C P HARIDAS Vs. NADUVILAKANDYIL LEELA

JUDGEMENT

(1.) Under challenge in this revision petition filed by the tenant is order of eviction concurrently passed against him by the Rent Control Court and the Appellate Authority on the ground under sub Section 3 of Section 11. The need projected in the Rent Control Petition which was filed by six sisters (respondents 1 to 6) was that the building which is situated in Perambra town is needed bona fide for the occupation of Babu, the son of the third respondent Santha. The landladies had invoked the ground of arrears of rent also. But it is conceded at the Bar that the said ground no longer survives for consideration.

(2.) The revision petitioner resisted the Rent Control Petition by filing objections. The bona fides of the need projected was strongly disputed. It was contended inter alia that Sri.Babu, the dependant family member was already conducting the same line of business in Kannur and that the claim under section 11(3) has been projected as a ruse for getting enhancement. It was also contended that the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11. The RCP was enquired into by the Rent Control Court and in the enquiry the evidence consisted of Exts.A1 to A6, B1 to B9 PWs.1 and 2 and RW1. PW1 was the sixth respondent and PW2 was none other than Babu the de facto claimant. RW1 was the tenant. It came out in evidence that the third respondent, mother of PW2 was having at Kannur, textile business under the name and style "Puthuma Textiles". The Rent Control Court on evaluating the evidence came to the conclusion that the need projected in the RCP is bona fide. According to that court even if PW2's mother was having her own textile business in Kannur that is not a circumstance militating against the bona fides of the need projected. The court also came to the conclusion that the tenant was unsuccessful in showing that the two ingredients of the second proviso to sub Section 3 are satisfied in favour of the tenant. Accordingly, order of eviction was passed under sub Section 3 of Section 11. The Rent Control Appellate Authority considered the appeal filed by the revision petitioner. That authority re-appraised the entire evidence and would concur with all the conclusions of the Rent Control Court. Accordingly, order of eviction was confirmed and the appeal was dismissed.

(3.) In this revision under Section 20, the tenant has raised various grounds assailing the judgment of the Appellate Authority. Sri.P.V.Kunhikrishnan, the learned counsel for the revision petitioner addressed very strenuous arguments before us on the basis of the grounds raised. All the arguments of Mr.Kunhikrishnan were stiffly resisted by Sri.P.V.Surendranath, the learned counsel for the respondents. Sri.Kunhikrishnan drew our attention to the averments in the Rent Control Petition and submitted that the case projected in the Rent Control Petition is that Babu/PW2 was without any job or avocation whereas the case which became evident is that Babu was looking after his mother's textile business in Kannur. According to Mr.Kunhikrishnan since the evident is different from the case that was pleaded, prejudice has been caused to the revision petitioner. It is not the case which has been proved and accepted that was pleaded and the revision petitioner was called upon to answer. If the pleading was that Babu is looking after his mother's business at Kannur then it would have been possible for the revision petitioner to raise proper pleadings to substantiate that the need projected in the RCP is not bona fide. For want of proper pleadings on the part of the revision petitioner, prejudice has been caused and hence, eviction order passed against the revision petitioner has become vitiated. In support of his argument Mr.Kunhikrishnan relied on the judgment of this Court in Vimala R. Thampi v. Hashim (1986 KLT Short Notes 20) and argued that it has been clearly laid down in that decision that the factual foundation for the grounds taken up by a landlord must find a place in a petition, as, otherwise the tenant will be prejudiced by the absence of such facts in the petition. Mr.Kunhikrishnan also relied on the un-reported judgment of this Court in RCR.89/07 to which one among us [PCK(J)] was party and submitted that the judgment of the Appellate Authority and the order of the Rent Control Court be set aside and the matter be at least remitted back to the Rent Control Court giving opportunity to both sides to amend their pleadings.