IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRP.No.3215 of 2001 (A) ----------------------------- RCA.8/1996 of I ADDL. RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.104/1994 of ADDL. M.C.,TRIVANDRUM .................... REVN. PETITIONER(S)/RESPONDENT IN RCA/IN RCP: --------------------------------------------------------------- MUHAMMED SALI, T.C.48/64, LAILA MANZIL, PARUTHIKUZHI, THIRUVANANTHAPURAM REP. BY THE POWER OF ATTORNEY HOLDER, MR.ABDUL RAHEEM, SON OF MUHAMMED HANEEFA, AGED 62, RESIDING AT T.C. NO.59/1442, RAHEEM MANZIL, MANACAUD, THIRUVANANTHAPURAM-9 [DIED; LRS. IMPLEADED] * ADDL. PETITIONERS:- 2. S.AYSHA BEEVI, W/O LATE MUHAMMED SALI, RESIDING AT T.C.48/64, LAILA MANZIL, PARUTHIKUZHI, THIRUVANANTHAPURAM. 3. M. MOHAMMED BASHEER, S/O LATE MUHAMMED SALI, -DO- -DO- 4. A. NABEEZATH BEEVI, D/O LATE MUHAMMED SALI, -DO- -DO- 5. M. LAILA BEEVI, D/O LATE MUHAMMED SALI, -DO- -DO- 6. M. BADAVUDEEN, S/O LATE MUHAMMED SALI, -DO- -DO- 7. M. SALIM, S/O LATE MUHAMMED SALI, -DO- -DO- CRP.No.3215 of 2001 (A) 2 *[REVISION PETITIONERS 2 TO 7 ARE IMPLEADED AS ADDL. REVISION PETITIONERS 2 TO 6 VIDE ORDER DT.03/03/09 IN C.M. APPL.148/09, I.A.513/09 & I.A.512/09 IN CRP. NO.3215/01] BY ADV. SRI.K.B.PRADEEP RESPONDENT(S)/APPELLANT IN RCA/PETITIONER IN RCP: --------------------------------------------------------------------- VASANTHA, T.C. NO.39/25, VRINDAVAN GARDENS, CHALAI, THIRUVANANTHAPURAM ** ADDL. RESPONDENT NO.2 M.BADUSHA, S/O LATE MUHAMMED SALI, RESIDINT AT T.C.48/64, LAILA MANZIL, PARUTHIKUZHI, THIRUVANANTHAPURAM. **[RESPONDENT NO.2 IS IMPLEADED AS ADDL. RESPONDENT NO.2 VIDE ORDER DT.03/03/09 IN C.M. APPL.148/09, I.A.513/09 & I.A.512/09 IN CRP. NO.3215/01] ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ C.R.P.No.3215 OF 2001 ------------------------ Dated this the 13th day of July, 2009 ORDER Pius C.Kuriakose, J. It is seen that Sri.M.Badusha who was impleaded as additional second respondent in the CRP vide order in C.M. Application Nos.148/09, I.A.512/09 and I.A.513/09 is yet to be served with notice of the CRP. But we also notice that Sri.M.Badusha is only one of the legal heirs of the deceased original tenant. All other legal heirs are his siblings who got themselves impleaded. There is no inter se conflict between them and Sri.Badusha. Sri.Badusha's interest in the subject matter of litigation is sufficiently represented by his siblings. Hence, we declare that Sri.Badusha is duly served and that he need not be separately served. 2. The tenant is in revision against the judgment of the rent control appellate authority ordering eviction on the ground of arrears of rent and bonafide own occupation. The agreed contract rent monthly is Rs.50/- and the evidence reveals that the same is in arrears from 1992 as alleged in the rent control petition. It is C.R.P. NO.3215/01 2 submitted by Sri.K.B.Pradeep, learned counsel for the revision petitioner that when this CRP was filed in 2001, the arrears of rent as found by the rent control court and the appellate authority and also the rent which fell due till the date of filing of the CRP, was paid/deposited in view of a direction issued by this court. 3. The above submission of the learned counsel for the revision petitioner is not seriously disputed by Sri.George Varghese, learned counsel for the respondent landlord. Since the order of eviction passed under Section 11(2) (b) is liable to be vacated on making deposits, we are of the view that there is no warrant for interfering with the eviction order passed under Section 11 (2) (b). Accordingly, we confirm the eviction order passed under Section 11 (2) (b) observing that the same is liable to be vacated under Section 11(2)(c). 4. The Rent Control Court disallowed the claim for eviction on the ground under sub Section 3 of Section 11. The Appellate Authority, however permitted amendments which were sought for by the landlord in the Rent Control Petition and on the basis of C.R.P. NO.3215/01 3 the amended RCP became inclined to order eviction on the ground under sub Section 3 of Section 11. The Appellate Authority, in fact, allowed yet another application filed by the landlord seeking reception of documents which would show that other buildings are available in the locality for the tenant to shift his business and therefore, the tenant is not entitled to the protection of the second proviso to sub Section 3 of Section 11. 5. Sri.K.B.Pradeep, learned counsel for the revision petitioner would assail the judgment of the Rent Control Appellate Authority very strongly. Sri.Pradeep submitted that by allowing the application for introducing drastic amendment in the Rent Control Petition and also by permitting reception of documents at the appellate stage, the appellate authority has caused severe prejudice to the revision petitioner/tenant. He submitted that having permitted the application for amendment of the Rent Control Petition it was obligatory that the revision petitioner/tenant was also given opportunity to file additional objections and to meet the landlord's case in the amended RCP by adducing evidence. The best that could have been done in the case was to pass an order of remand to the Rent Control Court. C.R.P. NO.3215/01 4 Sri.Pradeep also argued that serious prejudice has been caused to the tenant by permitting reception of documents at the appellate stage. Since new documents were produced at the appellate stage the proper course to be adopted by the appellate authority was to pass an order of remand to the Rent Control Court. 6. Sri.George Varghese, counsel for the respondent, however would support the judgment of the Rent Control Appellate Authority. He drew our attention to Section 23 and Section 18(3) of Act 2 of 1965 and argued that in the matter of reception of evidence, the Powers of Appellate Authority and the Rent Control Court was co-terminus. No prejudice has been caused to the revision petitioner by the amendments permitted by the Appellate Authority. The landlord's pleadings only got clarified by the amendment and no new case was introduced by the amendments, so submitted Sri.George Varghese. 7. We have anxiously considered the submissions addressed at the Bar. A perusal of Section 18(3) will show that the Rent Control Appellate Authority has the power to hold further enquiry as found necessary for deciding the appeal. Section 23 alone will C.R.P. NO.3215/01 5 show that in the matter of the various aspects enumerated in that Section the power of the Rent Control Court and the Appellate Authority are co-terminus. Rule 16(2) of the Kerala Buildings (Lease and Rent Control) Rules also will show that it is within the powers of the Appellate Authority to hold further enquiry for the purpose of deciding the appeal. 8. We do not think that in this case by allowing the amendment of the Rent Control Petition in the manner sought for by the landlord any prejudice has been caused to the revision petitioner/tenant. The revision petitioner/tenant got the opportunity to resist the Rent Control Petition on all the defences actually raised by them. On going through the statement of objections, we find that all conceivable contentions were raised and were attempted to be substantiated by the revision petitioner/tenant. 9. As for new document permitted to be produced by the appellate authority, we notice that all those documents were produced in the context of the question whether the tenant is entitled to the protection of second proviso to Section 3. It is trite that the burden of establishing that the tenant satisfies both the C.R.P. NO.3215/01 6 ingredients of the second proviso is on the tenant only. The tenant did not produce any acceptable legal evidence to show that the tenant satisfies either of the ingredients of the second proviso. The Rent Control Appellate Authority by permitting landlords to produce the documents showing that other buildings are available in the locality cannot be blamed for having caused prejudice to the tenant. 10. The jurisdiction of this Court under Section 20 of Act 2 of 1965 is revisional in nature. Under the statutory scheme the appellate authority is the final court on facts. Ordinarily this Court in revision does not reappraise the evidence. Reappraisal of the evidence if at all can be done for the limited purpose of deciding whether the Appellate Authority's judgment is tainted by any illegality, irregularity or impropriety. Even on a reappraisal of the evidence including the evidence which were permitted to be adduced by the Appellate Authority, we do not find any infirmity and much less illegality, irregularity and impropriety justifying invocation of revisional jurisdiction under Section 20. The above discussions should necessarily lead this revision to dismissal. 11. As his last submission, Sri.K.B.Pradeep sought for time C.R.P. NO.3215/01 7 till 31/12/2010 to surrender the premises. He also submitted that in consideration of so much of time being granted, the revision petitioner will be prepared to pay reasonable hike in the monthly rent. Sri.George Varghese, the learned counsel for the respondent submitted that on a maximum, one year's time be granted. Granting time more than that will be unjust, according to him. 12. Having considered the rival submissions on the question of grant of time, we are of the view that in the special circumstances which attend on this case, time can be granted till 30/09/2010 on the following conditions:- 1) The revision petitioners shall file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to peacefully surrender the petition schedule building to the respondent on or before 30/09/2010. It shall also be undertaken that they will discharge the arrears of rent which are fallen due in respect of the petition schedule building at the current rates till 07/08/09 and on or before 07/08/09. It shall also be undertaken through an affidavit that they will pay enhanced rent at the rate of Rs.250/- per mensem during the C.R.P. NO.3215/01 8 period from 07/08/09 till 31/12/09 and further that thereafter i.e. during the period from 01/01/2010 to 30/09/2010 they will pay rent at the rate of Rs.500/- per mensem. Such an affidavit will be filed within one month from today and only if such an affidavit is filed, the revision petitioner will get the benefit of time granted under this judgment. 13. C.R.P. dismissed subject to the above directions. No costs. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk