IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev No. 273 of 2007()
1. LAL PRODUCTS, 39/345, CHANDRIKA SOAP
... Petitioner
Vs
1. GOURI, AGED 65, D/O.VELU,
... Respondent
2. BALAN, AGED 62, S/O.VELU,
3. LEELA, AGED 55, D/O.VELU,
4. MALATHI, D/O.VELU, AGED 52,
5. SHYAMALA, AGED 49, W/O.VIDHYADHARAN,
6. NISHA, AGED 37, D/O.VIDHYADHARAN,
7. AYSHA DEVI, AGED 36, D/O.VELU,
For Petitioner :SRI.A.BALAGOPALAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :18/08/2007
O R D E R
K. BALAKRISHNAN NAIR & HARUN-UL-RASHID, JJ.
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R.C.R. No. 273 of 2007
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Dated, this the 18th day of August, 2007
ORDER
Balakrishnan Nair, J.
The appellant in R.C.A.No.79/2005 has come up in revision
challenging the appellate judgment in the said appeal. The order of the
Rent Controller in R.C.P.No.117/2000 dated 28.1.2005 is upheld by the
impugned judgment dated 11.1.2007. The brief facts of the case are the
following:
2. One Mr. Sreedharan who was a lunatic was the owner of 20
cents of land in which there were a few buildings. He was a bachelor and
since there was no one to look after him, the District Court in a Lunacy
O.P.151/1972 appointed Adv. Mr. P.P.Prathapan as the guardian of the
said Sreedharan. The petitioner herein got the building on rental basis
from the said court receiver. Sreedharan died on 24.1.1996. Later in
1998 the entire landed property of Sreedharan including the buildings
thereon were handed over to the landlords, the respondents herein, by the
court receiver as per order of the District Court in I.A.No.164/1998 in the
above Lunacy O.P. The landlords in the year 2000 filed a few Rent
Control Petitions against the various tenants in occupation of the
aforementioned buildings. R.C.P.No.117/2000 was filed by the landlords
against the petitioner herein who was occupying the building bearing door
No.39/345. The grounds taken were under sec.11(2)(b) and 11(3) of the
R.C.R. No.273/2007 Page numbers
Kerala Buildings (Lease and Rent Control) Act (for short, the Act). Mr.
Ashok Kumar, the son of the 3rd respondent herein, required the said
building for his residence. He has no residence of his own. He is
depending upon the 3rd respondent herein, his mother, for his
accommodation. He is married and he wants to have a separate
residence. Neither the landlords nor Ashok Kumar have any separate
building suitable for residential accommodation. The petitioner herein, the
tenant which is a firm, is using the said building for the residential
accommodation of its employees. The tenant resisted the application
stating that the landlords have no title to the property. It was also asserted
that Mr. Ashok Kumar is residing in his own house. There are several
other buildings in the possession of Mr. Ashok Kumar in the city suitable
for his residence. The purpose of getting the building evicted is to sell it, it
was contended.
3. The trial of the Rent Control Petitions were held jointly. On the
basis of the above pleadings the Rent Controller raised issues. From
the side of the landlords PWs.1 to 4 were examined. From the side of the
tenants RWs.1 to 4 were examined. Mr. Ashok Kumar was PW.4.
Exts.A1 to A14 were marked from the side of the landlords and Exts.B1 to
B14(a) were marked from the side of the tenants. As court exhibits
Exts.C1, C1(a), C2 and C2(a) were also marked.
4. The Rent Controller allowed the applications on both grounds.
R.C.R. No.273/2007 Page numbers
The Appellate Authority reversed the finding under sec.11(2), but affirmed
the decision under sec.11(3). The revision petitioner attacks the said
finding of the Appellate Authority under sec.11(3). In this revision also the
dispute regarding title was raised. But, in view of the judgment rendered
by us in R.C.Rev.463/2004, the said point does not survive for
consideration. The other points raised by the learned counsel for the
petitioner are the following:
1. Mr. Ashok Kumar is not a dependent for the purpose of
sec.11(3) of the Act.
2. The bona fide need of Mr. Ashok Kumar is not
established.
3. The case is governed by the first proviso to sec.11(3)
as Mr. Ashok Kumar has got other suitable
accommodation.
4. The learned Munsiff who heard the matter is not
vested with the powers of the Rent Controller by
appropriate notification under the Act. Therefore the order
is passed without jurisdiction.
5. The first point was explained and amplified by the learned
counsel for the petitioner by contending that the landlords have stepped
into the shoes of the court receiver. The court receiver cannot have any
R.C.R. No.273/2007 Page numbers
dependent. Since the landlords stepped into his shoes, they also cannot
have any dependent. So, Mr. Ashok Kumar cannot be treated as a
dependent of the landlords for the purpose of sec.11(3). The above
contention cannot be accepted as the landlords were not appointed as
court guardian in the place of the previous court guardian. But, they were
given possession of the properties on finding that among the competing
claimants, they are the legal heirs eligible to get possession of the
properties and the Lunacy O.P. was closed also in view of the death of the
lunatic. So, the landlords herein are in possession of the property as the
legal heirs and therefore they can have dependents. So, the
aforementioned contention of the learned counsel for the petitioner cannot
be accepted.
6. On the second point the learned counsel for the petitioner
submits that Mr. Ashok Kumar can very well live with his mother in her
residential building. Nobody else is residing there. But, based on the
evidence on record, the Appellate Authority found that his elder brother
who was earlier employed at Guruvayur is presently working at Ernakulam.
He is not having any separate residence and his wife is a housewife and
they are residing with their mother. As per the family arrangement it
appears that the building in which the mother is residing is allotted to
another brother. Whatever be that, if a married son wants to have a
separate marital home, even if there are facilities for residence in his
R.C.R. No.273/2007 Page numbers
mother’s house, the same cannot be described as not a bona fide need.
In our society the married son at the earliest separates and sets up his
own home. So, the desire of Mr. Ashok Kumar for the same and his
requirement can only be described as a bona fide need. The facts in this
case speaks for themselves on this point.
7. The next contention raised is that the first proviso will apply as
there are other buildings available. But the Appellate Authority on the
basis of the evidence before it found that the only building available for
residential purpose is the building occupied by the petitioner herein. The
Appellate Authority, based on the evidence on record, also noticed that a
few rooms were available, but they were good only for business purposes.
The building in which the lunatic was residing was not found suitable for
residential accommodation. The present tenanted premises is occupied
by the employees of the tenant as a residential accommodation. The
Appellate Authority was not impressed by the contention of the tenant that
there are other buildings suitable for residential purposes. The said view
of the Appellate Authority is a finding of fact, with which we cannot
interfere under sec.20.
8. Finally, the learned counsel pointed out the lack of jurisdiction of
the Munsiff to hear the Rent Control Petition. The de facto doctrine will
save the judgment even assuming the contention of the petitioner is
correct. The learned counsel for the respondents submitted that there is,
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in fact, a notification appointing all Munsiffs as Rent Controllers. The
subsequent notification authorising one of the Munsiffs as a Special Court
for hearing rent control matters has not the effect of repealing the earlier
notification, it is submitted. We notice that this point is not dealt with either
in the judgment of the Rent Controller or the Appellate Authority. The
normal presumption to be drawn is that the said point was not argued
before those authorities. But, even then, as stated earlier, the de facto
doctrine will save the judgment. The Munsiff sitting under the colour of
authority has rendered a decision in which he is not personally interested.
So, the said decision will be valid in view of the Full Bench decision of this
Court in P.S.Menon v. State of Kerala – AIR 1970 Kerala 165 which was
quoted with approval by the Apex Court in Gokaraju Rengaraju v. State of
Andhra Pradesh – AIR 1981 SC 1473. .
No other point is urged in this revision and, in the result, the Rent
Control Revision fails and it is dismissed.
K. BALAKRISHNAN NAIR
JUDGE
HARUN-UL-RASHID,
JUDGE.
mt/