Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 23RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 RCREV. NO. 146 OF 2016 AGAINST THE JUDGMENT IN RCA 6/2015 DATED 15.03.2016 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THRISSUR AGAINST THE ORDER IN RCP 104/2001 DATED 30.08.2014 OF RENT CONTROL COURT ,THRISSUR REVISION PETITIONER: RAPHAEL, AGED 52 YEARS, S/O. MALIYEKKAL DEVASSY, PERINGAVU VILLAGE, DESOM, THRISSUR TALUK, PROPRIETOR, SEARL MEDICALS, PUZHAKKAL P.O., MUTHUVARA, THRISSUR DISTRICT. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SMT.AMY DENNY SRI.P.RAHUL SRI.V.V.ASOKAN RESPONDENTS:
1 SUDHODHANAN, AGED 76 YEARS, S/O. KARUMANPARAMBIL PARAN, KARUMANPARAMBIL HOUSE, MUTHUVARA DESOM, PUZHAKKAL VILLAGE,(DIED) THRISSUR-680 553. 2 ADDL.R2.SUDHA, W/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O., THRISSUR-680 553. 3 ADDL.R3. SMITHA,D/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O., THRISSUR-680 553. 4 ADDL.R4. SWAPNA D/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O., THRISSUR-680 553. 5 ADDL.R5. DR. SOUMYA D/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O., THRISSUR-680 553. (ADDL. RESPONDENTS 2 TO 5 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED IST RESPONDENT AS PER
ORDER DATED 23.2.18 IN I.A.2555/17).
6 NIRANJAN K.S. (MINOR), AGED 5 YEARS, D/O. SWAPNA, KARUMAMPARAMBIL HOUSE,MUTHUVARA, PUZHAKKAL P.O., THRISSUR - 680 553 ,REPRESENTED BY GRANDMOTHER - GUARDIAN - SUDHA 7 NIVEDITHA K.S.(MINOR), AGED 6 YERS,D/O. SWAPNA, KARUMAMPARAMBIL HOUSE,MUTHUVARA, PUZHAKKAL P.O., THRISSUR - 680 553, REPRESENTED BY GRANDMOTHER - GUARDIAN - SUDHA BY ADVS. SMT.R.RAJITHA SMT.R.RAJITHA SRI.SANTHOSH P.PODUVAL SMT.VINAYA V.NAIR THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 23.12.2022, ALONG WITH RCRev..163/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 23RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 RCREV. NO. 163 OF 2016 AGAINST THE JUDGMENT IN RCA 3/2015 DATED 15.03.2016 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), THRISSUR AGAINST ORDER IN RCP 104/2001 DATED 30.08.2014 OF RENT CONTROL COURT,THRISSUR REVISION PETITIONER: RAPHAEL,,AGED 52 YEARS, S/O. MALIYEKKAL DEVASSY, PERINGAVU VILLAGE,DESOM, THRISSUR TALUK, PROPRIETOR,SEARL MEDICALS, PUZHAKKAL P.O., MUTHUVARA, THRISSUR DISTRICT. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL SRI. V.V.ASOKAN RESPONDENTS:
1 SUDHODHANAN (DIED) AGED 76 YEARS, S/O. KARUMANPARAMBIL PARAN,KARUMANPARAMBIL HOUSE, MUTHVARA, DESOM,PUZHAKKAL VILLAGE, THRISSUR-680 553. 2 ADDL.R2 SUDHA, W/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O, THRISSUR 680 553 3 ADDL. R3 SMITHA, D/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O, THRISSUR 680 553 4 ADDL. R4 SWAPNA,D/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O, THRISSUR 680 553 5 ADDL. R5 DR. SOUMYA, D/O. LATE SUDHODHANAN, KARUMANPARAMBIL HOUSE, MUTHUVANA, PUZHAKKAL P.O, THRISSUR 680 553 ADDL. R2 TO R5 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 23/2/18 IN IA 2556/17. 6 NIVEDITHA K.S (MINOR) AGED 6 YEARS, D/O. SWAPNA, KARUMAMPARAMBIL HOUSE,MUTHUVARA, PUZHAKKAL P.O., THRISSUR - 680553, REPRESENTED BY - GRANDMOTHER - GUARDIAN - SUDHA 7 NIRANJAN K.S., (MINOR, D/O SWAPNA AGED 5 YEARS,KARUMAMPARAMBIL HOUSE, MUTHUVARA, PUZHAKKAL P.O., THRISSUR -680553 REPRESENTED BY GRANDMOTHER - GUARDIAN -SUDHA (ADDL RESPONDENTS R6 AND R7 BEING THE LEGAL HEIRS OF THE
DECEASED 4TH RESPONDENT ARE IMPLEADED AS PER ORDER
DATED 15/12/2022 IN IA.1/2022 IN RCR.163/2016) BY ADVS. SRI..SANTHOSH P.PODUVAL (CAVEATOR) SMT.R.RAJITHA SRI.SANTHOSH P.PODUVAL SMT.VINAYA V.NAIR THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 23.12.2022, ALONG WITH RCRev..146/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.B.SURESH KUMAR & C.S.SUDHA, JJ. -------------------------------------------------- ------------------------------------------- Dated this the 23rd day of December, 2022
ORDER
C.S.Sudha, J.
These rent control revisions under Section 20 of the Kerala Buildings
(Lease and Rent Control) Act, 1965 (the Act) has been filed against the common judgment dated 15.03.2016 in R.C.A.Nos.3/2015 and 6/2015 on the file of the Rent Control Appellate Authority (RCAA), Thrissur, which appeals are against the order dated 30.08.2014 in R.C.P. No.104/2001 on the file of the Rent Control Court (RCC), Thrissur. The revision petitioner in both the R.C.Rs is the respondent-tenant in the R.C.P. The respondent herein is the petitioner-landlord in the R.C.P. The parties and the documents will be referred to as described in the R.C.P.
2. R.C.P. No.104/2001 was filed by the petitioner-landlord seeking
eviction under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Act. According to the petitioner, the petition schedule room was let out in the year 1978 to Devassy, the father of the respondent for a monthly rent of ₹150/- for the purpose of conducting a medical shop. After the demise of Devassy, the respondent herein continued to conduct the medical shop in the tenanted premises by executing a rent deed dated 23.02.1998 for a monthly rent of ₹300/-. The rent of the tenanted premises is in arrears. In spite of a registered notice being sent to the respondent, the arrears have not been cleared. The respondent without the consent of the petitioner has sublet the schedule room to strangers. The sub lease has not been terminated even after the respondent received the notice demanding termination of the service. Further, the petitioner is not presently employed. He has no source of income other than the pension he is receiving. Though the petitioner’s daughter passed Electrical Engineering (B.Tech), she has so far not obtained a job. Therefore, the petitioner and his daughter, who is his dependent, intends to start an electrical shop and electric consultancy service. For the said purpose the petitioner bona fide requires the petition schedule room. The respondent has demolished the western side wall of the petition schedule room as well as installed an iron shutter on the front of the room. The said acts of the respondent have reduced the value and utility of the room materially and permanently. Hence eviction was sought under the aforesaid sub-sections of Section 11 of the Act.
3. The respondent-tenant filed counter contending that the
petitioner is not the sole owner of the petition schedule room. The property and the building housing the tenanted premises is in the joint ownership of the petitioner and his brothers. The allegation that the schedule room was initially taken on rent by Devassy and thereafter by the respondent from the petitioner is incorrect. Initially the schedule room was taken on rent by Devassy, the father of the respondent, from K.P. Ananthakrishnan, the brother of the petitioner for a monthly rent of ₹100/-. The rent of the premises was being paid to Ananthakrishnan till August, 1998. After the demise of Ananthakrishnan, his legal representatives never demanded the rent of the petition schedule room from the respondent. Hence the reason why the rent fell in arrears. There is no oral or written agreement between the petitioner and the respondent relating to the petition schedule room. The medical shop in the tenanted premises is being conducted by the respondent and his brothers in the petition schedule room as the of Devassy. For the purpose of getting required sanction from the Panchayath and other authorities for conducting a medical shop in the tenanted premise, the respondent had entrusted some blank signed stamp papers as well as plain papers to Ananthakrishnan. After the demise of Ananthakrishnan, the said documents came into the possession of the petitioner, who misused the same and fabricated a rent deed. The allegation that the respondent has sublet the schedule room to strangers is incorrect. He has also not made any constructions or removed the wall of the building as alleged by the petitioner so as to diminish the value and utility of the building. The need alleged is not bona fide. It is a mere ruse for eviction. The respondent also claimed the benefit of the second proviso to Section 11(3).
4. PWs 1 to 3 were examined and Exts. A1 to A8 were marked on
the side of the petitioner. RWs.1 and 2 were examined and Exts.B1 to B9(a) were marked on the side of the respondents. Exts. X1 and X2 were also marked. The RCC on an appreciation of the oral and documentary evidence and after hearing both sides, allowed the R.C.P. u/s.11(2)(b). However, the claim for eviction u/s.11(3), 11(4)(i) & 11(4)(ii) of the Act was rejected. Against the order of the RCC, both the petitioner as well as the tenant filed appeals. R.C.A. No.3/2015 was filed by the petitioner-landlord and R.C.A. No.6/2015 was filed by the respondent-tenant. R.C.A. No.6/2015 has been dismissed with costs and R.C.A. No.3/2015 in which the rejection of the ground under Section 11(3) alone was challenged, has been allowed with costs and eviction ordered under the said Section. Against the common
judgment of the RCAA, the present revisions have been filed. R.C.R.
No.146/ 2016 has been filed against the judgment in R.C.A. No.6/2015 and R.C.R. No.163/2016 has been filed against the judgment in R.C.A. No.3/2015.
5. The only point that arises for consideration is, whether the findings of the RCC or the RCAA suffer from any illegality, irregularity or impropriety.
6. Heard Sri. V. V. Asokan, the learned counsel for the revision petitioner and Sri. Santhosh P. Poduval, the learned counsel for the respondents.
7. Section 20 of the Act allows the aggrieved party, to challenge
the legality, regularity or propriety of the order or proceedings of an Appellate Authority. The revisional authority has to satisfy itself of the legality, regularity or propriety of the order or proceedings of the Appellate Court. This Court can interfere under Section 20 of Act if the view that is taken by the RCC or the RCAA is perverse or when the statutory scheme has not been kept in mind. If the approach made by the authorities is perverse, then this court in exercise of its jurisdiction under Section 20 can certainly look into the pleadings and scan through the evidence to find out whether the conclusions have been arrived at properly on the basis of pleadings and evidence on record.
8. The RCC ordered eviction under Section 11(2)(b), against which
R.C.A. No.6/2015 was filed by the tenant. The RCAA is seen to have gone into the matter in detail, reappraised the evidence, findings and conclusion of the RCC and concluded that the appeal is devoid of merits and hence confirmed the order of eviction granted under Section 11(2)(b). We went through the orders of the RCC as well as the RCAA. No illegality, irregularity or impropriety is seen in the finding relating to the eviction ordered under Section 11(2)(b). Hence, we find no reasons to interfere with the impugned judgment of the RCAA in R.C.A. No.6/2015.
9. Now coming to R.C.R. No.163 of 2016. As stated earlier, the ground for eviction under Section 11(3) was rejected by the RCC against which R.C.A. No.3/2015 was filed by the landlord. The RCAA reversed the
order of the RCC and ordered eviction under Section 11(3) of the Act. It is
aggrieved by the said order, the present revision has been filed. The main argument advanced by the learned counsel for the respondent is that the need projected in the R.C.P. no longer survives, as the petitioner and his daughter for whom the room was sought for, are no more. Therefore, eviction under Section 11(3) can no longer be ordered. In support of this argument reference was made to the decisions in Ouseph Mathai v. M. Abdul Khadir, AIR 2002 SC 110; Seshambal v. M/s. Chelur Corporation, Chelur Builindg, AIR 2010 SC 1521; Kedar Nath Agrawal v. Dhanraji Devi, (2004) 8 SCC 76 and Puthanpurayil Mariyam v. Sunenda @ Suganda, 2013 (2) KHC
213. Per contra relying on the decision in Shakuntala Bai v. Narayan Das,
2004 (5) SCC 772, the learned counsel for the petitioner submitted that the original petitioner-landlord is survived by his wife and three daughters and therefore the need still survives.
10. The need alleged in the R.C.P. is that the petitioner requires the
petition schedule room for starting an electrical shop and electrical consultancy. He does not have any employment or sources of income except the pension he is getting. Though his daughter is a graduate in B.Tech, Engineering, she has no job and therefore, both the petitioner and his daughter intend to start the aforesaid business in the schedule room. The respondent-tenant denied the need alleged and inter alia contended that the petitioner and his daughter have no previous experience in conducting the business and that the schedule room does not have adequate space for conducting the proposed business. These contentions were rejected by the RCC by giving cogent reasons. The petitioner was examined as PW1 and his daughter, as PW3. During the cross examination of PW3, she admitted that subsequent to the filing of the R.C.P., she has obtained employment in the Federal Bank. The respondent therefore took up a contention that since the daughter of the petitioner is already employed, the need projected has come to an end. But this contention of the respondent was also rejected by the RCC holding that the need still survived as the petitioner could very well start the proposed business as the need alleged was that for the father as well as the daughter. The petitioner reiterated the need alleged in the R.C.P. in his proof affidavit also. However, in the cross examination he deposed that he intended to start a business in paints in the tenanted premises. Referring to this deposition, the RCC held that the need put forward by the petitioner in the cross examination is a complete departure from the need projected in the R.C.P. and therefore concluded that the petitioner does not have a consistent case, which probablised the case of the respondent that the need projected is only a ruse for eviction. Finding so the claim for eviction under Section 11(3) was rejected. The tenant was however not given the benefit of the first or the second proviso to Section 11(3).
11. In the appeal, the petitioner filed I.A. No.788 of 2016 for
amending the R.C.P. for the purpose of bringing in pleadings to the effect that as the petitioner’s daughter is employed, it would not be possible for her to conduct or run the proposed business and therefore, the shop is required for the petitioner for starting a paint shop. The RCAA on a re-appraisal of the evidence agreed with all the findings of the RCC except the conclusion that the need alleged is not bona fide. According to the RCAA it was only a slip of tongue of PW1 when he deposed that his intention was to start a paint
shop in the petition schedule room. Finding so, the RCAA reversed the order
of the RCC, which had rejected the claim for eviction under Section 11(3). The amendment application which was considered along with the appeal was closed in the light of the finding that the petitioner is entitled to an order of eviction under Section 11(3). This finding of the RCAA is seriously assailed by the respondent who contends that PW1 had developed a new case in the box, which itself would show that he had no consistent case; that the inconsistency also showed lack of bona fides in the need alleged and hence the RCAA ought not to have interfered with the reasoned finding of the RCC and ordered eviction under Section 11(3). Added to the same, it was pointed out that after the filing of the revision, the original petitioner, namely, Sudhodhanan, passed away and so the need no longer survives. His wife and daughters were impleaded as additional respondents 2 to 5. The additional 4 th respondent is PW3 for whom the need was put forward in the R.C.P. The additional 4th respondent (PW3) has also now passed away and hence her legal representatives have been impleaded as additional respondents 6 & 7. (The legal representatives of Sudhodhanan, hereinafter will be referred to as the petitioners). In the light of the death of Sudhodhanan as well as his daughter, the need no longer survives and hence no order of eviction can be granted under Section 11(3), goes the argument of the respondent. Therefore, the question to be considered now, is whether the need alleged survives.
12. Shakuntala Bai (supra) relied on by the petitioners, is a similar
case. That was a case under the Madhya Pradesh Accommodation Control Act. When the matter came up before the Apex Court, 42 years had elapsed since the filing of the suit for eviction on the ground that the landlord required the building bona fide for his personal need. During the pendency of the proceedings the petitioner-landlord passed away and therefore, it was found that the need no longer survived and so the legal were held not entitled to continue with the proceedings. The Apex Court disagreed with this conclusion of the High Court and held that if subsequent events like the death of the landlord is to be taken note of at every stage till the decree attains finality, there would be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who institutes the proceedings dies, the suit will have to be dismissed without going into the merits. The same thing may happen in a fresh suit filed by the and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time. Therefore, there is no warrant for interpreting a rent control legislation in such a manner, the basic object of which is to save harassment of tenants from unscrupulous landlords. Such extreme views erode the faith of people in the judicial system prompting them to take recourse to extra judicial methods to recover possession of their property. The object is not to deprive the owners of the property for all times to come. It has been further held that the legal position is well settled and that the bona fide need of the landlord has to be examined as on the date of the institution of the proceedings and if a decree for eviction is passed, the death of a landlord during the pendency of the appeal preferred by the tenant will make no difference as his would be fully entitled to defend the estate.
13. In Seshambal (supra), the need pleaded by the original
petitioner was for his own personal requirement and not for any members of the family whether dependent or otherwise. It was found that none of the legal representatives were dependent upon the deceased petitioner and therefore on the death of the petitioner their right to seek eviction on the ground of personal requirement for demised premises became extinct. It has been held that while it is true that the right to relief must be judged by reference to the date on which the suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted. The dictum in Shakuntala Bai (supra) was also noticed. However, it was held that Shakuntala Bai (supra) does not lend any support to the proposition that subsequent developments cannot be noticed by the Court especially when such developments have an impact on the right of a party to the relief prayed for. The proposition laid down in Seshambal (supra) has been followed in the other decisions relied on by the respondent.
14. The case on hand reveals a most unfortunate situation. The
R.C.P. from which the present revision arises was filed in the year 2001. 21 years have elapsed since the filing of the R.C.P. The widow and children of Sudhodhanan are still waiting at the doors of the court for justice. The respondent-tenant is seen to have raised all the defenses available under law to defeat the case of the petitioner. Earlier, the petitioner is seen to have filed R.C.P. No.102/1986 seeking eviction under Section 11(2)(b). Devassy, the predecessor- in- interest of the respondent denied the title of the petitioner. Accepting the said contention, the RCC dismissed the R.C.P. The petitioner then filed O.S. No.286/1988 against his siblings as well as Devassy. The suit was compromised. Thereafter the present R.C.P. was filed. Before the RCC, the tenant denied the title of the landlord. The RCC by order dated 21.02.2004 found the denial to be not bona fide. Against the said order, the respondent filed R.C.A. No.20/2004 before the RCAA, Thrissur. The said appeal was dismissed. R.C.R. No.375/2011 filed was also dismissed confirming the judgment of the RCAA. The petitioner then challenged the rent deed relied on by the petitioner. According to the petitioner, the schedule room was purchased by him along with his brother, Vijayan in the year 1996 by Ext.A1 sale deed. Thereafter, Vijayan in the year 2003 assigned his rights in the property in favour of the petitioner. Thus, the petitioner became the absolute owner of the schedule premises. Though the respondent did not dispute Ext.A1 sale deed, he disputed the execution of Ext.A4 rental agreement dated 23.12.1998 relied on by the petitioner. The respondent contented that the rental agreement is a forged and fabricated document. According to him, for the purpose of getting license for conducting a medical shop in the tenanted premises some signed blank stamp papers had been handed over to Ananthakrishnan, the brother of the petitioner, the initial owner of the property. After the death of Ananthakrishnan these documents came into the possession of the petitioner, who then fabricated Ext.A4 rent deed. In the light of this contention by the respondent, the petitioner examined the attesting witness in Ext.A4 rent deed, that is, PW2 to prove the same. The RCC on an appreciation of the evidence found the contention of the respondent to be false and held the document to be a genuine one.
15. As per Section 24 of the Act, the RCC shall as far as may be
practical, pass final orders in any proceeding before it within 4 months from the date of appearance of the parties. Rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 says that the RCC need only make a brief note of the evidence adduced by the parties and witnesses. So, the enquiry conducted by the RCC is expected to be only in a summary manner. However, the aforesaid provisions are more honoured in its breach than observed. It is true that in the R.C.P., the need alleged is that of the original petitioner, Sudhodhanan, and his daughter PW3. Admittedly both of them are now no more. For a moment, we are visualizing a situation wherein the R.C.P. had been disposed of within 4 months and further proceedings also ended within a reasonable time. The petitioner would then have obtained possession of the premises and in all probability have started the business also. What would have happened had the petitioner or his daughter passed away after the business had been started? In such a situation in all probability the family would have continued the business. Unfortunately, in this case because of the long delay in disposing of the case, it has resulted in this unfortunate situation where the father and thereafter the daughter for whom the need was put forward have passed away. In this circumstance, it would be gross injustice to ask the legal representatives of the original petitioner to go in for a new R.C.P. putting forth their need. By the time the said R.C.P. gets finally decided, which may well take another 20 to 25 years going by the pace at which the present case is proceeding, if something untoward happens, then the R.C.P. will again have to be dismissed without going into the merits. As observed by the Apex court in Shakuntala Bai (supra), this would become an unending process. This would also lead to rendering the whole proceedings taken infructuous and a colossal waste of public time. The object of the Act is not to deprive the owners of the property for all times to come. If such a view is taken, then the tenants would prolong the litigation for several years by taking frivolous contentions as has been done in this case and then succeed in the event of the landlord passing away. The tenant cannot be permitted to take undue advantage of such unfortunate turn of events in the family of the landlord. We also take note of the observation of the Apex court that such extreme views erode the faith of people in the judicial system prompting them to take recourse to extra judicial methods to recover possession of their property. Further, the Apex court in Seshambal (supra) has not disagreed with the views expressed in Shakuntala Bai (supra). The question whether the need alleged gets completely eclipsed on the death of the landlord depends on the facts and circumstance of each case and it cannot be concluded that death of the landlord in all situations would automatically lead to the need coming to an end. The same will have to be decided on a case-to-case basis.
16. Moreover, in our opinion the facts in Seshambal (supra) can
be differentiated from the case on hand. In the said case, the owners filed RCP seeking eviction of the tenant under S.11(3) of the Act. The prayer for eviction was opposed by the tenant, inter alia, on the ground that the owners did not require the demised premises and that the tenant would find it difficult to shift his business to any other premises on account of non - availability of a suitable accommodation. The RCC dismissed the RCP holding that the owners had failed to establish their bona fide requirement of the premises. The RCC held that the owners had shifted their residence from the city in which the tenanted premise was situated and were living with their daughter and son-in-law who were running a nursing home in another city. The appeal and revision filed were also dismissed confirming the order of the RCC. During the pendency of the revision petition before the High Court, the landlord passed away leaving behind his wife as the sole revision petitioner seeking eviction of the tenant. Consequent upon the dismissal of the revision petition, an appeal was filed before the Apex court by the sole revision petitioner alone, who too passed away before the appeal could be heard for final disposal. Substitution of the legal representatives of the appellant on the basis of a Will left behind by the deceased, as per which the property in question devolved upon her three daughters, was allowed. Two of the daughters were living in India, one each at Coimbatore and Bihar and the third daughter was settled in America. The short question in the above backdrop, was whether the proceedings instituted by the deceased-owners of the demised property could be continued by the legal left behind by them. It was not in dispute that in the eviction petition, the owners had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the owners-petitioners, leave alone any member of their family who was dependent upon them. Not only that, even in the petition filed before the Apex Court the requirement pleaded was that for the deceased- widowed owner of the demised premises and not of any member of her family. Super added to all this was the fact that the legal representatives of the deceased, were all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependent upon the deceased- petitioner was also an undisputed fact. The Apex Court held that, added to all of the above factors, even otherwise in the social milieu to which we are accustomed to, daughters happily married have their own families and
commitments financial and otherwise. Such being the position it was held
that the need no longer survived and hence the appeal was dismissed.
17. In the case on hand, the legal representatives of Sudhodhanan
are very much available here unlike in the case of Seshambal (supra). We are of the view that the amendment application filed by the legal representatives of the original petitioner ought to have been allowed by the RCAA. As argued on behalf of the respondent-tenant, the amendment petition was not dismissed by the RCAA. It was only closed without passing any orders as the RCAA had allowed eviction under Section 11(3) of the Act. As it is submitted that the wife and children of the original petitioner, Sudhodhanan, wants to proceed with the proposed business intended to be started by the latter, we think that in the interest of justice instead of compelling the parties to go in for a fresh R.C.P., an opportunity must be given to amend the R.C.P. appropriately to bring in necessary pleadings so that the respondent is also not taken by surprise or prejudiced. The contention of the respondent in the objection filed to the amendment petition that the amendment if allowed would take away the vested or substantive right of the respondent is liable to be rejected as no such right has devolved on the respondent-tenant in the first place to be taken away by a remand.
In the result R.C.R. No.146/2016 is dismissed. R.C.R. No.163/2016 is
allowed. The case is remanded to the Rent Control Court to afford an opportunity to the legal representatives of Sudhodhanan, the original petitioner, to amend the R.C.P to bring in necessary pleadings incorporating their need, if so advised. The respondent is at liberty to file additional counter. Both the parties shall also be given the opportunity to adduce evidence in support of their respective case. Since the R.C.P. is of the year 2001, the Rent Control Court shall dispose of the matter within a period of two months from the date of receipt of a copy of this order. The parties shall appear before the Rent Control Court on 01.02.2023.
Interlocutory applications, if any pending, shall stand closed. SD/- P.B.SURESH KUMAR JUDGE SD/- C.S.SUDHA JUDGE ak