IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 CRP.No. 447 of 2003() --------------------- RCA.13/2001 of ADDL. DISTRICT COURT, PARAVUR RCP.28/1997 of MUNSIFF & RENT CONTROLLER , ALUVA .................... REVN. PETITIONER/ RESPONDENT/RESPONDENT ------------------------------- P.M.ISMAIL, BOMBAY HARDWARES, PALACE ROAD, MUNICIPAL WARD XVIII/ROOM NO.462, ALUVA KARA, ALUVA PAKUTHI BY ADV. SRI.S.K.BRAHMANANDAN SRI.G.SREENIVASA PRABHU SRI.S.B.PREMACHANDRA PRABHU RESPONDENTS/ APPELLANTS / PETITIONERS ------------------------- 1. ABBAS S/O.HYDROSE, THEMBADATH BUILDING, TASS ROAD, ALUVA KARA, ALUVA VILLAGE, NOW RESIDING AT THEMBADATH VEEDU, THOTTAKKATTUKARA, MANA LANE. 2. ABDUL SALIM @ SALIM S/O. HYDROSE, DO.DO. ADV. SRI.S.SHYAM FOR R1,R2 SRI.LATHEESH SEBASTIAN FOR R1,R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ. --------------------------------- CRP. No. 447 of 2003 ----------------------------------- Dated this the 23rd day of November, 2010 O R D E R ~~~~~~~ P.S.Gopinathan, J. Revision petitioner is the respondent tenant in RCP. 28/97 on the file of the Rent Controller, Alwaye. The respondents landlords are the petitioners before the Rent Controller. They instituted the above petition stating that the petition schedule building along with other 9 rooms were purchased by them together as per Ext.A1 sale deed in the year 1991 and that the revision petitioner is occupying the petition schedule building as a tenant with a current rent @ Rs.78/- per month and doing hardware business. The first respondent was employed in Indian Aluminium Company from where he obtained voluntary retirement and as such he was devoid of any avocation of his own and to start a business in hardware the petition schedule building was bona fide required. It was also alleged that the rent of the petition schedule building was kept in arrears and despite the notice to discharge, the arrears of rent was not paid. With these pleadings the respondents sought for an order of CRP.No.447/2003 2 eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the 'Act'). 2. The revision petitioner denied the bona fide need and contended that the petition is only a ruse to get an order of eviction and further contended that there was no arrears of rent. The revision petitioner also claimed immunity from eviction under the first and second proviso to section 11(3). 3. During the course of the enquiry, on the side of the respondents, PWs 1 to 3 were examined. Revision petitioner was examined as RW1. On the side of the respondents, Exts.A1 to A13 were marked. On the side of the revision petitioner, Exts.B1 to B9 were marked. Exts.X1 and X2, two third party documents were also marked. The Rent Controller on an appraisal of the evidence arrived at a finding against the respondents. Consequently the petition was dismissed. Feeling aggrieved the respondents preferred appeal as RCA. 13/01 before the Rent Control Appellate Authority, North Paravur. The Appellate CRP.No.447/2003 3 Authority by the impugned judgment dated 29.8.2002 reversed the finding of the Tribunal regarding bonafide need urged. Consequently, the Appeal was allowed in part. While setting aside the order of the Rent Controller in part, an order of eviction under Section 11(3) of the Act was granted. The order declining eviction under Section 11(2)(b) was confirmed. Assailing the legality, correctness and propriety of the judgment of the Appellate Authority granting eviction under Section 11(3) of the Act, this Revision Petition was preferred under Section 20 of the Act. 4. The revision petitioner filed a petition as I.A.No.3344/2009 reporting material change of circumstances after the institution of the revision petition filed before this Court. One circumstance that was alleged is that the respondents had preferred a petition as RCP No.19/92 against another tenant seeking eviction under Section 11(3) and 11(4)(i) of the Act. In that petition, eviction under section 11(3) was sought by advancing bonafide need of the 2nd respondent to start a business. That petition was allowed under Section 11(4)(i). CRP.No.447/2003 4 Eviction sought under 11(3) was declined. Though the respondents therein preferred appeal and revision, those proceedings ended in favour of the respondents. The petition schedule building therein was got evicted and the respondents took possession of the petition schedule building and thereafter it was partitioned into two and one portion was let out to Sankaran Namboodiri in the year 2003 and another portion was let out to Devapal V.V. and Company. In the year 2007, the portion occupied by Sankaran Namboodiri was got vacated and then let out to Smt.Bindu Sreenivasan. The portion occupied by Devapal V.V and Company was vacated in the year 2008 and it was let out to Mohammed Jafar. 5. Yet another contention that was raised is that building bearing door No.8/7(8) occupied by one Reji at the time of Ext.A1 was vacated and it was again let out to Sofia Sreenivasan in the year 2002. Lease in favour of Sofia Sreenivasan was terminated in the year 2003 and then it was let out to Smt. Nirmala. Third contention that was raised is that building bearing door No.8/10 and 8/11 which was subject matter of RCP CRP.No.447/2003 5 No. 5/2005 was also subsequently let out by the respondents. But it is revealed that the building bearing door Nos.8/10 and 8/11 are the upstair portions. There is no case for the revision petitioners that the need urged by the respondents could be met out by the building bearing door Nos.8/10 and 8/11 as those rooms are situated in the upstairs. But, according to the learned counsel for the revision petitioner, if the respondents had a bonafide need as alleged in the petition they could have started the business in the building got evicted in RCP 19/92 or in the building bearing door No.8/7(8). The subsequent lease of those buildings, according to the learned counsel, tell tales lack of bonafides. 6. Learned counsel for the respondents, canvassing our attention to the averments contained in the counter affidavit, submitted that the building got evicted in RCP No.19/92 was let out on the hope that the respondents could succeed to get the petition schedule building evicted on disposal of this revision petition. It was also submitted that by oral partition that building was set apart to the share of the 2nd respondent and that the CRP.No.447/2003 6 ground urged in the petition is for the bonafide need of the 1st revision petitioner. It was further submitted that the subsequent lease transactions were in favour of sub tenants inducted by the tenants and the respondents were forced to demise the building in favour of the sub tenants to avoid litigations. According to the learned counsel for the revision petitioner, the oral partition is only a lame reason, now invented and liable to be rejected outright. 7. Having heard either side, it is not in dispute that certain subsequent events, which may, in the ordinary course, be sufficient to tilt the decision of this petition one way or other, had occurred. In the event, the respondent had got evicted other buildings and it was subsequently demised by separate lease to strangers, the bonafide need urged in this petition is to be doubted. On the other hand, some explanations are given by the respondents. The correctness and reliability of those explanations are to be decided on pleadings and evidence. But in the absence of pleadings and evidence to that effect, we are not in a position to arrive at a just conclusion. Therefore, we are not CRP.No.447/2003 7 expressing any opinion. We find that regarding the changed circumstances, there should be additional pleadings and additional evidence to that effect. Therefore, the matter requires a remand to the Rent Controller with liberty to either party to amend the pleadings and to adduce evidence regarding the subsequent acquiring of possession of the two other buildings, one in RCP.No.19/92 and the other building occupied by Reji. 8. In the result, while allowing this Revision Petition, the judgment of the Appellate Authority as well as the order of the Rent Controller are set aside and the matter is remitted back to the Rent Controller for fresh disposal after allowing the parties to amend the pleadings to the extent mentioned above and to adduce further evidence. 9. Incidentally, we notice that the revision petitioner is paying only Rs.78/- as the rent of the petition schedule building which was let out decades back. The current rent is abysmally low. It is submitted that the petition schedule building is situated in a most important part of Aluva Municipality in Bank CRP.No.447/2003 8 Junction. The plinth area of the petition schedule building is about 500 sq.feet. Taking into account of the prevailing rent rate, we find that it would be just and appropriate to provisionally fix the fair rent of the petition schedule building at Rs.7500/- with effect from 1/12/2010. Hence, we provisionally fix the fair rent of the petition schedule building at Rs.7500/- with effect from 1/12/2010 with liberty to either party to move the Rent Controller for fixing the fair rent. Till the fair rent of the petition schedule building is fixed on a regular application by either party, the rent fixed provisionally would remain in force. Parties are directed to appear before the Rent Controller on 15.12.2010. We hope that this matter being an old one, the Rent Controller shall give priority for disposing the same. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ps