Remanded

Balaraman v. Puvatt Sajeev Kumar

Kerala HC5 Apr 2013RCRev./245/2012

Case brief

AI extract

What is this about?

In a revision petition, the High Court set aside the Rent Control Appellate Authority's judgment which reversed a Rent Control Court order on eviction grounds. The Court found the Appellate Authority erred in characterizing the eviction plea and failing to hear the landlord on bona fide need. It remanded the case to the Appellate Authority to consider amendments and evidence.

What did the court decide?

The revision is allowed. The judgment of the Appellate Authority is set aside and the matter is remanded to the Appellate Authority to consider amendment of pleadings and adduction of evidence.

Balaraman Vs Puvatt Sajeev Kumar — Landlord and Tenant | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935

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R.C.REV.NO.245 of 2012 (B)

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(AGAINST THE JUDGMENT DATED 21.12.2011 IN RCA.NO.106/2008 OF THE IIIRD ADDL.D.C./RENT CONTROL APPELLATE AUTHORITY KOZHIKODE. AGAINST THE ORDER IN RCP.NO.79/2008 OF PRL.M.C./RENT CONTROL COURT, KOZHIKODE-I DATED 27-08-2009.)

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REVISION PETITIONER(S)//1ST RESPONDENT/PETITIONER:

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BALARAMAN, AGED 73 YEARS, S/O. KALARIKANDY VELUKUTTY, CYCLE WORKSHOP, KACHERI AMSOM DESOM, P.O., NADAKKAVU, KOZHIKODE.

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BY ADVS.SRI.V.V.SURENDRAN, SRI.P.A.HARISH, SMT.RESMI NANDANAN.

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RESPONDENT(S)/APPELLANTS AND RESPONDENTS 3 TO 6/1ST RESPONDENT & LEGAL HEIRS OF DECEASED 2ND RESPONDENT :

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1. PUVATT SAJEEV KUMAR,

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S/O. UNNIKUTTY, 1/3085, CD ENGINEERING INDUSTRY,

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NEAR BARRACKS, KANNUR ROAD, PUTHIYANGADI AMSOM,

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P.O.WEST HILL, KOZHIKODE TALUK, KOZHIKODE-673005.

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2. MANGATTUKANDIYIL RUGMINI,

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W/O. LATE KRISHNADAS, RESIDING AT MANGATTUKANDIYIL,

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VENGERI AMSOM DESOM, KOZHIKODE-673010.

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3. ROOPESH,

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S/O. KRISHNADAS, RESIDING AT MANGATTUKANDIYIL,

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VENGERI AMSOM DESOM, KOZHIKODE-673010.

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4. RAMYA,

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D/O. KRISHNADAS, RESIDING AT MANGATTUKANDIYIL,

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VENGERI AMSOM DESOM, KOZHIKODE-673010.

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5. MANGATTU KANDIYIL DEVAKI AMMA,

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RESIDING AT MANGATTUKANDIYIL, VENGERI AMSOM DESOM, KOZHIKODE-673010.

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R1 BY ADVS. SRI.V.T.RAGHUNATH, SMT.C.V.RAJALAKSHMI.

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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T.R.RAMACHANDRAN NAIR &

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A.V.RAMAKRISHNA PILLAI, JJ.

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= = = = = = = = = = = = = = = = = R.C.R No.245 of 2012

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= = = = = = = = = = = = = = = = = Dated this the 5^th day of April, 2013

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ORDER

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Ramachandran Nair, J.

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The landlord is in revision here, aggrieved by the reversal of the order passed by the Rent Control Court, by the Appellate Authority.

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The grounds pleaded for eviction are under Sections 11(3) and 11

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(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965; for short, the Act. The Rent Control Court found in favour of the landlord, in respect of Section 11(3) of the Act regarding bona fide need. But, the plea raised under Section 11(4)(i) regarding sub letting was found against. The tenant filed an appeal and landlord has filed a cross objection also.

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The appeal filed by the tenant has been allowed. In that process, the finding under Section 11(4)(i) has been confirmed and the Appellate Authority came to the view that actually the eviction petition should have been one filed under Section 11(8) of the Act, for additional accommodation, since the landlord occupies another room in the same building. The order of eviction under Section 11(3) stands vacated.

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RCR.245/12

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We have heard the learned counsel for the petitioner Sri.P.A.Harish and Sri.V.T.Raghunath, the learned counsel appearing for the respondent.

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According to Sri.Harish, the view taken by the Appellate Authority cannot be supported. However, there was an objection raised by the tenant that the eviction petition will come under Section 11(8) of the Act. According to him, the Appellate Authority ought to have entered a finding under Section 11(3) of the Act.

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With regard to Section 11(4)(i), it is submitted that the evidence will show that another person is in occupation of the petition schedule room. In the report of the Commissioner also, it was found that another person is present in the premises. But it was stated that he was an employee of the tenant, who had denied the allegation of sub lease. It is submitted by the learned counsel that when the presence of another person is there in the premises, the tenant shall prove the jural relationship of the parties.

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We were taken to the evidence and the pleas in the matter.

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The learned counsel for the respondent submitted that as far as the plea of the landlord under Section 11(4)(i) is concerned, there is a concurrent finding which cannot be reversed normally by this Court, unless according to him, the view taken is so perverse also. It was further pointed out that as far as the ground under Section 11(3) is concerned, the Rent Control Court

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RCR.245/12

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did not enter into a clear finding that the landlord's plea is bona fide. But it concentrated on the evidence regarding applicability of the 2^nd proviso under Section 11(3) of the Act and only by a cryptic finding under Section 11(3) was rendered.

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Sri.Harish, the learned counsel for the petitioner brought to our notice a decision rendered by this Court after considering the question whether the ingredients of sub sections (3) and (8) are mutually exclusive. Particular reference was made to the decision reported in Indian Saree House v. Radhalakshmi [2006 (3) KLT 129]. Sri.Raghunath also relied upon a judgment of this Court in J.C.R.Trading (P) Ltd. v. Varghese [2009 (1) KLT 963].

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We find from the judgment of the Appellate Authority that the Appellate Authority was of the view that as the landlord is in occupation of one portion of the building and as the petition was filed by the landlord indicating that he needs a portion of the building for additional accommodation, the landlord has to apply for eviction under Section 11(8) and not under Section 11(3) of the Act. Of course, all the pleas raised by the landlord while filing the application is that he intends to start a business in sale of cycle and cycle spare parts. He is now conducting a cycle workshop in the adjacent room. We are of the view that when such a finding is rendered

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RCR.245/12

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by the Appellate Authority, it would have been proper to give an opportunity to the landlord. We also find from the order passed by the Rent Control Court that, the main issue considered is in respect of the 1^st limb of 2^nd proviso to Section 11(3) and not the necessary materials required to have a finding on the bona fide need pleaded under Section 11(3). to the landlord to confine to the plea regarding the grounds of bona fide need.

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Thus to avoid multiplicity of litigation, the Appellate Authority ought to have granted an opportunity to the landlord. Of course, the learned counsel for the respondent submitted that the matter should have been remanded to the Rent Control Court by the Appellate Authority for want of a clear finding under Section 11(3). It is also pointed out that the landlord is having another room (stair case room) in the building and, therefore, he should have shown special reasons.

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In the light of the above scenario, we are of the view that the matter can be considered afresh by the Appellate Authority itself and we allow both the parties to amend their pleadings and adduce evidence in the matter. This will avoid further delay in the matter, since the Appellate Authority, under Section 18, is having all the powers of the Rent Control Court. Accordingly, we set aside the judgment of the Appellate Authority and remand the matter to the Appellate Authority itself. Both parties are allowed

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RCR.245/12

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to add or to amend the pleadings and adduce further evidence in the matter. The Appellate Authority shall dispose of the appeal within a period of five months from the date of receipt of a copy of this order. The Appellate Authority shall take the cross objection also along with the appeal. Parties shall appear before the Appellate Authority on 22.5.2013.

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Sd/-

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T.R.RAMACHANDRAN NAIR JUDGE

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Sd/- A.V.RAMAKRISHNA PILLAI JUDGE

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krj

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//TRUE COPY// P.A. TO JUDGE

Balaraman v. Puvatt Sajeev Kumar

Case brief

What is this about?

What did the court decide?

Balaraman v. Puvatt Sajeev Kumar

Case brief

What is this about?

What did the court decide?

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