IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 RCRev..No. 126 of 2009() ------------------------ RCA.14/2002 of ADDL.SESSN.COURT (ADHOC-II)KASARAGODE RCP.50/1999 of MUNSIFF COURT, HOSDRUG .................... REVN. PETITIONER/(APPELLANT/RESPONDENT) ----------------------------------------------------------- KOOLERI PADINJARE VEETTIL NARAYANAN, S/O. KUNHATHA AMMA, RESIDING AT KOYANGARA, NORTH TRIKARIPUR VILLAGE, TRIKARIPUR P.O., HOSDURG TALUK. BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA SMT.MARY TREASA P.L. RESPONDENT(S): RESPONDENT/RESPONDENT ------------------------------------ NALUPURAPPATTIL TAHIRA, D/O. KAIRUNNISA AND W/O. IBRAHIM, RESIDING AT VADAKKUMPADU, NORTH TRIKARIPUR VILLAGE, TRIKARIPUR P.O., HOSDURG TALUK. ADV. SRI.JAWAHAR JOSE FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------- R.C.R. 126 of 2009 ------------------------------------------------- Dated: JULY 15, 2009 ORDER Barkath Ali, J. In this revision under sec.20 of the Kerala Buildings (Lease and Rent Control) Act, the tenant challenges the order of the Rent Control Appellate Authority in RCA 14/2002 dated February 7, 2009 setting aside the order of the Rent Control Court (Munsiff), Hosdurg in Rent Control Petition 50/1999 dated January 31, 2002 ordering eviction under sec.11(3) of the Act and remanding the matter to the Rent Control Court for fresh disposal in the light of the amendment of pleadings allowed in the original petition and in the counter statement of the tenant. 2. The landlady who is the revision respondent filed Rent Control Petition 50/1999 before the Rent Control Court (Munsiff), Hosdurg claiming eviction of the petition schedule building under sec.11(2) and 11(3) of the Act on the allegation that the tenant has kept the rent in arrears and that she bona fide needs the building for starting a hotel business for her husband who is a dependent on her. The tenant/revision R.C.R. 126 of 2009 2 petitioner resisted the claim for eviction on the ground that there are no arrears of rent and that the bona fide need put forward by the landlady is not genuine. Before the Rent Control Court the landlady was examined as PW.1 and her husband as PW.2 and she produced Exts.A1 to A6. On the side of the tenant, RW.1 was examined. The Rent Control Court rejected the claim for eviction under sec.11(2), but ordered eviction under sec.11(3) of the Act. Challenging the said order the tenant filed RCA 14/2002 before the Rent Control Appellate Authority i.e. Additional District Court (Ad Hoc) II, Kasaragod. Pending the appeal the husband of the landlady died. Therefore the landlady filed I.A. 1278/2008 before the Appellate Authority to amend the Rent Control Petition to the effect that notwithstanding the death of her husband, the need subsists and that at present she requires the petition schedule shop room to conduct hotel business. The tenant also filed IA 276/2008 before the Appellate Authority seeking amendment of his counter statement to raise an additional plea that on account of the death of the husband of the landlady, the claim for eviction made under sec.11(3) of the Act no longer subsists. The Appellate Authority allowed both the R.C.R. 126 of 2009 3 above petitions and remanded the matter to the Rent Control Court for fresh disposal considering the fact that further evidence is necessitated in the case. The tenant has come up in revision challenging the said order of the Appellate Authority. 3. Sri Krishna Prasad, learned counsel for the revision petitioner/tenant citing the decision in Aniyeri Jayarajan v. Valiya Kooleri Koorma Yesoda (2003(2) KLJ 27) argued that it was for the bona fide need of the husband of the landlady the eviction was sought and that on the death of the husband of the landlady, the present need is abated and that therefore the order of the Appellate Authority cannot be sustained. He challenges the order allowing amendment of the Rent Control Petition also. 4. Sri Jawahar Jose, learned counsel for the revision respondents argued that the bona fide need of the landlady has to be examined as on the date of the institution of the proceedings and that by reason of the death of the husband of the landlady, the bona fide need would not come to an end and that therefore the Appellate Authority is perfectly justified in allowing the amendment of the petition and remanding the matter to the trial court. He cited the decisions in - R.C.R. 126 of 2009 4 1. Shakuntala Bai and others v. Narayan Das and Others – (2004) 5 SCC 772 2. Prema Ramakrishnan v. Salmath – 2006 (3) KLT 284 3. Usha P. Kuvelkar and others v. Ravindra Subrai Dalvi – (2008) 1 SCC 330 4. Manovikas Kendra Rehabilitation & Research Institute v. Prem Prakash Lodha – (2005) 7 SCC 224. 5. Therefore the main question which arises for consideration in this revision is whether, on the death of the husband of the landlady for whose need eviction was sought, the proceedings are abated. 6. In Aniyeri Jayarajan v. Valiya Kooleri Koorma Yesoda a Division Bench of this Court has taken the view that on the death of the husband of the landlady for whose need eviction was sought, the proceedings abates as the bona fide need claimed no longer survives. But in that case no amendment of the petition was sought for by the landlady. Therefore the principle laid down in the above decision does not apply to the facts of the present case. 7. The effect of the death of a landlord during the pendency of the proceedings has been considered in several decisions of the Apex Court and this Court. In Phool Rani v. Naubat Rai R.C.R. 126 of 2009 5 Ahluwalia (AIR 1976 SC 2110) the Apex Court held that the requirement of the occupation of the member of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. This view has been overruled by a larger Bench of the Apex Court in Shantilal Thakordas v. Chimanlal Maganlal Telwala (1976) 4 SCC 417) wherein the Apex Court took the view that after the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and occupation of other members of the family. There are several decisions of the Apex Court in the same line. In Kamleshwar Prasad v. Pradumanju Agarwal (1997) 4 SCC 413) and in Gaya Prasad v. Pradeep Srivastava (2001) 2 SCC 604 the Apex Court has held that the crucial date for deciding as to the bona fide requirement of the landlord is the date of application for eviction. Referring all the above decisions, the Apex Court has held in Shakuntala Bai and others v. Narayan Das and Others – (2004) 5 SCC 772 that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of R.C.R. 126 of 2009 6 the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate. A Division Bench of this Court in Prema Ramakrishnan v. Salmath – (2006 (3) KLT 284) has endorsed the same view relying on the decision of the Apex Court in Kamleshwar Prasad v. Pradumanju Agarwal (AIR 1997 SC 2399). 8. Following the decision in Shakuntala Bai's case (supra) the Apex Court has held in Usha P. Kuvelkar and others v. Ravindra Subrai Dalvi (2008) 1 SCC 330 that where the death of landlord occurs after the decree for possession has been passed in his favour, his legal heirs are entitled to defend the further proceedings like an appeal and the benefit accrued to them under the decree. 9. In the present case the husband of the landlady for whose need eviction was sought died during the pendency of the appeal i.e. after he had secured an eviction order from the Rent Control Court. Therefore in the light of the principles laid down by the Apex Court in the above decisions, the bona fide need claimed by the landlady will survive. Therefore the Appellate R.C.R. 126 of 2009 7 Authority is perfectly justified in allowing the appeal. 10. The next question for consideration is whether the Appellate Authority is justified in allowing the amendment of the Rent Control Petition and remanding the case to the Rent Control Court. The Apex Court in Rajesh Kumar Aggarwal and others v K.K.Modi and others – (2006) 4 SCC 385 has held that courts should allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other. In Usha Balashaheb Swami v. Kiran Appaso Swami (2007) 5 SCC 602 the Honourable Apex Court while interpreting the provisions of Order 6 Rule 17 CPC held that from a bare persual of Order 6 Rule 17, it is clear that the Court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties and that courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. R.C.R. 126 of 2009 8 11. In the present case, in the light of the principles laid down in the above decision, we feel that the Appellate Authority is fully justified in allowing the amendment of the Rent Control Petition. The Appellate Authority has also allowed the amendment of the counter statement of the tenants. Thus the tenants have full liberty to defend the case of the landlady as per the amended pleadings. In our view the tenants suffered no prejudice whatsoever because of the amendment. Therefore we find no illegality, impropriety or irregularity in the impugned order of the Appellate Authority . That being so, the Revision Petition has to be dismissed. We make it clear that the tenants will be allowed to raise all tenable contentions before the Rent Control Court to resist the claim of the landlady. In the result we find no merit in the revision petition and the same is dismissed. In the circumstances the parties shall bear their own costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-