IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 RCRev..No. 291 of 2011() ------------------------------------ RCA.NO. 67/2008 of ADDL.RENT CONTROL APPELLATE AUTHORITY, (ADDL.D.C. ) ALAPPUZHA. RCP.NO. 3/2007 of PRL.RENT CONTROLLER, CHERTHALA .................... REVISION PETITIONER/RESPONDENT/PETITIONER-LANDLORD ------------------------------------------------------------------------------------------- LAJU RAJAN, W/O.S.RAJAN, LAJU NIVS, SANATHANAM WARD, ALAPPUZHA. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): APPELLANT/CR.PETITIONER --------------------------------------------------------------------- LATHIKA RADHAKRISHNAN, W/O.RADHAKRISHNAN, AMRUTHA TAILORING, LAJU BUILDINGS, CMC 15/117A, CHERTHALA. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/09/2011, ALONG WITH RCR NO.292 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- R.C.R.Nos.291 & 292 of 2011 ------------------------------- Dated this the 19th day of September, 2011. O R D E R PIUS.C.KURIAKOSE, J. Under challenge in these revisions filed by the landlady is the judgment of the Rent Control Appellate Authority confirming the order passed by the Rent Control Court, declining eviction on the ground under Sub-Section 3 of Section 11. Also under challenge is the judgment of the Appellate Authority allowing the tenant's appeal and reversing the order of eviction which had been passed by the Rent Control Court on the ground under Section 11(4) (ii). Various grounds have been raised and Sri.R.Azad Babu learned counsel for the revision petitioner/landlady addressed us in detail on the basis of those grounds. All the submissions of Mr.Azad Babu were resisted by Smt.C.G.Bindhu learned counsel for the respondent/tenant, who would support the impugned judgment of the 2 R.C.R.Nos.291 & 292 of 2011 Appellate Authority. 2. We shall first deal with the claim for eviction on the ground under Section 11(4)(ii). The premise on which the landlady sought eviction on the above ground was that, in violation of the terms of the lease, the tenant was conducting hotel business and further that without obtaining consent from the landlady the tenant had installed a bore well in the premises where the said building is situated. The defence of the tenant to this ground was that, she is not conducting any hotel business but was continuing the tailoring business for which she had taken the building on lease. The further defence was that the bore well was constructed on the basis of the consent given to her by the father of the landlady. The Rent Control Court noticed that there was no evidence on the basis of which it could be held that there is any violation of the terms of the lease, and that the tenant was conducting hotel business. However, it was also noticed that the tenant had not adduced any evidence to show that the landlady's father had given consent for 3 R.C.R.Nos.291 & 292 of 2011 construction of the bore well. Relying on decisions, which take the view that the issue is to be considered through the perspective of the landlady, the Rent Control Court held that construction of the bore well would attract ground under Section 11(4)(ii). The Appellate Authority made a reappraisal of the evidence. According to the Appellate Authority, water was an indispensable necessity and construction of a bore well could be justified on that reason, even if the same was done without obtaining the consent of the landlady. The Appellate Authority has not analysed the binding precedents covering the issue. The Appellate Authority reversed the order of the Rent Control Court and vacated the order of eviction passed under Section 11(4)(3). 3. We do find force in the submissions of Mr.Azad Babu that, the reasoning adopted by the Appellate Authority runs contrary to law, as settled by decisions of this Court and the Hon'ble Supreme Court. At the same time, having made a reappraisal of the evidence ourselves, we are of the view that the Appellate Authority's decision in the context 4 R.C.R.Nos.291 & 292 of 2011 of 11(4)(ii) can be sustained on other good reasons. The evidence reveals that the landlady did not have a case that the utility of the building has been materially and permanently reduced on account of construction of the bore well. Unless such a case is brought out through evidence, eviction ground under Section 11(4)(ii) will not be established. On that reason, we sustain the decision of the Appellate Authority to vacate the order of eviction passed under Section 11(4)(ii). 4. Order of eviction was sought under Sub Section 3 of Section 11 also. The statutory authorities have concurrently declined the above order stating various reasons. One of the reasons was that, in the rent control petition, the particulars of the need were not pleaded. The second one was the fact that, the landlady was having vacant possession of the upstair portion which was apparently suitable for conducting the business of computer outsourcing (the business stated by the landlady in her evidence), was suppressed, and thereby entailed rejection 5 R.C.R.Nos.291 & 292 of 2011 of R.C.P. in view of proviso to Sub Section 3 of Section 11. Having reminded ourselves of the contours of our jurisdiction vested under Section 20 which is revisional, we are not in a position to say that the decision concurrently taken by the Rent Control Court and the Appellate Authority, to decline the eviction under Section 11(3) is illegal, irregular and improper. We sustain the judgment of the Appellate Authority confirming the order of the Rent Control Court declining eviction under Sub Section 3 of Section 11 also. 5. We notice another aspect of the matter. The building in question is situated in a very important locality of Cherthala Municipal town. We have no doubt in our mind that the monthly rent of Rs.500/-, presently paid by the respondent/tenant, is far below the rent which the building may fetch if it is let out now. We therefore are inclined to refix the rent payable by the respondent w.e.f. 1.10.2011 at Rs.1,000/- per mensem. We make it clear that this refixation is tentative and if either party is agreed, they are 6 R.C.R.Nos.291 & 292 of 2011 free to move the Rent Control Court for regular fixation of fair rent. Till fair rent is fixed regularly in terms of Section 5, the petitioner shall pay rent to the respondent/landlady at Rs.1,000/- per mensem w.e.f. 1.10.2011. We dismiss the R.C.R. refixing the rent w.e.f. 1.10.2011 at Rs.1,000/- per mensem. We make it clear that this judgment of confirming the order passed by the Rent Control Court, declining eviction on the ground under Section 11(4)(ii), will not stand in the way of the revision petitioner initiating fresh proceedings for eviction on all available grounds including the ground under Section 11(3), if change in circumstances warrant. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/