PRASANNAN Vs. HARIS

JUDGEMENT

(1.) Can a legatee under the Will claim the status of a tenant if he is also one of the legal heirs, can a heir of the statutory tenant claim all the benefits entitled to the statutory tenants, what are the effect of subsequent events in a rent control petition under the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') etc. are some of the questions to be decided in this case. Before dealing with the above issues, we may, briefly, narrate the facts. R.C.P. No. 103 of 1986 was filed by the first respondent herein seeking eviction of the petition schedule building contending that no rent was paid from October, 1965, and, therefore, tenant is liable to be evicted under Section 11(2)(b) of the Act. It was also contended that first respondent herein was employed in Saudi Arabia and his future in Saudi Arabia was uncertain. Since his employment could be terminated at any time, he wanted to start a garment business in the petition schedule building. He had necessary funds for starting the business and he had no other building for starting the said business. Hence, he sought eviction under Section 11(3) of the Act. The rent control petition was allowed under Section 11(2)(b) on the ground of arrears of rent by order dated 26-8-1987. But, no order of eviction was granted under Section 11(3). In R.C.A. No. 223 of 1989 the rent control appellate authority confirmed the order. During the pendency of the appeal petition, landlord returned from Saudi Arabia as his services were terminated. He came back permanently to settle down in Kannur. In the affidavit filed before the appellate authority, the landlord affirmed as follows :

(2.) A revision application was filed as C.R.P. No. 529 of 1992. During the pendency of the revision application, original tenant died and his widow as well as his children (heirs) were impleaded. This court remanded the matter back. While remanding the matter, a Division Bench of this court observed as follows :

(3.) After remand, the landlord was examined as PW2 and marked Exts. A5 to A10. Exts. A1 to A4 documents were marked in the original proceedings. Revision Petitioner was again examined and marked Exts. B1 to B5 documents. He also examined RW2 after remand. Exts. C1 to C3 documents are Commissioner's report and plan. The rent controller found that the landlord has established the bonafide need for own occupation, but refused eviction finding that tenant is entitled to protection under the second proviso to Section 11(3) of the Act. Tenant's plea of getting protection under Section 11(17) was rejected. The landlord filed appeal. Cross-objection was filed by the tenant. The appellate authority allowed the appeal filed by the landlord. While agreeing with the rent control court that bonafide need of the landlord was proved and tenant is not entitled to the benefit of Section 11(17), it was held that legal representative, even though can prosecute the claim, cannot take the defences which were not available for the original tenant in view of Order 20II, rule 4, sub-rule (2) of the Code of Civil Procedure. Under the Rent Control Act, Section 146 and Order 20II of CPC are applicable to the rent control proceedings also, and, therefore, impleaded parties as legal representatives of the tenant cannot take up the defences which were not available to the original tenant and original tenant was not entitled to the protection under the second proviso to Section 11(2) and hence eviction was ordered under Section 11(3) of the Act. Against this, this revision application was filed by the petitioner who was impleaded as the 6th respondent, one of the sons of the original tenant.