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Moolayil Rajan v/s Mathonkandiyil Preman, Represented by wife & Power of Attorney holder Bindu

    RSA. No. 467 of 2016

    Decided On, 14 July 2022

    At, High Court of Kerala

    By, THE HONOURABLE MRS. JUSTICE M.R. ANITHA

    For the Appellant: B. Krishnan, R. Parthasarathy, Advocates. For the Respondent: U.K. Devidas (Caveator), K.K. Anilraj, Advocates.



Judgment Text

1. This Regular Second Appeal has been directed against the judgment and decree in A.S.No.4/2015 on the file of Subordinate Judge's Court, Vatakara which arise out of the judgment and decree in O.S.No.42/2013 on the file of Munsiff's Court, Vatakara.

2. Appellant is the defendant in the suit. Parties would be referred as per their status before the trial court. The suit has been filed for recovery of possession and realisation of arrears of rent. Plaint schedule property originally belonged to the defendant and the plaintiff purchased it from the defendant as per Assignment Deed No.1742 of 2003 dated 08.08.2001. Subsequently, plaintiff constructed a shed in the plaint schedule property and it was taken on lease by the defendant for conducting cement pottery manufacturing unit on a monthly rent of Rs.700/- as per lease deed executed on 03.06.2003. Defendant committed default in payment of rent from 01.05.2004. Inspite of repeated demands, the arrears were not cleared. Plaintiff required the plaint schedule property for constructing a house. Hence plaintiff filed R.C.P.No.39/2011 for eviction on the ground of arrears of rent. In that petition, defendant denied the title of the plaintiff. Thereafter the suit has been filed. Plaintiff executed power of attorney in favour of the wife to look after and manage the plaint schedule property and the suit has been filed by the power of attorney for and on behalf of the plaintiff. It is alleged that the plaintiff has no house or other land of his own at Vatakara town and village and they have no land to construct a new house other than the plaint schedule property and hence they bona fide need the shed described in the plaint schedule property for construction of new house after demolishing the shed. Defendant is not depending on the income derived from the business carried on in the plaint schedule shed and it not his main source of income. He has another shed in his possession which is sufficient for this purpose and there are also other buildings and sheds available in the locality for shifting the business. So, lawyer notice was issued on 07.02.2011 seeking surrender of vacant possession of the building. For that, reply was sent raising frivolous contentions.

3. Defendant filed written statement as well as additional written statement denying the landlord-tenant relationship as well as the title of the plaintiff in the plaint schedule property. The document produced as kai chit is a fraudulent document and execution of the same is stoutly denied. He never paid any rent to the plaintiff. The plaint schedule property and the remaining properties belongs to the defendant. The shed was constructed by the defendant. The plaintiff is the brother-in-law of the defendant. He borrowed an amount of Rs.95,000/- from the plaintiff in May 2001 in two instalments. Since he could not repay the amount, only as a security Document No.1742/2001 was executed. No title has been derived to the plaintiff as per the said document. Defendant sold a family property for the purpose of repayment of the loan due to the plaintiff and since the plaintiff was not amenable, representation was made to political parties and it is at that time notice was issued by the power of attorney of the plaintiff. The land in question is not suitable for constructing a residential building. Reply notice was sent stating true facts. Plaintiff was never in possession of the plaint schedule property.

4. PW1 to PW3 were examined and Exts.A1 to A16 were marked from the side of the plaintiff. Defendant got examined himself as DW1 and Ext.B1 was marked. Learned Munsiff on evaluating the facts and circumstances and evidence found that the plaintiff has title over the plaint schedule property and it was let out to the defendant fixing monthly rent of Rs.700/-. It is also found that defendant denied the title of plaintiff over the plaint schedule property and hence his tenancy with respect to plaint schedule property is forfeited and he could not claim right of tenancy any more. Defendant was also directed to surrender the plaint schedule property with shed to the plaintiff and consequential permanent prohibitory injunction against trespass.

5. Against the judgment and decree, defendant filed A.S.No.4/2015 before the Subordinate Judge's Court, Vatakara and by the impugned judgment learned Subordinate Judge confirmed the judgment and decree passed by the learned Munsiff. Aggrieved by the same, defendant approached this Court in this Regular Second Appeal for the various grounds stated in the memorandum of appeal.

6. Notice was issued to the respondent/plaintiff and Adv.U.K.Devidas appeared on behalf of the plaintiff. Lower court records were also called for.

7. Heard learned counsel for the appellant/defendant as well as respondent/plaintiff.

8. At the time of admission, following substantial question of law have been formulated:

Whether the courts below are justified in allowing the plaintiff's claim for recovery of possession of the plaint schedule building on the strength of title and other reliefs in a suit for eviction under the second proviso to Section 11 of the Kerala Building (Lease and Rent Control) Act, 1965 (in short 'the Act') without establishing the ingredients under Section 11(3) of the Act?

9. At the time of admission, interim stay was granted and that was being extended.

10. The only argument advanced by the learned counsel for the appellant is with regard to the second proviso to Section 11(1) of the Act and the non-compliance of the first appellate court in entering into a finding with regard to the grounds of eviction. In this context, learned senior counsel relied on Kumaran and others v. State of Kerala and others : 1985 KLT 899 ; Padmakshi v. Ammalu Amma : 2012 (4) KLT 150.

11. Learned counsel for the respondent, on the other hand, would contend that there is no pleading, contention or evidence by the defendant controverting the averments in the plaint as well as the evidence adduced by the plaintiff, with regard to the ingredients of Section 11(3) and the 2nd proviso to Section 11(3). No question was put to the plaintiff challenging the averments in the chief affidavit with regard to the ingredients of eviction under Section 11(3) sworn in by him in his proof affidavit. So, without any pleading, the defendant cannot be heard to contend about the lapses of the appellate court regarding absence of finding of the bona fide need of the plaintiff for own occupation of the shed. Learned counsel for the respondent placed reliance on Elizabeth v. Saramma : 1984 KLT 606 : 1984 KHC 286, M/s.Kanhiya Singh Santok Singh and Others v. Kartar Singh : (2009) 5 SCC 155 : AIR 2009 SC 1600 : 2009 KHC 4581 and Vimal Chand Ghevarchand Jain and Others v. Ramakant Eknath Jajoo : 2009 (5) SCC 713 : 2009 (5) SCALE 59 : 2009 KHC 4624.

12. The first appellate court while disposing the appeal has found in para 16 that the extent of plaint schedule property is 5 cents and plaintiff stated that he is having no other property in which he can put up a house and there is nothing to doubt the need put forward by the plaintiff. Thereafter, there is a finding with regard to the arrears of rent and further found that plaintiff purchased the property from the defendant and mutated the same after the execution of the sale deed and thereby proved his title over the plaint schedule property. To resolve the issue it is relevant to quote Section 2nd proviso to Section 11(1).

“(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act:

xxxxx xxxxxx xxxxxx xxxxxx

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded."

13. This is a case in which originally plaintiff filed R.C.P.No.39/2011 against the respondent wherein he disputed the title of the plaintiff and denial was found to be bona fide and thereafter the present suit has been filed. So, as per the second proviso to Section 11(1), after denial of title by the tenant the Rent Control Court decides that the denial is bona fide, the landlord is entitled to sue for eviction of the tenant in a civil court. It further provides that such court may pass a decree for eviction on any of the grounds mentioned in the Section notwithstanding that court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. So, it is incumbent upon the civil court on entertaining a suit under the second proviso to Section 11(1) of the Act to be satisfied of any of the grounds under Section 11 for ordering eviction.

14. Here, in this case, the plaintiff claims bona fide need for construction of a house after demolishing the shed as well as on the ground of arrears of rent. Rent was found to be in arrears and eviction was ordered and that was found concurrently against the defendant. That is not under challenge.

15. In Radhakrishna v. Ananthakrishnan : 2007(3) KLT 1009 a learned Single Judge of this Court made a distinction between suits filed under the second proviso to Section 11(1) of the Act and other suits for recovery possession of building situated in areas not covered by the Rent Control Act. It has been held that in suits which specifically come within the ambit of second proviso to Section 11(1), it is necessary for the plaintiff to establish not only the title but also anyone of the eviction grounds provided under Section 11 of the Act. But, in the case of suits filed for eviction by the landlords against tenants in respect of buildings in areas not covered by the Rent Control Act, at the most, it would be necessary to establish the lease arrangement and its due termination. In a case filed under Section 11(1), the Act will continue to govern for deciding whether or not the plaintiff is entitled for the relief.

16. In Padmakshi v. Ammalu Amma : 2012 (4) KLT 150 Division Bench of this Court while dealing with second proviso to Section 11(3) of the Act, it has been held that notwithstanding the fact that there is no specific positive averments from the part of the tenant claiming protection under the second proviso, a statutory duty is cast on the Rent Controller to look into these aspects and enter definite finding before ordering eviction. It is also held that as regards the second proviso a strict adherence to rules of pleadings is not warranted.

17. Ibrayan v Balan 1985 KLT 896 was also placed reliance in this context wherein while dealing with Section 11(1) second proviso it has been held by Division Bench of this Court that only under the second proviso to Section 11(1) of the Act, Civil Court got jurisdiction to try and decide a case for eviction of a tenant of a building to which provision of the Act apply. But, in that case, the clear interdiction in the proviso that “such court may pass decree for eviction on any of the grounds mentioned in this Section” cannot be given a go by the civil court. So, no question of granting an eviction on the strength of the title of the plaintiff-owner of the building arises as long as the tenant is a person inducted by the owner or somebody on his behalf of a rental arrangement. The position may be different if the occupant is a rank trespasser. It is also held that in view of the fact that the rent control legislation is a complete code in itself Section 111(g) of the Transfer of Property Act cannot be invoked to turn the tables on the tenants because there will be no forfeiture of the lease to make the tenant liable to be thrown out as he can take shelter under the provisions of the Act.

18. So, from the above settled positions, it can be found that when a suit for eviction is filed under Section 11(1) of the Act, the landlord is bound to prove that he requires the building on any of the grounds under Section 11. Merely because of the fact that the defendant had denied the title of the landlord and sets up a claim of title upon himself will not result in forfeiture of the lease as contemplated under Section 111(g) of Transfer of Property Act since rent control legislation is a complete code in itself. In a suit for eviction under the second proviso to Section 11(1) the plaintiff should establish not only their title but also anyone of the grounds for eviction under Section 11 of the Act.

19. In the present case, the defendant denied title of the landlord and sets up a claim of ownership over the property and shed in question and further denied the execution of Ext.A5 kai chit which was sent for expert opinion at the instance of the plaintiff and Ext.A12 is the report of the expert and the expert was also examined as PW2 and it could be proved by the plaintiff that Ext.A5 is executed by the defendant and it is also found that there is nothing in evidence to conclude that the shed in question has been constructed by the defendant. Accordingly, it is also found that sale deed Ext.A13 is executed by the defendant in favour of the plaintiff on a valid consideration and it is not a deed executed as a security, as contended by the defendant. Those factors are not further challenged in this appeal also.

20. In the present case, paragraph 16 is the portion where the appellate court made finding with regard to the bona fide need and the requirement of the plaintiff which reads thus:

“The extent of plaint schedule property is only 5 cents. The plaintiff clearly stated that he is having no other property, in which he can put up a house. There is nothing to doubt the need put forward by plaintiff.”

21. Obviously, the above paragraphs though stated about the bona fide need, there is no discussion or finding with regard to the second proviso to section 11(3). Proviso to Section 11(1) as well as the settled principles discussed above would lay down the proposition that in order to get the eviction under Section 11(1), the landlord must prove any of the ingredients of Section 11 of the Act apart from the title to get eviction. So, the question is whether absence of detailed discussion with regard to the bona fide need or absence of finding about the second proviso to 11(3) would invalidate the order of eviction due to non-compliance of the second proviso to section 11(1).

22. The counsel for the plaintiff, would vehemently contend that the allegation of the plaintiff regarding the bona fide need as well as the ingredients of 2nd proviso to Section 11(3) has been made in detail in the plaint as well as in the proof affidavit. But, according to him, in the written statement, apart from a vague denial of that particular paragraph, there is no specific contention raised by the defendant disputing the bona fide need or about the entitlement of the benefit of the second proviso to section 11(3) to him.

23. According to him, denial in the written statement should be specific. As per Order 8 Rule 4 and 5, every denial of the allegations in the plaint should be specific and should not be evasive. He would contend that since there is no specific denial of the allegations in the plaint in the written statement, no issue was framed with regard to the bona fide need and benefit of the proviso to Section 11(3) of the Act and hence the court is not bound to enter into a finding with respect to that issue. To substantiate the contention, the learned counsel drew my attention to Josita Antony v. New India Assurance Company Ltd. And Others : 2006 (1) KLT 393 : 2005 KHC 2096, paragraph 12 of the same is extracted which is relevant in this context.

“If denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. To do justice between the parties, for which courts are intended, the rigor of Rule 5 has been modified by the proviso. Under the proviso the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. True, in construing such pleadings, the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission. It cannot be to help a party who designedly made vague denials. The discretion under the proviso has to be exercised by a court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting in a locality, and the traditions and conventions of a court wherein the pleadings are filed. Rule 3 provides that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff and the defendant must deal specifically with each allegation of fact, of which he does not admit the truth except damages. Rule 4 provides that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance and if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Sub-rule (1) of R. 5 of Order VIII of C.P.C. reads: .

(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

Sub-rule (1) of Rule 3 of Order VIII only mandates that every allegation of fact in the plaint shall be denied either specifically or by necessary implication, or stated to be not admitted in the pleading and if not the allegations in the plaint shall be taken as admitted except the acts against a person under disability. To decide whether there is a specific denial or a denial by necessary implication, the written statement has to be read as a whole.”

24. Learned counsel would also contend that, in the absence of a specific pleading and issue, no evidence can be let in by the parties and the court also expected to enter into finding only on disputed questions of fact. In this context, the learned counsel relies on Elizabeth (supra) wherein a learned Single Judge of this Court held that it is the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing issues would be defeated if parties are allowed to travel beyond the issues and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. In that decision, Lakshmi Narain v. State : AIR 1977 Patna 73 has been quoted wherein a Division Bench of Patna High Court had occasion to consider the objects and purpose of pleadings of Order 6 Rule 2 and Order 8 Rule 2, 3 and 4 of the Code of Civil Procedure and it has been observed by the Division Bench that the “sole object of the pleading is, as was pointed out by the Privy Council in (1895) 22 Ind App 4 (PC) that each side may be fully alive to the question that are about to be argued in order that they may have an opportunity to bringing forward such evidence as may be appropriate. Siddik Mohammed Shah v. Mt.Saran : AIR 1930 PC 57 also has been quoted wherein it has been observed that wherein a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward.

25. M/s.Kanhiya Singh Santok Singh was also relied on wherein while dealing with Order 14 Rule 2 and Order 18 Rule 2 and Section 5 of the Evidence Act, 1872 it has been held that the question of fact cannot be decided without permitting the parties to lead evidence in spite of other respective cases without coming to a finding of such question of fact by the court.

26. M.Venkataramana Hebbar (D) by L.Rs v. M.Rajagopal Hebbar and Others : (2007) 6 SCC 401 : 2007 KHC 2546 a two Judge Bench of the Apex Court while dealing with Order 8 Rule 3 and Rule 5 it has been held that if there had been no denial in written statement or assertions contained in the plaint, Court is entitled to draw an inference that the same has been admitted. If a plea which is relevant for the purpose of maintaining a suit had not been specifically traversed, the court is entitled to draw an inference that the same has been admitted. In Vimal Chand while dealing with Order 14 Rule 2 Order 6 Rule 1 and Order 18 Rule 2 it has been held that determination of an issue without any pleading thereon or framing thereof or adduction of evidence thereon is impermissible.

27. The specific contention of the learned counsel for the plaintiff is that there is no specific denial about the bona fide need urged by the plaintiff as well as the averments in the plaint with regard to the disentitlement of the defendant to get the benefit of 2nd proviso to Section 11(3) in the written statement. In the plaint there is a specific averment regarding the bona fide need for constructing a house for the plaintiff and the power of attorney and that the defendant is not depending on the income derived from the business carried on in the plaint schedule shed and further that it is not the main source of income of the defendant and further that he has another shed in his possession which is sufficient for his purpose and there are also other buildings and sheds available in the locality for shifting the business.

28. In the proof affidavit of the defendant also, he has not made a specific averment with regard to the lack of bona fides of the plaintiff or the entitlement of the defendant for getting the benefit of the second proviso to Section 11(3). He has made only a flat denial of paragraph 6 of the plaint which states about the bona fide need and allegation with regard to the no entitlement of the defendant for getting the benefit of second proviso to Section 11. The only averment in paragraph 10 of the proof affidavit is to the effect that no residential building can be constructed in the land covered by document No.1742/1 and it is further alleged that the very nature of the property, its shape and extent would prove that the document was intended only to be a security and not anything more. So, that paragraph also does not question the bona fides of the plaintiff in constructing a house in the property. Whether it is possible to construct a building in the property or not is none of the concern of the defendant.

29. During cross-examination of the defendant when a specific question was put to him about the reason for the contention that no house can be put up in the plaint schedule property, his specific answer is that he has no reason to say. Even then, questions were also put during cross-examination of the defendant to the effect that in the name of plaintiff there is no building in Vatakara Municipality for constructing a house and PW1 and plaintiff were residing in the family house of PW1 the wife of plaintiff, that is admitted by defendant also. It is further suggested to him that there is other shed and buildings suitable for him to conduct his business and he is doing the main business in the shed owned by him, though that is denied by him. No doubt, the burden to prove the ingredients of the 2nd proviso is upon the defendant.

30. In paragraph 11 of the written statement, apart from a flat denial of paragraph 6 wherein the bona fide need and also the averments with regard to the second proviso to Section 11(3) is averred, there is no specific denial of the averments in paragraph 6 with regard to the bona fide need and also the averments in the plaint with respect to the second proviso to Section 11(3). The entire contention in the written statement was based on the title and possession of the plaint schedule property and the building and the execution of the document, rent kai chit etc.

31. In proof affidavit, the plaintiff has specifically sworn in about the bona fide need and the availability of other buildings and further that the defendant is in possession of another shed which is reasonably sufficient for his purpose near the plaint schedule shed and there are so many other vacant buildings and sheds available in the locality for shifting the business carried on by the defendant in the plaint schedule shed.

32. But, during cross-examination, a single question is put to the effect that the defendant is depending on the business in the schedule shed, for which PW1 categorically replied that he can shift the business to the nearby shed owned by him. There is no question put with regard to the bona fide need urged by the plaintiff for putting up a house apart from a question that no plan was taken so far for constructing the building. In Elizabeth it has been categorically held that without a plea in the written statement, no evidence can be adduced. It is more so because it is based on the pleadings that the issues are framing and based on the issues parties are adducing evidence.

33. On going through the issues framed by the trial court also, it could be seen that no issue has been raised by the learned Munsiff with regard to the bona fide need urged by the plaintiff. That is certainly because of the reason that there is no specific denial in the written statement regarding the bona fide need urged by the plaintiff. Once the bona fide need itself is not challenged, the question of benefit of 2nd proviso does not arise. So, a stray sentence brought out during cross-examination of PW1 that the means of income of the defendant is the business in the shed by itself would not enable the defendant to contend about the absence of a finding about the bona fide need and the second proviso to Section 11(3).

34. In civil cases, pleadings of parties is the foundation and the evidence is also adduced in respect of the pleadings in the plaint and written statement and once there is specific pleading in the plaint about the bona fide need of the plaintiff and non-entitlement of the defendant for getting the benefit under the second proviso to Section 11(3) and absence of raising any specific contention denying the bona fide need put forward by the plaintiff as well as the ingredients of the second proviso urged in the plaint by the plaintiff, in the written statement the defendant cannot be heard to contend about the absence of finding by the court with respect to the bona fide need as well as the benefit of the 2nd proviso under Section 11(3) as has been rightly contended by the learned counsel for the plaintiff. Defence was thrust upon disputing the title of the plaintiff and setting up a title upon himself and denial of rental arrangement and rent kai chit and thereby directing the plaintiff to send the signature in the rent kaichit for expert opinion and the evidence let in by the defendant and cross-examination of the plaintiff etc would go to show that his defence was about the denial of title of the plaintiff with respect to the building and the tenancy arrangement with him and putting up a claim over property and the shed upon him contending that the sale deed in favour of the plaintiff itself has been executed as a security for the amount availed by him from the plaintiff. That has been found against concurrently by the trial court as well as the first appellate court. So, the argument now advanced by the learned counsel for the defendant on the basis of 2nd proviso to Section 11(1) though is found to be attractive on a first blush in the absence of any pleadings in the written statement refuting the allegations in the plaint, as well as in the absence of any issue raised in that regard defendant cannot be heard to contend about the lack of finding in that aspect.

35. Learned counsel for the plaintiff would also contend that during the first appellate stage also, no specific contention was raised disputing the bona fide need or about the entitlement of the defendant for the benefit of second proviso to Section 11(3) and that is the reason why no finding with regard to the ingredients of second proviso has been made by the first appellate court in the judgment. Learned counsel for the defendant in this context brought to my attention to ground No.9 wherein it has been contended that the lower court ought to have found from evidence that the lie of the land covered by Ext.A13 is such that no residential building can be constructed there and that the very nature of property and its shape and extent would prove that the said document was intended only to be a security. That contention also has been raised in the written statement and I have already found that the contentions so advanced is to emphasise his contention that the sale deed was executed only as a security for the money availed. Even otherwise, the contention of the defendant that the shape and lie of the property is in such a way that no building can be constructed, is not at all a ground which is available for the defendant/tenant to raise because it is well settled that the defendant cannot dictate the terms to the landlord. It is for the landlord to decide whether the property is suitable or not. So also, though he contended about the suitability of the land, he did not question about the bona fides of the need put forward by the plaintiff for constructing a house. There is no specific contention either in the written statement or in the memorandum of appeal that the need put forward by the plaintiff is not bona fide and that the landlord has no intention to construct a residential house or that he has got any other property for constructing a house in the area.

36. So, as has been rightly contended by the learned counsel for the plaintiff, this is a case in which there is no specific pleading has been raised by the defendant denying the bona fide need for construction of house by the plaintiff and that is why no issue has been framed by the learned Munsiff. In the absence of any issue, though the court is not bound to enter into a finding with regard to the bona fides, the learned Munsiff has gone into the bona fide need and also the ingredients of the second proviso to Section 11(3). So, the first appellate court cannot be found fault with for not making a detailed discussion with regard to the bona fide need.

37. Learned counsel for the defendant quot

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ed Padmakshi to contend that notwithstanding the fact that there is no specific positive averments from the part of the tenant claiming protection under the second proviso, a statutory duty is cast on the Rent Controller to look into these aspects and enter definite finding before ordering eviction. So, the learned counsel is emphasising that inspite of a specific plea regarding the ingredients of the second proviso in the written statement, the appellate court ought to have entered into a finding with regard to the entitlement or non-entitlement of the benefit under the second proviso to Section 11(3). Absence of specific plea with respect to the second proviso is not at all a reason enabling the court not to look into the benefits under the 2nd proviso to Section 11(3) and enter into a finding before ordering eviction. It is true that the appellate court herein had not entered into a finding with regard to the entitlement of the benefit of the second proviso to 11(3) to the defendant. Here, as I found earlier, the bona fide need urged by the plaintiff is not seen specifically denied by the defendant. The only contention in the written statement as well as in the chief affidavit is with regard to the unsuitability of the land for constructing a house in the property. That will not in any way leads to an inference that the defendant denies the bona fide need of the plaintiff to construct a house of his own. It is rather admitted by the defendant during cross-examination that the plaintiff and the power of attorney, his wife are residing in the house of PW1, that is the wife's house. The defendant is none other than the brother-in-law of the plaintiff also. So, he may be quite aware that the plaintiff is having no other house or property for constructing a house. That might have been the reason why a specific denial of the bona fide need urged in the plaint has not been made in the written statement. When there is no specific denial of bona fide need under Section 11(3) of the Act, the question of answering the proviso does not arise. So, the contention of the learned counsel for the appellant/defendant with regard to the non-compliance of the second proviso to Section 11(1) by the appellate court in not entering into a finding with regard to the bona fide need and with respect to the second proviso to section 11(3) will not be a ground to make interference with the judgment and decree passed by the courts below. 38. In the result, the appeal is found to be devoid of any merit and hence dismissed. In view of the relationship between the parties and facts and circumstances there is no order as to costs. It is agreed by counsel appearing for both sides that six months time from this date can be granted to the appellant/defendant to vacate the plaint schedule shed on condition to pay the arrears of rent upto date within one month from this day. Hence six months' time from this date is granted to the appellant/defendant to vacate the plaint schedule property on condition that defendant will file an affidavit before the Munsiff's Court, Vatakara within ten days starting from this date undertaking to vacate the premises within six months and to pay the entire arrears of rent due till date within one month and continue to pay Rs.700/- (Rupees seven hundred only) per month towards damages for use and occupation till the plaintiff/respondent is put in actual possession of the plaint schedule property.
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