Kerala High Court · 2007

P.R.RAMAN & ANTONY DOMINIC, JJ.========================R.C.R NO.313 OF 2006======================Dated this the 13th day of April, 2007O R D E RAntony Dominic, J.The tenant in RCP No.154/2003 is the revision petitioner. Therespondents herein filed the Rent Control Petition on the allegationthat pursuant to a lease agreement dated 1/9/99 executed by therespondent, the second petitioner who was the then owner of thebuilding, leased out the building for a period of 11 months and thetenant continued to occupy the same.. Subsequently, by settlementdeed No.1318/2002 of Maradu Sub Registry, the building wastransferred to the first petitioner which was also intimated to thetenant. It was alleged that the first petitioner's husband who wasworking in Acme Manufacturing Company Limited, Mumbai retired fromservice on 30/4/01 and was residing at their house at PanakkattampillyRoad. After the return of the first petitioner and her family fromMumbai, her husband had an idea to start a power laundry and drycleaning business in the petition schedule premises and on the groundunder Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act,petitioners sought eviction of the revision petitioner tenant. It was also RCR 313/2006: 2 :alleged that though the tenant was instructed to pay rent to thesecond petitioner's mother, who had authorisation to issue receiptacknowledging 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 denyingthe need urged by the landlord. According to the revision petitioner,the first petitioner and her husband were still working in Mumbai andearning high income. It was also stated that they had no intention tostart any business. According to him, he had not defaulted in thepayment of rent and the second petitioner was declining to acceptwhenever payment was tendered. He also stated that the building wasnot suitable for setting up the business of power laundry and drycleaning. He also alleged that the landlords had demanded a hugerent of Rs.1500 per month and a security deposit of Rs.1 lakh forwhich he was not amenable and that the bonafide need now urged wasonly 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 foreviction under Section 11(3) was disallowed. The landlords thereuponfiled RCA 102/04 before the Rent control Appellate Authority and the RCR 313/2006: 3 :Appellate Authority disposed of the appeal by its judgment dated31.3.2006 setting aside the rejection of the prayer for eviction underSection 11(3) of the Act and allowing the same. The tenant wasdirected to vacate the premises within two months. It is aggrieved bythe order of eviction under Section 11(3) granted by the AppellateAuthority that the tenant has filed this revision petition.4.At the time of hearing, the only ground urged by thecounsel for the revision petitioner/tenant was that there was nomaterial before the Rent control Court or the Appellate Authority thatthe husband of the first petitioner for whose occupation eviction wassought, was a member of the family depending upon the firstpetitioner, the landlord. According to counsel eviction under Section11(3) can be sought by a landlord only for his own occupation or forthe occupation by any member of his family dependent on him. It wascontended that unless dependency is pleaded and proved, evictioncannot be claimed and therefore the order of the Rent ControlAppellate Authority, granting eviction under Section 11(3) wasunsustainable. 5.On the other hand, the counsel for the landlords contendthat the parties joined issue before the Rent Control Court and the RCR 313/2006: 4 :Appellate Authority on the basis that the husband for whoseoccupation eviction was sought is a dependant of the first petitionerlandlord. Although the counsel has fairly conceded that there is noexpress pleading of dependency in the petition, according to him, inview of the materials placed and the evidence adduced, no prejudicehas been caused to the revision petitioner/tenant. He also contendedthat a metriculous evaluation of the pleadings, is not necessary in asummary proceedings under the Kerala Buildings (Lease and RentControl) Act, 1965.6.We have considered the submissions made by both sides.7.We have been referred to the pleadings in the Rent ControlPetition and we note that there is no pleading in the Rent controlpetition that the husband of the first petitioner, the landlord, isdependant upon the first petitioner. This aspect has been dealt with bythe Rent Control Court. According to the Rent Control Court, theabsence of clear pleading that the first petitioner's husband is adependant is also a sufficient reason for holding that the petitionerscould not satisfy the requirements of Section 11(3). However, theRent Control Appellate Authority, has held that it is not necessary tosay that the husband of the petitioner is a dependant of the first RCR 313/2006: 5 :petitioner. According to the Rent Control Appellate Authority, thepetitioner's husband being the family member, there is no need to putforward a pleading that he is a dependant of her to get vacantpossession of the petition schedule room. It is on that basis that theRent Control Appellate Authority has overruled the finding of the RentControl Court and ordered eviction.8.In our view, the approach of the Rent Control Court is thecorrect one. A reading of Section 11(3) of the Act discloses that, alandlord can seek eviction either for his own occupation or for theoccupation of any member of his family “dependant” on him. Thereforethe section contemplates eviction only if a member of the family forwhose benefit eviction is sought provided such member is a dependantof the landlord. A family can have a member, who is not a dependantof the landlord and in which case Section 11(3) cannot be pressed intoservice. The requirement of the section can be satisfied only if it ispleaded and proved that the concerned member of the family isdependant on the landlord. As rightly pointed out by the Rent controlCourt and disclosed in the Rent Control Petition itself, there is nopleading in this regard and therefore, in our view, the petition does notsatisfy the requirements of Section 11(3) of the Act. We also hold the RCR 313/2006: 6 :view that the approach of the Rent control Appellate Authority ispatently erroneous. The mere reason that the husband is a member ofthe family, does not presuppose that the husband is a dependant ofthe wife. The fact of membership in the family does not satisfy therequirement of Section 11(3) and hence we cannot agree with theconclusion of the Rent control Appellate Authority in this regard.9.Learned counsel for the revision petitioner/tenant referredus to the Division Bench decision of this Court in Prathapan v. RamaWarrier (2004(2) KLT 559), where it has been held thatdependency is a matter to be proved by proper pleadings and that inthe absence of which, the finding under Section 11(3) cannot besustained. We fully concur with the law laid down by the DivisionBench and hold that the pleadings in the Rent control petition does notsatisfy the requirement of this Section. 10.As we have already noted the counsel for the landlordsubmitted that a metriculous evaluation of the pleadings, is notnecessary in a summary proceedings under the Kerala Building (Leaseand Rent Control) Act, 1965. He also referred us to the judgment ofthis Court in Shaji Varghese v. Cherian (1993(1) KLT 133).Though we agree with this, we should add that what is required to be RCR 313/2006: 7 :proved as per the express words of the section cannot becompromised and to that extent proper pleadings are required to bemade and evidence would also be led and in the absence thereof, apetition is bound to fail. In this case, the essential requirement ofSection 11(3), is dependency of the member of the family. Thatessential fact has not been pleaded or proved and therefore thepetition is bound to fail.11.In the result, we set aside the judgment of the RentControl Appellate Authority in RCA 102/2004 and restore the order ofthe Rent control Court in RCP 154/2003.The Revision petition will stand allowed. P.R.RAMAN, JUDGE.ANTONY DOMINIC, JUDGE.Rp