IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 RCRev..No. 236 of 2011() ------------------------ RCA.18/2008 OF RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA. RCP.35/2003 OF RENT CONTROL COURT, ALAPPUZHA .................... REVISION PETITIONER/RESPONDENT/PETITIONER ------------------------------------------------------------- NAZAR.A., AGED 49 YEARS, CHAVADI PRAMBIL, DARUSALAM,SANATHANAM WARD, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------- SHAMSUDEEN.A., AGED 56 YEARS, S/O. ABDUL RAHMAN, AMCW.X/1183, REHUMANIA PHOTO FRAME, ZILLA COURT WARD, ALAPPUZHA-688001. ADV. SRI.A.KRISHNAN FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- RCR. No. 236 of 2011 ----------------------------------------------- Dated this the 17th day of October, 2011 O R D E R Pius C.Kuriakose, J. The landlord challenges in this revision the judgment of the Rent Control Appellate Authority dismissing the rent control petition after vacating the order of eviction which had been passed by the Rent Control Court under sub- section (3) of Section 11. The need projected by the landlord in the RCP was that the petition schedule building which is a room in the ground floor of a two storied building belonging to the landlord, is required bona fide for the conduct of stationery business by the landlord's brother who is examined as PW-2. The bonafides of the need was disputed and it was contended by the tenant that the RCP is liable to fail by virtue of the proviso to sub-section (3) of Section 11. At trial the evidence consisted of Exts. A1 to A6, B1 to B3 and oral evidence of PW-1, the landlord and RCR. 236/11 -2- PW-2, his brother. The counter oral evidence on the side of the tenant was that of himself as CPW-1. The Rent Control Court was very much impressed by the evidence adduced by the landlord. Accordingly it was held that the need is bonafide and also that the RCP was not liable to fail by virtue of any of the provisos to sub-section 93) of Section 11. Accordingly order of eviction was passed. The learned Appellate Authority has passed the impugned judgment and allowed the RCA preferred by the respondent tenant. The learned Appellate Authority noticed that either during the pendency of the RCP or immediately before the filing of the RCP spacious rooms in the ground floor as well as first floor of the building had fallen vacant and become available to the landlords. According to the learned Appellate Authority, the circumstance that the landlord did not utilise the rooms which had fallen vacant during the pendency of the proceedings or immediately prior to the institution of the RCR. 236/11 -3- RCP is a circumstance which will reflect on the bonafides of the need. On a reading of the Appellate Authority's judgment, it appears that the Appellate Authority thought that the first proviso to sub-section (3) of Section 11 operates against the landlord. Accordingly, Appellate Authority set aside the eviction order and dismissed the RCP. 2. In this revision under section 20, the landlord has raised various grounds. We have heard the submissions of Sri. Sanalkumar, learned counsel for the revision petitioner landlord as well as those of Sri.A.Krishnan, learned counsel for the respondent tenant. Mr. Sanalkumar submitted that the rooms in the ground floor as well as the first floor of the building which fell vacant during the pendency of the proceedings were not rooms. They were halls. in the ground floor a photo studio was being conducted. The said hall is now let out to another tenant on a monthly rent of RCR. 236/11 -4- Rs.12,500/-. The first floor room which fell vacant was also a hall, which is now let out to another tenant on a monthly rent of Rs.3500/-. 3. The petition schedule rooms unlike the halls which fell vacant is a small room and the landlord intends to accommodate his brother only in the small room. According to Mr. Sanalkumar, it is a small room like the petition schedule room that is required for the conduct of the small time stationery shop which the landlord's brother intends to conduct. This aspect of the matter was brought out through the answers which were given by the landlord in re- examination. Even CPW-1 has admitted in his evidence that the rooms which had fallen vacant were large halls and not small rooms like the petition schedule one. The learned Appellate Authority did not appreciate the evidence properly. That is why the Appellate Authority interfered with the order of eviction passed by the Rent Control Court. RCR. 236/11 -5- Sri. A. Krishnan, learned counsel for the respondent submitted that a careful analysis of the evidence and the circumstances attending on this case will reveal that the rent control petition was instituted not because there was a bona fide need but only because the landlord was keen on evicting the tenant by hook or by crook. Mr.Krishnan pointed out that immediately after the present landlord became the owner of the building he instituted suits for injunction against all the tenants in occupation of various rooms. The allegation in the suits was that the tenants are making arrangements to effect structural alterations to the building. This allegation was levelled in the suit without any justifiable reason. In the case of three tenants, the landlord withdrew from the suits. In the case of the respondent alone the landlord pursued the suit. The report submitted by the Commissioner appointed by the court shows that there was no sign whatsoever of any steps taken by the RCR. 236/11 -6- tenant for effecting any structural alterations to the building. Mr. Krishnan submitted that it has come out in evidence that even before the RCP was instituted rooms were available with the landlord. If that be the situation, the landlord had an obligation to plead and prove special reasons within the purview of proviso to sub-section (3) of Section 11. Mr. Krishnan would take strong exception to the statement that prior to the filing of the RCP the hall which had fallen vacant in the ground floor. It is in evidence that the hall in the ground floor let out for a monthly rent of Rs.12,500/- was n the beginning rooms which have been converted as hall is a subsequent event there is no warrant for interfering with the judgment of the Appellate Authority within the contours of revisional jurisdiction under Section 20. We have given our anxious consideration to the submissions addressed at the Bar. In view of the divergence of the finding we have gone through the pleadings and we have made a reappraisal RCR. 236/11 -7- of the evidence also. We feel that in order to take a decision on the liability of the respondent to be evicted in accordance with the principles of justice, equity and good conscience which governs the statutory authority under the Rent Control Act (see rule 11, sub-rule (8) of the Kerala Buildings (Lease and Rent Control) Rules) the evidence presently available on record is not sufficient. We are therefore inclined to remand the rent control appeal to the Appellate Authority as the powers of the Appellate Authority in the matter of conducting enquiries is co-equal to that of the Rent Control Court itself. The Appellate Authority has to conduct further enquiries into the following questions: (1) Whether the need is bona fide? (2) Whether the landlord could have accomplished the need to accommodate his brother by utilising the rooms in the ground floor or first floor which had become available to the landlord either during the pendency of the RCP or RCR. 236/11 -8- immediately prior to the institution of the RCP? 4. We also notice another aspect of the matter. The petition schedule building is situated in a commercially very important area of Alapuzha Municipal Town and the monthly rent of Rs.25/- being paid by the respondent is ridiculously low. We are therefore inclined to re-fix the rent payable by the respondent subject to regular fixation of fair rent under Section 5 of the Rent Control Act. The result of the above discussion therefore is as follows: The judgment of the Rent Control Appellate Authority is set aside. RCA No. 18 of 2008 is remanded to the 1st Additional Rent Control Appellate Authority, Alapuzha.The learned Appellate Authority is directed to take fresh decision in the RCA after permitting both sides to adduce evidence on the following aspects: 1) The bonafides of the need projected under sub- section (3) of Section 11. RCR. 236/11 -9- 2) Why the rooms/halls in the ground floor/first floor which had fallen vacant were not utilised by the landlord for accomplishing the need projected in the RCP. We confirm the finding entered by the Rent Control Court that the tenant is not entitled for the protection of the second proviso. Remand is confined to the question of bonafides of the need and the other issues pointed out above. We re-fix the rent payable by the respondent with effect from 1-11-2010 at Rs.1000/- per mensem. This re- fixation is subject to regular fixation of fair rent at the instance of either party by the Rent Control Court under Section 5 of the Rent Control Act . Till fair rent is fixed, the respondent shall pay rent at the rate of Rs.1000/- per month. The parties will enter appearance before the Rent Control Appellate Authority on 1-11-2011. The learned Appellate Authority will complete the enquiry and pass revised judgment in the RCA based on the evidence already RCR. 236/11 -10- on record and the evidence which the parties adduced pursuant to this order of remand. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ksv/-