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2017 DIGILAW 630 (KER)

MARIYAM (DIED) v. K. K. HARI

2017-03-31

K.HARILAL, RAJA VIJAYARAGHAVAN V.

body2017
ORDER : 1. The landlords have come up in revision. They challenge the judgment dated 19.7.2010 in R.C.A. No. 36 of 2010 of the Rent Control Appellate Authority, Ernakulam. By the aforesaid judgment, the Appellate Authority has confirmed the order of the Rent Control Court, Ernakulam rejecting the prayer for eviction of the tenant under Section 11 (2) (b) and 11 (3) of the Building (Lease and Rent Control) Act, 1965. 2. The parties shall be referred to as landlords and tenant or as they figured in the Rent Control Petition, if the context so require. 3. According to the landlady, an octogenarian by name Mariam, the property and the building of which the petition schedule building is a part, stood in the name of her husband, Late K.V. Chacko. After his death in the year 2004, life interest over the said property devolved on her. The tenant is occupying the petition schedule shop room on a rental arrangement. The rent payable is Rs. 350/- per mensem which was defaulted. After the death of her husband, her sources of income dwindled down. She has three grandchildren; Dipu Varghese, Dinu Varghese and Sijo Jose, who are qualified and competent. Sijo Jose, in particular, has acquired competence in Hotel Management. The petition schedule shop room is required for her three grandchildren for the purpose of commencing a hotel business. The shop room is located in a commercially important locality. Her request to the tenant to vacate the premises did not evoke any positive response. The tenant is not entitled to the benefit of the twin provisos to sub-section (3) to section 11 of the Act. 4. The tenant in his objection denied the competency of the landlady to maintain the petition seeking eviction. He denied that the rent was in arrears. The rent was being regularly collected by Joseph, one of the sons of late K.V. Chacko. He denied that the grandchildren of the landlady was competent and qualified. According to the tenant, the filing of the petition is a ruse to obtain vacant possession of the shop room. He asserted that the need was not bona fide. It was also contended that the tenant was entitled to the benefit of the 2nd proviso to Section 11(3) of the Act. 5. In the course of proceedings, the legal representatives of late K.V. Chacko got themselves impleaded as additional petitioners 2 to 6. He asserted that the need was not bona fide. It was also contended that the tenant was entitled to the benefit of the 2nd proviso to Section 11(3) of the Act. 5. In the course of proceedings, the legal representatives of late K.V. Chacko got themselves impleaded as additional petitioners 2 to 6. Additional petitioners 2 to 4 are the sons of late K.V. Chacko and additional petitioners 5 and 6 are the wife and minor child respectively of late K.C. Antony, son of K.V. Chacko. Shortly, thereafter, the original petitioner left for her heavenly abode. 6. The landlords let in oral as well as documentary evidence to prove their case. The additional 2nd petitioner entered the box and gave evidence as PW-1. Sijo Jose was examined as PW-2 and the Commissioner Advocate was examined as PW-3. Annexures-A1 to A7 were marked on their side. The tenant gave evidence as RW1 and Exts.B1 and B2 were marked on his side. 7. The Rent Control Court, on an evaluation of the oral as well as the documentary evidence, found that rent was in arrears and that the landlords were entitled to an order of eviction under Section 11(2)(b) of the Act. It was also held that the respondent was not entitled to the benefit of the 2nd proviso to Section 11(3) of the Act. However, holding that there was total lack of pleadings with regard to the dependency of the grandchildren on the additional petitioners for the purpose of the building, they were found not entitled to an order of eviction under section 11 (3) of the Act. 8. The said order was taken up in appeal by the landlords. Before the Appellate Authority I.A. No. 6149 of 2011 was filed with a prayer to amend the Rent Control Petition and to incorporate necessary pleading that Dipu Varghese, Dinu Varghese and Sijo Jose are not having any building of their own for commencing a hotel business and that they are depending on the additional petitioners for their need. The Appellate Authority relegated the consideration of the amendment application to the final stage. Holding that the amendment application was filed to fill up the lacuna, the same was dismissed. The appeal was consequently dismissed confirming the conclusions arrived at by the Rent Control Court. 9. We have heard the submissions of Sri. The Appellate Authority relegated the consideration of the amendment application to the final stage. Holding that the amendment application was filed to fill up the lacuna, the same was dismissed. The appeal was consequently dismissed confirming the conclusions arrived at by the Rent Control Court. 9. We have heard the submissions of Sri. A. Balagopalan, the learned counsel appearing for the petitioners and Sri. T.B. Thankappan, the learned counsel appearing for the respondent. We have perused the orders passed by the courts below. 10. The learned counsel appearing for the petitioners contended that there cannot be any doubt that the eviction was sought for the grandchildren of the original 1st petitioner and it was specifically pleaded that the petition schedule shop room along with two other rooms situated adjacently are needed for starting a hotel jointly for the three grandchildren of the landlady. The original 1st petitioner had expired in the course of proceedings. Her legal heirs were also in the party array. According to the learned counsel, the landlords were non-suited for their failure to specifically plead dependency of the children on the additional petitioners. The dependents were none other than the two sons of the additional 2nd petitioner and the son of the additional 3rd petitioner. Relying on a catena of decisions, it was submitted that in Rent Control Petitions there cannot be insistence for meticulous pleadings. It was further argued that the subsequent turn of events, which included the death of the landlady, ought to have been taken note of by the courts below while considering the merit of the contentions, including the dependency on the additional petitioners. It was argued that the petitioners had filed an application at the appellate stage to amend the petition and to incorporate the pleadings. It was fervently submitted that the Appellate Authority had powers to allow amendment to render substantial justice. However, the application was dismissed along with the appeal, which has resulted in prejudice. Relying on a slew of precedents, it was contended that it is trite that subsequent events which occurred after the filing of the Rent Control Petition can also be taken note of in appropriate cases. The learned counsel would further contend that the petitioners had filed R.C.P. Nos. Relying on a slew of precedents, it was contended that it is trite that subsequent events which occurred after the filing of the Rent Control Petition can also be taken note of in appropriate cases. The learned counsel would further contend that the petitioners had filed R.C.P. Nos. 51 of 2005 and 52 of 2005 before the Rent Control Court, Ernakulam seeking eviction of the tenants from the adjacent rooms and those two petitions were jointly tried. Though the said petitions were also dismissed in view of the bar under the first proviso to Section 11(3) of the Act, the question of dependency of the children on the additional petitioners was found in favour of the landlords. 11. The learned Counsel appearing for the respondent would resist the submissions advanced and would contend that both the courts below have evaluated the materials in depth and had concluded that there was total lack of pleadings insofar as the dependency of the children on the additional petitioners are concerned. According to the learned counsel, the parties are bound by pleadings and a case which has not been set up cannot be allowed to be proved. It is for the landlords to convincingly prove to the satisfaction of the Rent Control Court that the shop room is required either for his own occupation or for the occupation of any member of his family dependent on him and if this aspect is not pleaded and proved, the Rent Control Court would have no other go but to reject the petition. 12. We have considered the submissions advanced. 13. We find that the original petition was filed by Mariam, the grandmother of the Dipu Varghese, Dinu Varghese and Sijo Jose. In the petition, she has stated that she is finding it difficult to make both ends meet and that her grand children are qualified and capable of doing business. She has stated that she requires the entire building having three rooms, including the room occupied by the tenant for starting a hotel business jointly for the above three grand children. We find that the essential factual situation have been stated by the original landlady and the foundation was laid in the Rent Control Petition. In the course of the petition, the legal heirs of late K.V. Chacko were impleaded as additional petitioners. We find that the essential factual situation have been stated by the original landlady and the foundation was laid in the Rent Control Petition. In the course of the petition, the legal heirs of late K.V. Chacko were impleaded as additional petitioners. When the original 1st petitioner had expired, the additional petitioners failed to make consequential amendment to the Rent Control Petition and state that their sons are depending on them for obtaining vacant possession of the petition schedule shop room for commencing the hotel business. 14. There cannot be any doubt that pleadings of the parties form the foundation of their case. It is based on pleadings that issues are raised and evidence is let in. Though meticulous pleadings need not be insisted with in a Rent Control Petition, the landlords have to plead and prove material averments which are necessary to constitute grounds for eviction under section 11 (3) of the Act for which dependency is also material. It has been time and again held by the Apex Court as well as this Court that the language of S.11(3) of the Act is plain and simple and there is no ambiguity in it. If the landlord is in bona fide need of the building for occupation by any members of the family dependent on him he may apply to the Rent Control Court for eviction of the tenant. 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 S.11(3) will have to fail. 15. We see from the records that the additional petitioner no. 2 is a coolie and daily wage worker, additional petitioner no. 3 is in the scrap business and additional petitioner no. 4 is an auto rickshaw driver. We also cannot lose sight of the fact that it was due to the subsequent turn of events that the pleadings were found wanting. We find that the Appellate Authority had framed specific issue as to whether the amendment application can be allowed. It was considered at the final stage and the same was dismissed along with the appeal. We also cannot lose sight of the fact that it was due to the subsequent turn of events that the pleadings were found wanting. We find that the Appellate Authority had framed specific issue as to whether the amendment application can be allowed. It was considered at the final stage and the same was dismissed along with the appeal. We find some merit in the submission of the learned counsel, that in the facts of the instant case, prejudice has resulted. 16. The right to relief must be judged to exist as on the date of filing of the petition. It is a stark reality that in the course of a long and arduous litigation, numerous developments would take place which may have a material bearing on the reliefs claimed. The process of litigation cannot be made the basis of denying relief to either party on the ground of technicalities. We find that the father of Dipu Varghese and Dinu Varghese is the additional 2nd petitioner and the father of Sijo Jose is the additional 3rd petitioner. It is also seen from the proceedings that during the course of proceedings, the additional 3rd petitioner expired and Sijo Jose has been impleaded as additional 8th petitioner in this revision petition. He is now the co-owner of the shop room. The procedure is the handmaid of justice and not the mistress of the judicial process. Equity justifies bending the rules of procedure with a view to promote substantial justice. We are convinced that the subsequent events have got considerable relevance in the instant case. The amendment sought were matters which existed at the time of filing of the petition and the omission to include the same was due to subsequent turn of events. We are of the view that the Appellate Authority was not justified in rejecting I.A. No. 6149 of 2011. 17. After having bestowed our anxious consideration to the materials, we are convinced that the matter is to be remitted back to the Rent Control Court to consider the question of dependency. We have no doubt in our mind that such a course is necessary to secure the ends of justice as between the parties to the litigation and on the totality of the facts and circumstances in this case. We have no doubt in our mind that such a course is necessary to secure the ends of justice as between the parties to the litigation and on the totality of the facts and circumstances in this case. We also cannot ignore Rule 11 (8) of the Kerala Building (Lease and Rent Control) Rules, 1979 which says that the decision to be given by the Court shall be in accordance with justice, equity and good conscience. 18. We, therefore, set aside the order of the Rent Control Court as well as the Appellate authority and remit the matter back to the Rent Control Court for consideration of the question of dependency of Dipu Varghese, Dinu Varghese and Sijo Jose on the additional petitioners and also regards the bona fides of the claim raised by them. Needless to say, an opportunity shall be given to the parties to amend the pleadings and they shall be permitted to adduce further evidence. No further probe need be conducted insofar as the 2nd proviso to Section 11(3) is concerned. Tenant shall continue to pay the agreed rent. The Rent Control Court shall endeavor to dispose of the matter expeditiously, at any rate, within a period of six months from the date of production of a copy of the order. The Registry is directed to send back the entire records of the Trial Court as well as the Appellate Authority to expedite the process. The parties shall mark their appearance before the III Additional Munsiff and Rent Controller, Ernakulam on 10.4.2017.