K.T.Sankaran, J.
Petitioner is the respondent-tenant in R.C.P.No.8/1996 on the file of the Rent Control Court, Pathanamthitta filed by the respondents under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, for short, the “Act”. The Rent Control Court allowed the petition by order dated 06/04/2001. On appeal by the tenant, the Appellate Authority dismissed the appeal. The tenant filed R.C.R.No.175/2006 before the High Court challenging the concurrent findings of the Rent Control Court and the Appellate Authority. The High Court allowed the revision to a limited extent and remanded the case to the Rent Control Court as per order dated 23/12/2010. For the sake of convenience, the relevant portion of the order in R.C.R.No.175/2006 is extracted below:
“4. We have considered the rival submissions. The reason stated by the learned Appellate Authority for ignoring the defect in the pleading is that though in the present RCP pleading regarding dependency is not projected, in the connected RCPs such pleadings are available. We are unable to approve the above view of the learned Appellate Authority. Pleadings in the connected matter cannot be a substitute for pleadings in the present RCP. It was the pleadings in the present RCP alone which the revision petitioner was called upon to answer. True, Anand M.Kurian has now become a landlord in his own right. But that is a subsequent event. The question which the statutory authorities were called upon to decide is whether the need projected by the parents Sri.M.G.Kurian and Smt. Valsamma Kurian, respondents 1 and 2 to accommodate their son Anand M.Kurian is a bona fide one and whether Sri.Anand M. Kurian was a dependant. We feel that the RCP should be remanded to the Rent Control Court for a fresh decision in the context of the points raised by the learned counsel for the revision petitioner.
5. We also feel that the monthly rent which is being paid by the revision petitioner presently is far below the rent the building may fetch if the same is let out today. We therefore are inclined to re-fix the rent tentatively.
6. The result of the above discussion therefore is as follows: The order passed by the Rent Control Court and the judgment of the Rent Control Appellate Authority are set aside to the extent the same pertains to the bonafides of the need under sub-section (3) of Section 11. The finding that the tenant is not entitled to the protection of the second proviso to Section 11(3) is confirmed. The RCP is remanded to the Rent Control Court. The Rent Control Court will allow application if any, filed by the landlords within one month of their appearance before the Rent Control Court for amendment of pleadings in the RCP for incorporating an averment that Sri.Anand M.Kurian was dependent on his parents at the time when the RCP was instituted and a further averment that Sri. Anand M. Kurian has become a joint landlord presently by virtue of demise of his father. If pleadings are amended, that court shall permit the tenant to file counter pleadings.
7. The landlord should be permitted by the court to produce documentary evidence (a certificate or so issued by the Municipality) to the effect that there will not be any objection on the part of the Municipality in the matter of proposed clinic being commenced in the petition schedule room and the adjacent rooms.”
2. Going by the order of remand, the Rent Control Court was expected to consider only the question whether the bona fide need put forward by the landlords is established. Since it was concluded by the order of remand that the tenant failed to establish the ingredients of the second proviso to Section 11(3) of the Act, the Rent Control Court was not expected to consider whether the tenant is entitled to get protection of the second proviso. After remand, the Rent Control Petition was amended and it was averred that as on the date of the Rent Control Petition, the fourth petitioner-Anand M.Kurian was dependent on the second petitioner for the purpose of the building. It was also averred that Anand M.Kurian became a co-owner along with others in respect of the building, after the death of the first petitioner-M.G.Kurian. On behalf of the landlords, the Town Planner was examined as PW4 and Exts.X1 and X2 were marked. The Town Planner stated in evidence that the property in which the building is situated comes under the commercial zone and the businesses which could be run in the said zone are mentioned in Ext.X2. To a pointed question whether a hospital can be run in commercial zone, he stated that it could be done, provided, the hospital is having beds upto Nos.30. He also stated that there are hospitals within the commercial zone of Pathanamthitta town. In the cross-examination of PW4, there was no effective challenge to the statement made by the witness that a hospital with 30 beds can be run in the commercial zone.
3. At the time when the Rent Control Petition was filed, the fourth petitioner in the Rent Control Petition was undergoing house surgency after medical education. It is stated in the Rent Control Petition that the fourth petitioner wanted to start a hospital in the petition schedule building. The fourth petitioner was examined as PW2. The Rent Control Court as well as the Appellate Authority, in the first round of litigation, did not doubt the genuineness of the bona fide need. The High Court remanded the case, only to enable the landlords to make proper averments in the Rent Control Petition with regard to the dependency of the fourth petitioner and also the averment that the fourth petitioner has become a co-owner. This was done based on the objection raised by the tenant that there was no proper pleading in the Rent Control Petition with reference to the dependency of the fourth petitioner. The landlords answered this contention by saying that in the connected Rent Control Petitions, it was specifically alleged that the fourth petitioner is dependent on the second petitioner. But the High Court did not accept this contention and insisted on separate and independent averment in the particular Rent Control Petition itself. That was how it was remanded to the Rent Control Court. The order of remand was complied with and, thereafter, on the basis of the evidence on record, the Rent Control Court as well as the Appellate Authority held on facts that the bona fide need put forward in the Rent Control Petition was established.
4. A contention was put forward by the tenant that the landlords having obtained vacant possession of other rooms in the building, on the basis of the orders in the connected Rent Control Petitions, they are bound to show special reasons as contemplated under the first proviso to Section 11(3) of the Act. The learned counsel for the revision petitioner relied on various decisions in support of this contention. All the decisions relied on would indicate that either before the Rent Control Petition was filed or during the pendency of the Rent Control Petition, if the landlord got vacant possession of other rooms, which would as well suit the bona fide need put forward in the Rent Control Petition, he has got a duty to explain the special reasons for not choosing to occupy the said premises. In the present case, the landlords stated that the entire extent in the whole building which was occupied by the five tenants was required for the bona fide need of the fourth petitioner to establish a hospital or clinic. The landlords filed five Rent Control Petitions. However, four Rent Control Petitions were disposed before disposal of the present Rent Control Petition. Some of the tenants vacated on their own after the orders were passed by the courts below, while one of them vacated during execution. The circumstance that the present Rent Control Petition was disposed of later is not a sufficient ground to hold that the landlords have come into possession of other buildings within the meaning of the first proviso to Section 11(3) of the Act. Had all the Rent Control Petitions been disposed of and the landlords got vacant possession of all the rooms, nobody could raise any objections that any of the Rent Control Petitions was hit by first proviso to Section 11(3) of the Act, since landlords wanted vacant possession of all the rooms in the building. Therefore, none of the decisions cited by the learned counsel for the petitioner-tenant would apply to the facts of the present case. The Rent Control Petition was filed in the year 1996 and, even after 18 years, the proceedings have not come to an end. The fourth petitioner, who was undergoing house surgency at the time of filing the Rent Control Petition had to wait all these years, expecting that he could establish his own establishment in the building owned by his parents. During the pendency of the proceedings, his father died and he also became a co-owner. Still the proceedings are pending. We do not think that the contentions put forward by the tenant deserve acceptance. The authorities below concurrently held on facts that the bona fide need put forward by the landlords is established. We do not find any illegality, irregularity or impropriety in the order and judgment of the authorities below, warranting interference under Section 20 of the Act. The Rent Control Revision is, accordingly, dismissed.
5. Lastly, the learned counsel appearing for the petitioner-tenant submitted that one year's time may be granted to the tenant to vacate the petition schedule building. In the facts and circumstances, we are not inclined to grant one year's time to the tenant to vacate. However, it would be quite appropriate to grant time upto 30/09/2014 to the tenant to vacate the petition schedule building. Accordingly, the petitioner-tenant is granted time upto 30/09/2014 to vacate the petition schedule building on condition that he shall file an affidavit before the Rent Control Court within a period of one month, unconditionally undertaking to vacate the petition schedule building on or before 30/09/2014 and, also on condition that the petitioner- tenant shall deposit the arrears of rent, if any, before the Rent Control Court within one month from today. If the tenant complies with the conditions mentioned above, the order of eviction shall not be executed till 30/09/2014. If the tenant fails to comply with any of the conditions, the order of eviction can be executed forthwith.
K.T.SANKARAN, JUDGE A.MUHAMED MUSTAQUE, JUDGE ms