IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 RCRev..No. 240 of 2005() ------------------------ RCA.118/1999 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.43/1998 of RENT CONTROL COURT, THALIPARAMBA .................... REVISION PETITIONER/PETITIONER/LANDLORD: ------------------------------------------------------------ KALATHINTAVIDA HARIS, S/O.MAMMU HAJEE, AGED 41 YEARS, RESIDING AT FAROOQUE NAGAR, TALIPARAMBA AMSOM, DESOM, P.O. TALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.C.KHALID SRI.S.MAMMU RESPONDENT(S): RESPONDENT: -------------------------- CHALISSERI MATHEW, W/O. MURIKKOLI ASSU, AGED 51 YEARS, OCCUPATION NIL RESIDING AT MANIKKOTH VALAPPU HOUSE, THALASSERY AMSOM, VADIKKAKAM DESOM, THALASSERY P.O., THALASSERY TALUK, KANNUR DISTRICT. CHALISSERI MATHEW S/O. KUNHU VAREED, AGED 41 YEARS, TRADER, FRIENDS FOOT WEAR, TMC VII, 608 COURT ROAD, TALIPARAMBA AMSOM DESOM (THE ADDRESS OF THE RESPONDENT IS AMENDED AS PER ORDER DATED 18/7/2006 IN I.A. 1869/2006) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 240 OF 2005 ------------------------ Dated this the 6 th day of January, 2010 O R D E R Pius C.Kuriakose, J. In this revision by the landlord under Section 20, the landlord challenges the judgment of the Rent Control Appellate Authority vacating the order of eviction passed in his favour by the Rent Control Court under sub section (3) of Section 11. Even though the respondent/tenant was served with notice, he has not chosen to enter appearance before this court. On 18/11/2009, it was brought to our notice by the learned counsel for the revision petitioner referring to the averments in the affidavit in support of I.A. No. 3289/2009 that the tenant has not chosen to pay the rent which fell due in respect of the petition schedule building subsequent to the commencement of the proceedings. Accordingly on that day, we passed the following order in I.A. No.3289/2009. “There is no representation for the respondent, who has been served with RCR.No. 240/2005 2 notice. We are convinced on the affidavit submitted by the revision petitioner landlord in support of his application that as on 4/11/2009, a sum of Rs.58,425/- is due to the revision petitioner towards the rent which fell due in respect of the petition schedule building subsequent to the commencement of the rent control proceedings. We direct the respondents to pay the above amount to the revision petitioner within two weeks from today. Post on 3/12/2009”. 2. Thereafter, I.A. No.3289/2009 and the RCR were adjourned to 3/12/2009 and thereafter to 11/12/2009. On neither of these days, the respondent made payment as directed nor did he show any cause against the passage of summary order of eviction against him under Section 11 (3). We would have been inclined to pass summary order of eviction had it not been for the fact that the present revision is one filed by the landlord. We have, therefore, heard the learned counsel for the RCR.No. 240/2005 3 revision petitioner Sri.T.P.Sajid in extenso. 3. The learned counsel for the revision petitioner would assail the judgment of the Rent Control Appellate Authority and submit that there was absolutely no warrant for that authority to interfere with the findings entered by the Rent Control Court in the context of the first proviso to sub section (3) of Section 11. The learned counsel highlighted that the Appellate Authority also did not interfere with the finding of the Rent Control Court that the need projected was bona fide and that the tenant was not entitled for the protection of the second proviso to sub section (3) of Section 11. 4. We have considered the submissions of the learned counsel for the revision petitioner. We have also considered those items of evidence to which our attention was drawn by the learned counsel. The need pleaded by the landlord was that the building in question is required bona fide for occupation by the landlord's brother Siyad, so that he can conduct a bakery there. Sri.Siyad himself was examined as PW1 and his evidence inspired the Rent Control Court and that court accepted the need to be a bona fide one. On the basis of the evidence, which came on RCR.No. 240/2005 4 record, that court found that the tenant was not entitled for the protection of the second proviso to sub section (3) of Section 11. One serious contention which the tenant had raised was that the landlord is in possession of three other vacant rooms of the landlord's own and that the Rent Control Court Petition is liable to be rejected, despite the bona fide nature of the claim, for that reason. The tenant relied on Ext.B1 series of documents to show that the landlord was in possession of vacant buildings of the landlord's own. For rebutting the presumption aroused by Ext.B1 series, the landlord examined PWs 2 to 5, the tenants who were in possession of those rooms. The Rent Control Court noticed that the credibility of PWs 2 to 5 was not at all shaken in the cross examination. Accordingly, the court believed PWs 2 to 5 and accepted the landlord's contention that he does not have vacant possession of the rooms. Accordingly, the order of eviction was passed under sub section (3) of Section 11. 5. The Rent Control Appellate Authority on considering the appeal preferred by the tenant would reappraise the evidence. That Authority also concurred with the finding of the Rent Control Court regarding the bona fides of the need and also regarding RCR.No. 240/2005 5 the tenant's eligibility for the protection of the second proviso to sub section (3) of Section 11. However, that Authority found that the landlord thought in terms of examining PWs 2 to 5 only after the tenant had produced Ext.B1 series. The Authority took the view that it was obligatory on the part of the landlord to have pleaded in the Rent control Petition that he owns building of his own and he is not in a position to occupy those buildings for the projected need. Taking the view that the landlord is guilty of suppressing the material facts, the Appellate Authority would reverse the finding of the Rent Control Court in the context of the first proviso to sub section (3) of Section 11 and accordingly allowed the appeal setting aside the order of eviction. We are of the view that the learned Appellate Authority was not right in taking the view that in the circumstance which obtained in the case, it was obligatory on the part of the landlord to have raised pleadings regarding his having ownership over the building Nos.942,944, 945 & 946 found by the Rent Control Court to be occupied by PWs 2 to 5. Obligation, if at all on the part of the landlord to raise pleadings regarding the availability of vacant buildings and also regarding the existence of special reason as RCR.No. 240/2005 6 envisaged by the first proviso to sub section (3) of Section 11 will arise only when the landlord is in vacant possession of his own building. In the present case, the version of the landlord is that he did not have vacant possession and that the buildings in question were possessed by his tenants PWs 2 to 5. The Appellate Authority also does not disagree with the view of the Rent Control Court that the credibility of PWs 2 to 5 was not shaken in cross examination. The Appellate Authority blamed the landlord for not having raised pleadings regrading the availability of the building having door number 942, 944, 945 and 946. In our opinion since PWs 2 to 5 have been correctly found by the Rent Control Court as witnesses of truth (and by the Authority also to a certain extent) there was no justification on the part of the Appellate Authority to have upset the findings of the Rent Control Court in the context of the first proviso to sub section (3) of Section 11. The upshot of the above discussion is that we set aside the findings of the Appellate Authority to the effect that the Rent Control Petition is liable to fail by virtue of the first proviso to sub section (3) of Section 11. We restore the order of eviction RCR.No. 240/2005 7 passed by the Rent Control Court under sub section (3) of Section 11. The Revision Petition is allowed as above, but without any order as to costs. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk