IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 RCRev..No. 221 of 2010(D) ------------------------------ RCA.17/2007 of I ADDL.DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM RCP.214/1998 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------- K.P.SAJI, AGED 43 YEARS, S/O.PAULOSE, KANDANCHERIL AGENCIES, KARUKAPPILLY JUNCTION, KALOOR. BY ADV. SRI.N.M.MOHAMMED AYUB RESPONDENT(S): RESPONDENTS/PETITIONERS ----------------------------------------------------- 1. C.M.SAINABA, AGED ABOUT 65 YEARS, W/O.IBRAHIM, THUMBARATHUVEETTIL, KALOOR, KOCHI - 17. 2. T.E.MOHAMMED RAFEEK, AGED ABOUT 42 YEARS, S/O.IBRAHIM, THUMBARATHUVEETTIL, KALOOR, KOCHI - 17. 3. T.E.BILAL, AGED ABOUT 40 YEARS, S/O.IBRAHIM, THUMBARATHUVEETTIL, KALOOR, KOCHI - 17. ADV. SRI.K.N.PRADEEP KUMAR FOR R1 TO 3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.221 of 2010 ------------------------------------------------ Dated this the 29th day of March, 2011 ORDER Balakrishnan, J The tenant is in revision. An order of eviction was passed against him under Section 11(3) of the Act. The petition schedule room were situated in the ground floor of a line building which consists of several rooms. The landladies contended that in the vacant space they are intending to construct two residential buildings in such a manner that those buildings are facing each other and between those two buildings a wide passage is to be provided. According to the landladies, the petition schedule building is to be demolished and through the space so obtained a passage has to be provided. The Rent Control Court and the Appellate Authority accepted the plea raised by the landladies and thus, eviction was ordered. 2. Sri.N.M.Mohamed Ayub, the learned counsel for the R. C. R. No.221 of 2010 -2- revision petitioner would submit that the courts below did not properly consider the plea raised by the tenant that there is another vacant space obtained after removal of the rear wall of the easternmost room and that portion was actually used earlier by the landladies for taking vehicles to the eastern part of the area in their possession. According to Sri.Ayub in the plan obtained by the landladies for construction of the building it was not specifically noted that the passage is to be provided by demolishing the petition schedule building, i.e. through the space which can be made available by demolishing the petition schedule building. 3. The learned counsel for the landladies would submit that no such space on the eastern side is available and it cannot be used as a passage for the two buildings to be constructed in the rear portion behind the petition schedule building. It is further submitted by the learned counsel for the landladies that the passage if at all that can be provided by making use of the R. C. R. No.221 of 2010 -3- eastern room as suggested by the tenant cannot be used as a passage from the main road so as to have the passage lying in between the two residential buildings to be constructed in the vacant space. 4. In this connection, Sri.Mohammed Ayub would submit that no special reason was stated by the landladies in the Rent Control Petition nor was any such evidence adduced by the landladies to sustain the claim so as to overcome the interdiction contained in the first proviso to sub Section 3 of Section 11. The photographs of the buildings which were recently taken have been made available by both sides. Though it may be correct that the petition schedule building lies almost in the middle so that the landladies can make a passage through that area since no special reason as envisaged under the first proviso has been stated in the petition, the landladies cannot, without sufficient pleadings, sustain the claim. The learned counsel for the landladies would submit that in the easternmost portion, there is R. C. R. No.221 of 2010 -4- no building and as such the first proviso to sub Section 3 of Section 11 will not be applicable. But it is a fact that the area is covered by two walls on either side and the front portion is covered with a shutter. The learned counsel for the tenant would submit that earlier the rear portion was covered with a wall. Whatever that be, it is covered with a roof and walls on three sides and as such it comes within the definition of “building” and so in order to enable the landladies to sustain the claim under Section 11(3) special reason has to be stated as provided under the first proviso to sub Section3 of Section 11. However, we feel, it is just and proper that the landladies are given opportunity to amend their pleadings and for that purpose it has to be remanded to the Rent Control Court. 5. The learned counsel for the landladies would submit that the rent which is presently paid is only Rs.600/- per month whereas the tenant of the adjacent rooms are paying Rs.4,000/- per month. We feel that the monthly rent of Rs.600/- which is R. C. R. No.221 of 2010 -5- presently paid is grossly inadequate and as such, we propose to tentatively re-fix the monthly rent at Rs.2,500/-. 6. In the result, the order of eviction passed by the Rent Control Court confirmed by the Appellate Authority is set aside. The RCP is remanded to the Rent Control Court for fresh decision. The landladies are at liberty to amend the RCP incorporating the pleadings regarding the first proviso to sub Section 3 of Section 11. When the RCP is so amended, the tenant would also be entitled to file additional counter. Both sides will be given opportunity to adduce further evidence in the matter. We re-fix the monthly rent in respect of the petition schedule building at Rs.2,500/- with effect from 01/05/11. This re-fixation is only tentative. If either party is aggrieved by the re-fixation, he will be at liberty to move the Rent Control Court for regular fixation of fair rent under Section 5 of the Act. Parties are directed to enter appearance before the Rent Control Court on 25/05/11. 7. It is submitted by the learned counsel for the landladies R. C. R. No.221 of 2010 -6- that in fact rent was in arrears though a mistaken submission was made when a petition was filed under Section 12 of the Act that rent was paid. What was then paid was only the admitted arrears. The arrears of rent as found by the trial court was not paid and that order was not got vacated under Section 11(2)(c). We restore the order of eviction passed under Section 11(2)(b) of the Act. The tenant/revision petitioner is given two months time to get that order vacated. The learned Rent Controller will dispose of the RCP as expeditiously as possible. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.221 of 2010 -7-