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2020 Supreme(Ker) 51
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.HARILAL, C.S.DIAS, JJ.
IN RCP: N.T.Thomas (Wrongly Shown As M.T. Thomas, S/o. Thomas) – Appellant
Versus
Suresh Pai, S/o. Mohandas, Sreenivasa – Respondent
RCRev. No.317 of 2019
Decided on : 31-01-2020
Advocate Appeared:
For the Appellant : SRI.P.B.KRISHNAN, SRI.P.M.NEELAKANDAN, SRI.P.B.SUBRAMANYAN, SRI.SABU GEORGE, SRI.MANU VYASAN PETER
SMT.MEERA P.
For the Respondent: SRI.T.P.PRADEEP, SRI.S.SREEDEV, SRI.P.K.SATHEES KUMAR, SMT.NITHYA VIJAYAN, SMT.MINIKUMARY M.V., SRI.K.RAMACHANDRAN
IMPORTANT POINTS
• The non-examination of the respondent who wants the shop room for his bona fide need and the conspicuous absence of pleadings that the power of attorney holder is a dependent of the respondent, the same are fatal to the RCP.
• Unlike the bona fide employed under Section 11(3), 11(7) and 11(8) of the Act, the bona fides of the facts constituting the statutory requirement under Section 11(4)(iv) of the Act can be proved by other evidence, without examining the landlord himself.
Headnote:
Kerala Buildings (Lease and Rent Control) Act, 1965- Section 11(2)(b) and -11(3)- The respondent needs the shop room for his own bona fide need, and that power of attorney holder has described herself as the respondent at many places in the R.C.P and further the refusal of the respondent to mount the box and give evidence to prove his case have all proved fatal Unlike the bona fide employed under Section 11(3), 11(7) and 11(8) of the Act, the bona fides of the facts constituting the statutory requirement under Section 11(4)(iv) of the Act can be proved by other evidence, without examining the landlord himself.
Statement of facts:
Challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Changanassery in RCP No.10/2015-The respondent had filed the rent control petition against the revision petitioner, through his wife and power of attorney holder Smt.Asha Pai, seeking an order of eviction of the petition schedule shop room under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965
• Whether the landlord or his dependent has to be examined in a proceeding for eviction filed under Section 11(3) of the Act?
• Can the pleadings be signed by the power of attorney holder in an individual capacity without stating that she is the agent of the landlord?
Finding of the court:
The respondent needs the shop room for his own bona fide need, and that power of attorney holder has described herself as the respondent at many places in the R.C.P and further the refusal of the respondent to mount the box and give evidence to prove his case have all proved fatal. We are of the opinion that the concurrent findings of the courts below are erroneous, improper and irregular. The courts below have passed the judgment and order without considering the authoritative precedents on the question of the bona fide need under Section 11(3) of the Act.
Result: Allowed
ORDER :
Dias, J.
The revision petitioner is the appellant in RCA No.6 of 2017 of the Rent Control Appellate Authority (for brevity hereinafter referred to as 'Appellate Authority'), Kottayam. The respondent in this Rent Control Revision is the respondent in the above appeal.
2. This rent control revision is filed challenging the concurrent findings of the Appellate Authority and the Rent Control Court, Changanassery in RCP No.10/2015. The parties are for the sake of convenience, referred to as per their litigate status in this rent control revision as 'revision petitioner' and 'respondent.'
3. The respondent had filed the rent control petition (hereinafter referred to as 'RCP') against the revision petitioner, through his wife and power of attorney holder Smt.Asha Pai, seeking an order of eviction of the petition schedule shop room (hereinafter referred to as 'shop room') under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'Act').
4. The case of the respondent before the Rent Control Court, shorn of exhaustive pleadings, was as follows: the respondent's husband is the landlord of the shop room. The shop room is given on rent to the revision petitioner, who is running a business under the name 'Union Upholstery.' The monthly rent for the shop room is fixed at Rs.300/-per month. The shop room had devolved on the respondent's husband by will deed bearing No.104/2003 of the Sub-Registry Office, Changanassery. The factum of inheritance was informed to the revision petitioner. From November 2013 onwards, the revision petitioner has stopped paying rent to the respondent and his wife. Thus, the revision petitioner has committed default in payment of rent. The respondent is employed abroad. It is the respondent’s wife who is managing the business for and on behalf of her husband. The shop room is needed for the respondent's wife's business. The respondent demanded the revision petitioner to give vacant possession of the shop room and to pay the entire arrears of rent. Despite issuing notice to the revision petitioner, he has refused to vacate the shop room. He also did not send any reply notice. The respondent’s wife is running a petrol pump. In connection with the above business, she proposes to start a business of vehicle accessories. For the said purpose, the shop room is required. The respondent has no vacant buildings. There are other vacant rooms available in the locality, suitable for the revision petitioner to shift his business. So, no harm would be caused to the revision petitioner by shifting the business from the shop room. Hence the RCP is filed.
5. The revision petitioner contested the proceedings. He filed a written objection, inter alia, contending as follows: He is conducting upholstery business in the shop room for over 40 years. The shop room was taken on lease by him from one Sri.Venketeswara Pai. He has denied the allegations in the RCP. He has also denied the allegation that he had taken the shop room from the respondent and his wife. It is his case that Sri.S.Venketeswara Pai and his wife Manorama Pai were collecting rent from him. Venketeswara Pai was running a petroleum retail outlet. The respondent is the nephew of Venketeswara Pai. The respondent is working in Africa for the last 15 years. No valid notice terminating the lease has been issued. The shop room has an area of less than 100 sq.ft, which is not suitable for the respondent's business. The revision petitioner had sent rent by money order to the landlord, but the same was returned 'unaccepted.' Neither the respondent nor his power of attorney holder has demanded rent from the revision petitioner. The respondent is conducting a petrol pump in Changanassery, Kayamkulam, and other various places. He is a Mechanical Engineer by profession. The bona fide need projected by the respondent is only a ruse for eviction.
6. The revision petitioner further averred that he is depending on the income deri
