Remanded

Remya Madhu v. Chandini

Kerala HC6 Feb 2019RCRev./345/2017

Case brief

AI extract

What is this about?

The High Court set aside revisions against appellate orders dismissing eviction petitions. It held that eviction under section 11(3) requires proof of bona fide need by all co-owners and ordered remand. The order under section 11(2)(b) was set aside for failing to quantify arrears, remitting all petitions for fresh disposal.

What did the court decide?

Impugned orders set aside; all Rent Control Petitions remitted to Rent Control Court for fresh disposal within five months after opportunity to adduce further evidence.

Remya Madhu Vs Chandini — Landlord and Tenant | Kerala HC (2019)

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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 K.HARILAL

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¶5

THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940

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RC Rev..No. 230 of 2017

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AGAINST THE ORDER/JUDGMENT IN RCA 195/2015 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT),THALASSERY DATED 12-04-2017

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AGAINST THE ORDER/JUDGMENT IN RCP 47/2014 of RENT CONTROL COURT, KUTHUPARAMBA

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REVISION PETITIONER/APPELLANT/RESPONDENT:

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N.MANI, AGED 53 YEARS, S/O.CHATHU KUTTY, KOOLICHAL NIVAS, P.O MAMBARAM, THALASSRI TALUK, KANNUR DISTRICT, 670 641.

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BY ADV. SRI.K.V.PAVITHRAN

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BY ADV. M.P. JAYANANDAN

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RESPONDENT/RESPONDENT/PETITIONER:

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RAMYA MADHU, AGED 43 YEARS, D/O.LAKSHMANAN [LATE], C.V HOUSE P.O, MAMBARAM, PINRALIL [VIA], THALASSERI TALUK, KANNUR DISTRICT.

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BY ADV. K.P. SREEKUMAR BY ADV. SRI.K.BABU

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON

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06.02.2019, ALONG WITH RCRev..345/2017, RCRev..348/2017,

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RCRev..349/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶20

RC Rev.No.230/2017 & conn.cases 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶22

PRESENT

¶23

THE HONOURABLE MR.JUSTICE K.HARILAL

¶24

¶25

THE HONOURABLE MRS. JUSTICE ANNIE JOHN

¶26

WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940

¶27

RCRev..No. 345 of 2017

¶28

AGAINST THE ORDER/JUDGMENT IN RCA 196/2015 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT),THALASSERY DATED 12-04-2017

¶29

AGAINST THE ORDER/JUDGMENT IN RCP 49/2014 of RENT CONTROL COURT, KUTHUPARAMBA DATED 26-09-2015

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REVISION PETITIONER/RESPONDENT/PETITIONER:

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REMYA MADHU

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D/O.LATE LAKSHMANAN, AGED 41 YEARS, RESIDING AT CV HOUSE, P.O.MAMBARAM, VIA PINARAYI, THALASSERY TALUK, KANNUR DISTRICT.

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BY ADV. SRI. K. BABU BY ADV. SRI.K.P.SREEKUMAR

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RESPONDENT/APPELLANT/RESPONDENT:

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CHANDINI

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W/O.JANARDANAN, AGED 71 YEARS, THODUVAYIL, KEEZHATHUR, P.O.PATHIRIYAD, KANNUR DISTRICT, PIN-670 741.

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BY ADV. SRI.SAJI VARGHESE KAKKATTUMATTATHIL

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06.02.2019, RCRev..230/2017, RCRev..348/2017, RCRev..349/2017,, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶39

RC Rev.No.230/2017 & conn.cases 3

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶41

PRESENT

¶42

THE HONOURABLE MR.JUSTICE K.HARILAL

¶43

¶44

THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940

¶46

RCRev..No. 348 of 2017

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AGAINST THE ORDER/JUDGMENT IN RCA 5/2016 of RENT CONTRTOL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT),THALASSERY

¶48

AGAINST THE ORDER/JUDGMENT IN RCP 48/2014 of RENT CONTROL COURT, KUTHUPARAMBA

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REVISION PETITIONER/RESPONDENT/PETITIONER:

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REMYA MADHU, D/O. LATE LAKSHMANAN, AGED 41 YEARS,RESIDING AT CV HOUSE, P.O. MAMBARAM, VIA PINARAYI, THALASSERY TALUK, KANNUR DISTRICT

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BY ADV. SRI. K. BABU BY ADV. SRI.K.P.SREEKUMAR

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RESPONDENT/APPELLANT/RESPONDENT:

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N. MOHANAN, S/O. CHATHUKUTTY NAIR, AGED 68 YEARS, BUSINESS, PATHIRIYAD P.O, PATHIRIYAD KEEZHATHOOR DESOM, THALASSERY TALUK-670 741

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BY ADV. SRI.JAYANANDAN MADAYI BY ADV. K.V. PAVITHRAN

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06.02.2019, RCRev.230/2017, RCRev.345/2017, RCRev.349/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶56

RC Rev.No.230/2017 & conn.cases 4

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶58

PRESENT

¶59

THE HONOURABLE MR.JUSTICE K.HARILAL

¶60

¶61

THE HONOURABLE MRS. JUSTICE ANNIE JOHN

¶62

WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940

¶63

RCRev..No. 349 of 2017

¶64

AGAINST THE ORDER/JUDGMENT IN RCA 195/2015 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT & SESSIONS COURT),THALASSERY

¶65

AGAINST THE ORDER/JUDGMENT IN RCP 47/2014 of RENT CONTROL COURT, KUTHUPARAMBA

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REVISION PETITIONER/RESPONDENT/PETITIONER:

¶67

REMYA MADHU, D/O.LATE LAKSHMANAN, AGED 41 YEARS, RESIDING AT CV HOUSE, P.O.MAMBARAM, VIA PINARAYI, THALASSERY TALUK, KANNUR DISTRICT.

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BY ADV. SRI.K.P.SREEKUMAR BY ADV. SRI. K. BABU

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RESPONDENT/APPELLANT/RESPONDENT:

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N.MANI, S/O.CHATHUKUTTY, 51 YEARS, RESIDING AT KOOLICHAL NIVAS, P.O.MAMBARAM, THALASSERY TALUK, KANNUR DISTRICT-670641.

¶71

BY ADV. SRI. M.P.JAYANANDAN BY ADV. SRI. P.V. PAVITHRAN BY ADV. SRI. SAJU. P. BY ADV. SRI. NIAS MOOPAN BY ADV. SRI. UNNIKRISHNAN

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06.02.2019, RCRev..230/2017, RCRev..348/2017, RCRev..345/2017,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RC Rev.No.230/2017 & conn.cases 5

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COMMON ORDER

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K. HARILAL, J.,

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Since all the Revision Petitions are directed

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against the common judgment and the parties are common, all the Revision Petitions are heard together and disposed of accordingly.

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The parties are referred to as in the Rent

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Control Petitions.

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The petitioner filed R.C.P.No.47/2014,

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R.C.P. No.48/2014 and R.C.P. No.49/2014 against the three different tenants on the common ground

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that the petitioner and the other co-owner Smt.Nanda bnafide need the petition schedule shop rooms, for starting a supermarket and also the rent is in arrears from the respective tenants.

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RC Rev.No.230/2017 & conn.cases 6

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All the respondents contended that there is

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no landlord-tenant relationship between the petitioner and the respondents, as the petitioner has no title over the petition schedule property and the bonafide need projected in the petition is not bonafide and it is a ruse for eviction only. So also, they contended that no amount was due from them to the petitioner as arrears of rent.

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Both the parties, in all the Rent Control Petitions adduced evidence, on the aforesaid rival pleadings and after considering the evidence on record, the Rent Control Court allowed all the Rent Control Petitions, by granting an order of eviction under section 11(3) and 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act').

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Feeling aggrieved by the order of the Rent Control Court, all the respondents/tenants preferred

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RC Rev.No.230/2017 & conn.cases 7

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appeal and in the appeal, the Rent Control Appellate authority reversed the findings of the Rent Control Court and found that the petitioner failed to prove that both the petitioner and the co-owner Smt.Nanda bonafide need the petition schedule building for starting the proposed supermarket and confirmed the order of eviction passed under section 11(2)(b) of the Act in R.C.P. No.47/2014 only.

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The legality and propriety of the findings, whereby the Appellate Authority reversed the findings of the Rent Control Court on a finding that the petitioner failed to prove the bonafides of the need of both landlords, are challenged in this

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Revision Petition.

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Heard the learned counsel for the petitioner

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and the learned counsel for the respondents.

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The common averments in the Rent Control

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Petitions are as follows:-

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The petition schedule building belonged to

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RC Rev.No.230/2017 & conn.cases 8

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Sri.N.P. Balan. The same was let out to the respondents on monthly rent. While so, the said Balan died unmarried. During his lifetime, he had executed a Will, whereby he bequeathed the petition schedule shop rooms to the petitioner and Smt.Nanda as per a registered Will No.62/2013 of the Sub Registry Office, Anjarakandy. As per the Will, the petitioner is also entitled to collect rent for and on behalf of Smt.Nanda. The said Balan died on 07.11.2013 and after his death, as per the Will, the petition schedule shop rooms devolved upon the petitioner and Smt.Nanda. Now the petitioner and Smt.Nanda want to start a supermarket in the petition schedule shop rooms and the other adjacent rooms occupied by Mohanan and Rajesh. The petition schedule shop rooms are suitable for starting a supermarket. The petitioner and Smt. Nanda have no other buildings of their own in their possession, to start the proposed supermarket and several other

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RC Rev.No.230/2017 & conn.cases 9

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vacant rooms are available in the locality to shift the respondents' business from the respective tenanted premises.

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The respondents resisted the claim for eviction on bonafide need, contending that there is no landlord-tenant relationship between the petitioner and the respondents. They admit that the petition schedule shop rooms belonged to deceased Balan and they have been in possession of the tenanted premises under the lease deed executed between the said Balan and them. According to them, no amount was due from them to the petitioner as there is no landlord-tenant relationship between the petitioner and the respondents. In R.C.P.No.47/2014, it is further contended that the said Sri.Balan married one woman in Mumbai and Smt.Nanda is the daughter of Sri.Balan. The claim of the petitioner that the petition is filed with the consent of Smt.Nanda is also incorrect. The

¶102

RC Rev.No.230/2017 & conn.cases 10

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petitioner is a total stranger to the original landlord Sri.Balan and Smt. Nanda. The Will is a fabricated document, created for grabbing the property of Sri. Balan. The petitioner is not aware of the actual rent payable and that is why the lawyer's notices have been issued demanding different rate of rent. The petition is bad for non-joinder of necessary party as Smt. Nanda is not made a party in the proceedings. The petitioner is a housewife and she is having no business aptitude and background to start a supermarket and she has no experience to conduct the supermarket.

¶104

On the rival pleadings, both the parties adduced evidence which consists of the oral testimony of PW1 and PW2 and Exts.A1 to A5 from the part of the petitioner and the oral testimony of RW1 and Exts.B1 to B3 from the part of the respondents.

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After considering the aforesaid evidence,

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RC Rev.No.230/2017 & conn.cases 11

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the Rent Control Court found that the petitioner has succeeded in proving the landlord-tenant relationship and the bonafide need claimed thereunder. But in the appeal, the Appellate Authority reversed the said finding. Going by the impugned judgment passed by the Appellate Authority, it could be seen that in order to prove the bonafides of the need, the petitioner alone adduced evidence as PW1. The specific case of the petitioner that the petition schedule shop rooms belonged to Sri.N.P. Balan and he executed a Will whereby he bequeathed the petition schedule shop rooms to the petitioner and one Smt.Nanda. After the death of Sri.Balan, all the petition schedule shop rooms devolved upon them by the operation of the Will and they have been in possession of the said shop rooms and the rent was in arrears from April 2013 onwards. Going by the impugned judgment, it is seen that in order to substantiate the claim, the petitioner has produced Exts.A1 to A5. Ext.A5 is a

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RC Rev.No.230/2017 & conn.cases 12

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photocopy of the Will executed by Sri.Balan. No document has been produced to prove the landlordtenant relationship between the petitioner and the respondents/tenants. Nothing has been produced in evidence to prove that after the death of Sri.Balan, the respondents were attorned to the petitioner and the said Nanda, as the landlords of the respondents. No rent receipts has been produced by the petitioner to prove that the respondents have paid any amount to the petitioner or to the said Smt.Nanda, after the death of Sri.Balan. No doubt, if the Will is a genuine one, the petitioner and the said Smt.Nanda would get title to the property under the Will. Consequently the respondents would stand attorned to the petitioner and Nanda as their landlords.

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But the Rent Control Petitions have been dismissed by the Appellate Court on a finding that the petitioner failed to prove the bonafide need of the petitioner and Smt. Nanda. The petitioner alone

¶111

RC Rev.No.230/2017 & conn.cases 13

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was examined as PW1 to prove the bonafides of the need. The respondent in R.C.P.No.47/2014, when he was examined as RW1, specifically deposed that Smt.Nanda, who is residing at Mumbai contacted him over phone and instructed that he shall not pay rent in the account of the petitioner and thereafter he has not deposited the rent in the account of deceased Balan. On the other hand, when the petitioner was examined as PW1, she deposed that she had conversation with Smt. Nanda over phone and they have discussed the plan regarding the starting of supermarket and the capital to invest in that business, over phone. But during the cross examination, she has admitted that she does not know the telephone number of the said Smt. Nanda. As observed by the Court below, if PW1 had a conversation with smt.Nanda about starting of supermarket, certainly, she could have remembered the telephone number of Smt.Nanda at the time

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RC Rev.No.230/2017 & conn.cases 14

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when she has given evidence. Thus the evidence of PW1 would reveal that she has not contacted with the said Smt. Nanda for whose need also the Rent Control Petitions were filed. There arose the genuine doubt as to whether the aforesaid Smt.Nanda needs the petition schedule shop rooms for stating a supermarket as claimed by the petitioner.

¶115

In this context, it is pertinent to note that the said Smt.Nanda is not made a party in the proceedings and no evidence has been adduced to prove that the Rent Control Petitions had been filed with the concurrence or knowledge of the said Smt.Nanda.

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We are of the opinion that when the tenanted premises belong to the two landlords and one landlord alone files a petition, seeking eviction on bonafide need contending that, both the landlords bonafide need the petition schedule building for

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RC Rev.No.230/2017 & conn.cases 15

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starting a business, it is incumbent upon the petitioner to prove that both the landlords are in need of the petition schedule building for starting the proposed business. It is true that a Rent Control Petition filed by one of the co-owner alone is also maintainable. But, if the tenanted premises is required for both, on a common need, it is incumbent upon both to prove the common need by adducing evidence, particularly, when the tenants/respondents challenged the need of the co-owner, who is not made a party in the Rent Control Petitions. In the above view, we find that even if the Will has been proved and title and the landlord-tenant relationship thereunder have been established, unless bonafide need of both the petitioners are proved, an order of eviction under section 11(3) of the Act cannot be granted.

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In the instant case, the Rent Control Court

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RC Rev.No.230/2017 & conn.cases 16

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has not considered the need of said Smt.Nanda, who is admittedly residing in Mumbai and an order of eviction has been granted under section 11(3) of the Act, on the basis of the oral evidence adduced by one of the co-owner alone. The Rent Control Petitions could have been filed by both the petitioners and even if the petition is filed by one of the co-owner alone, the petitioner could have adduced evidence to prove the need of the other co-owner also. In the absence of any material evidence to prove the bonafide need of both co-owners, we are also of the view that the evidence on record is not sufficient to grant an order of eviction under section 11(3) of the Act.

¶122

But at the same time, an opportunity can be given to the petitioner to prove her case by adducing further evidence. Consequently, the impugned common order passed by the Court below is set aside and all the Rent control Petitions are

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RC Rev.No.230/2017 & conn.cases 17

¶124

remitted to the Rent Control Court for fresh disposal, after affording an opportunity to all the parties to adduce further evidence. The learned counsel for the petitioner seeks an opportunity to amend the pleadings, if necessary, and the said prayer would stand allowed as prayed for, if necessary, and the amendment application can be decided on merits only by the Rent Control Court. In case, the amendment is allowed the respondents also shall be given an opportunity to amend their counter statements. All the Rent Control Petitions shall be disposed of afresh, untramelled by the observations made above, within five months from the date of receipt of this order. All the parties or their counsel shall be present before the Curt on 01.04.2019.

¶125

As regards the order of eviction passed against the tenant in R.C.P. No.47/2014 under section 11(2)(b) of the Act, we find that the Courts

¶126

RC Rev.No.230/2017 & conn.cases 18

¶127

below have failed to appreciate the evidence on record in its correct perspective. Absolutely, there is no findings to the effect that the rent was in arrears from a particular date. Going by the order passed by the Rent Control Court, it is seen that without quantifying the amount due to the petitioner from the respondent, or the period of default, the Rent Control Court granted an order of eviction under section 11(2)(b) of the Act . We are of the view that such an order granting an order of eviction under section 11(2)(b) of the Act, without quantifying the arrear amount or the period of default are legally unsustainable. It is needless to say under such an order, the tenant cannot invoke section 11(2)(c)of the Act, by depositing arrears of rent. Hence the order of eviction passed under section 11(2)(b) of the Act, against the respondent in R.C.P.No.47/2014 also would stand set aside and R.C.P.No.47/2014 also would stand remitted to the Rent Control Court

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RC Rev.No.230/2017 & conn.cases 19

¶129

along with other Rent Control Petitions for fresh

disposal.

Sd/-

K.HARILAL

JUDGE

Sd/-

ANNIE JOHN

ajt

JUDGE

Remya Madhu v. Chandini

Case brief

What is this about?

What did the court decide?

Remya Madhu v. Chandini

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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