Antony Dominic, J.
The tenant in RCP No.154/2003 is the revision petitioner. The
respondents herein filed the Rent Control Petition on the allegation
that pursuant to a lease agreement dated 1/9/99 executed by the
respondent, the second petitioner who was the then owner of the
building, leased out the building for a period of 11 months and the
tenant continued to occupy the same.. Subsequently, by settlement
deed No.1318/2002 of Maradu Sub Registry, the building was
transferred to the first petitioner which was also intimated to the
tenant. It was alleged that the first petitioner's husband who was
working in Acme Manufacturing Company Limited, Mumbai retired from
service on 30/4/01 and was residing at their house at Panakkattampilly
Road. After the return of the first petitioner and her family from
Mumbai, her husband had an idea to start a power laundry and dry
cleaning business in the petition schedule premises and on the ground
under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act,
petitioners sought eviction of the revision petitioner tenant. It was also
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alleged that though the tenant was instructed to pay rent to the
second petitioner's mother, who had authorisation to issue receipt
acknowledging payment, the tenant had defaulted payment of rent,
warranting eviction under Section 11(2)(b) of the Act.
2. The Revision petitioner contested the proceedings denying
the need urged by the landlord. According to the revision petitioner,
the first petitioner and her husband were still working in Mumbai and
earning high income. It was also stated that they had no intention to
start any business. According to him, he had not defaulted in the
payment of rent and the second petitioner was declining to accept
whenever payment was tendered. He also stated that the building was
not suitable for setting up the business of power laundry and dry
cleaning. He also alleged that the landlords had demanded a huge
rent of Rs.1500 per month and a security deposit of Rs.1 lakh for
which he was not amenable and that the bonafide need now urged was
only to get him evicted from the building.
3. The Rent Control Court by its order dated 31.5.2004,
granted eviction under Section 11(2)(b) of the Act and the prayer for
eviction under Section 11(3) was disallowed. The landlords thereupon
filed RCA 102/04 before the Rent control Appellate Authority and the
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Appellate Authority disposed of the appeal by its judgment dated
31.3.2006 setting aside the rejection of the prayer for eviction under
Section 11(3) of the Act and allowing the same. The tenant was
directed to vacate the premises within two months. It is aggrieved by
the order of eviction under Section 11(3) granted by the Appellate
Authority that the tenant has filed this revision petition.
4. At the time of hearing, the only ground urged by the
counsel for the revision petitioner/tenant was that there was no
material before the Rent control Court or the Appellate Authority that
the husband of the first petitioner for whose occupation eviction was
sought, was a member of the family depending upon the first
petitioner, the landlord. According to counsel eviction under Section
11(3) can be sought by a landlord only for his own occupation or for
the occupation by any member of his family dependent on him. It was
contended that unless dependency is pleaded and proved, eviction
cannot be claimed and therefore the order of the Rent Control
Appellate Authority, granting eviction under Section 11(3) was
unsustainable.
5. On the other hand, the counsel for the landlords contend
that the parties joined issue before the Rent Control Court and the
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Appellate Authority on the basis that the husband for whose
occupation eviction was sought is a dependant of the first petitioner
landlord. Although the counsel has fairly conceded that there is no
express pleading of dependency in the petition, according to him, in
view of the materials placed and the evidence adduced, no prejudice
has been caused to the revision petitioner/tenant. He also contended
that a metriculous evaluation of the pleadings, is not necessary in a
summary proceedings under the Kerala Buildings (Lease and Rent
Control) Act, 1965.
6. We have considered the submissions made by both sides.
7. We have been referred to the pleadings in the Rent Control
Petition and we note that there is no pleading in the Rent control
petition that the husband of the first petitioner, the landlord, is
dependant upon the first petitioner. This aspect has been dealt with by
the Rent Control Court. According to the Rent Control Court, the
absence of clear pleading that the first petitioner's husband is a
dependant is also a sufficient reason for holding that the petitioners
could not satisfy the requirements of Section 11(3). However, the
Rent Control Appellate Authority, has held that it is not necessary to
say that the husband of the petitioner is a dependant of the first
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petitioner. According to the Rent Control Appellate Authority, the
petitioner's husband being the family member, there is no need to put
forward a pleading that he is a dependant of her to get vacant
possession of the petition schedule room. It is on that basis that the
Rent Control Appellate Authority has overruled the finding of the Rent
Control Court and ordered eviction.
8. In our view, the approach of the Rent Control Court is the
correct one. A reading of Section 11(3) of the Act discloses that, a
landlord can seek eviction either for his own occupation or for the
occupation of any member of his family "dependant" on him. Therefore
the section contemplates eviction only if a member of the family for
whose benefit eviction is sought provided such member is a dependant
of the landlord. A family can have a member, who is not a dependant
of the landlord and in which case Section 11(3) cannot be pressed into
service. The requirement of the section can be satisfied only if it is
pleaded and proved that the concerned member of the family is
dependant on the landlord. As rightly pointed out by the Rent control
Court and disclosed in the Rent Control Petition itself, there is no
pleading in this regard and therefore, in our view, the petition does not
satisfy the requirements of Section 11(3) of the Act. We also hold the
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view that the approach of the Rent control Appellate Authority is
patently erroneous. The mere reason that the husband is a member of
the family, does not presuppose that the husband is a dependant of
the wife. The fact of membership in the family does not satisfy the
requirement of Section 11(3) and hence we cannot agree with the
conclusion of the Rent control Appellate Authority in this regard.
9. Learned counsel for the revision petitioner/tenant referred
us to the Division Bench decision of this Court in Prathapan v. P.R Rama Warrier (2004(2) KLT 559), where it has been held that
dependency is a matter to be proved by proper pleadings and that in
the absence of which, the finding under Section 11(3) cannot be
sustained. We fully concur with the law laid down by the Division
Bench and hold that the pleadings in the Rent control petition does not
satisfy the requirement of this Section.
10. As we have already noted the counsel for the landlord
submitted that a metriculous evaluation of the pleadings, is not
necessary in a summary proceedings under the Kerala Building (Lease
and Rent Control) Act, 1965. He also referred us to the judgment of
this Court in Shaji Varghese v. P.C Cherian (1993(1) KLT 133).
Though we agree with this, we should add that what is required to be
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proved as per the express words of the section cannot be
compromised and to that extent proper pleadings are required to be
made and evidence would also be led and in the absence thereof, a
petition is bound to fail. In this case, the essential requirement of
Section 11(3), is dependency of the member of the family. That
essential fact has not been pleaded or proved and therefore the
petition is bound to fail.
11. In the result, we set aside the judgment of the Rent
Control Appellate Authority in RCA 102/2004 and restore the order of
the Rent control Court in RCP 154/2003.
The Revision petition will stand allowed.
P.R.RAMAN, JUDGE.
ANTONY DOMINIC, JUDGE.
Rp