IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 RCRev..No. 148 of 2008(A) ------------------------------------ RCA.33/1997 of II ADDL. RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.3/1994 of ADDL. RENT CONTROL COURT, KOLLAM .................... REVISION PETITIONER/APPELLANT/PETITIONER ----------------------------------------------------------------------- C.YESUDASAN NADAR, S/O CHELLAYYAN NADAR, RESIDING AT MOHAN MANSION, CANTONMENT SOUTH, KOLLAM. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): RESPONDENTS/COUNTER PETITIONERS ----------------------------------------------------------------------------------- 1. DR.IMMANUAL ISSAC, S/O LATE V.E.ISSAC, E.S.I. HOSPITAL, PATHIRAPPALLY, ALAPPUZHA. 2. ISSAC MATHEW, S/O LATE V.E.ISSAC, 'V' INSTITUTE, LAKSHMINADA, KOLLAM. 3. MARIYAKUTTY ISSAC, D/O LATE V.E.ISSAC, RESIDING AT MARY VILLA, KAIKULANGARA WARD, KOLLAM. 4. ANI ISSAC, INSTITUTE OF COMPUTER TECHNOLOGY, ALTHARAMOODU JUNCTION, VADDY, KOLLAM. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 SRI.K.JAYAKUMAR FOR R1 SRI.P.B.KRISHNAN FOR R1 SRI.P.RAVEENDRAN PILLAI FOR R1 SMT.INDIRA RAVEENDRAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.148 of 2008 ------------------------------------------------ Dated this the 24th day of February, 2011 ORDER Pius C. Kuriakose, J The landlord is the revision petitioner and he challenges in this revision the judgment of the Rent Control Appellate Authority declining eviction on the ground under Section 11(3). The Appellate Authority declined order of eviction sought for under Section 11(3) mainly on the reason that the tenant is entitled to the protection of sub Section 17 of Section 11 and also on the reason that an order of eviction cannot be passed against the tenant under Section 11(11)(ii) of Act 2 of 1965. 2. As for the protection under Section 11(17) granted to the tenant by the statutory authorities, we will notice immediately the judgment of the Full Bench of this Court in R. C. R. No.148 of 2008 -2- Prabhakaran v. Sulaikabi (2007(2) KLT 103 F.B.). It has been laid down by the Full Bench that the protection under Section 11(17) is a personal protection given to the tenant who took the building on lease and that the same will not be available to the legal heirs of that tenant who qualify as tenant only by the operation of the statute. Now that the original tenant is no more the respondents who are his legal heirs will not be eligible for the protection under Section 11 (17) in view of the law laid down by the Full Bench in Prabhakaran v. Sulaikabi (2007(2) KLT 103 F.B.) (cited supra). 3. Then the question which arises is whether the respondent will be entitled to immunity for eviction under Section 11(11)(ii). In fact, in a previous Rent Control Petition it was held by the Rent Control Court that the tenant is entitled to such immunity. Sri.V.Chitambaresh, the learned senior counsel would place strong reliance on the R. C. R. No.148 of 2008 -3- judgment in Rama Iyer v. Addl. District Judge (1992(1) KLT 486) and argue that commercial institutes like 'V' Institute conducted by the respondents in the petition schedule building will not come within the purview of Section 11(11) (ii). We are not inclined to examine the merits of the above submission because we find that there is a subsisting offer by the landlord to induct the tenants into area more or less equal to the area presently enjoyed by them in the new building which the landlord has constructed. Sri.Chitambaresh, the learned senior counsel for the petitioner and Sri.S.V.Balakrishna Iyer, the learned senior counsel for the respondents submitted before us that construction of the new buildings is practically completed and it will be possible for the landlord to induct the tenants into 2500 sq. ft. area (the area presently enjoyed by the tenants) in the new constructed building. The learned senior counsel for the tenant submitted that there will be no R. C. R. No.148 of 2008 -4- difficulty for the tenant to pay fair rent for the building portion to which they are inducted. According to us, the RCR itself can be disposed of in view of the above stand taken by the learned senior counsel at the Bar and an order of eviction can be passed in favour of the landlord incorporating conditions which will ensure that even before the respondents are dispossessed from the building which is subject matter of the rent control proceedings they are inducted into a portion of a newly constructed building. Accordingly, we dispose of the RCR issuing the following orders and directions: 4. The order of the Rent Control Court and the judgment of the Appellate Authority are set aside and an order of eviction is passed in favour of the revision petitioner/ landlord against the respondents on the ground under sub Section 3 of Section 11. However, we direct the execution court to keep in abeyance all proceedings for R. C. R. No.148 of 2008 -5- delivery of the petition schedule building till such time as the respondents are inducted into 2500 sq. ft. area in the commercial building newly constructed by the landlord/ revision petitioner. In other words, before ordering delivery, the learned execution court shall ensure that the respondents are inducted into the newly constructed building. It is needless to mention that the respondents will be bound to pay fair rent for the building into which they are inducted on the basis of this judgment. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.148 of 2008 -6-