{"id":38790,"date":"2005-06-17T00:00:00","date_gmt":"2005-06-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-balanandan-vs-p-k-koyakutty-on-17-june-2005"},"modified":"2014-03-13T23:39:24","modified_gmt":"2014-03-13T18:09:24","slug":"p-balanandan-vs-p-k-koyakutty-on-17-june-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-balanandan-vs-p-k-koyakutty-on-17-june-2005","title":{"rendered":"P.Balanandan vs P.K.Koyakutty on 17 June, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
P.Balanandan vs P.K.Koyakutty on 17 June, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP No. 1905 of 2001\n\n\n1. P.BALANANDAN\n                      ...  Petitioner\n\n                        Vs\n\n\n1. P.K.KOYAKUTTY\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.S.SREEDHARAN PILLAI\n\n                For Respondent  :SRI.JACOB ABRAHAM [CAVEATOR]\nThe Hon'ble MR. Justice R.BHASKARAN\nThe Hon'ble MR. Justice K.T.SANKARAN\n\n Dated :     17\/06\/2005\n O R D E R\n<\/pre>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.PL 56
\n R.BHASKARAN & K.T.SANKARAN, JJ.@@
\njAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA\n<\/p>\n
 —————————————@@
\nj<\/p>\n
 C.R.P. No. 1905 of 2001@@
\njAAAAAAAAAAAAAAAAAAAAAAA\n<\/p>\n
 —————————————@@
\nj<\/p>\n
 Dated this the  17th day of June, 2005@@
\nj              AAAAAAAAAAAAAAAAAAAAAAAA<\/p>\n
 O R D E R@@
\njEEEEEEEEE<\/p>\n
((HDR 0
\nC.R.P.NO.1905 OF 2001<\/p>\n
 :: # ::@@
\nj<\/p>\n
))
\n.HE 1
\n        Sankaran, J.@@
\n        EEEEEEEEEEEE<\/p>\n
.SP 2
\n        \tThis revision is filed by the legal heirs of  the
\n        original  tenant  who  was  sought to be evicted from the
\n        petition schedule building under  Sections  11(2)(b)  and
\n        11(3)  of  the  Kerala Buildings (Lease and Rent Control)
\n        Act.   While  the  Rent  Control  Court   dismissed   the
\n        application  on both the grounds, the Appellate Authority
\n        allowed  the  appeal  and  held  that  the  landlord  has
\n        established   sufficient   grounds   for  eviction  under
\n        S.11(2)(b) and  11(3)  of  the  Act.    Challenging   the
\n        judgment of  the  Appellate  Authority,  the  C.R.P.   is
\n        filed.\n<\/p>\n
        \t2.  It  is  contended  by  the  landlord  in  the
\n        application  for eviction that the petition schedule shed
\n        belonged to the petitioner’s father Alavi Haji and it was
\n        entrusted to the tenant Balanandan on a monthly  rent  of
\n        Rs.225\/on 6-3-1981.    After  the  death  of  Alavi,  the
\n        property  belonged  to  his  legal  heirs  of  whom   the
\n        petitioner is  the  head  of  the family.  The tenant has
\n        paid rent up to March, 1994 and thereafter  he  has  kept
\n        rent in  arrears.  The shed is required for the bona fide
\n        use of the petitioner’s brother Samad.  A notice was sent
\n        on 17-8-1996 requiring the tenant to surrender  the  shed
\n        for   which   he  has  sent  a  reply  raising  untenable
\n        contentions.\n<\/p>\n
        \t3.  In the objections filed by the tenant, it was
\n        contended that the shed was  in  the  possession  of  the
\n        tenant  for  22  years and the rent payable was Rs.150\/-.
\n        When it was  increased  to  Rs.225\/-,  a  rent  deed  was
\n        executed  on  6-3-1981 and the previous possession by the
\n        tenant was mentioned  in  the  rent  deed  itself.    The
\n        petitioner used to come to the work shop to collect rent.
\n        No receipt  was issued for certain payments.  The rent up
\n        to September, 1996 was thus paid.   Subsequent  rent  was
\n        not  paid  since the landlord did not come to collect the
\n        same.  There is no bona fide need  for  the  landlord  as
\n        alleged in  the  petition.  On 17-8-1996 the landlord has
\n        sent Ext.B2 lawyer notice demanding increase of rent from
\n        Rs.225\/- to Rs.2,000\/- failing which, it was  threatened,
\n        action would  be  taken  against  the tenant.  The tenant
\n        sent a reply agreeing to increase the rent  to  Rs.250\/-.
\n        Thereafter, the  Rent  Control  Petition  was filed.  The
\n        tenant was not willing to enhance the rent to Rs.2,000\/-.
\n        Even if the brother of the  landlord  wanted  to  conduct
\n        business,  there  are  other  rooms  available  with  the
\n        landlord  for  that  purpose,  situate  adjacent  to  the
\n        petition schedule  shed.   One room which was obtained on
\n        eviction was closed for several months and it  was  given
\n        to another tenant a few months prior to the filing of the
\n        Rent Control  Petition.  If there was any bona fide need,
\n        that room  could  have  been  used  by  the  petitioner’s
\n        brother.   The  tenant is depending for his livelihood on
\n        the income derived from the  business  conducted  in  the
\n        petition  schedule shed and no other suitable building is
\n        available to the tenant.\n<\/p>\n
        \t4.  Before the Rent Control Court, the petitioner
\n        was examined as PW.1 and the brother  of  the  petitioner
\n        for  whose  benefit  eviction  was sought was examined as
\n        PW.2.  According to the Rent  Control  Court,  there  was
\n        neither  pleadings  nor  proof  to  show  that PW.2 was a
\n        dependent of the petitioner.  It was also found  that  on
\n        the  date  on  which  Ext.A1  notice  was  issued  by the
\n        landlord, another notice, Ext.B2, was also issued through
\n        the same lawyer demanding Rs.2,000\/– per month as  rent.
\n        The  Rent  Control  Court  found that even if the brother
\n        wanted to do business, there are  other  rooms  available
\n        with the  landlord.    It  was  found  that the tenant is
\n        depending for his livelihood mainly on the income derived
\n        from the business carried on  in  the  petition  schedule
\n        shed  and  that  no suitable building is available in the
\n        locality.  The Rent Control Court therefore found against
\n        the bona fide need alleged by the landlord.\n<\/p>\n
        \t5.  On the question of arrears of  rent,  it  was
\n        found  that  the  landlord did not specify the period for
\n        which the rent was in arrears and on the basis of  Ext.A1
\n        the  tenant  was  incapable  of complying with the demand
\n        made in it.  Therefore, the  eviction  sought  for  under
\n        S.11(2)(b) was also denied by the Rent Control Court.\n<\/p>\n
        \t6.  On appeal, the Appellate Authority found that
\n        Ext.B1  series  rent receipts would prove payment of rent
\n        only up to 31.8.1995  and  therefore  there  was  nothing
\n        wrong in passing an order of eviction under S.11(2)(b) on
\n        the ground of arrears of rent.  If any rent was paid, the
\n        tenant  was bound to obtain receipt and in the absence of
\n        any receipt, the contention of the tenant that even after
\n        March,  1995  rent  was  paid  could  not  be   accepted.
\n        Therefore,  the  Appellate Authority reversed the finding
\n        of the Rent Control Court under S.11(2)(b) of the Act.\n<\/p>\n
        \t7.  With regard to  the  question  of  bona  fide
\n        need,  the Appellate Authority found that issue of Ext.B2
\n        notice demanding higher rent on the  same  day  on  which
\n        Ext.A1  notice  for  eviction  was  also  sent,  is not a
\n        sufficient reason to dismiss the Rent Control Petition on
\n        the ground that there was no bona fide in the  claim  for
\n        eviction.  The Appellate Authority found that the case of
\n        the  tenant that there is another shop available with the
\n        landlord and therefore there is no necessity for evicting
\n        the tenant is incorrect.  It was held that Pw.2 is also a
\n        co-owner of the property and there is  nothing  wrong  in
\n        granting  an order of eviction if PW2, the brother of the
\n        petitioner wanted to start a business of his own.  It was
\n        found that such a desire cannot be termed  as  irrational
\n        and  there  was  nothing  to  doubt the bona fides of the
\n        landlord.  The Appellate Authority also  found  that  the
\n        tenant  failed to establish the second limb of the second
\n        proviso to S.11(3) of the Act.  The  Appellate  Authority
\n        also  took  the view that since the tenant had no case in
\n        evidence that his son was  helping  him  in  running  the
\n        business,  the  legal  heirs would not be entitled to the
\n        protection of the second proviso to Section 11(3) of  the
\n        Act.   In  view  of  the  above,  the Appellate Authority
\n        allowed the appeal and directed  eviction  of  the  legal
\n        heirs  of  the original tenant from the petition schedule
\n        shed.\n<\/p>\n
        \t8.  The points arising for consideration in  this
\n        revision  are  (1)  whether  the  order of eviction under
\n        S.11(2)(b) of the Act is  sustainable,  (2)  whether  the
\n        landlord  has  established  the  bona  fide need, and (3)
\n        whether the tenant has  proved  the  ingredients  of  the
\n        second proviso to Section 11(3) of the Act.\n<\/p>\n
        \t9.  Point No.1:  The Rent Control Court held that@@
\n             AAAAAAAAAAA
\n        the landlord is not entitled to an  order  under  Section
\n        11(2)(b)  of the Act on the ground that in Ext.A1 notice,
\n        the quantum of arrears of rent or the period  from  which
\n        the rent  was due was not specified.  It was further held
\n        that it would not be possible for the  tenant  to  gather
\n        from  Ext.A1 notice as to what exactly was the arrears of
\n        rent.  The Appellate Authority reversed this finding  and
\n        held  that  the  landlord  is  entitled  to  an  order of
\n        eviction under Section 11(2)(b) of the Act.What is
\n.JN
\n        stated in Ext.A1 notice is
\n        \t\t\t\t         In our view, the
\n.JY
\n        Rent Control Court  was  not  justified  in  denying  the
\n        relief to the landlord under Section 11(2)(b) of the Act.
\n        The landlord–tenant  relationship  is not disputed.  The
\n        rate of rent is also not  in  dispute.    The  burden  of
\n        proving  discharge of the arrears of rent is certainly on
\n        the tenant.  The tenant  is  expected  to  pay  the  rent
\n        regularly to  the  landlord.    Therefore,  there  is  no
\n        meaning in saying that the tenant  was  not  put  to  the
\n        knowledge as to what exactly was the arrears of rent.  It
\n        was not just in denying the relief under Section 11(2)(b)
\n        on that  ground.    The tenant had produced Ext.B1 series
\n        rent receipts which would show that  the  rent  was  paid
\n        only up to 31.3.1994.  Therefore, there was no reason for
\n        the  tenant  to  think  that  rent  was  not  in  arrears
\n        thereafter.  Section 9 of the Kerala Buildings (Lease and
\n        Rent Control) Act provides that every  tenant  who  makes
\n        payment  on  account  of rent shall be entitled to obtain
\n        receipt in the prescribed form for the amount paid,  duly
\n        signed by  the landlord or his authorised agent.  Section
\n        9 also provides for the remedy available to a  tenant  if
\n        the  landlord refuses to accept or evades receipt of rent
\n        from the tenant.  Section 9 of the Act reads thus:\n<\/p>\n
……………L…….T…….T…….T…….T…….T.J
\n……………L…….T…….T…….T…….T…….T.J
\n.SP 1
\n               \t“9.  Right of tenant paying rent or@@
\n                 AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n               advance to  receipt:- (1)  Every tenant who@@
\n               AAAAAAAAAAAAAAAAAAAAAA
\n               makes a  payment  on  account  of  rent  or
\n               advance  shall  be  entitled  to  obtain  a
\n               receipt in  the  prescribed  form  for  the
\n               amount paid, duly signed by the landlord or
\n               his authorised agent.\n<\/p>\n
               \t(2) Where  a  landlord  refuses  to
\n               accept,  or  evades the receipt of any rent
\n               lawfully payable to  him  by  a  tenant  in
\n               respect  of  any  building,  the tenant may
\n               either remit the rent to  the  landlord  by
\n               money order after deducting the money order
\n               commission  and  continue to remit any rent
\n               which  may  subsequently  become   due   in
\n               respect  of the building in the same manner
\n               until the landlord signifies by  a  written
\n               notice  to  the  tenant  his willingness to
\n               accept  the  rent  or  may  by  notice   in
\n               writing,  require  the  landlord to specify
\n               within ten days from the date of receipt of
\n               the notice by him, a bank  into  which  the
\n               rent  may be deposited by the tenant to the
\n               credit of the landlord:\n<\/p>\n
               \tProvided   that   such   bank,   if
\n               specified  as  aforesaid,  shall   be   one
\n               situated  in  the  city, town or village in
\n               which the building is situated or if  there
\n               is  no  such  bank  in  such  city, town or
\n               village, within three miles of  the  limits
\n               thereof.\n<\/p>\n
               \tExplanation:-  It  shall be open to@@
\n                AAAAAAAAAAAA
\n               the landlord to specify, from time to time,
\n               by a  written  notice  to  the  tenant  and
\n               subject  to  the  proviso aforesaid, a bank
\n               different from the one already specified by
\n               him under this sub-section.\n<\/p>\n
               \t(3)  If the  landlord  specifies  a
\n               bank as aforesaid, the tenant shall deposit
\n               the  rent in the bank and shall continue to
\n               deposit  in   it   any   rent   which   may
\n               subsequently  become  due in respect of the
\n               building.\n<\/p>\n
               \t(4)   If  the  landlord  does   not
\n               specify  a  bank  as  aforesaid, the tenant
\n               shall remit the rent  to  the  landlord  by
\n               money  order,  after  deducting  the  money
\n               order commission and continue to remit  any
\n               rent  which  may subsequently become due in
\n               respect of the building in the same  manner
\n               until  the  landlord signifies by a written
\n               notice to the  tenant  his  willingness  to
\n               accept  the  rent  or  specifies  a bank in
\n               which  the  rent  shall  be  deposited   in
\n               accordance    with    the   provisions   of
\n               sub-section (2).”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
 \t10.  Section 11(2) of the Act is as follows:\n<\/p>\n
……………L…….T…….T…….T…….T…….T.J
\n.SP 1
\n               \t“11.  Eviction of tenants:- (1) ..@@
\n                 AAAAAAAAAAAAAAAAAAAAAAAA<\/p>\n
               \t(2)  (a)  A landlord who  seeks  to
\n               evict  his  tenant  shall apply to the Rent
\n               Control Court for a direction that behalf.\n<\/p>\n
               \t(b)  If  the  Rent  Control  Court,
\n               after  giving  the  tenant   a   reasonable
\n               opportunity  of  showing  cause against the
\n               application, is satisfied that  the  tenant
\n               has  not  paid  or tendered the rent due by
\n               him  in  respect  of  the  building  within
\n               fifteen  days  after the expiry of the time
\n               fixed in the agreement of tenancy with  his
\n               landlord  or  in  the  absence  of any such
\n               agreement by the last day of the month next
\n               following  that  for  which  the  rent   is
\n               payable,  it  shall make an order directing
\n               the  tenant  to   put   the   landlord   in
\n               possession  of  the  building, and if it is
\n               not  satisfied  it  shall  make  an   order
\n               rejecting the application thereof by him:\n<\/p>\n
               \tProvided  that an application under
\n               this sub-section shall be made only if  the
\n               landlord  has  sent  a registered notice to
\n               the tenant intimating the default  and  the
\n               tenant has failed to pay or tender the rent
\n               together  with interest at six per cent per
\n               annum  and  postal  charges   incurred   in
\n               sending  the  notice within fifteen days of
\n               the receipt of the notice or of the refusal
\n               thereof.\n<\/p>\n
               \t(c) The order of the  Rent  Control
\n               Court  directing  the  tenant  to  put  the
\n               landlord  in  possession  of  the  building
\n               shall  not be executed before the expiry of
\n               one month from the date of  such  order  or
\n               such  further  period  as  the Rent Control
\n               Court may in its discretion allow;  and  if
\n               the tenant deposits the arrears of rent wit
\n               interest and cost of proceedings within the
\n               said  period  of  one month or such further
\n               period, as the case may be, it shall vacate
\n               that order.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t11.  The proviso to Section 11(2)(b) of  the  Act
\n        mandates that an application under Section 11(2)(b) shall
\n        be made only if the landlord has sent a registered notice
\n        to  the  tenant intimating the default and the tenant has@@
\n                                       CCCCCCC
\n        failed to pay or tender the rent together  with  interest
\n        and  postal charges within fifteen days of the receipt of
\n        the notice or of  the  refusal  thereof.    This  proviso
\n        requires  only  sending of a registered notice intimating
\n        that default has been committed by the tenant in  payment
\n        of rent.   The proviso does not say that the exact amount
\n        due or the period from which the rent fell due should  be
\n        stated in  the  notice.   There is no such requirement as
\n        per the proviso to Section 11(2)(b) of the Act.   Such  a
\n        requirement  which  is  not provided in the Act cannot be
\n        imported into the proviso to Section 11(2)(b) of the Act.
\n        The  proviso  to  Section  11(2)(b)  cannot  be  read  in
\n        isolation.  The proviso should be read along with Section
\n        11(2)(b) and 11(2)(c).  The thrust in Section 11(2)(b) is
\n        that the  tenant  shall  pay  the rent regularly.  If the
\n        rent is not paid within fifteen days after the expiry  of
\n        the  time  fixed  in  the  agreement of tenancy, the Rent
\n        Control Court shall pass an order of eviction.    Section
\n        11(2)(b)  also  provides  for  fixing  the  last date for
\n        payment, where there is no stipulation in that regard  in
\n        the agreement  of  tenancy.  A notice contemplated in the
\n        proviso to Section 11(2)(b) is intended only to alert the
\n        tenant that he has kept rent in arrears.  Such  a  notice
\n        is  not  intended  to intimate the tenant about the exact
\n        amount of  arrears  of  rent  and  interest.    Such   an
\n        interpretation would defeat the provision for eviction on
\n        the ground of arrears of rent.  Suppose the landlord says
\n        in  the notice that rent for two years is in arrears; and
\n        suppose the tenant says that only one year’s rent  is  in
\n        arrears.   The Rent Control Court finds that the case put
\n        forward by the tenant is true.  Does  it  mean  that  the
\n        Rent Control  Petition  is liable to be dismissed?  If it
\n        to be held so, it would be against, and would defeat, the
\n        provisions of Section 11(2)(b).  In a given  case,  there
\n        may  be  arithmetical or other mistakes in calculation of
\n        the arrears of rent and\/or interest in the notice.   Does
\n        it  mean  that  the Rent Control Petition is liable to be
\n        dismissed on that ground?  Certainly not.  If there is  a
\n        dispute  regarding  the  arrears,  the Rent Control Court
\n        shall decide that dispute and arrive at a finding whether
\n        the landlord is entitled to get an order of  eviction  on
\n        the ground  of  arrears  of rent.  Even after an order is
\n        passed under Section 11(2)(b), the tenant can deposit the
\n        arrears of rent and apply under Section 11(2)(c)  to  set
\n        aside the order of eviction.  The scheme of Section 11(2)
\n        is  such  that, unlike the other provisions for eviction,
\n        it is flexible and a tenant would not be deprived of  his
\n        right  to  continue  as a tenant even after a final order
\n        under Section 11(2)(b), provided the arrears of  rent  is
\n        paid  by the tenant within one month from the date of the
\n        order.  In view of Section 11(15) of the Act, even  after
\n        rejection  of  an application under Section 11(2), 11(3),
\n        11(4), 11(5), 11(7)  and  11(8),  the  tenancy  shall  be
\n        deemed to  continue.  If a Rent Control Petition is to be
\n        dismissed on the ground that the notice does not  mention
\n        the  exact  quantum  of arrears of rent, it would lead to
\n        multiplicity of proceedings as well.  Since  the  tenancy
\n        continues,  nothing  prevents  the  landlord from issuing
\n        another  notice  and  initiating  fresh  proceedings  for
\n        eviction.   Section  15 of the Act would not be a bar for
\n        filing such a Rent Control Petition.   An  interpretation
\n        which  would  lead  to multiplicity of proceedings is not
\n        liable to be accepted.    The  landlord  and  tenant  are
\n        expected  to be aware of the payment of rent and arrears.
\n        There is no chance of putting the other party to surprise
\n        and consequent prejudice, if the quantum  of  arrears  of
\n        rent is omitted to be mentioned in the notice.  Though it
\n        is always desirable that the landlord may mention all the
\n        relevant  details  in  the  notice to be issued under the
\n        proviso to Section 11(2)(b), it would not be desirable to
\n        dismiss the Rent Control Petition on the failure  of  the
\n        landlord to   do   so.     Unlike  in  a  petition  under
\n        sub-section (3), (4), (7)  or  (8)  of  Section  11,  the
\n        landlord need not prove any bonafides in a petition under
\n        Section  11(2)(b),  in view of the conspicuous absence of
\n        Section 11(2) in Section 11(10) of  the  Act.    For  the
\n        aforesaid  reasons,  we  hold that the Rent Control Court
\n        was not justified in dismissing the Rent Control Petition
\n        under  Section  11(2)(b)  and  the  Appellate   Authority
\n        rightly reversed that finding.\n<\/p>\n
        \t12.  Point  Nos.2  and  3:  One of the grounds on@@
\n              AAAAAAAAAAAAAAAAAAAAA
\n        which the Rent Control Court found that the bonafide need
\n        is not established is that there is no  averment  in  the
\n        Rent  Control Petition that PW2 Samad, the brother of the
\n        petitioner in the Rent Control Petition, is  a  dependent
\n        on him.    It  was also held that there is no evidence on
\n        that aspect.  Samad  is  one  of  the  co-owners  of  the
\n        property  along  with  the petitioner in the Rent Control
\n        Petition.  Dependency on the  landlord  of  the  building
\n        arises  only  in  a  case  where the building exclusively
\n        belongs to the petitioner\/landlord and  when  the  person
\n        for whose occupation the building is required is a member
\n        of the family depending on the landlord.  A co-owner need
\n        not  prove  that he is dependent on the petitioner in the
\n        Rent Control Petition.  The bonafide need  under  Section
\n        11(3)  contemplates  the  need  for own occupation of the
\n        landlord or for the  occupation  of  any  member  of  his
\n        family dependent on him.  The member of the family should
\n        be  a  person  who  has no rights in the building; but he
\n        wants to occupy the building.  The Rent Control Court was
\n        not justified in holding that the  landlord  should  have
\n        proved that  his  brother  was  dependent  on  him.   The
\n        Appellate Authority has rightly reversed this finding.\n<\/p>\n
        \t13.  It has come out in evidence that Alavi  Haji
\n        had three  wives and fifteen children.  The petitioner in
\n        the Rent Control Petition is the son of Alavi Haji in his
\n        first wife.  PW2 Samad is the son of Alavi  Haji  in  his
\n        third wife.    The  landlord  and  his family members are
\n        doing business in iron scrap.  PW2 Samad is a  young  man
\n        and  he  desires  to  start  a  business  in the petition
\n        schedule building.  The  case  of  the  tenant  that  the
\n        landlord  had  let out another building before filing the
\n        Rent Control Petition was not accepted by  the  Appellate
\n        Authority.   The  Appellate Authority, on evidence, found
\n        that the need put forward is genuine.  We do not find any
\n        infirmity in that finding.\n<\/p>\n
        \t14.  The tenant contended that Ext.B2 notice  was
\n        issued  by  the landlord demanding enhancement of rent up
\n        to Rs.2,000\/- and this would prove that the need urged is
\n        not bonafide.  Ext.B2 notice demanding  higher  rent  was
\n        issued on the same date on which Ext.A1 notice was issued
\n        demanding the tenant to vacate the building on the ground
\n        of bonafide   need.    Merely  because  higher  rent  was
\n        demanded, it cannot be held that the need put forward  by
\n        the landlord  is  not bonafide.  The question of bonafide
\n        need depends on the facts and circumstances of each case.
\n        On going through the evidence and considering  the  facts
\n        and circumstances of the case, it cannot be said that the
\n        need urged by the landlord is a ruse for eviction.\n<\/p>\n
        \t15.   The  Rent  Control  Court and the Appellate
\n        Authority held that the tenant has  established  that  he
\n        was  depending  for  his  livelihood mainly on the income
\n        derived from the business  carried  on  in  the  petition
\n        schedule building.   The first limb of the second proviso
\n        to Section 11(3) is thus established,  according  to  the
\n        authorities below.    In so far as the second limb of the
\n        second proviso to Section 11(3) is  concerned,  the  Rent
\n        Control Court found that the tenant has proved that there
\n        is  no  other suitable building available in the locality
\n        for him  to  carry  on  such  trade  or  business.    The
\n        Appellate Authority held that there is no proper pleading
\n        or evidence on this aspect.  The Appellate Authority also
\n        noticed that the landlord has not stated in evidence that
\n        any other building is available in the locality.  What is
\n        stated by the tenant in the counter statement is:\n<\/p>\n
        In his evidence the tenant stated:\n<\/p>\n
        The  Appellate Authority held that the tenant has no case
\n        that no other buildings are available in the locality for
\n        him to carry on the business.  We are of the view that on
\n        a fair reading of the objections and  the  evidence,  the
\n        Appellate Authority was not justified in arriving at this
\n        conclusion.   Both  parties  understood  what  respective
\n        contentions they put forth.  The petitioner\/landlord  was
\n        not put  to  surprise by any lack of pleadings.  The oral
\n        evidence adduced by both the parties lack several details
\n        and materials.  We have  stressed  the  need  for  proper
\n        pleadings,  in  2005  (2)  KLT  400  (Mohammed  Sageer v.@@
\n                                              EEEEEEEEEEEEEEEE
\n        Prakash Thomas).   We  are  of  the  view  that  what  is@@
\n        EEEEEEEEEEEEEE
\n        intended  by the tenant and understood by the landlord is
\n        that no other  suitable  building  is  available  in  the
\n        locality for the tenant to carry on the business which he
\n        was conducting  in the petition schedule building.  It is
\n        only fair to afford an opportunity  to  both  parties  to
\n        adduce  evidence  on  the question of the availability of
\n        the second proviso to Section 11(3).   A  remand  of  the
\n        case  to  the  Rent  Control  Court is necessary for that
\n        purpose.  Both parties  are  allowed  to  suitably  amend
\n        their pleadings and to adduce evidence in the case.\n<\/p>\n
        \t16.   The Appellate Authority held, while dealing
\n        with the case under the second proviso to Section  11(3),
\n        that  the  tenant had no case in evidence that any of his
\n        children were engaged in the business  conducted  in  the
\n        petition schedule  building.   The tenant died during the
\n        pendency of the  Rent  Control  Appeal.    The  Appellate
\n        Authority  took  the view that in the absence of evidence
\n        that any of the legal representatives of the  tenant  was
\n        helping  the  tenant  in  the business, it cannot be said
\n        that legal heirs are entitled to get the protection under
\n        the second proviso to Section 11(3) of the Act.  In  2005
\n        (2) KLT  365  (Prasannan  v.  Haris)<\/a> this Court held that@@
\n                       EEEEEEEEE      EEEEE
\n        whether all  subsequent  events  after  filing  the  Rent
\n        Control   Petition  are  relevant,  especially  when  the
\n        proceedings are pending for a long time in  Court,  is  a
\n        question to be considered on the facts of each case.  The
\n        nature   of  the  subsequent  events,  pleadings  of  the
\n        parties, time lag to dispose of the petition for eviction
\n        etc.  are relevant and a straight jacket  formula  cannot
\n        be given.    In  the  case  on hand, the tenant died, not
\n        during the pendency of the  Rent  Control  Petition,  but
\n        after the disposal of the same by the Rent Control Court.
\n        There  was  no  occasion for the legal representatives of
\n        the tenant to prove the  subsequent  events.    A  tenant
\n        cannot  be  expected to give evidence taking into account
\n        future events as well.  The tenant cannot be faulted  for
\n        not  adducing  evidence  as  to  whether his son was also
\n        helping him in the business.  That was  quite  irrelevant
\n        at  the  time  of  disposal of the Rent Control Petition.
\n        Since we are remanding  the  case  to  the  Rent  Control
\n        Court,  we  think it is not proper to arrive at any final
\n        conclusion on this point.  Both the parties  are  allowed
\n        to  adduce  such  other  evidence  as  they think fit and
\n        proper.\n<\/p>\n
        \tIn  the  result,  we  allow  the  Civil  Revision
\n        Petition,   set  aside  the  judgment  of  the  Appellate
\n        Authority and the order of the Rent Control Court  as  to
\n        the  availability  of the second proviso to Section 11(3)
\n        and remand the case to  the  Rent  Control  Court  for  a
\n        decision afresh  on  this  point.  In all other respects,
\n        the judgment  of  the  Appellate  Authority  shall  stand
\n        confirmed.   The  parties  shall  appear  before the Rent
\n        Control Court on 25.7.2005.\n<\/p>\n
.SP 1
\n.JN
\n        \t\t\t\t\tR.BHASKARAN  @@
\n             AAAAAAAAAAAAA
\n        \t\t\t\t\t  (Judge)@@
\n             AAAAAAAAA<\/p>\n
        \t\t\t\t\tK.T.SANKARAN  @@
\n             AAAAAAAAAAAAAA
\n        \t\t\t\t\t    (Judge)@@
\n             AAAAAAAAAAA
\n        ahz\/
\n.PA
\n((HDR 0<\/p>\n
))
\n.HE 2
\n.JN
\n.SP 2<\/p>\n
                                   R.BHASKARAN & K.T.SANKARAN, JJ.@@
\n                                   AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA\n<\/p>\n
                                   ————————————-\n<\/p>\n
                                   ————————————-
\n                                      C.R.P. No.1905  of 2001 E  @@
\n                                     AAAAAAAAAAAAAAAAAAAAAAAAAAAA<\/p>\n
                                               O R D E R@@
\n                                               EEEEEEEEE<\/p>\n
                                            17th June, 2005\n<\/p>\n
                                  —————————————
\n.JY<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court P.Balanandan vs P.K.Koyakutty on 17 June, 2005 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP No. 1905 of 2001 1. P.BALANANDAN … Petitioner Vs 1. P.K.KOYAKUTTY … Respondent For Petitioner :SRI.P.S.SREEDHARAN PILLAI For Respondent :SRI.JACOB ABRAHAM [CAVEATOR] The Hon’ble MR. Justice R.BHASKARAN The Hon’ble MR. Justice K.T.SANKARAN Dated : 17\/06\/2005 O […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-38790","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nP.Balanandan vs P.K.Koyakutty on 17 June, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-balanandan-vs-p-k-koyakutty-on-17-june-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.Balanandan vs P.K.Koyakutty on 17 June, 2005 - 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