High Court Kerala High Court

Lal Products vs Gouri on 18 August, 2007

Kerala High Court
Lal Products vs Gouri on 18 August, 2007
       

  

  

 
 
  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.
          ---------------------------------------------------------------------------
                          R.C.R. No. 273 of 2007
         ----------------------------------------------------------------------------
                    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,

R.C.R. No.273/2007 Page numbers

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/