P. Muhammed Shereef, S/o Abdul Kareem V. Mullaveettil Hassan, S/o Ibrahim

RCRev./368/2013

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The case involves a dispute between a landlord and a tenant over the eviction of a shop premises under the Kerala Buildings (Lease and Rent Control) Act. The landlord sought eviction to allow his son, Shameer, who was unemployed and needed to start a business, to use the premises. The tenant contested the eviction, arguing that the landlord's son was not a dependent and that the landlord owned other suitable properties. The Rent Control Court and the Appellate Authority both ruled in favor of the landlord, finding the need bona fide. The tenant's revision petition to the High Court of Kerala was dismissed, affirming the lower courts' decisions.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 799131 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 11-07-2014
• Assessment Year: misc
• Other Referred Cases: Koyilerian Janaki v. Rent Controller (Munsiff), Ismail v. Kesavan
• Laws Referred To: Kerala Buildings (Lease and Rent Control) Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: V N RAMESAN NAMBISAN
• Assessee Lawyers: BABU KARUKAPADATH; M A VAHEEDA BABU
• Keywords: Dependency; Eviction; Rent Control; Revision petition; Bona Fide Need
• Section: 11(3); 11(2)(b); 11(2)(c)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936 RCRev..No. 368 of 2013 () -------------------------- AGAINST THE JUDGMENT IN RCA 166/2012 OF THE RENT CONTROL APPELLATE AUTHORITY/III ADDL.DISTRICT COURT, KOZHIKODE DATED 04-09-2013 AGAINST THE ORDE IN RCP 41/2011 of ADDL.RENT CONTROL COURT/ADDL.MUNSIFF COURT-II.,KOZHIKODE DATED 16-08-2012 REVISION PETITIONER/APPELLANT/RESPONDENT: ----------------------------------------------------------------------- P.MUHAMMED SHEREEF, S/O ABDUL KAREEM, AGED 44 YEARS, SHOP NO.24/2182 NEAR MANKAVU NADAPPALAM, VALAYANAD AMSOM, DESOM MANKAVU P.O., KOZHIKODE-6673007 RESIDING AT BASMAH POST.G.A. COLLEGE, CALICUT-14. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR RESPONDENT/RESPONDENT/PETITIONER: ------------------------------------------------------------ MULLAVEETTIL HASSAN, AGED 63 YEARS S/O IBRAHIM, PANNIYANKARA AMSOM, DESOM KOZHIKODE TALUK-673 029. BY ADV. SRI.V.N.RAMESAN NAMBISAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN & ANIL K.NARENDRAN, JJ. -------------------------------------------------- R.C.R.No.368 OF 2013 -------------------------------------------------- DATED THIS THE 11th DAY OF JULY, 2014 ORDER K.T.SANKARAN, J. The tenant challenges the concurrent findings of the Rent Control Court and the Appellate Authority under Section 11(3) of the Kerala Buildings (Lease and Rent Control)Act (hereinafter referred to as 'the Act' ). 2. The respondent-landlord filed R.C.P.No.41/2011 before the Additional Rent Control Court (Additional Munsiff-II), Kozhikode against the revision petitioner-tenant under Sections 11(2) (b) and 11(3) of the Act. The Rent Control Court, by the order dated 16.8.2012 allowed the application under Sections 11(2)(b) and 11 (3) of the Act. The tenant challenged the order of the Rent Control Court before the Rent Control Appellate Authority, Kozhikode in R.C.A.No.166/2012. The Appellate Authority confirmed the order passed by the Rent Control Court and dismissed the appeal. The tenant challenges the order and judgment of the authorities below. 3. The learned counsel for the revision petitioner-tenant RCR.No.368/13 -2- submitted that the ground under Section 11(2)(b) need not be considered, since the entire arrears of rent was deposited and that the tenant does not dispute the findings in that regard. 4. The contention of the revision petitioner-tenant in this revision is that the landlord has not pleaded in the Rent Control Petition that his son, for whose requirement to conduct business in the petition schedule building eviction is sought, is a dependant of the landlord and thus the basic requirement of Section 11(3) of the Act is not satisfied. 5. In the Rent Control Petition, the landlord averred the following: He filed R.C.P.No.116/2005 against the tenant for eviction under Section 11(3) of the Act. The requirement pleaded in that case was that the building was required for conducting business for his son Shameer. Shameer got employment abroad and therefore the matter was settled with the tenant and the rent was enhanced to 750/- per month. Shameer came back from ₹ the gulf country as he lost his job. Now, Shameer has no job or income. Shameer is married and he is sitting idle in the house. It is necessary to conduct a business for Shameer to earn his RCR.No.368/13 -3- livelihood. He intends to conduct a stationary shop in the petition schedule building. The petition schedule building is sufficient for that purpose. Shameer has experience to run that business. He has sufficient resources also for investing in that business. It was also pleaded that Shameer has no job or income and that the landlord or Shameer has no other building in their possession. 6. The tenant disputed the bona fide need. He contended that the petition schedule shop room was taken on lease on 1.10.1998 on a monthly rent of 475/-. The neighbouring shop ₹ room was also taken on rent by the tenant from the brother of the landlord. The tenant is a Civil Engineer by profession. He requires both the rooms for conducting his engineering shops. The compromise between the parties and the consequent withdrawal of Rent Control Petition was admitted by the tenant. However, the tenant contended that R.C.P.No.116/2005 was withdrawn not on the ground that Shameer got a job in a gulf country. The tenant contended that the landlord owns a building consisting of five rooms just in front of his house in which he is residing and in one of those rooms, the landlord is carrying on his RCR.No.368/13 -4- own business. The tenant also pleaded that he is entitled to the protection under the 2nd proviso to Section 11(3) of the Act and contended that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building and that there are no other buildings available in the locality suitable for accommodating his business. 7. Before the Rent Control Court, the landlord was examined as PW1 and his son Shameer was examined as PW2. The tenant was examined as RW1. Documentary evidence was also produced by both sides. A Commissioner was appointed, who submitted Exhibit C1 report and C1(a) plan. 8. The Rent Control Court discussed the documentary and oral evidence in detail and held that the landlord established the bona fide need put forward by him. The Rent Control Court held that the oral evidence of PWs 1 and 2 and Exhibit A3 passport of Shameer would go to show that Shameer went to gulf country in 2006 and he came back to India in 2009. It was held that the case put forward by the landlord that the earlier Rent Control Petition was settled and it was withdrawn on account of RCR.No.368/13 -5- Shameer having gone abroad can be accepted. The Rent Control Court also noticed that the tenant did not deny in evidence that Shameer went to a gulf country in 2006. It was held that though the tenant contended that the landlord and his son are having other vacant shop rooms in their possession, no evidence was adduced to prove the same. It was also held by the Rent Control Court that the evidence shows that Shameer is not having any job. It was noticed that the tenant had not denied the intention of the landlord to start a business for his son. The evidence of PWs 1 and 2 was found to be sufficient and reliable to arrive at a finding that the need put forward by the landlord is bona fide. 9. The Rent Control Court considered the question whether the 1st proviso to Section 11(3) is attracted and held that there is no evidence to show that the landlord or his son has any other building in their possession. As regards the protection under the 2nd proviso to Section 11(3) claimed by the tenant, the Rent Control Court held that the tenant did not produce his accounts to show his income. Though the tenant stated that he is an income-tax payee, he has not produced any tax return to RCR.No.368/13 -6- show his income. He admitted in cross-examination that his income-tax return would show his income from different sources. According to the landlord, the tenant is conducting another partnership business. However, the tenant denied the same. To a specific question in cross-examination as to whether the son of the landlord has decided to conduct a business, the tenant stated that he does not know. He also could not deny that the son of the landlord has the required capacity to run a business. The tenant also admitted that he does not know whether any vacant rooms are available with the landlord or with his son. The tenant denied in evidence that his main business is in another building situated at Meenchantha bypass. The Commissioner's report would indicate that other vacant rooms are available in the locality for rent. Thus, the Rent Control Court held that the tenant failed to establish the twin ingredients of the 2nd proviso to Section 11(3) of the Act. It is well settled that the burden of proof is on the tenant to establish the ingredients of the 2nd proviso to Section 11(3). 10. The Appellate Authority concurred with the view taken RCR.No.368/13 -7- by the Rent Control Court. The Appellate Authority held that the landlord is conducting a business in one of the five rooms adjacent to his residential house and all other rooms are in the possession of other tenants. The Appellate Authority also held that it is not shown that the landlord has any other building in his possession for accommodating his son, for the purpose of business. 11. The learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in Koyilerian Janaki v. Rent Controller(Munsiff) [(2000) 9 SCC 406 ] and the decision of this Court in Ismail v. Kesavan (2004(2) KLT 56). In (2000) 9 SCC 406, the Supreme Court held thus: “2. .......... .......... Thus where eviction of a tenant is sought by a landlord for occupation of any member of his family, the landlord is required to plead and substantiate three ingredients. Firstly, a person for whose need the premises is required is a member of the landlord's family. Secondly, such member of the family is dependent on the landlord and thirdly, there is a bona fide need. In the absence of any one of the three ingredients, the petition by a landlord under Section 11(3) would fail. In the present case, what we find is that, there was pleading to the effect that the RCR.No.368/13 -8- building is needed for the married daughter and son- in-law. However, there is no pleading as regards the fact that the married daughter and the son-in-law are dependent on the landlady. The word “family” has not been defined in the Act. However, for the sake of argument we may assume that the married daughter and son-in-law are members of the landlady's family. In that case the landlady has to further plead and substantiate that they are dependent on her. Unless it is pleaded that the married daughter and the son-in- law are dependent on the landlady, a petition under Section 11(3) of the Act cannot succeed on the mere allegation that the building is needed for the occupation of the married daughter and the son-in- law. We are, therefore, of the view that in the absence of any pleading that the married daughter and the son-in-law are dependent on the landlady the appellate court was not justified in allowing the petition of the landlady on the ground that the landlady bona fide required the building for occupation of her married daughter and son-in-law.” In 2004(2) KLT 56, a Division Bench of this Court, relying on (2000)9 SCC 406 held thus: “5. In Krishna Iyer v. Parvathy Ammal, 1988 (2) KLJ 156, this Court held that pleadings of the parties form the foundation of their case on which issues are raised, evidence let in and findings arrived at for deciding RCR.No.368/13 -9- litigations. Parties are bound by pleadings. A case not set up cannot be allowed to be proved. If evidence is let in outside the pleadings, it cannot normally be looked into. From the pleadings the opposite party must know what is the case he has to answer and prove. On taking the entire circumstances emerged in the case, if the Court feels that no prejudice has been caused to the counter petitioner tenant due to lack of pleadings of the petitioner, it is not proper to deny the relief to the petitioner on the ground that there is no pleading. What emerges is that a landlord may apply to the Rent Control Court for an order of eviction if he bonafide needs the building for his own occupation or the landlord bona fide needs the building for occupation by any member of his family dependent on him. Dependency does not mean financial dependency, but dependency for the building which belongs to the landlord. In our society generally son, daughter, son-in-law, daughter-in-law, brother, sister etc. are members of the family and would in many cases depend upon the head of the family. The Kerala Rent Control Act does not define the term 'family'. But what constitutes the family in a society depends upon ancestry, birth, blood relations, common lineage, line of descent and the habits and ideas of persons constituting the family. In short its ambit has to be determined with regard to the socio-economic mileu of the parties. But there must be sufficient pleading that RCR.No.368/13 -10- they are dependent upon the landlord, so that, in the given case, the tenant could disprove the dependency showing that the landlord or dependent has got his own building in their possession and hence there is no dependency. Though maticulous pleadings may not be insisted upon though landlord has to plead material averments, that is, all the ingredients which are necessary to constitute the grounds for eviction under S.11(3) of which dependency is also material. In other words, the pleadings must be such that essential materials which constitute the ground pleaded must be projected lest it may cause prejudice to the tenant. So far as this case is concerned we are in agreement with the counsel for the tenant that there is lack of pleadings with regard to the dependency of the son.” 12. It is to be noted that in the present case, no contention was put forward by the tenant before the Rent Control Court or before the Appellate Authority that there was lack of pleading with regard to dependency of the son of the landlord and consequently the tenant was prejudiced. There is no ground even in the Memorandum of Rent Control Appeal filed before the Rent Control Appellate Authority that because of lack of specific pleading with regard to dependency, the tenant was prejudiced. On going through the entire pleadings, we are of the view that RCR.No.368/13 -11- the pleadings would unerringly disclose that Shameer, the son of the landlord, is dependant on the landlord not only for the purpose of his livelihood, but also for the purpose of the building. It is specifically pleaded in the Rent Control Petition that the son of the landlord is jobless and that he has no income of his own. It is also pleaded that the landlord and his son have no other building in their possession suitable for the purpose of the need put forward in the Rent Control Petition. The oral evidence in the case would also indicate that that Shameer, the son of the landlord, is a dependant on the landlord for the purpose of livelihood and for the purpose of building. It is true that the word 'dependant' is not mentioned in the Rent Control Petition. However, the facts necessary to constitute such an expression are available in the pleadings. The mere absence of inclusion of the word 'dependant' in the Rent Control Petition by itself would not defeat an otherwise legitimate claim of the landlord. 13. The authorities below concurrently held that the bona fide need put forward by the landlord is genuine. It was also held that Shameer, the son of the landlord, is not having any job or RCR.No.368/13 -12- income and that he needs to conduct a business for his livelihood. It was also concurrently held that the landlord or his son does not have any building suitable for the purpose of conducting the business for Shameer. It is not shown at all that Shameer is in ownership or possession of any other building. It is also proved in the case that the landlord does not have vacant possession of any room, which can be provided for conducting a business for his son. Thus, the materials on record would fairly justify the reasonings and conclusions arrived at by the authorities below. The mere fact that the word 'dependant' is not mentioned in the pleadings would not, to our mind, defeat the genuine claim put forward by the landlord. The revisional court exercising jurisdiction under Section 20 of the Act would not normally interfere with the findings of fact arrived at by the authorities below, unless the revisional court is satisfied that there is any illegality, irregularity or impropriety in the order and judgment of the authorities below. There is no such illegality, irregularity or impropriety in the judgment, justifying interference under Section 20 of the Act. RCR.No.368/13 -13- 14. For the aforesaid reasons, the Rent Control Revision is dismissed. Lastly, the learned counsel appearing for the petitioner- tenant submitted that the tenant may be granted one year's time to vacate the petition schedule building. The learned counsel appearing for the respondent-landlord submitted that a reasonable time may be granted to the tenant to vacate the petition schedule building. Taking into account the facts and circumstances of the case, we grant time upto 31st January, 2015 to the tenant to vacate the petition schedule building on condition that the tenant shall file an affidavit before the Rent Control Court within a period of one month from today unconditionally undertaking to vacate the petition schedule building on or before 31.01.2015 and also on condition that he shall deposit the arrears of rent, if any, before the Rent Control Court, within one month from today and continue to pay the monthly rent on or before the 10th of the succeeding months, till he vacates the petition schedule building. If the tenant complies with the above conditions, the execution of the order of eviction shall be kept in RCR.No.368/13 -14- abeyance till 31.1.2015. If the tenant fails to comply with any of the conditions mentioned above, the landlord would be entitled to proceed with the execution forthwith. Sd/- K.T.SANKARAN, JUDGE Sd/- ANIL K.NARENDRAN, JUDGE dsn "