IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 CRP.No. 3270 of 2001 ----------------------- RCA.162/1999 of IST ADDL.RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.109/1996 of RENT CONTROL COURT,THRISSUR .................... REVN. PETITIONER: --------------------- M.S. VASUDEV, S/O. SANKARAN MADATHIPARAMBIL HOUSE KOLAZHY VILLAGE TRICHUR TALUK. BY ADV. SRI.M.S.UNNIKRISHNAN RESPONDENTS: --------------- 1. K.R. NARAYANAN S/O. RAMAN, KALLAYIL HOUSE KOLAZHI VILLAGE TRICHUR TALUK. 2. M.S. KRISHNAN S/O. SANKARAN, MADATHIPARAMBIL HOUSE PURANATTUKKARA P.O. KOLZHY, TRICHUR TALUK. ADV. SRI.M.K.DILEEP KUMAR FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.CM.P. NO. 6868/2001 IN C.R.P.NO. 3270/2001 DISMISSED. 30-3-2009 SD/- PIUS C. KURIAKOSE, JUDGE SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE PIUS C.KUIRIAKOSE & , M.C. HARI RANI, JJ. C.R.P. NO. 3270 OF 2001 ORDER 30-3-2009 PIUS C.KUIRIAKOSE & , M.C. HARI RANI, JJ. L.A.A.NO.1871/2002 & C.O. NO. 16 OF 2004 ORDER 30-3-2009 PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. ------------------------ C.R.P.No.3270 OF 2001 ------------------------ Dated this the 30th day of March, 2009 ORDER Pius C.Kuriakose, J. The second respondent in the rent control petition, the alleged sub tenant is in revision under Section 20, being aggrieved by the orders of the Rent Control Court and the Appellate Authority passed against him and also against the first respondent in the rent control petition on the grounds under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control)Act,1965 (Act 2 of 1965) hereinafter referred to 'the Act. The landlord had invoked the ground under clause (i) of sub section 4 of Section 11 - sub letting also. The Rent Control Court, however did not grant eviction order under Section 11 (4) (i) finding that the transfer of premises in favour of the revision petitioner,second respondent, by the tenant is not an objectionable sub lease or transfer. To hold so, that court took into account the circumstance that the tenant and the alleged sub tenant are direct brothers and that the alleged sub tenant has CRP.3270/2001 -2- been in occupation of the building for quite a long period of time. The order of the Rent Control Court declining eviction on the ground under section 11(4)(i) has become final. In fact the land lord did not challenge that order before the Rent Control Appellate Authority and the appeal was preferred by the tenant only, against the order of eviction passed under section 11 (2) (b) and Section 11 (3) of the Act. We, therefore, in this revision need be concerned only, with the order of eviction passed under Section 11 (2) (b) and 11 (3). 2. The allegation of the landlord in the context of the ground under Section 11 (2) (b) was that the contract rent is Rs.200/- per month on the basis of Ext.A1 lease deed dated 14/7/1995 and that the rent at the rates mentioned therein has not been paid at all by the tenant in spite of statutory demand notice issued under Section 11 (2)(b). Even though Sri.M.S.Unnikrishnan, learned counsel for the revision petitioner , the second respondent in the rent control petition would assail the finding of the Rent Control Court regarding the rate of rent and also regarding the quantum of arrears, inter alia, on the CRP.3270/2001 -3- reason that the revision petitioner is not a party to Ext.A1 lease deed, we are not inclined to interfere with the concurrent findings of the courts below entered in the context of Section 11(2)(b) of the Act. We also take into account the circumstance that the first entry of the revision petitioner into the schedule building was on the strength of the permission granted by his brother, the first respondent in the R.C.P. and the further circumstance that the petition schedule building is situated by the side of the State Highway at Kolazhi Junction, an important junction situated not far away from the Thrissur Municipal Corporation and at any rate the sum of Rs.200/- per mensum is below the prevailing market rate for similar buildings in the said locality. We also take into account the circumstance that it is not an absolute order of eviction which is passed by the Rent Control Court under Section 11(2)(b) of the Act. Any eviction order passed under Section 11 (2)(b) of the Act is a provisional one which is liable to be vacated by the Rent Control Court. Once the tenant deposits the quantified arrears and moves under Section 11(2)(c) of the Act. We, therefore, confirm the order of eviction passed under Section CRP.3270/2001 -4- 11(2)(b) of the Act and grant one more month's time from today to the revision petitioner to get the order of eviction vacated by depositing the requisite amounts. 3. We have gone through the findings entered by the Rent Control Court and the Appellate Authority in the context of the ground under Sub-section 3 of Section 11 of the Act. The need projected by the landlord was that the building is required for occupation by his dependent son, who was examined as PW2, so that he could carry on business in electrical goods. It came on record that PW2 had passed ITI and had a certificate in electrical wiring. It also became evident that he, who was previously employed in a Gulf country, has come back for good and presently without any employment. The defence of the revision petitioner that the father-in-law of PW2 is having extensive immovable properties and that PW2 came home back for the purpose of looking after those properties was rightly repelled by the authorities below. The evidence is that the total extent of property belonged to the father-in-law is just 1 1/2acres of garden land where some coconut trees and arecanut trees are CRP.3270/2001 -5- standing. According to us, there is no infirmity about the finding of the Rent Control Court and the Appellate Authority that the need projected by the landlord is a bona fide one. The question whether the R.C.P.is liable to fail on account of the second proviso to Section 11(3) of the Act will naturally depend on answer to the question as to who is the tenant. The finding of the authorities below concurrently is that the tenant of the building is the first respondent in the R.C.P. Of course, the Rent Control Court declined the order of eviction under Section 11(4) (i) of the Act taking the view that the sub-lease or transfer in favour of the second respondent is not an objectionable one and the same has been accepted by the landlord. Nevertheless the finding of the Rent Control Court was that the revision petitioner is only a sub-tenant. The Appellate Authority also concluded that the revision petitioner is a sub-tenant. Therefore, both the authorities did not seriously go into the question whether the second respondent in the R.C.P.(revision petitioner herein) is entitled for the protection of the second proviso to Section 11(3) of the Act. Since the question whether the revision petitioner is CRP.3270/2001 -6- entitled to the protection of the second proviso to sub-section 3 of Section 11 of the Act is closely connected with the status of the revision petitioner in the building, we find it necessary to examine the case of the parties regarding the ground of sub- letting once again, though the order declining eviction under Section 11(4)(i) of the Act has attained finality. 4. Ext.B10 is a consent letter dated 30-5-1983 issued by the landlord to the local Engineer of the Kerala State Electricity Board wherein the landlord admits that the revision petitioner is carrying on trade in the schedule building and virtually expresses his consent in the matter. Exts.B7, B8 and B9 are certified copies of property tax assessment registers maintained by the local authority, Kolazhi Panchayath, in respect of the building in question in relation to a long period from 1983 to 1994 which takes in the period covered by the date of issuance of the statutory intimation notice under Section 11(4)(i) of the Act. In all these documents, it is recorded that the revision petitioner is the person in possession of the petition schedule building. In one of the documents, viz. Ext.B8 pertaining to the period from CRP.3270/2001 -7- 1988-89 to 1992-93, it is clearly recorded that the revision petitioner's status in the building is as tenant. Exts.B4 to B6 receipt books, according to us, are receipt books kept in the usual course of business by the revision petitioner and all those books will reveal that the landlord has received rent from the revision petitioner recognizing the revision petitioner as the tenant of the building. Receipt books show that the amounts are received from Vasu (revision petitioner) towards the rent in respect of the building in question. This being the position, we are of the view that the evidence on record will justify a conclusion not only that the transfer of the building by the first respondent in the R.C.P to the second respondent which to begin with was unauthorised was condoned by the landlord but also that the landlord has recognized the revision petitioner as his own tenant by acquiescence. It must be noted particularly that Exts.B4, B5 and B6 contained the signatures of the landlord. It should also be noted that documents, Exts.B7, B8 and B9 are documents enjoying their strong presumptions under Section 26 of the Rent Control Act regarding the correctness of the entries CRP.3270/2001 -8- contained therein. In the teeth of all these documents the conclusion is irresistible that the landlord has recognized the revision petitioner as his own tenant. 5. On an evaluation of the evidence, we find that both the Rent Control Court and the Appellate Authority have proceeded to consider the question of tenant's eligibility for protection under the second proviso to Section 11(3) of the Act on the premise that the tenant of the building is the first respondent in the R.C.P. Of course, we notice that the Rent Control Court has observed that the revision petitioner/2nd respondent in the R.C.P.has admitted in his statement of objections that other buildings are available in the locality. The above portion of the pleadings of the revision petitioner was read over to us by Advocate Mr. M.K.Dileepkumar. But we find that the landlord was denying the averment that the buildings are available in the locality for the landlord to provide his son. We are not prepared to decide the question of the revision petitioner's eligibility to the protection of the second proviso on the basis of the above apparent admission. The question whether the second respondent/ revision petitioner CRP.3270/2001 -9- is entitled for protection of the second proviso to Section 11(3) of the Act, according to us, it should be considered afresh by the Rent Control Appellate Authority. Section 20A of Act 1965 will enable this Court to remand appeals to the Rent Control Appellate Authority. We notice from provisions such as Sections 23(1), 18(3) of the Rent Control Act and Rule 16(2) of the Kerala Buildings (Lease & Rent Control) Act that the Appellate Authority has got power to conduct enquiries as the Rent Control Court has. We feel that considering the circumstance that the R.C.P.was filed way back in 1996, it is necessary in the interest of justice that the issue is remanded to the Rent Control Appellate Authority and not to the Rent Control Court. 6. The result of the above discussion is, therefore, as follows: 1. The revision petition is allowed to the limited extent of setting aside the order of eviction passed under Sub-Section 3 of Section 11 of the Act to the extent it pertains to the finding of the courts below regarding the eligibility for the protection of the second proviso to Section 11(3)) of the Act. CRP.3270/2001 -10- 2. The finding that the landlord has a bona fide need under Section 11(3) of the Act of the schedule premises of occupation by his son,PW2, is confirmed. 3. The finding of the Rent Control Court and the Appellate Authority is modified and it is held that the revision petitioner has acquired the status of a tenant by acquiescence on the part of the landlord. As a consequence the R.C.P.to the extent it is filed under Section 11(3) of the Act is remanded to the Rent Control Appellate Authority to decide the limited question whether the revision petitioner is entitled for the protection of the second proviso to Section 11(3) of the Act. Since oral evidence is already on record, both sides need be permitted by the court below to adduce documentary evidence regarding the revision petitioner's eligibility for the protection to Section 11(3) of the Act. The enquiry as directed above will be completed by the Rent Control Appellate Authority within two months of the court reopening after mid-summer holidays and fresh decision will be taken by that Authority regarding the revision petitioner's eligibility for eviction under Section 11(3) of the Act immediately CRP.3270/2001 -11- on completing the enquiry.The order of eviction passed against the first respondent under Section 11(2)(b) of the Act is extended to the second respondent/revision petitioner also and the revision petitioner is given one month's time from today for vacating that order under Section 11(2)(c) of the Act after making deposits. The civil revision petition is allowed to the above extent. But the parties are directed to suffer their respective costs. PIUS.C.KURIAKOSE,JUDGE M.C.HARI RANI, JUDGE dpk/ks.