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 9TH JUNE 2011 / 19TH JYAISHTA 1933 RCRev..No. 405 of 2010() ------------------------ RCA.43/2007 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.120/2005 of RENT CONTROLLER OF ,THRISSUR .................... REVISION PETITIONER/ RESPONDENT/PETITIONER --------------------------------------------------------------------------- MARIAMMA THIMOTHY, W/O.LATE THIMOTHY, KONIKKARA HOUSE, ERINJERI ANGADI, TRICHUR. BY ADV. SRI.JIJO PAUL RESPONDENT/APPELLANT/RESPONDENT ----------------------------------------------------------- NITHYA KURIES & LOANS (P) LTD., TRICHUR VILLAGE, REPRESENTED BY ITS CHAIRMAN, E.J.JOSE, S/O.LAZAR, EDAKULATHUR HOUSE, MISSION QUARTERS, CHEMBUKKAVU VILLAGE, TRICHUR-680 001. BY ADV. SRI.K.A.SREEJITH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 405 OF 2010 = = = = = = = = = = = = = = = = Dated this the 9th day of June, 2011. O R D E R PIUS C. KURIAKOSE,J. Under challenge in this revision filed by the landlady is the judgment of the Rent Control Appellate Authority dismissing the RCP filed by the landlady on the ground u/s 11(4)(v)(session of occupation), setting aside the order of eviction which was passed by the Rent Control Court on that ground. k The respondent/tenant is a kury company. The landlady's allegation was that the respondent ceased to occupy the building continuously for more than six months at the time of commencement of the RCP. The petitioner relied mostly on the Advocate Commissioner's report submitted in the original R.C.R. NO. 405 OF 2010 -:2:- suit which the petitioner had filed a few month's prior to the institution of the RCP. The suit was for a perpetual injunction restraining the respondent/tenant from inducting strangers into the petition schedule building. The Commissioner who was appointed by the Munsiff Court exparte submitted a report which was to the effect that the premises were found unoccupied. Ext.A5 was the certified copy of the above Commissioner's report submitted by a lady advocate by name Mridula Mukundan. Apart from that there were Exts.A1 to A4 on the side of landlady. The landlady got herself examined as PW1. On the side of the tenant the evidence consisted of Ext.B1 which is a certified copy of the plaint in the suit in which Ext.A5 report was submitted, Ext.B2 is certified copy of the order in the temporary injunction application R.C.R. NO. 405 OF 2010 -:3:- filed in the above suit and Ext.B3 is the annual report published by the respondent/company regarding its financial status. On the side of the Company one witness was examined as RW1. The Rent Control Court on evaluating the evidence came to the conclusion that the eviction ground stood proved and on that basis the order of eviction was passed. 2. The learned Appellate Authority considered the appeal preferred by the tenant and by the impugned judgment allowed the appeal after interfering with the order of the Rent Control Court. On going through the judgment of the learned Appellate Authority what we notice is that the one reason which is highlighted by the Appellate Authority is Ext.A5 Commissioner's report being not duly proved by examining the Commissioner could not have been legal evidence R.C.R. NO. 405 OF 2010 -:4:- in the proceedings under the RCP. The above view of the learned Appellate Authority cannot be said to be incorrect. Ext.A5 was not part of the record of the RCP case. If the revision petitioner wanted to bring Ext.A5 on record as an item of evidence in the RCP, it was necessary that the author of Ext.A5 report was cited and examined as a witness. One of the submissions made before us by Sri.Jijo Paul, learned counsel for the revision petitioner was that the non examination of the author of Ext.A5 was due to unavoidable circumstances. It was submitted that the lady advocate was on leave after confinement and delivery. Learned counsel requested that an opportunity may be given to examine her. He further argued that the claim of the tenant/Company that they have been doing business during the relevant period could have R.C.R. NO. 405 OF 2010 -:5:- been proved by the Company on the basis of documentary evidence. Not even a scrap of paper was produced by the respondent/Company to substantiate that claim. 3. The submissions of Sri.Jijo Paul were resisted by Sri.K.A.Sreejith, learned counsel for the respondent. According to Mr.Sreejith, there is no illegality, irregularity or impropriety about the judgment of the Appellate Authority which contains reasonable findings. Hence there is no warrant for interference with that judgment. Mr.Sreejith supported the judgment of the Appellate Authority on the various reasons stated in the above judgment. 4. Having given our anxious consideration to the submissions addressed and having gone through the order of the Rent Control Court and the judgment of the Appellate Authority, we feel R.C.R. NO. 405 OF 2010 -:6:- that the cardinal issue whether the tenant ceased to occupy the building in question during the continuous period of six months upto the date of commencement of the RCP can be answered more correctly if the parties adduce further evidence. On the side of the landlady, she can examine author of Ext.A5 and on the side of the tenant they can produce and prove documents which would show that they have been conducting kuri business during the relevant time. Incidentally they can also produce documentary evidence pertaining to consumption of electricity, payment of telephone charges etc. which may go a long way in substantiating the tenant's contention. We feel that an opportunity should be given to both the sides for adducing further evidence and for substantiating there rival contentions. R.C.R. NO. 405 OF 2010 -:7:- 5. We notice another aspect of the matter. The building is situated in a very important area of Thrissur Corporation very close to the Basilica of Our Lady of Dolours(............). We feel that the monthly rent of Rs.700/- fixed more than 10 years ago is far below the rent which the building will fetch if let out today. We refix the rent payable by the respondent with effect from 1.7.2011 at Rs.1,000/- per month. This refixation is tentative and if either party is aggrieved it is open to them to move an application u/s 5 for regular fixation of fair rent. 6. The result of the above discussion is the judgment of the Appellate Authority and the order of the Rent Control Court are set aside. The RCP is remanded to the Rent Control Court for fresh disposal. That Court is to afford R.C.R. NO. 405 OF 2010 -:8:- opportunity to both the sides to adduce whatever further evidence they want to adduce and to take a decision on the basis of the evidence already on record and further evidence adduced by the parties . Rent payable is refixed at Rs.1,000/- per month with effect from 1.7.2011. The Rent Control Court shall expedite the matter and ensure that a revised order is passed early at any rate within four months from the parties entering appearance before the Rent Control Court. Parties will enter appearance on 28.6.2011. Transmit the records forthwith. Sd/- PIUS C. KURIAKOSE, JUDGE. Sd/- N.K. BALAKRISHNAN, JUDGE. ul/- [ True copy ] P.S. to Judge.