IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 RCRev..No. 220 of 2010(D) ------------------------------ RCA.152/2005 of ADDL. DISTRICT COURT, THALASSERY RCP.140/2004 of ADDL.MUNSIFF COURT, KANNUR .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- KALLUKATTIL MAHAMOOD, S/O.KADER, AGE NOT KNOWN, ATHODATHU HOUSE, KADANKODE, P.O.VARAM, KANNUR DT. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): RESPONDENT/PETITIONER --------------------------------------------------- 1. VARATHU VEETTIL THAYYIL VALAPPIL ABOOBACKER, S/O.MAMMU HAJI, AGED 53 YEARS, RESIDING AT VALIYANNOOR AMSOM, VARAM DESOM, KANNUR DT. 2. KALLUKATTIL ALI, S/O MUHAMMED, AGED NOT KNOWN, VARAM CONFECTIONARY, P.O. VARAM, KANNUR DT. ADV. SRI.K.M.MOHAMMED KUNHI SRI.V.V.ASOKAN SRI.K.M.MOHAMMED KUNHI SMT.RUKHIYABI MOHD KUNHI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Order on I.A.No.1957/10 In RCR 220/10 14-3-2011 Dismissed Sd/- PIUS C. KURIAKOSE,JUDGE. Sd/-N.K. BALAKRISHNAN,JUDGE. [true copy] PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 220 OF 2010 = = = = = = = = = = = = = = = = Dated this the 14th day of March, 2011. O R D E R PIUS C. KURIAKOSE,J. The tenant is in revision. He challenges the judgment of the Rent Control Appellate Authority ordering eviction against him under sub-section 3 of S.11 of the Act after reversing the order of the Rent Control Court which had declined eviction on the above ground. Though the landlord had invoked various eviction grounds such as subletting, maluser of the building in a manner as to reduce the utility, the only ground which presently survives is the ground u/s 11(3). The need projected by the landlord was that the building is needed for the conduct of a stationery business by his son who R.C.R. NO. 220 OF 2010 -:2:- was dependent on him. It became evident that the landlord has two sons. 2. In fact the contention of the tenant was that the need projected is not bonafide and that the non-disclosure by the landlord of the name of his son who was sought to be accommodated was malafide. There was a further contention that as the identity of the needy son was not disclosed, prejudice was occasioned to the tenant. The tenant claimed protection of the 2nd proviso to sub-section 3 of S.11 also. At trial by the Rent Control Court the landlord did not get examined as a witness though he was very much present in the Court hall. It was the landlord's elder son Sri.Shihabudhin who was examined as PW1. In the affidavit which was filed by Sri.Shihabudhin in lieu of his chief examination no explanation whatsoever was R.C.R. NO. 220 OF 2010 -:3:- offered by PW1 as to why his father, the petitioner did not disclose the identity of the needy son. During the cross-examination though this aspect of the matter was put to him, the same was not answered by him. But in re- examination it was brought out through his mouth that he is the elder son of his father and that his younger brother was only pursuing his studies at the time when the RCP was instituted. The Rent Control Court dismissed the RCP despite its finding that the tenant was unsuccessful in showing that he is entitled to the protection under the 2nd proviso mainly on the reason of non-disclosure of the identity of the needy son and the non-examination of the landlord/petitioner as witness. The learned Rent Control Appellate Authority under the impugned judgment has taken the view that strict R.C.R. NO. 220 OF 2010 -:4:- adherence to the rules of pleadings is not necessary in a rent control proceeding and the fact that the landlord had only two sons and the whereabouts and the details of those two sons were known to the tenant and it is not possible to say that any prejudice has been occasioned to the tenants. For fortifying this view the learned Appellate Authority has relied upon various judicial precedents also. Sri.Mohammed Mustaque, learned counsel for the revision petitioner would draw our attention to the rival pleadings in the case and also to the oral evidence of PW1. According to Sri.Mohammed Mustaque, unwillingness of the landlord's father to mount the witness box and to offer convincing explanation as to why he did not disclose the identity of the needy son was of considerable moment in this case. He R.C.R. NO. 220 OF 2010 -:5:- submitted that even PW1 came out with an explanation only in the re-examination. According to him for want of proper pleadings from the landlord's side and also on account of the non-examination of the landlord's father prejudice has been caused to the revision petitioner. 3. Sri. Jayakrishnan.R, learned counsel for the respondents would defend the judgment of the learned Appellate Authority as ably as he could. He reminded us of the contours of our jurisdiction u/s 20 and submitted that as the learned Appellate Authority has answered the point raised by the revision petitioner and that too with the support of binding judicial precedents, it cannot be said that the above judgment is vitiated and that too to the extent of justifying invocation of the revisional R.C.R. NO. 220 OF 2010 -:6:- jurisdiction. Sri. Jayakrishnan submitted that the revision petitioner very well knew that the landlord had two sons and that PW1 alone was in need of an avocation and the other son was still pursuing his studies. No legal prejudice has been occasioned to the revision petitioner due to any insufficiency in the pleading of the landlord. He argued that there is no effective cross-examination of PW1 based on the above contention of insufficiency of pleadings and this is indicative of absence of any prejudice to the revision petitioner. Incidentally he also pointed out that the present monthly rent of Rs.850/- is far below the rent that the building will fetch if the same is rented out today and that even the contract rent is in arrears since 2004. R.C.R. NO. 220 OF 2010 -:7:- 4. We have very anxiously considered the rival submissions addressed at the bar. The short question which arises for consideration by us is whether due to the non-disclosure by the landlord of the identity of his needy son, any prejudice has been occasioned to the revision petitioner justifying interference with the judgment of the Appellate Authority. According to us the above question will have to be answered in favour of the revision petitioner. True, the fact that the landlord has two sons was known to the revision petitioner. It is also probable that the fact that the 2nd son was still pursuing his studies was known to the revision petitioner. Even then the same will not be a reason to exempt the landlord from the necessity to reveal the identity of his needy son. The possibility of prejudice being R.C.R. NO. 220 OF 2010 -:8:- occasioned to the revision petitioner cannot be ruled out, though perhaps in this particular case no serious prejudice has been occasioned. We notice in this context that the issue was raised by the revision petitioner sufficiently early through the counter that was filed to the RCP. The landlord, not only did not file any additional pleadings and did not think in terms of offering explanation the same by mounting the witness box. We are aware that for substantiating the bonafides of the need the examination of the landlord was not essential as PW1 is the needy son for whom the landlord is seeking eviction. But the explanation which is necessary in respect of the absence of plea likely to result in prejudice to the tenant could have been given best by the landlord himself. Even assuming that PW1 is competent to R.C.R. NO. 220 OF 2010 -:9:- offer the explanation on behalf of his father we notice that explanation if at all is given only during re-examination. We feel that this is a case where the landlord should regularize his pleadings by seeking an amendment to the RCP. For the limited purpose of disclosing the identity of the needy son he should himself mount the box for the purpose of offering the explanation as to why he could not have meant his 2nd son. We are inclined to give such an opportunity to the landlord as we feel this is a case where if the pleadings were proper we would have been in a position to sustain the eviction order passed by the Appellate Authority. We do not find any impropriety in the judgment of the concurrent decisions of the statutory authorities holding that the tenant is not entitled for the protection under the 2nd R.C.R. NO. 220 OF 2010 -:10:- proviso to S.3. We confirm the above finding. 5. We find merit in the submissions of Sri. Jayakrishnan that the present monthly rent payable of Rs.850/- is far below the rent that the building may fetch if the same is rented out today. We therefore are inclined to refix the rent prospectively. 6. The result of the above discussion is as follows. 7. The order of the Rent Control Court and judgment of the Appellate Authority to the extent the same relates to the claim for eviction u/s 11(3) are set aside. The finding that the tenant is not entitled for the protection under the 2nd proviso is confirmed. RCA is remanded to the Rent Control Appellate Authority. The Appellate Authority is directed to allow application for amendment of the RCP in R.C.R. NO. 220 OF 2010 -:11:- the manner indicated herein above, if the same is filed within two weeks of the parties entering appearance. The Appellate Authority will permit the tenant to file additional counter. Thereafter the appeal will be listed for evidence and the landlord will be permitted to get himself examined as PW2. If the tenant is desirous of adducing any counter evidence, opportunity will be given to the tenant also for doing that. 8. Rent payable by the revision petitioner for the building is refixed tentatively with effect from 1.4.2011 at Rs.1,500/- per month. This refixation is tentative and it is open to the either party to move the Rent Control Appellate Authority for fixation of fair rent u/s 5. Parties will enter appearance before the Appellate Authority on 5.4.2011. The learned R.C.R. NO. 220 OF 2010 -:12:- Appellate Authority is directed to comply with the above directions at the earliest and ensure that a final decision is taken in the RCA early and at any rate within two months of the Appellate Authority reopening after the mid- summer vacation. PIUS C. KURIAKOSE,JUDGE. N.K. BALAKRISHNAN,JUDGE. ul/-