ISMAIL Vs. P K KESAVAN
LAWS(KER)-2003-12-1
HIGH COURT OF KERALA
Decided on December 16,2003

ISMAIL Appellant
VERSUS
P K Kesavan Respondents

JUDGEMENT

- (1.) Tenant is the revision petitioner. Eviction was sought for under S.11(3) of Act 2 of 1965, before the Rent Control Court Schedule building was let out to the respondent tenant for a monthly rent of Rs. 1025/- for a period of one year from 9.2.1994.Tenanted building is situated in an important locality of Cochin City at Jews Street. Respondent tenant is conducting a fruit stall in the tenanted premises. Petitioner's son P.K. Santhosh bona fide requires the schedule building for his own business. Tenant has other buildings of his own so as to conduct bis business. Petitioner therefore sent a notice to the tenant to vacate the premises. Tenant did not vacate the premises. Hence petitioner moved the rent control petition.
(2.) Tenant resisted the petition stating that the need is not bona fide and that the attempt of the landlord is only to sell away the property after evicting the tenant. Further it was also stated that petitioner's son does not bona fide require the premises and that he is away in gulf countries. Landlord got himself examined as PW 1. Landlord's son was examined as PW-2. Exts.A1 to A4 documents were produced on the side of the landlord. Tenant got himself examined as RW-1. RW-3 is Accommodation Controller. RW-2 was also examined on the side of the tenant. Rent Control Court after examining the oral and documentary evidence came to the conclusion that the need urged by the landlord is bona fide and also held that the tenant is not entitled to get the benefit of second proviso to S.11(3) as well. The said order was confirmed in appeal by the Appellate Authority, against which this revision petition has been preferred.
(3.) When the revision petition came up for admission counsel appearing for the tenant placed reliance on the decision of the Apex Court in Koyilerian Janaki and Others v. Rent Controller, Cannanore and Others, 2000 (9) SCC 406 , and contended that since there is no pleading to the effect that son is dependent on the landlord petition for eviction is not maintainable. Counsel took us through Rent Control Petition as well as oral evidence and contended that in the absence of any pleading courts below are not justified in granting eviction. Counsel appearing for the respondent landlord on the other hand, contended that the tenant has not disputed the status of the son who is dependent on his father. Counsel also took us through the oral evidence of PW 2 son, PW 1 and also pleadings of the parties. We may refer to the Rent Control Petition wherein the need was highlighted as follows: "The petitioner's need to occupy the building for his son's business is honest, bona fide, reasonable and genuine.............. Petitioner is entitled to get an order of eviction against the respondent on the ground of bona fide need for occupation of his son P.K. Santhosh for his livelihood". In the objection the tenant has stated as follows: "The statement that the petitioner's need to occupy the building for his son's business is honest, bona fide, reasonable and genuine is utter falsehood. There is absolutely no bona fides and truth in the said need. The said need is not genuine. The need put forward is unreasonable and dishonest. Petitioner's son Shri. Santhosh and his wife are employed in a Gulf Country. He has no intention to start a business at Ernakulam". We have also gone through the oral evidence of PW-1, PW-2 and also the tenant. True, there is no specific pleading either in the petition or in the oral evidence that the son is a dependant on the landlord. Tenant has not raised a contention either before the Rent Control Court or before the Appellate Authority that the son is not dependent on the landlord and consequently the need is not bona fide. In the objection filed in the rent control petition also tenant has no case that the son is not dependent on the landlord. Tenant has no case much less any evidence adduced to show that either the landlord or his son has got other building of their own.;


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