Suresh vs Preethi Kumar
2022 Latest Caselaw 11208 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                       &
          THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
 FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                          RCREV. NO. 39 OF 2022
     RCA 43/2020 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE
           RCP 117/2018 OF RENT CONTROL COURT, KOZHIKODE


REVISION PETITIONER/APPELLANT/RESPONDENT:

             SURESH, AGED 52 YEARS
             S/O. HARIDASAN, KIZHAKKEPONNATH, KARUVISSERI P.O.,
             KOZHIKODE 673 010.

             BY ADVS.
             A.BALAGOPALAN
             A.RAJAGOPALAN
             M.S.IMTHIYAZ AHAMMED
             M.N.MANMADAN



RESPONDENT/RESPONDENT/PETITIONER:

             PREETHI KUMAR, AGED 61 YEARS
             CHEKKU, THAITHOTTATHIL HOUSE, KANANCHERRY, KALLAI
             P.O., KOZHIKODE 673 003.

             BY ADVS.
             T.K.SANDEEP
             ARJUN SREEDHAR
             ARUN KRISHNA DHAN


        THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON    02.12.2022,   THE   COURT   ON       THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 RCR No.39/2022

                               ..2..




                               ORDER

A. MUHAMED MUSTAQUE, J.

In this revision, the tenant questions the

concurrent finding of order of eviction under

Section 11(3) of the Kerala Buildings (Lease &

Rent Control) Act, 1965 (for short, "the

Act"), on the ground of bona fide need of the

landlord.

2. The original landlord, Narayani, died. One of

her children, viz., Preethikumar, approached

the Rent Control Court seeking eviction under

Section 11(3) of the Act, on the ground of

bona fide need, to occupy the tenanted

premises for starting an industry. It appears

that he had carried an industry in fiber prior

to letting out the building to the tenant in

the same premises. Thereafter, he went to gulf

and returned from gulf. It is specifically

averred in the petition that his siblings have RCR No.39/2022

..3..

consented to file the eviction petition and

allowed him to occupy the building after

eviction. The Rent Control Court allowed the

eviction, which has also been affirmed by the

appellate authority.

3. The learned counsel for the revision

petitioner/tenant, assailing the order of

eviction, argued that in the absence of

precise pleading in the petition in regard to

the proposed nature of industry, both

authorities below could not have allowed the

petition under Section 11(3) of the Act.

According to the learned counsel, the revision

petitioner/tenant must be given an opportunity

to discredit the claim of the

respondent/landlord in regard to his proposed

business. In the absence of any precise

pleading in the petition, the tenant has been

prejudiced to put forward proper defence,

denying bona fide need of the landlord. The RCR No.39/2022

..4..

learned counsel placed reliance on the

judgment of this Court in Mymoon v. Dunlop

India Ltd. [2007 (2) KLT SN 37 (C.No.52)],

wherein this Court considered the requirement

of pleading in the conduct of a petition under

Section 11(3) of the Act, as follows;

"The vague, hazy and indefinite pleadings regarding the purpose for which the premises is required is not sufficient to support the claim under S.11(3) of the Act. The landlord having not pleaded the specific requirement and nothing is deposed about the business proposed to be started, although it has stated that the premises is required for starting business, would be hardly sufficient to satisfy the bonafide need envisaged under S.11(3) of the Act. It would not be possible for the tenant to properly dispute the bonafides of the alleged need unless the nature of the business or atleast the bare details of the same is not mentioned, if not in the pleadings atleast in evidence; only then the respondent/tenant would be able to expose the hollowness of the claim, if it is so. Only then, the Court can ascertain the bonafides of the need set up by the landlord. The result of such concealment would result in gross prejudice to the tenant."

The learned counsel also argued that without

conjunction of other co-owners, the landlord

cannot maintain the petition for eviction.

4. In regard to the pleading that what is

required in such petition is to convey the RCR No.39/2022

..5..

intention of the landlord, it was specifically

pleaded by the revision petitioner/landlord in

the rent control petition that he requires the

tenanted premises to start an industry. It is

true that he had not given the details of the

industry. There is no dispute to the fact that

in past, he had run an industry in fiber in

the same building prior to letting out the

building to the tenant. In evidence, he

deposed that he wants to run the same

business, which he carried on earlier in

fiber. The lack of pleading, absence of

pleading and insufficiency of pleading will

have to be distinguished depend upon the facts

of each case. If there is lack of complete

pleadings, it can be said, in a particular

circumstance of the case, that the tenant

would be prejudiced by such lack of pleadings.

The court will have to advert to all attendant

circumstances while analyzing the pleadings in RCR No.39/2022

..6..

evidence and find out as to whether any

prejudice has been caused to the tenant. It is

not the insufficiency of the pleadings that

matters, but, the prejudice likely to cause to

the tenant, should be the concern of the

court. In a matter like this, when a landlord

had carried same business industry in the past

and he having deposed that he intends to

continue the same business, no much prejudice

will be caused to the tenant as the tenant

cannot put forward any case that the building

is totally unfit for such industry. We,

therefore, of the view that the tenant has, no

way, been prejudiced by not furnishing the

precise nature of the industry in the petition

for eviction.

5. In regard to other objection that the other

co-owners were not joined in the petition for

eviction, both authorities below placed

reliance on the precedents of this Court and RCR No.39/2022

..7..

the apex court. It is now settled law that one

co-owner can maintain the petition for

eviction and it is for the tenant to show that

the other co-owners have objected to such

petition. The tenant also failed to prove both

limbs for protection under the 2nd proviso to

Section 11(3) of the Act. We find no merit in

the revision.

Accordingly, the revision is dismissed.

However, taking note of the fervent submission

of the learned counsel for the revision

petitioner/tenant, we grant six months' time

to surrender vacant possession of the building

on the following terms and conditions;

a) The revision petitioner/tenant shall file an

undertaking that he shall surrender vacant

possession of the petition schedule building

within six months from today, which shall be

filed within four weeks.

b) The revision petitioner/tenant shall clear RCR No.39/2022

..8..

off the entire arrears of rent within two

months and shall continue to pay rent

thereafter till actual vacant possession of

the building is handed over to the

respondent/landlord.

c) On failure to honour the conditions as

above, the respondent/landlord is free to

execute the order in accordance with law.

Sd/-

A. MUHAMED MUSTAQUE

JUDGE

Sd/-

SHOBA ANNAMMA EAPEN

JUDGE bka/-