IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 RCRev..No. 8 of 2010() ---------------------- RCA.61/2008 of RENT CONTROL APPELLATE AUTHORITY , VADAKARA RCP.88/2007 of RENT CONTROL COURT, VADAKARA .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- MALARAMBATH KUNHIPATHU, AGED 78 YEARS, D/O.IBRAYI, SWASTHAM, VILLIAPPALLY AMSOM, THIRUMANA DESOM, VATAKARA TALUK, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER IBRAHIM HAJI, AGED 60 YEARS, VILLIAPILLY AMSOM, MAYYANOOR. BY ADV. SRI.B.G.BHASKAR SRI.BIJU ABRAHAM SRI.A.V.BIJU RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------- THAYYULLATHIL SUNILKUMAR, S/O.KUNHIKANARAN, AGED 42 YEARS, BUSINESS, PONMERI AMSOM, PARAMBIL DESOM, VATAKARA TALUK. BY ADV.SMT.SUMATHI DANDAPANI(Sr.) ADV. SRI.MILLU DANDAPANI FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 8 OF 2010 ------------------------ Dated this the 24th day of June, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the landlord is the judgment of the Rent Control Appellate Authority interfering with the positive order of eviction passed in favour of the landlord under sub section (3) of Section 11 and dismissing the Rent Control Petition mainly on the ground that the first proviso to sub section (3) of Section 11 operates against the landlord. A perusal of the judgment of the Appellate Authority will show that the Appellate Authority noticed that the landlord had obtained vacant possession of buildings having door Nos. 583 and 584 and that the landlord had not proved any special reasons as to why the landlord could not accommodate his needy son for doing business in either of those rooms. The landlord's answer before the Appellate Authority was that those buildings had been got vacated on the ground that those buildings are needed for occupation of another needy son of the landlord. In fact, before the Appellate Authority an endeavor was made by the landlord RCR.No.8/2010 2 to prove that those rooms had been got vacated on the need of another son by producing a Photostat copy of the Rent Control Petition which the landlord had filed. The Appellate Authority, for valid reasons, did not permit admittance of the Photostat copy. 2. Sri.B.G.Bhaskar, learned counsel for the landlord/ petitioner would place before us a copy of the eviction order passed by the Rent Control Court in RCP No.87/2007 relating to the building having door Nos. 583 & 584 and request that if this Court is not inclined to act on the same, the matter may be relegated to the Appellate Authority, so that, that Authority can decide the issue afresh. Smt. Sumathi Dandapani, learned senior counsel appearing for the tenant does not agree. According to Smt.Dandapani, there are other excellent reasons as to why the Rent Control Petition should fail. Apart from rooms having door Nos.583 & 584, the landlord had come to possession of another room having door No. 582. As regards that room, the tenant had died and his legal heirs voluntarily surrendered that room with the landlord. According to the learned senior counsel, if there was an element of bona fides, the landlord could have RCR.No.8/2010 3 accommodated his needy son Pokker in that room. 3. Having scanned the order of the Rent Control Court and the Judgment of the Appellate Authority, we do not find any reason to upset the finding entered by the Rent Control Court (practically endorsed by the Appellate Authority also) that the need projected by the landlord is bona fide. But, the question is whether in spite of such finding, eviction should be ordered. It is the mandate of the first proviso to sub section (3) of Section 11 that even if the need is bona fide, eviction shall not be ordered if it is shown that the landlord is having possession of other buildings reasonably sufficient for the purpose projected in the Rent Control Petition. One of the arguments of Smt.Dandapani before us was that though the landlord had produced Ext.A6 licence issued in favour of Kunhimoosa for showing that the son for whom buildings having door numbers 583 & 584 were got evicted by him started business, the above licence is one obtained only after the issue in this case under first proviso to sub section (3) of Section 11 became seriously contentious. The learned senior counsel further submitted that, as a matter of fact even at present those rooms are kept vacant and the room RCR.No.8/2010 4 having door No.582 is also kept vacant. If what the senior counsel says is correct, it is open to the tenant to adduce evidence before the Appellate Authority to show that those rooms are vacant. We are sure that if the Appellate Authority is convinced on the evidence that buildings having door Nos. 582, 853 & 584 are actually kept vacant, that Authority will not hesitate to reject eviction despite confirmation of the findings under sub section (3) of Section 11 by us that the need is bona fide. Since we are not inclined to decide the issue finally, the matter will go back to the Appellate Authority. 4. The result is that the order of the Rent Control Court and the Judgment of the Appellate Authority are set aside. R.C.A. No. 61/2008 is remanded to the Rent Control Appellate Authority, Vadakara. That Authority is directed to permit both sides to adduce whatever further evidence they want to. The Authority will decide the question whether the RCA No.61/2008 is liable to be rejected, due to the operation of the first proviso to sub section 3 of Section 11, on the basis of the evidence already on record and the evidence which comes further on record. RCR.No.8/2010 5 The parties will enter appearance before the Appellate Authority on 15/7/2010. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk