IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 RCRev..No. 257 of 2009() ------------------------ RCR.104/2005 of ADDL. DISTRICT COURT, THALASSERY RCR.184/1998 of ADDL.MUNSIFF COURT, KANNUR .................... REVISION PETITIONER/APPELLANT/PETITIONER ------------------------------------------------------------ KANNOTH PRATHAP NARAYANAN, CHERIYA KANNAN,AGED 78 YEARS,RESIDING AT SWARAJ NIVAS,OCCUPATION NIL,NEAR S.N.COLLEGE,P.O.THOTTADA KANNUR DISTRICT. BY ADV. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S)/ RESPONDENT/RESPONDENT ------------------------- OLACHERY BHASKARAN,S/O.KUNHAMBU, AGED 47 YEARS,RESIDING IN KEEPALLY HOUSE, AUTO RICKSHAW DRIVER,NEAR PODUJNA VAYANASALA, P.O.CHOVVA,KANNUR DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No.257 OF 2009 ------------------------ Dated this the 10th day of November, 2009 O R D E R Pius C.Kuriakose, J. The landlord is in revision. He sought to evict the respondent/tenant on the grounds of arrears of rent, bona fide own occupation and cessation of occupation. The Rent Control Court dismissed the Rent Control Petition completely. The landlord preferred an appeal to the Rent Control Appellate Authority. In the appeal, the claim for eviction on the ground of cessation of occupation was given up. The Appellate Authority also concurred with the conclusions of the Rent Control Court on the grounds of arrears of rent and bona fide own occupation and dismissed the appeal. 2. In this revision under Section 20, the landlord challenges the judgment of the Rent Control Appellate Authority declining eviction on the grounds of arrears of rent and bona fide own occupation. 3. We have heard the submissions of Sri.K.C.Santhoshkumar, learned counsel for the revision RCR.No.257/2009 2 petitioner. We were taken by the learned counsel to the evidence adduced by PW1- the landlord. The learned counsel submitted that the finding of the learned Appellate Authority, that it was only evasive evidence which was given by the landlord regarding the bona fides of his need under sub section (3)of Section 11, is clearly erroneous. The learned counsel submitted that another reason mentioned by the learned District Judge is that a room, which is adjacent to the petition schedule room belonging to the landlord, is under the landlord's vacant possession. According to the revision petitioner, that room is occupied by one Prabhakaran as an lodger. Sri.Prabharakan was cited as a witness, but he did not appear before the court so as to offer himself to be cross examined. The Appellate Authority should have remanded the case to the court below so that coercive steps could be taken against Sri.Prabhakaran for facilitating cross examination by the counsel for the tenant. 4. We have considered the submissions of the learned counsel for the revision petitioner and we have gone through PW1's evidence and also the judgment of the Rent Control Appellate Authority. The Appellate Authority has found under RCR.No.257/2009 3 the impugned judgment that it is only evasive evidence which has been given by PW1 regarding the bona fides of his need. We do not agree. In chief examination PW1 has stated that he very genuinely needs the building, which is subject matter of the RCP, for his own occupation. In cross examination also, he has affirmed that the above need, which was conceived by him two years prior to the Rent Control Petition, is alive in his mind. We would have been inclined to admit this revision had it not been for the finding entered concurrently by the two authorities below that the Rent Control Petition is liable to be fail by virtue of the first proviso to sub section (3) of section 11. It is with reference to the room which is adjacent and identical to the petition schedule room that such a finding was entered by the authorities below. According to the learned counsel for the revision petitioner, the said room is not under the vacant possession of the landlord. The said room is occupied by one Sri.Prabhakaran. But the learned counsel for the revision petitioner conceded that going by the Property Tax Assessment Register(Ext.B5) pertaining to that building, the same is under the vacant possession of the landlord. The learned counsel RCR.No.257/2009 4 conceded before us that there is no document which would prove the existence of landlord tenant relationship between Sri.Prabhakran and the revision petitioner. According to the learned counsel Sri.Prabhakaran is staying in that room. We find it difficult to accept this submission since Ext.B5, which is a document which enjoys presumption as to the correctness by virtue of section 26 of Act 2 of 1965, discloses that the room is under the vacant possession of the landlord. Therefore, we do not find any illegality, irregularity and impropriety about the judgment of the Appellate Authority declining order of eviction under Section 11(3) of the Act. Same is the position as regards the ground of arrears of rent invoked by the revision petitioner. There was dispute between the parties as to what was the contract rent. The tenant has admittedly paid the rent at the rate, which according to him, is the contract rent payable by him. The issue as to what is the contract rent payable by the tenant was decided by the Appellate Authority on the basis of the evidence which came on record. Since finding regarding the contract rent is based on the evidence on record, we are of the view that there is no warrant for invocation of the revisional RCR.No.257/2009 5 jurisdiction under Section 20 to interfere with that factor. But, we find some merit in the submission of the learned counsel for the petitioner that at any rate the contract rent fixed 20 years ago is below the fair rent. We permit the revision petitioner to approach the Rent Control Court for fixing the fair rent. We also make it clear that, it will be open to the revision petitioner to file fresh Rent Control Petition for eviction on all available grounds. The Revision Petition is dismissed. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk