IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 RCRev..No. 269 of 2011() ------------------------ RCA.38/2007 of III ADDL. DISTRICT COURT, KOLLAM RCP.3/1996 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER/APPELLANT/4TH RESPONDENT ------------------------------------------------------- NARAYANAN JANARDHANAN, VELANGATTU VADAKKATHIL VEEDU, NJAKKANAL MURI,KAYAMKULAM VILLAGE 690 502. BY ADV. SRI.K.K.JOHN RESPONDENT(S): --------------- HAMEED,S/O.HYDROSE KUNJU, NADAYIL KANNIMAL VEEDU,KRISHNAPURAM VILLAGE, KRISHNAPURAM PO 690 533. ADV. SRI.K.A.MANZOOR ALI FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- R.C.R No.269 of 2011 -------------------------------------------------- Dated this the 12th day of December, 2011 O R D E R Pius C. Kuriakose, J Under challenge in this revision filed by the tenant being the legal heir of the deceased original tenant is the judgment of the Rent Control Appellate Authority, confirming the order of eviction which was passed by the Rent Control Court under Sub Section 8 of Section 11. In fact the respondent-landlord had invoked the grounds of arrears of rent, bonafide need for own occupation (Section 11(3)) and the need for additional accommodation (Section 11(8)) for evicting the revision petitioner. The Rent Control Court ordered eviction on all the three grounds. The appellate authority by the impugned judgment set aside the order of eviction which was passed by the Rent Control Court under sub Section 3 of Section 11, while confirming the eviction passed under Section 11(8). As regards the eviction order concurrently passed on the ground of arrears of rent, it was submitted by Mr.K.K.John, the learned counsel for the revision petitioner at the very outset that it will suffice that R.C.R No.269 of 2011 2 this Court grants reasonable time to the revision petitioner for getting the eviction order vacated under Section 11(2)(c). Hence in this revision we need have to be concerned only about the legality, correctness and propriety of the eviction order passed under Section 11(8). 2. Sri.K.K.John the learned counsel for the revision petitioner addressed two legal questions before us. The first one was that the proceedings are bad for non-joinder of all the tenants. The learned counsel pointed out that the rent petition was instituted against as many as four tenants. Out of the four respondents three passed away during the pendency of the rent control petition. The respondent-landlord did not take any steps for impleading the legal heirs of the three deceased respondents. The legal heirs of one of the deceased respondent did file an application seeking their impleadment as additional respondents. That application was not pursued by them and hence dismissed for default. However, the non-impleadment of the LRs of the deceased tenant, who are also tenants in terms of the statutory definition of the expression tenant in the Rent Control Act is a fatal defect. The proceedings are liable to fail by virtue of the above fatal defect. The other legal question which was addressed before us by Sri.K.K.John was that in this case nobody R.C.R No.269 of 2011 3 has given any responsible evidence as to the bonafides of the need. Whether it be sub Section 8 of Section 11 or under sub Section 3 of Section 11 it is absolutely necessary that the landlord should establish the need projected by him to be an honest one. The bonafides being a state of mind is something which can be manifested only by the person who is harboring the need. Mr.Hameed alone can manifest the genuineness of his claim by adducing oral evidence. No explanation is offered for the non examination of Sri.Hameed. 3. The submissions of Sri.John were opposed by Sri.K.A.Manzoor Ali, learned counsel for the respondent. Sri.Manzoor Ali submitted that the two respondents in the rent control petition who died pending the proceedings are not survived by any legal heirs. Legal heirs of one of them, the 3rd respondent filed an application for getting themselves impleaded as additional parties. That application was dismissed for default. The counsel also relied on the judgment of the Supreme Court in Mohammed Hussain V. Gopibai (2008) 3 SCC 233 and argued that in as much as the revision petitioner does not have a case that there is collusion between the legal heirs of those tenants who were not impleaded and the landlord, the non- impleadment of the legal heirs of some of the tenants cannot be a R.C.R No.269 of 2011 4 fatal defect. As regards the argument, that the rent control proceedings should fail for want of adduction of oral evidence of Sri.Hameed, Sri.Manzoor Ali submitted that PW1 is none other than the direct brother of Sri.Hameed and that PW1 is actually conducting the hotel business. PW1s version that he is as much aware of the cause as the respondent himself is not seriously challenged in cross examination. 4. We have given our anxious consideration to the rival submissions addressed at the Bar. We shall deal first with the argument of Sri.K.K.John that the proceedings are bad for non impleadment of the legal heirs of some of the respondents in the rent control petition, who passed away during the pendency of the proceedings. It is true that the respondent arrayed as many as four persons as respondents in the rent control petition. But then it is not disputed that those four persons were impleaded not as independent tenants but in their capacity as legal heirs of their father who was the tenant. It is trite by the decisions of the Supreme Court and this Court including the judgment in H.C.Pandey V. G.C.PAUL (1989) 3 SCC 77) that a tenancy which devolves upon the legal heirs of the deceased tenant is a joint tenancy-it is one single indivisible tenancy which devolves on the whole body of the legal heirs. In other words respondent R.C.R No.269 of 2011 5 Nos.1 to 4 in the rent control petition were impleaded not as tenants in common but not as members in a joint tenancy. The joint tenancy could be represented adequately by any one of the legal heirs of the deceased tenant in a case where there is no contention raised by the other legal heirs that the person who has been arrayed as respondent has colluded with the landlord to the detriment of the persons who have been left out. A scanning of the evidence on record in this case will show that it is RW1 who is in actual physical possession of the petition schedule building. In other words RW1, who is one of the members of the joint tenancy which devolved upon him and his brothers upon the demise of their father Narayanan, the original tenant holds the building representing the whole body of joint tenancy. Then the question that arises is whether due to the non impleadment of the other members of the joint tenancy, it can be said that any prejudice has been occasioned to the body of joint tenancy. The above question can be answered in the negative, as we find that the all the possibilities of collusion between RW1 and the respondent can be easily ruled out as we see that all possible contentions have been raised by the revision petitioner. Moreover it is not in dispute that the person who physically holds and enjoys the building in respect of which eviction is sought for R.C.R No.269 of 2011 6 is the revision petitioner only. We are of the view that the non impleadment of all the legal heirs of the three joint tenants who passed during the pendency of the proceedings cannot be fatal to the proceedings. Coupled with this we notice that the legal heirs of the 3rd respondent in the rent control petition did not pursue their application for getting themselves impleaded and dismissal of the above application is not raised as a ground in the rent control appeal which they filed before the rent control court. 5. We shall now deal with the second legal argument which was raised by the learned counsel for the revision petitioner. It is true that bonafides is a state of mind the genuineness of which can be best manifested only by the person who harbours the need. We again feel that a distinction can be drawn between the cases involving claims under section 11(3) and those under sub Section 8 of Section 11. It is trite by various decisions that the standard of proof required for establishing the bonafides of a need under sub Section 8 are not so rigorous as the standards that are necessary for establishing a claim under sub Section 3 of Section 11. In the instant case it was PW1 who was examined to prove the bonafides of a need for additional accommodation. Though he was cross examined at length we don't find even a single question asked in the R.C.R No.269 of 2011 7 examination as to why the respondent does not come forward himself to adduce oral evidence. The only question which is seen asked is as to how the respondent can conduct business, as he is employed in Rasalkhima. The answer given is that he will conduct business once he gets release from the present employer. In the absence of any suggestion even in cross examination that the respondent has wilfully kept away from the witness box and in the absence of any specific ground raised in the memorandum of appeal that the bonafides of the need has not been established by responsible evidence adduced from the mouth of the respondent himself, we are not inclined to entertain this ground in this revision under Section 20. 6. Now we shall deal with the correctness of the eviction order passed under sub Section 8. It is not in dispute that the petition schedule building and the larger building where the respondent is conducting hotel and tea shop business are parts of larger structure. It is in evidence that the respondent is conducting hotel and tea shop business in a successful manner. The evidence of PW1 was that the hotel and tea shop business will improve if the petition schedule building is also obtained. In the cross examination it was said that the respondent is already having successful business and that he is already having R.C.R No.269 of 2011 8 sufficient space in the building. But we don't find any specific suggestion in the cross examination that it is with some oblique motive that the respondent is seeking eviction of the petition schedule building also. We are sure that getting eviction of the petition schedule building which will enable the respondent to accomplish the need for additional accommodation will be advantageous to him. Then the question is as to whether these advantages will out weigh the hardship which will be sustained by the revision petitioner by virtue of the eviction order. It has come out in evidence that the barber's trade which he carries out in the petition schedule petition building accounts for his principal of livelihood. But it is evidence that in Oachira other buildings are available. It is also in evidence that revision petitioner is visiting houses for doing hair cutting work. We feel that the concurrent decision of the statutory authorities that the hardships will not out weigh the advantages to be gained by the landlord cannot said to be illegal, irregular and improper so as to warrant interference under the revisional jurisdiction of this court. The Rent Control Revision fails and is dismissed. While considering the fervent appeal of Mr.K.K.John the learned counsel for the revision petitioner, we direct the execution court to keep in abeyance all proceedings for delivery till 31.12.2012 R.C.R No.269 of 2011 9 subject to the following conditions: i) The occupation charges payable by the revision petitioner will stand re-fixed with effect from 1.1.2012 at Rs.100/- per mensem. ii) The revision petitioner will file an affidavit before the execution court within one month from today undertaking to give peaceful surrender of the building to the respondent on or before 31.12.2012. There will be a further direction which are issuing so as to ensure that the building after surrender is utilized by the respondent for the need which he has projected in the rent control petition. Before ordering delivery the execution court should ensure that the respondent has come back to Oachira. In other words the respondent will have to come down to Oachira and convince the Rent Control Court that he has given up his employment in Rasalkhaima and has readiness to occupy the petition building to start hotel and teashop business. PIUS C. KURIAKOSE JUDGE K.HARILAL JUDGE ab