESOM, KOYILANDY, KOZHIKODE DISTRICT, KERALA STATE BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: RESPONDENTS/ RESPONDENTS 1, 3 TO 5, 7 TO 9 & LRS OF PETITIONER ------------------------------------ 1. PARAPPIL CHERIYA PURAYIL UMMACHU UMMA D/O.ALIKOYA, AGED 78 YEARS, PATHALAYANI AMSOM DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE 2. PARAPPIL CHERIYA PURAYIL ALI, S/O. IBRAYI, AGED 55 YEARS PATHALAYANI AMSOM DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE 3. BROTHER PARAPPIL CHERIYA PURAYIL HASHIM S/O. IBRAYI, AGED 51 YEARS PATHALAYANI AMSOM DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE 4. BROTHER PARAPPIL CHERIYA PURAYIL MUHAMMED,S/O. IBRAYI, AGED 47 YEARS PATHALAYANI AMSOM DESOM, KOYILANDY RCR 362/07 KOZHIKODE DISTRICT, KERALA STATE 5. SISTER PARAPPIL CHERIYA PURAYIL IMBICHIPATHU,D/O.IBRAYI, AGED 57 YEARS PATHALAYANI AMSOM DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE 6. SISTER PARAPPIL CHERIYA NAFEESA D/O.IBRAYI, AGED 41 YEARS PATHALAYANI AMSOM DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE 7. SISTER PARAPPIL CHERIYAPURAYIL SUBAIDA D/O.IBRAYI, AGED 35 YEARS PATHALAYANI AMSOM DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE 8. SUPPL. NABEESA, AGED 54 YEARS W/O. DECEASED IST REPONDENT MOIDU RESIDING AT " THAKKAVE" HOUSE, THIRUVANGOOR AMSOM KAPPAD DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE. 9. SUPPL. SON ANWARSADATH, AGED 32 YEARS W/O. MOIDU RESIDING AT " THAKKAVE" HOUSE, THIRUVANGOOR AMSOM KAPPAD DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE. 10. SUPPL. DAUGHTER SAJITHA AGED 25 YEARS D/O.MOIDU RESIDING AT " THAKKAVE" HOUSE, THIRUVANGOOR AMSOM KAPPAD DESOM, KOYILANDY KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.V.JOY SANKER – R8, R10. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- R.C.R. NO.362 OF 2007-B ----------------------------------------- Dated 18th March, 2008. ORDER Balakrishnan Nair, J. The counter petitioners 2 and 6 in R.C.P.No.20/2005, who were the appellants in R.C.A. No.98/2006, are the revision petitioners before this Court. The landlord died during the pendency of the appeal. His legal representatives and the remaining tenants are the respondents. 2. The Rent Control Court allowed the application under Sections 11 (2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the “Act”). The petitioners herein filed the appeal. At the appellate stage, the wife of the deceased landlord filed an application to amend the pleadings. She contended that she proposed to do the stationery business, for which her husband moved the R.C.P., with the help of her brother's son. The I.As filed by the legal heirs to get themselves impleaded and also to amend the pleadings in the R.C.P were allowed. The appellate authority remanded the matter to the Rent Control Court, to decide RCR 362/2007 2 on the claim of the wife of the landlord under Section 11(3) of the Act. The findings under the second proviso against the tenants were affirmed by the appellate authority also. This revision is filed, contending, inter alia, that with the death of the landlord, the cause of action does not survive and therefore, the appeal should have been allowed and the R.C.P should have been dismissed. 3. We heard the learned counsel on both sides. We feel that the points raised by the revision petitioners in this revision regarding the non- survival of the need under Section 11(3) of the Act after the death of the landlord etc., are matters which can be raised before the Rent Controller. The said point can be decided, based on the evidence tendered before the said authority. The learned counsel for the revision petitioners also pointed out that in the order in I.A.No.1058/2007, there is a specific finding by the appellate authority that the need for the scheduled room survives the death of the original landlord. Unless that finding is set aside, the remand will be a restricted remand and the tenants will be prejudiced. 4. We heard the learned counsel for the landlords also on the above point. We feel that whether the need survives or not, is a matter which should be decided by the Rent Controller, after evidence is tendered in this case. So, to that extent, the order in I.A.No.1058/2007 is set aside. The RCR 362/2007 3 point whether the legal heirs can pursue the claim for eviction under Section 11(3) of the Act, on the basis of the need urged by the wife of the deceased landlord, is a matter which will be decided by the Rent Controller, after taking evidence. But, we affirm the finding of the Rent Controller and the Appellate Authority that the tenants are not entitled to get the protection of the 2nd proviso to Section 11(3) of the Act. With the above direction, the R.C.R is disposed of. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/