NELLERICHALIL GOVINDAN (DIED) AND ORS. Vs. THUNDIKKOTH NUCHUNTHODI

JUDGEMENT

(1.) Under challenge in this revision filed by the landlords (legal representatives of the original landlord) is the judgment of the Rent Control Appellate Authority dismissing a Rent Control Appeal preferred by the original landlord against an order dismissing a Rent Control Petition. Though the grounds of arrears of rent and bona fide need for own occupation were invoked, it is submitted at the Bar that in this revision we need be concerned only with the ground under Section 11(3). The need projected by the original landlord under Section 11(3) was that the building is required for occupation by his son Shajan (revision petitioner No. 7) so that Sri. Shajan can conduct a provision store. The bona fides of the need was disputed by the tenant who contended that the need is not bona fide. It was also contended that Sri. Shajan is having other sources of income and it was also contended that even if there is need there are other buildings in the possession of the landlord which can be provided to Sri. Shajan. The tenant also claimed that he is entitled to the protection of the second proviso to Sub-section 3 of Section 11. Before the Rent Control Court the original landlord was examined as PW1. In fact, the landlord had filed another Rent Control Petition in respect of the adjacent room on the ground that, that room is required for the occupation of this another son who is the sixth petitioner as RCP.206/95 by name Sudikumar. In that case also there was contest and the Rent Control Court tried both the Rent Control Petitions jointly. At trial, evidence consisted of PWs.1 to 5 RWs.1 and 2 apart from Exts.A1 to A12 and B1. Ext.B1 was property tax assessment register maintained by the Chelora Panchayath in respect of four buildings. As per Ext.B1 two rooms are vacant. But Ext.B1 itself showed that these buildings did not belong absolutely to the landlord but it belonged in common to the landlord and his two brothers. The learned Rent Control Court on appreciating the evidence came to the conclusion that the need is not bona fide. According to that court, the very idea of the father requiring two adjacent rooms occupied by the tenants for the purpose of two sons for doing the same business is irrational and not bona fide. The court also relied Ext.B1 and noticed that Room Nos. 371 and 372 shown therein are vacant buildings. According to the court, there was no special reason for the landlord to have tried to evict the revision petitioner when those rooms are available. It was found that the need was not bona fide. It was also found that the first proviso to Sub-section 3 of Section 11 operates against the landlord. Second proviso however was decided by the Rent Control Court in favour of the landlord. However, in view of the findings regarding the bona fides of the first proviso, the RCP was dismissed. The landlord preferred appeal and the learned Appellate Authority under the impugned judgment has found that the need is bona fide. Referring to the judgment of a Division Bench of this Court in Asher v. Hassankutty Hajee, 2004 2 KerLT 446 the learned Appellate Authority would reverse the finding of the Rent Control Court in the context of the first proviso. It was held that Room Nos. 370 and 371 did not belong absolutely to the landlord and hence, the first proviso will not operate against the landlord. The Rent Control Appellate Authority would confirm the finding of the Rent Control Court regarding the second proviso. In spite of all this, the Appellate Authority did not allow the RCA and order eviction. The Rent Control Appellate Authority noticed that it had not been pleaded in the Rent Control Petition that Shajan/PW2 is a "dependant" of the landlord. According to the Appellate Authority, such a pleading is essential for successfully maintaining a Rent Control Petition under Sub-section 3 of Section 11. On that reason alone, the Rent Control Appellate Authority confirmed the negative order passed by the Rent Control Court and dismissed the RCA.

(2.) In this revision under Section 20, various grounds are raised assailing the judgment of the Appellate Authority and we have heard submissions of Sri. T.P. Sajid, the learned Counsel for the revision petitioners and those of Sri. K. Babu, the learned Counsel for the respondents. Sri. Sajid would read over to us the Rent Control Petition as well as the statement of objections filed to the same by the tenant. He submitted that it was not contended at all by the tenant that Shajan/PW2 was not a dependant on his father. Dependency in the context of Section 11(3) is mainly dependency for getting a building and not for financial dependency. In evidence also it was never suggested even that Shajan is not a dependant of the father. According to Sri. Sajid, it has been contended by the tenant in his objections that if the need is bona fide, it is open to the original petitioner/landlord to accommodate Shajan in any of the two rooms covered by Ext.B1. This contention will reveal that the tenants are admitting that Shajan is a dependant of his father.

(3.) Sri. K. Babu, the learned Counsel for the respondents would support the judgment of the Appellate Authority on the reasons stated therein. Sri. Babu submitted that at any rate, the judgment of the Appellate Authority and the proceeding before the Appellate Authority are vitiated on account of a vital error. Placing strong reliance on the judgment in Sadasivan Chettiar v. Rajendran, 2005 1 KerLT 653, Sri. Babu submitted that appeal had abated as against the legal representatives of the original tenant. No application for setting aside the abatement had been filed. Only an application for impleadment and another application for consequential amendment were filed. According to the learned Counsel, what is stated in para 7 and 8 of the above judgment is that when an appeal abated as against the deceased original tenant merely because an impleadment application was allowed, the effect of the abatement which had already settled will not be got over. Counsel submitted that life cannot be infused into a dead cause by a wrong order passed on the impleadment application and the amendment application. The judgment of the Appellate Authority has become vitiated and according to Sri. Babu the above judgment of the Appellate Authority cannot have any consequence.