IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 463 of 2005()
1. KATTENTAVIDA MULLOLI KARUNAN, S/O. GOPI,
... Petitioner
Vs
1. VAZHAYIL KELOTH SREEMATHI,
... Respondent
2. VAZHAYIL KELOTH GIRIJA,
For Petitioner :SRI.P.SANJAY
For Respondent :SRI.GRASHIOUS KURIAKOSE
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :25/05/2009
O R D E R
PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ.
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R.C.R. 463 of 2005
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Dated: MAY 25, 2009
ORDER
Barkath Ali, J.
This revision is filed by the tenant under sec.20 of Act 2 of
1965 challenging the judgment of the Rent Control appellant
Authority ordering eviction under sec.11(2)(b) and 11 (3) of the
Act i.e. for arrears of rent and bona fide need of the landlord,
reversing the order of the Rent Control Court dismissing the Rent
Control Petition.
2. The case of the landlords/revision respondents as
shaped in evidence in brief was this:-
The father of the landlords/revision respondents rented out
the petition schedule building to the revision petitioner/tenant
under a kychit dated March 18, 1960 on a monthly rent of
Rs.10/- which was enhanced to Rs.55/- per month. On the
death of the father of the revision respondents/landlords, under
a will executed by him, the revision respondents obtained the
R.C.R. 463 of 2005 -2-
petition schedule building and became the persons entitled to
receive the rent. The rent upto December 1995 was paid and
the rest was in arrears. The son-in-law of the 1st petitioner/
PW.1, required the building for starting a vegetable and grocery
business. He is unemployed. No vacant room is available in the
locality for him to start the business.
3. The tenant/revision petitioner contended that there
was no enhancement of the rent as alleged by the landlords, that
the rent was paid upto July 1997, that the son-in-law of PW.1 is
employed and that the tenant is entitled to the benefit of the
second proviso to sec.11(3) of the Act.
4. Before the Rent Control Court, on the side of the
landlords PW.1 was examined and Exts.A1 to A5 were marked.
The tenant examined Rws.1 and 2 and produced Exts.B1 and B2.
5. The Rent Control Court, on an appreciation of the
evidence, found that the enhancement of the rent as claimed by
the landlords is not true, that there was no arrears of rent, that
the son-in-law of the 1st petitioner was not a dependent of the
revision respondents, that the landlords have another room of
their own lying vacant and that the tenant is entitled to the
benefit of the second proviso to sec.11(3) of the Act and found
R.C.R. 463 of 2005 -3-
that the landlords are not entitled to eviction under sec.11(2)(b),
11(3) and 11(4)(ii) of the Act and dismissed the Rent Control
Petition.
6. The revision respondents/landlords filed appeal before
the Rent Control Appellate Authority challenging the said order.
The Rent Control Appellate Authority found that the rate of rent is
Rs.10/- per month, that the rent is in arrears from January 1996
onwards as contended by the landlords, that the bona fide need
projected by the landlords is genuine, that the tenant is not
entitled to the benefit of the second proviso to sec.11(3) and
reversed the findings of the Rent Control Court and ordered
eviction under sec.11(2)(b) and 11(3) of the Act. The tenant
has come up in revision challenging the said judgment of the
Appellate Authority.
7. The learned counsel for the revision petitioner mainly
argued that there is no pleading or evidence to the effect that the
son-in-law of PW.1 is a dependent of PW.1 and on that count
itself the claim for eviction under sec.11(3) of the landlords has
to be rejected.
8. The learned counsel for the respondents/landlords
resisted the above contention of the tenant on the ground that
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evidence was adduced before the Rent Control Court to show that
the son-in-law of PW.1 is a dependent of PW.1.
9. In this revision by the tenant, it is mainly contended
that the landlords have not pleaded in their petition that the son-
in-law of PW.1 is dependent on her and that in evidence also
PW.1 has not stated that her son-in-law is dependent on her.
The Honourable Supreme Court in Koyilerian Janaki and others
v. Rent Controller (Munsiff) Cannanore and others {(2000) 9
SCC 406} has observed that in order to succeed in a plea under
sec.11(3) of the Act, the landlord should plead and substantiate
three ingredients, namely (1) the person needing the building is a
member of the landlord’s family, (2) such person is dependent
on the landlord, and (3) the need is bona fide, and that if any one
of the three ingredients is absent, the landlord’s petition would
fail. The Apex Court has further observed that the landlord must
expressly plead that the member for whom the building is
required is dependent on him.
10. We have gone through the pleadings of the landlords
and also the evidence of PW.1. Neither in the pleadings nor in
the evidence PW.1 has stated that her son-in-law is dependent on
her. In the light of the principles laid down in the above decision
R.C.R. 463 of 2005 -5-
of the Supreme Court and in the circumstances of the case, we
have no other alternative but to remand the Rent Control Petition
to the Rent Control Court for affording an opportunity to the
landlords to amend the Rent Control Petition and to incorporate
necessary pleadings.
11. We have also considered the fact that the landlords
claimed title over the property under a will which is not produced.
The tenant has disputed the genuineness of the will. The learned
counsel appearing for the landlords sought an opportunity to
produce the will also. Therefore, before the Rent Control Court
the landlords are to be given an opportunity to produce the will
or file an affidavit of other co-owners or, if necessary, to implead
the other co-owners.
12. There is another aspect. On going through the Rent
Control Petition it is seen that the building is situated in Kodiyeri
within Thalassery municipal area. The rent for the building is
Rs.10/- p.m. which, we think, is ridiculously low. Therefore we
tentatively fix the rent of the building at Rs.150/- p.m.
prospectively with effect from 1.6.2009 and the tenant is directed
to pay rent at this rate to the landlord. We, however, clarify
that the above re-fixation of rent is subject to fixation of rent by
R.C.R. 463 of 2005 -6-
the competent court at the instance of any of the aggrieved
parties.
13. The Appellate Authority has found that there is arrears
of rent with respect to this property and passed an order of
eviction under sec.11(2)(b) of the Act. We find no ground to
interfere with the said finding of the Appellate Authority.
14. In the result, the revision is allowed. The order of the
Rent Control Court dismissing the Rent Control Petition and the
judgment of the Appellate Authority ordering eviction under
sec.11(3) of the Act are set aside. The Rent Control Petition is
remanded to the Rent Control Court for fresh disposal after giving
opportunity to both sides to adduce further evidence, if any, and
in the light of the above observations. The finding of the
Appellate Authority regarding eviction ordered under sec.11(2)
(b) of the Act is confirmed. The Rent Control Court shall dispose
of the Rent Control Petition as expeditiously as possible.
Both parties shall suffer their respective costs.
PIUS C. KURIAKOSE, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-