Neeshma.M vs Raghavan
2022 Latest Caselaw 12374 Ker

           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.172 OF 2020
   AGAINST THE JUDGMENT DATED 08.06.2020 IN RCA 20/2018 OF RENT
CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT, VATAKARA)
   AGAINST THE ORDER DATED 30.11.2017 IN RCP 48/2016 OF MUNSIFF
                         COURT, VATAKARA
REVISION PETITIONERS/SUPPL.RESPONDENTS 2 TO 7/LR'S OF PETITIONER

    1     NEESHMA M.,
          AGED 50 YEARS,
          W/O.GANGAN, KADAVATH HOUSE, NEAR CHOMBAL HARBOUR,
          CHOMBALA (PO), KOZHIKODE DISTRICT-673 308.
    2     NISLI M.,
          AGED 53 YEARS,
          W/O.MURALI, MADATHIL HOUSE, PARAPPIL ROAD, EKAROOL
          (PO), BALUSSERY, KOYILANDY TALUK-673 574.
    3     NEETHI M.,
          AGED 50 YEARS,
          W/O.BABU, KOYILOTHPARAMBIL HOUSE, CHOMBALA (PO),
          MUKKALI, VATAKARA TALUK-673 308.
    4     DEEPA NAJEESH,
          AGED 55 YEARS,
          W/O.NAJEESH BABU, GANGOTRI, MEPPAYIL P.O.,
          KOKKANHATH ROAD, VATAKARA TALUK-673 104.
    5     NEERAJ,
          AGED 26 YEARS,
          S/O.NAJEESH BABU, GANGOTRI, MEPPAYIL POST,
          KOKKANHATH ROAD, VATAKARA TALUK-673 104.
 Writ Appeal No. 172 of 2020
                                     2

      6        NIJIL,
               AGED 21 YEARS,
               S/O.NAJEESH BABU, GANGOTRI, MEPPAYIL POST,
               KOKKANHATH ROAD, VATAKARA TALUK-673 104.


               BY ADVS.
               K.LAKSHMINARAYANAN
               SMT.SATHYASHREE PRIYA EASWARAN


RESPONDENT:

               RAGHAVAN,
               AGED 69 YEARS,
               S/O.LATE NAMBI, RESIDING AT PIRAKKINTE MALAYIL,
               VELUTHA MALA ROAD, PUTHUPPANAM, PUTHUPPANAM AMSOM,
               DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 105.


               BY ADVS.
               SRI.K.RAKESH ROSHAN
               SMT.THUSHARA.V


THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON
23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Writ Appeal No. 172 of 2020
                                              3



                    P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                           ------------------------------------------
                                 R.C.R No. 172 of 2020
                     -----------------------------------------------------
                    Dated this the 23rd day of December, 2022

                                         ORDER

C.S.Sudha, J.

This R.C.R. under Section 20 of the of the Kerala Buildings (Lease

& Rent Control) Act, 1965 (the Act) has been filed against the judgment dated

08/06/2020 in R.C.A.No.20/2018 on the file of the Rent Control Appellate

Authority (RCAA), Vatakara, which appeal is against the order dated

30/11/2017 in R.C.P.No.48/2016 on the file of the Rent Control Court (RCC),

Vatakara. The revision petitioners are supplemental respondents 2 to 7 in the

appeal, that is, the legal representatives of the original petitioner-landlord in

the R.C.P. The respondent herein is the appellant in the appeal and the

respondent-tenant 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.48/2016 was filed by the petitioner-landlord, namely,

Nakulan, seeking eviction under Section 11(2)(b) and 11(3) of the Act.

According to the petitioner, the petition schedule building originally belonged

to his father, Kanaran, who had let out the premises to the respondent as per Writ Appeal No. 172 of 2020

registered Kachit No.121/1985 of SRO Vatakara. As per the Will executed by

Kanaran, the petition schedule room was bequeathed in favour of the

petitioner. Kanaran died in the year 1987 and thus the petitioner became the

absolute owner of the schedule room. The respondent has attorned to the

petitioner. The rent was enhanced to ₹250/- with effect from 18/09/1994.

The respondent has paid rent up to 18/12/2015 and has kept the rent for the

remaining period in arrears. Earlier, the petitioner for several years was

conducting a textile business in a rented building. In the year 1998, the

business was changed to a business in ayurvedic medicines and drugs. While

so, in the year 2007, the shop room and the property in which it was situated

was acquired for the purpose of widening the National Highway. Thereafter,

the petitioner was living with his daughter without any occupation. The

petitioner's son Najeesh Babu, a practicing advocate, passed away recently

due to cancer leaving the petitioner bereft of any support. In such

circumstances, it is necessary for the petitioner to earn his livelihood as he

does not want to depend on his daughters. Therefore, he bona fide needs the

petition schedule room for starting a business in ayurvedic medicines and

drugs. The respondent is quite well off and he is not depending on the income

from the petition schedule room for his livelihood. He is not entitled to the

benefit of the second proviso to Section 11(3) of the Act. Though a lawyer Writ Appeal No. 172 of 2020

notice was issued to the respond demanding vacant possession of the

premises, the respondent has refused to do so and hence the R.C.P.

3. The respondent-tenant filed a counter disputing the need

alleged and contending that it was only a mere ruse for eviction. He also

claimed the protection under the second proviso to Section 11(3).

4. PW1 was examined and Exts.A1 to A7 were marked on the

side of the petitioner. RW1 was examined on the side of the respondent. No

documentary evidence was produced by the respondent. The RCC on an

appreciation of the oral and documentary evidence and after hearing both

sides, allowed the R.C.P and granted eviction under Section 11(3) of the Act.

The claim for eviction under Section 11(2)(b) was rejected.

R.C.A.No.20/2018 filed by the respondent-tenant was allowed by the RCAA

reversing the order of eviction passed under Section 11(3) by the RCC.

Aggrieved, the legal representatives of the original petitioner-landlord have

come up in revision.

5. The only point that arises for consideration is whether the

findings of the RCAA suffer from any illegality, irregularity or impropriety.

6. Heard Sri.Lakshminarayanan, the learned counsel for the

petitioners and Sri.Rakesh Roshan, the learned counsel for the respondent. Writ Appeal No. 172 of 2020

7. During the pendency of the appeal, Nakulan, the landlord

passed away. Taking note of the subsequent event, the RCAA held that the

need no longer survived and hence reversed the order of eviction granted by

the RCC under Section 11(3) of the Act. This finding of the RCAA is

challenged in this revision. The only point to be considered now is, whether

the need projected in the R.C.P. survives. In the appeal, the wife, daughters

and daughter-in-law of Nakulan have been impleaded as additional

respondents 2 to 7 (hereinafter referred to as the petitioners). According to the

present petitioners, though Nakulan, is no more, the need still survives and

therefore they are still entitled to prosecute the case. In support of this

argument, they rely on the decisions in Shakuntala Bai v. Narayan Das,

2004 (5) SCC 772; Sumathi v.Rabia, 2012 (1) KLT 595; Usha P.Kuvelkar

v. Ravindra Subrai Dalvi, 2008(1) SCC 330: 2008(1) KLT 398; Narayana

v. Thahira, 2009(3) KLT 749; Prema Ramakrishnan v. Salmath, 2006

(3)KLT 284: Gaya Prasad v. Pradeep Srivastava, 2001(1) KLT 753 SC;

Alavi K.P. v. Jameela P.P., 2014(1) KLJ 318; Kamaleshwar Prasad v.

Agarwal, 1997(4) SCC 413: 1997 KHC 502; Om Prakash Gupta v. Ranbir

B Goyal, 2002(2) SCC 256; Rajesh Kumar Agarwal v. K.K.Modi, 2006(4)

SCC 385: 2006(3) KLT 192 SC; Usha Balasahib Swami v. Kiran Appaso

Swami, 2007 (5) SCC 602. The argument is that death of Nakulan will not Writ Appeal No. 172 of 2020

automatically result in the bona fide need getting abated. On the other hand, it

was submitted on behalf of the respondent-tenant that on the death of

Nakulan, the need no longer survives and so the petitioners have no right to

the prosecute the matter any further or to get an order of eviction as prayed

for. In support of this argument, reference was made to the decision in

Seshambal v. M/s Chelur Corporation Chelur Building, 2010 KHC 4104.

8. 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 is

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.

9. 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 Writ Appeal No. 172 of 2020

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 representatives 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 legal representatives 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 Writ Appeal No. 172 of 2020

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

legal representatives would be fully entitled to defend the estate.

10. However, in Seshambal (supra) relied on by the tenant, 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 Writ Appeal No. 172 of 2020

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 dictum in Seshambal (supra) has been followed in several

subsequent decisions of the Apex court.

11. It is true that subsequent events have to be looked into by the

Court. Here the need alleged in the R.C.P. is that petitioner-landlord,

Nakulan, wants to start a business of his own in the tenanted premises as the

death of his only son has left him bereft of any support and also because he

does not want to depend on his married daughters. The need projected in the

R.C.P. was found bona fide and so the RCC ordered eviction under Section

11(3). During the pendency of the appeal filed by the tenant, Nakulan, passed

away. Hence his legal representatives were impleaded. Supplemental

respondents 1 to 3 are his daughters; the supplemental 5 th respondent, his

predeceased son's wife and supplemental respondents 5 and 6, her children.

The supplemental 5th respondent, filed I.A.No.1/2020 under order 6 Rule 17,

which application is seen filed on behalf of all the supplemental respondents

(hereinafter referred to as the petitioners), for amending the R.C.P. in the light

of the death of Nakulan. In the said application, the prayer is to amend the

R.C.P. by incorporating the following paragraph which reads- "11A. the Writ Appeal No. 172 of 2020

Original petitioner in RCP 48/2016, Nakulan died on 14.04.2019.

Supplemental Petitioners 2 to 4 are his daughters. Supplemental Petitioner 5

son's widow and supplemental Respondents 6 and 7 are children. Nakulan

has filed RCP 48/2016 for eviction of the Respondent on grounds of his

bonafide need. The Supplemental 5th Petitioner, is also a practicing lawyer at

Vatakara. Her elder son Neeraj is a qualified pilot. However, he has yet to

find a job. Her younger son is studying in XII standard. Petitioners 5 to 7 are

dependent on the income of 5th Petitioner as an Advocate. 5th Petitioner

doesn't have an office at Vatakara to accommodate her practice. If she has an

office space in Vatakara it would improve her professional standing and

circumstances and she will be able to build more work resulting in better

income. 5th petitioner therefore has the bonafide need to occupy the Petition

Schedule Shop room as her professional office."

12. The respondent-tenant filed objection to the amendment

application contending that on the death of Nakulan, the need itself has come

to an end and therefore, the amendment petition cannot be allowed as it would

be introducing a new case which was never there in the original petition. This

application has been dismissed by the RCAA. During the course of arguments

before us, it was submitted by the learned counsel for the tenant that the

daughter-in-law of Nakulan, for whom the need has been put forward in the Writ Appeal No. 172 of 2020

amendment application, has now remarried and hence no purpose would be

served even if the amendment application had been allowed, as the new need

put forward also no longer survives. The fact that the daughter-in-law has

remarried, is not disputed by the other petitioners. However, it was submitted

by the learned counsel for the petitioners that the daughter-in-law of Nakulan,

namely, Deepa Najesh, still needs the tenanted premises for using it as her

office; that the other legal representatives of Nakulan have no objection to the

same and so, the mere fact the former has remarried would make no difference

as the need still survives.

13. It is true that the Act is meant for the benefit of the tenants so as to

protect them from unreasonable evictions. But that does not mean that the

tenants can take undue advantage of certain unfortunate events in the family

of the landlord. Here Nakulan was successful in getting a favourable order

from the RCC. Section 24 of the Act says that the RCC shall as far as may be

practical, pass final orders in any proceeding before it within four months

from the date of appearance of the parties thereto. 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 Writ Appeal No. 172 of 2020

than observed. Had the R.C.P. been disposed of within the time limit specified

in section 24 and if further proceedings had also terminated within a

reasonable time, in all probability, Nakulan would have got vacant possession

of the tenanted premises and started the business. However, after succeeding

in getting an order of eviction under Section 11(3) from the RCC, which order

has not been shown to be in any way perverse, Nakulan passed away before

he could enjoy the fruits of the decree. The death of Nakulan is the sole reason

due to which the RCAA reversed the finding of the RCC. To dismiss the

R.C.P. and to compel the petitioners to go in for a fresh R.C.P. and then fight

the battle with the tenant for another 20 to 25 years would be quite unjust and

would be causing grave injustice to the owners of the building.

14. It is no doubt true that subsequent events will also have to be

taken into consideration as held by the Apex court. 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 its business to any other premises on

account of non-availability of a suitable accommodation. The RCC dismissed

the R.C.P. holding that the owners had failed to establish their bona fide Writ Appeal No. 172 of 2020

requirement of 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 representatives 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 Writ Appeal No. 172 of 2020

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.

15. In the case on hand, all the legal representatives of Nakulan

have come on record and filed an amendment application stating that the

daughter-in-law of Nakulan requires the schedule room for the purpose of her

office. The need projected is not opposed by the other legal representatives of

Nakulan. Hence, we are of the opinion that the amendment petition filed by the

legal representatives of Nakulan ought to have been allowed by the RCAA. No

prejudice would have been caused to the respondent because he can also be Writ Appeal No. 172 of 2020

given an opportunity to contest the need put forward by the present petitioners.

If not, as observed by the Apex court in Shakuntala Bai (supra), this would

become an unending process. It 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 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. In these circumstances,

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. Writ Appeal No. 172 of 2020

appropriately to bring in necessary pleadings so that the respondent is also not

taken by surprise or prejudiced.

In the result, the R.C.R. is allowed. The matter is remanded to the

RCC. The legal representatives of Nakulan, the original petitioner, are at

liberty to amend the pleadings in accordance with the need put forward by

them, if they are so advised. The respondent shall be entitled to file an

additional counter in reply to the amended pleadings. Both the parties shall

also be given opportunity to adduce evidence in support of their respective

claims. As the R.C.P. is of the year 2016, the RCC is directed to dispose of the

matter within a period of three months from the date of receipt of a copy of this

order. The parties shall appear before the RCC on 01/02/2023.

Interlocutory applications, if any pending, shall stand closed.

SD/-

P.B.SURESH KUMAR JUDGE

SD/-

C.S.SUDHA JUDGE Jms/20.12