IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 RCRev..No. 371 of 2006() ------------------------ RCA.132/2002 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.44/1998 OF RENT CONTROL COURT, KUTHUPARAMBA .................... (S): REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- ANANDESWARATH VASU, S/O.UNNI, GOLDSMITH, NAVEENA METAL INDUSTRIES, MANANTERI AMSOM, CHITTARIPARAMBA DESOM, TELLICHERRY TALUK. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): APPELLANT/PETITIONER ----------------------------------- VARIYAM VEETTIL ABBAS, S/O.ABDU, NASRATH MANZIL, MANANTERI AMSOM, CHITTARIPARAMBA DESOM, TELLICHERRY TALUK, KANNUR DISTRICT. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23-2-2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. 3032 OF 2006 DISMISSED SD/- PIUS C.KURIAKOSE, JUDGE. 23-2-2011 SD/- N.K.BALAKRISHNAN, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- RCR. No. 371 of 2006 ----------------------------------------------- Dated this the 23rd day of February, 2011 O R D E R Pius C.Kuriakose, J. The tenant is the revision petitioner. He impugnes in this revision the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court under Section 11(2)(b) and ordering eviction against him under section 11(3). The landlord invoked the grounds of arrears of rent under Section 11(2) (b), bona fide need for own occupation under section 11(3) and also the ground of misuser of the building in a manner as to reduce the value and utility of the building materially and permanently under Section 11(4)(ii). The Rent Control Court after enquiry would come to the conclusion that only the ground of arrears of rent was made out and would order eviction only under that ground. The need projected by the landlord under Section 11(3) was that the building is RCR. 371/06 -2- required bona fide for the occupation of PW-2, his son-in- law for starting a shop in footwear and stationary. The Rent Control Court noticed that there was some delay on the part of the landlord in seeking eviction mainly on the reason that the landlord was in possession of other buildings and that no special reasons was assigned by the landlord for getting eviction of this building and on the further reason that the tenant was successful in showing that he is entitled for the protection of the second proviso the Rent Control Court declined order of eviction under Section 11(3). The ground for eviction under Section 11(4)(ii) was in fact not pressed by the landlord at the time of hearing. Thus the Rent Control Court declined eviction on the ground under Section 11(3) and 11(4)(ii) and ordered eviction only under Section 11(2)(b). The learned Appellate Authority under the impugned judgment has reversed the finding of the Rent Control Court under Section 11(3). According to that court, which made a reappraisal of the evidence, the need RCR. 371/06 -3- projected has been established to be bona fide. As regards the buildings relied on by the Rent Control Court for the purpose of the first proviso it was found by the Appellate Authority that those buildings do not belong to the landlord. Instead, they belong to the wife of the landlord. As the building does not belong to the landlord, the first proviso will not be applied, according to the Appellate Authority. The learned Appellate Authority would also take the view that the tenant is not entitled for the benefit of the second proviso. On the basis of C-1 commissioner's report it was found that other buildings are available in the locality. In view of that finding it was held that the tenant is not entitled for the protection of the second proviso to sub- section (3) of Section 11. 2. In this revision various grounds are raised assailing the judgment of the Appellate Authority. Sri. Cibi Thomas, learned counsel for the revision petitioner addressed strenuous arguments based on those grounds. We have RCR. 371/06 -4- considered all the submissions of Sri.Cibi Thomas. We have gone through the order of the Rent Control Court and we have scanned the judgment of the Appellate Authority. We don't find any difficulty to endorse the finding of the Rent Control Appellate Authority that the need projected by the landlord for accommodating a dependent family member, son-in-law is bona fide. At the same time, we feel that the question as to whether the RCP is liable to fail by virtue of the first and second provisos to sub-section (3) of Section 11 have not been considered properly by the learned Appellate Authority. In fact, there was no resistance to the submissions of Mr.Cibi Thomas before us in that regard. We therefore are inclined to direct the learned Rent Control Court to reconsider the question whether the RCP is liable to fail by virtue of the first proviso and whether the tenant is entitled for the protection of the second proviso. 3. We notice that the rent which the tenant pays for the building is ridiculously low. The rent payable by the RCR. 371/06 -5- revision petitioner is re-fixed with effect from 1-4-2011 at Rs.500/- per mensem. The above re-fixation is tentative. It is open to either party to approach the Rent Control Court for regular fixation of fair rent under Section 5. Till fair rent is fixed, the revision petitioner shall pay rent at the rate of Rs.500/- with effect from 1-4-2011. Accordingly, the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority to the extent the same pertains to the ground under Section 11(3) are set aside. The finding that the need is bona fide is confirmed. The Rent Control Court will consider and decide whether the RCP is liable to be rejected. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/- RCR. 371/06 -6-