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Ismail v. P.K Kesavan & Others
Factual and Procedural Background
The tenant is the revision petitioner challenging an eviction order. The schedule building was let to the respondent tenant before the Rent Control Court at a monthly rent of Rs. 1,025/-, for a period of one year from 9-2-1994. The tenanted premises are located at Jews Street in Cochin City and were being used by the tenant to run a fruit stall. The landlord asserted that his son, P.K. Santhosh, bona fide required the building for his business. The landlord served notice and, when the tenant did not vacate, instituted proceedings for eviction under section 11(3) of Act 2 of 1965.
The tenant resisted the petition on grounds that the landlord's need was not bona fide and alleged that the landlord intended to sell the property after eviction; it was also asserted that the landlord's son was away in Gulf countries and did not genuinely require the premises. The landlord examined himself as PW-1 and his son as PW-2 and produced documents marked Exts. A1 to A4. The tenant gave evidence as RW-1 and produced RW-2 and RW-3 (the accommodation controller) as witnesses. The Rent Control Court found the landlord's need bona fide and held that the tenant was not entitled to the benefit of the second proviso to section 11(3). The Appellate Authority confirmed that order. The tenant filed the present revision petition challenging those findings.
Legal Issues Presented
- Whether, under section 11(3) of the Act, a landlord seeking eviction for occupation by a member of his family must plead and prove (a) that the person is a member of the family, (b) that the person is dependent on the landlord, and (c) that there is a bona fide need.
- Whether the absence of a specific pleading that the dependent person (here, the landlord's son) is dependent on the landlord renders an eviction petition under section 11(3) unsustainable or requires remittal for further pleadings/evidence.
- Whether subsequent events (specifically, the landlord's death and the property devolving to the petitioner by will, making the petitioner the owner and landlord) cure any pleading defects and affect the maintainability or outcome of the eviction proceedings.
Arguments of the Parties
Tenant's Arguments
- Counsel for the tenant relied on Koyilerian Janaki v. Rent Controller (2000) 9 SCC 406 and argued that, because there was no pleading that the son is dependent on the landlord, the eviction petition was not maintainable.
- The tenant asserted in objections that "The statement that petitioner's need to occupy the building for his son's business is honest bonafide reasonable and genuine is utter falsehood" and that the son and his wife are employed in a Gulf country and have no intention to start a business at Ernakulam.
Landlord's Arguments
- Counsel for the landlord contended that the tenant had not disputed the status of the son as dependent on the landlord before the courts below, and therefore the courts were justified in granting eviction.
- The landlord's counsel pointed to the pleadings and oral evidence given by PW-1 (landlord) and PW-2 (landlord's son) to support the claim of bona fide need for the son's occupation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Koyilerian Janaki v. Rent Controller, Cannanore, (2000) 9 SCC 406 | Interprets Section 11(3): landlord must plead and substantiate three ingredients when seeking eviction for occupation by a family member — (1) that the person is a member of the landlord's family, (2) that the person is dependent on the landlord, and (3) that there is a bona fide need. | The court relied on this decision to explain the pleading requirement. It noted that there was no specific pleading of dependency in the present case but observed that the tenant did not contest dependency before lower courts. |
| Kizhakkayil Suhara v. Manhantavida Aboobacker, 2001 (2) RCR 490 | Reiterates that Section 11(3) permits eviction for bona fide need for occupation by a family member only if that family member is dependent on the landlord; dependency must be shown and examined. | Cited to show that dependency is a required element; the Apex Court in that matter remitted the question of dependency for factual examination. The present court cited it for the proposition that dependency must be shown. |
| Omkar Nath v. Ved Vyas, (1980) 4 SCC 270 : AIR 1980 SC 1218 | Holds that a landlord seeking ejectment must plead and prove the ingredients specified in the statute; the statute is protective of tenants and its restrictions must be strictly construed. | Relied upon for the general principle that the landlord must plead and prove statutory ingredients for eviction under the rent control law. |
| Krishna Iyer v. Parvathy Ammal, 1988 (2) KLJ 156 | Affirms that pleadings form the foundation of the case; parties are bound by their pleadings; a matter not pleaded should not normally be allowed to be proved. However, if lack of pleading causes no prejudice, relief need not be denied on that ground. | The court cited this decision to balance the pleading requirement with the absence of prejudice: it recognized the lack of pleading as to the son's dependency but concluded that subsequent events and absence of prejudice permitted upholding the eviction. |
Court's Reasoning and Analysis
The court proceeded methodically:
- Examination of pleadings and evidence: The court reviewed the rent control petition and the tenant's objection. The petition contained assertions that the building was needed for the landlord's son P.K. Santhosh for his livelihood; the tenant's objection denied the bona fides and asserted the son was employed in the Gulf and had no intention to start a business locally.
- Pleading on dependency: The court observed that there was "no specific pleading either in the petition or in the oral evidence that the son is a dependent on the landlord." The court also noted that the tenant did not, before the Rent Control Court or the Appellate Authority, raise a specific contention that the son was not dependent, nor adduce evidence showing the landlord or his son had other buildings.
- Legal principles from precedents: The court summarized and applied higher court authorities establishing that when eviction is sought for a family member's occupation under section 11(3), the landlord must plead and substantiate three ingredients — family membership, dependency, and bona fide need. The court accepted the principle that pleadings are foundational and that dependency is a material ingredient which should ordinarily be pleaded.
- Assessment of prejudice and subsequent events: While recognizing the lack of pleading about dependency (and agreeing there was a pleading defect), the court applied the principle that absence of meticulous pleadings does not automatically defeat relief where no prejudice results to the opposite party. The court then took account of subsequent events: while the matter was pending, the original landlord died and the property devolved to the petitioner pursuant to a will, making the petitioner the owner and landlord himself. The court concluded that the petitioner was therefore not a dependent at that point but the owner/landlord, and that this change removed any prejudice stemming from the earlier pleading deficiency.
- Conclusion drawn from facts and law: On the combined consideration of the evidence, the tenant's failure to challenge dependency earlier, and the change in ownership (patently altering the dependency question), the court found the bona fide need established and held that the pleading defect did not require rejection of the eviction petition or remittal to the Rent Control Court.
Holding and Implications
Holding: The court dismissed the revision petition and upheld the orders of the Rent Control Court and the Appellate Authority. The revision is thus refused and the eviction orders are sustained.
Implications and direct effects:
- The tenant is granted time up to 31-3-2004 to vacate the premises, on condition that the tenant files an undertaking before the Rent Control Court within one month that he will vacate by that date and that he will pay any arrears of rent and also future rent.
- The court treated the subsequent succession of the property (landlord's death and the property ensuing to the petitioner under a will) as operative to remove the prejudice that might have flowed from inadequate pleadings regarding dependency.
- The opinion applies and relies upon existing precedents concerning the pleading and proof of dependency under section 11(3) but does not purport to lay down a novel legal principle; it resolves the dispute on the particular facts (including the succession event) and the established law.
Radhakrishnan, J.:— Tenant is the revision petitioner. Eviction was sought for under section 11(3) of Act 2 of 1965. Schedule building was let out to the respondent tenant before the Rent Control Court 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 bonafide requires the schedule building for his own business. Tenant has other building of his own so as to conduct his business. Petitioner therefore sent a notice to the tenant to vacale 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 required 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.
3. 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 section 11(3) as well. The said order was confirmed in appeal by the Appellate Authority, against which this revision petition has been preferred.
4. 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 v. Rent Controller, Cannanore, (2000) 9 SCC 406 and contended that since there is no pleading to the affect that son is dependant 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 oh the other hand contended that the tenant has not disputed the status of the son who is dependant 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 has 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 petitioner's need to occupy the building for his son's business is honest bonafide reasonable and genuine is utter falsehood. There is absolutely no bonafides 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.”
5. 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 dependent 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 bonafide. 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.
6. Counsel appearing for the tenant Shri T.M Abdul Latheef submitted it is bounden duty of the petitioner landlord to plead and prove that the son is a dependent on the landlord for a building for his occupation. In this connection we may refer to the decision of the Apex Court cited before us on the question of pleadings regarding dependency where in the Apex Court examined the question as to whether daughter and son-in-law, both medical practitioners are dependent on the landlord. Landlady moved application for eviction stating that she bona fide need the building for occupation of her married daughter and son-in-law who are medical practitioners after demolishing the premises for reconstruction. Rent Control Court found there is no relationship of landlord-tenant between the parties and dismissed the petition. Appellate Authority however, allowed the appeal and held that the need urged by landlady is bona fide. Tenant filed revision before the District Judge. District Judge found that the landlady has neither pleaded the material ingredients of Section 11(3) of the Act in her petitioner for eviction not led any evidence in that respect. Revision was accordingly allowed and the order of the Appellate Authority was set aside. The High Court however under Article 227 of the Constitution interfered with the order of the District Judge and set aside the order. Tenant took up the matter in appeal before the Apex Court. Apex Court examined the language of Section 11(3) and the question of dependency and held as follows:
“Language of Section 11(3) of the Act is plain and simple and there is no ambiguity in it. A perusal of Section 11(3) shows that if the landlord is in bona fide need of the building for occupation by any members of the family dependent on him he may apply to the Rent Control Court for eviction of the tenant. Thus where eviction of a tenant is sought by a landlord for occupation of any member of his family, the landlord is required to plead and substantiate three ingredients. Firstly, a person for whose need the premises are required is a member of the landlord's family. Secondly, such member of the family is dependent on the landlord and thirdly, there is a bon fide need. In the absence of any one of the three ingredients, the petition by a landlord under Section 11(3) would fail. In the present case, what we find is that, there was pleading to the effect that the building is needed for the married daughter and son-in-law. However, there is no pleading as regards the fact that the married daughter and the son-in-law are dependent on the landlady. The word “family” has not been defined in the Act. However, for the sake of argument we may assume that the married daughter and son-in-law are members of the landlady's family. In that case the landlady has to further plead and substantiate that they are dependent on her. Unless it is pleaded that the married daughter and the son-in-law are dependent on the landlady, a petition under Section 11(3) of the Act cannot succeed on the mere allegation that the building is needed for the occupation of the married daughter and the son-in-law. We are, therefore, of the view that in the absence of any pleading that the married daughter and the son-in-law are dependent on the landlady the appellate court was not justified in allowing the petition of the landlady on the ground that the landlady bona fide required the building for occupation of her married daughter and son-in-law.”
7. We may also refer to another decision of the Apex Court in Kizhakkayil Suhara v. Manhantavida Aboobacker, 2001 (2) RCR 490. Question urged before the Apex Court was whether the daughter and son-in-law of the landlord, with three children living separately, could be said to be dependent on the landlord. Apex Court noticed that a plain reading of Section 11(3) shows that it enables a landlord to seek possession of the building from his tenant by making an application tot the Rent Control Court if he bona fide needs the building for his own occupation or for the occupation by a member of his family dependent on him. The sub-section takes note of not only bona fide need of the landlord but also the need of the members of his family dependent on him. Where the landlords bona fide needs the building not for his own occupation but for occupation of a member of his family, it must be shown that such a member of his family is dependent on him. Ultimately Apex Court remitted the matter to District Judge to examined the question whether the landlord's daughter who own residential and non-residential buildings is dependent on the landlord. Apex Court in Omkar Nath v. Ved Vyas, (1980) 4 SCC 270 : AIR 1980 SC 1218 held that a landlord seeking ejectment of his tenant from the residential building for his own occupation has to plead and prove the ingredients specified in the section. The statute being designed to protect tenant from unreasonable eviction it has taken care to put restriction, which must be rigorously construed to fulfill the purpose of the statute.
8. In Krishna Iyer v. Parvathy Ammal, 1988 (2) KLJ 156 this court held that pleadings of the parties from the foundation of their case on which issues are raised, evidence let in and findings arrived at for deciding litigations. Parties are bound by pleadings. A case not set up cannot be allowed to be proved. If evidence is let in outside the pleadings, it cannot normally be looked into. From the pleadings the opposite party must know what is the case he has to answer and prove. On taking the entire circumstances emerged in the case, if the Court feels that no prejudice has been caused to the counter petitioner tenant due to lack of pleadings of the petitioner, it is not proper to deny the relief to the petitioner on the ground that there is no pleading. What emerges is that a landlord may apply to the rent Control Court for an order of eviction if the bona fide needs the building for his own occupation or the landlord bona fide needs the building for occupation by any member of his family dependent on him. Dependency does not mean financial dependency but dependency for the building, which belongs to the landlord. In our society generally son, daughter, son-in-law, daughter-in-law, brother, sister etc. are members of the family and would in many cases depend upon the head of the family. The Kerala Rent Control Act does not define the term ‘family’. But what constitutes the family in a society depends upon ancestry, birth, blood relations, common lineage, line of descent and the habits and ideas of persons constituting the family. In short its ambit has to be determined with regard to the socio-economic mileu of the parties. But there must be sufficient pleading that they are dependent upon the landlord, so that, in a given case, the tenant could disprove the dependency showing that the landlord or dependent has got their own building in their possession and hence there is no dependency. Though meticulous pleadings may not be insisted upon though landlord has to plead-material averments, that is, all the ingredients that are necessary to constitute the grounds for eviction under section 11(3) of which dependency is also material. In other words, the pleadings must be such that essential materials which constitute the ground pleaded must be projected lest it may cause prejudice to the tenant. So far as this case is concerned we are in agreement with the counsel for the tenant that there is lack of pleading with regard to the dependency of the son.
9. However, we may hasten to add as far as this case is concerned we need not reject the eviction petition for the sole reason that there is no proper pleadings and we need not accept the contention of the tenant that the matter is to be remitted back to the Rent Control Court. This case can be disposed of taking note of the subsequent events. While the matter was pending before the Appellate Authority the landlord dies and the property has ensured to the petitioner as per a will executed by the father. In other words, he is not a dependent now, but the owner and the landlord himself. Consequently lack of pleading would not cause any prejudice to the tenant since the bona fide need has been established.
10. Under such circumstance we are inclined to uphold the order of the Rent Control Court and Appellate Authority and dismiss the revision. Considering the entire facts and circumstances of the case we feel it is only just and proper to grant time to the tenant up to 31-3-2004 for vacating the premises provided he files an undertaking before the Rent Control Court within one month that he would vacate the premises within the aforesaid time and that he would pay arrears of rent if any and also future rent.
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