IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RCRev..No. 48 of 2010 -------------------------- RCA.1/2008 of RENT CONTROL APPELLATE AUTHORITY, PALAKKAD RCP.10/2006 of RENT CONTROLLER (MUNSIFF COURT), OTTAPPALAM .................... REVISION PETITIONER(APPELLANT/RESPONDENT) -------------------------------------------------------- KRISHNANKUTTY,S/O.PACHU,THAZHETHODIYIL, PANNIYAMKURUSSI AMSOM,OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.T.P.ELDHOSE RESPONDENT(S): (RESPONDENT/PETITIONER) ---------------------------------------------------- RAMAKRISHNAN,S/O.KUMARAN,SUDHA NIVAS, PANNIYAMKURUSSI DESOM,CHERPULASSERY AMSOM, OTTAPALAM TALUK,PALAKKAD DISTRICT. ADV. SRI.P.R.VENKATESH FOR CAVEATOR SRI.P.R.VENKATESH (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.48 of 2010 ------------------------------------------------ Dated this the 17th day of February, 2010 ORDER Pius C. Kuriakose, J The tenant is in revision. He challenges the order of eviction passed against him by the Rent Control Appellate Authority on the grounds of arrears of rent under section 11(2)(b); on the ground that the tenant has other buildings reasonably sufficient for the tenant's requirement under section 11(4)(iii); and additional accommodation under section 11(8). The Rent Control Petition was instituted by the respondent/landlord invoking the grounds under section 11(2)(b), 11(4)(ii) and 11(4)(iii) and 11 R. C. R. No.48 of 2010 -2- (8). The Rent Control Court after taking evidence would allow the RCP only on the ground of arrears of rent and the ground under section 11(4)(iii). The landlord did not prefer any appeal against the order of the Rent Control Court disallowing eviction on the grounds under section 11(4)(ii) and 11(8). The tenant preferred appeal and the impugned judgment has been passed by the Appellate Authority in that appeal. The learned Appellate Authority noticed that the landlord had not preferred any appeal or any memorandum of cross objections challenging the decision of the Rent Control Court disallowing eviction on the grounds under section 11(4)(ii) and 11(8). The Appellate Authority accepted the challenge which R. C. R. No.48 of 2010 -3- was made on behalf of the landlord during the course of arguments in the appeal against the order of the Rent Control Court disallowing eviction under section 11(8) and has proceeded to order eviction under section 11(8) also apart from confirm the eviction order passed by the Rent Control Court. 2. When this RCR came up for admission, we have heard the submissions of Mr.D.Krishna Prasad, the learned counsel for the revision petitioner and those of Sri.R.Azad Babu who had lodged a caveat on behalf of the respondent/ landlord. It is apparently invoking the principles underlying Order 41 Rule 22 that the learned Rent Control Appellate Authority ordered eviction under R. C. R. No.48 of 2010 -4- section 11(8) notwithstanding the non-filing of any appeal or memorandum of cross objection by the landlord. According to us, Order 41 Rule 22 would only enable the respondent/landlord to object to any findings in the order impugned in the RCA which are against him. It was open to the landlord to have filed a memorandum of cross objection in this particular case. The landlord by not filing any regular appeal or memorandum of cross objections was ready and willing to suffer the negative order which was passed by the Rent Control Court in the RCP to the extent it pertains to sub section 8 of section 11. Sri.Azad Babu, the learned counsel for the respondent was unable to support the action of the Appellate Authority in R. C. R. No.48 of 2010 -5- ordering eviction under section 11(8). Hence, we straight away vacate the judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioner/tenant on the ground under sub section 8 of section 11. 3. The learned counsel for the revision petitioner would assail the eviction order passed by the Rent Control Appellate Authority on the grounds of arrears of rent and the ground under section 11(4)(iii) on the various grounds raised in the memorandum of revision. Sri.Azad Babu, however, would support those eviction orders on the various reasons stated in the judgment of the Appellate Authority. He reminded us of the contours of this Court's jurisdiction under section R. C. R. No.48 of 2010 -6- 20 and submitted that there is no warrant under section 20 for interfering with the findings concurrently entered by the Rent Control Court and the Appellate Authority. 4. We have anxiously considered the rival submissions. As for the order of eviction passed under section 11(2)(b) concurrently, we notice that the finding that the rent is in arrears as alleged by the landlord entered by the authorities below is on the basis of the evidence which was available on record. After all, it is a provisional order of eviction which is passed under section 11 (2)(b). It is always open to the tenant to have an order vacated by making deposits under section 11(4)(ii). Hence, we are not interfering with the R. C. R. No.48 of 2010 -7- order of eviction passed concurrently by the authorities below. We confirm that order and grant the revision petitioner two months' time from today for making requisite application under section 11(4)(2) for getting that order vacated. 5. Equally so the finding of the Appellate Authority which is the final fact finding authority under the statutory scheme that the revision petitioner is liable to be evicted on the ground under section 11(4)(iii) is founded on evidence. The Advocate Commissioner reported on the basis of a local inspection conducted with notice to the revision petitioner also that the revision petitioner has put up a three storied building just 15 metres away from the petition schedule premises which is R. C. R. No.48 of 2010 -8- just one room. It was reported that excessive areas are available in the first floor as well as in the second floor of the three storied building. The argument of the learned counsel for the revision petitioner before us was that the activity which is carried on by the revision petitioner is gold dye works which require heavy machinery and for conducting the said business a room in the ground floor itself is necessary. But the Commissioner reported that the buildings actually available under the vacant possession of the revision petitioner is reasonably sufficient for the revision petitioner's requirement of conducting dye works. That being so, it was up to the revision petitioner to have filed objections to the Commission Report R. C. R. No.48 of 2010 -9- and substantiated those objections by citing the commissioner as a witness. The revision petitioner did not do so. He opted to rely on the oral evidence adduced by his son as RW1 alone. Moreover, we notice that the statutory requirement is not that the alternate building in the possession of the tenant should be perfectly suitable. The requirement is only that it must be reasonably sufficient. We feel that the finding concurrently entered by the authorities below that the premises in the vacant possession of the revision petitioner is reasonably sufficient does not suffer from any infirmity as envisaged by section 20. It will also be noticed that the revision petitioner himself was a landlord and at the place R. C. R. No.48 of 2010 -10- where the three storied building is now constructed there was an old building occupied by a tenant of his. That tenant was got evicted through the Rent Control Proceedings on the ground that the revision petitioner needs that building for his own occupation. After evicting that tenant he did not occupy that building, instead he pulled down that building and constructed this multi storied building. There was at least five rooms in the ground floor of that building. What the revision petitioner did was to sell off all those five rooms. Having done so, it is not open to the revision petitioner now to contend that he requires a room in the ground floor itself for his purpose. Principles of evicting are also applicable to R. C. R. No.48 of 2010 -11- decision making by the statutory authorities under the Rent Control Act. See Rule 11(8) of Kerala Building (Lease & Rent Control) Rules. It is most equitable on the part of the revision petitioner to insist on a ground floor room itself, now. 6. The result of the above discussion is that the RCR is stand allowed only to the extent of vacating the order of eviction passed under section 11(8). It stands dismissed in other respects. However, considering the request of the revision petitioner we are inclined to grant time to the revision petitioner to surrender the premises till 30/06/2010. Revision Petitioner shall file an affidavit before the execution court within ten days from today undertaking to give peaceful R. C. R. No.48 of 2010 -12- surrender of the building to the respondent/ landlord on or before 30/06/10. It will also be undertaken through the same affidavit that arrears of rent will be discharged within two months and occupational charges at the current rent rate of Rs.250/- will be paid to the respondent as and when the same falls due till such time as surrender is made. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-