IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 RCRev..No. 13 of 2011() ----------------------- RCA.78/2007 of RENT CONTRO APPELLATE AUTHORITY , THALASSERY RCP.164/2006 of ADDL.MUNSIFF COURT, KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT (S): -------------------- V.K. KHALID, S/O. SOOPPY, AGED 69 YEARS, V.P. HOTEL, BUILDING NO.CW35/3909, ARAT ROAD, KANNUR -1. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- KURATHUL MALEEKA, W/O. FAZAL HUSSAIN, AGED 47 YEARS, RESIDING AT MULLANS, CAMP BAZAR, WEST WARD, KANNUR - 670 001. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No.13 OF 2011 ------------------------ Dated this the 14th day of March, 2011 O R D E R Balakrishnan, J. The tenant is in revision. An order of eviction passed concurrently under Section 11(3) is challenged in this revision. The landlady contended that her husband, who returned from Gulf, intends to start a hotel business in the petition schedule building and that the landlady or her husband are not having any other building of their own for conducting the hotel business as proposed. The tenant resisted the petition contenting that the husband of the landlady, who was examined as PW2, is aged 60 years and that he has actually returned from Gulf after earning much and he has stopped all his activities. 2. After considering the evidence adduced by the parties, the Rent Control Court came to the conclusion that the need alleged is bona fide. It was also found that the tenant is not entitled to the benefit of the second proviso to section 11(3). RCR.No.13/2011 2 3. The Appellate Authority after reappreciating the evidence, concurred with the view taken by the Rent Control Court and dismissed the Rent Control Appeal . 4. Sri.A.Mohamed Mustaque, learned counsel appearing for the revision petitioner submits that during the pendency of the appeal, an attempt was made by the tenant to get some documents to show that PW2 was actually conducting business in pearls ceramics and granites. It was stated that an application was filed before the Appellate Authority to serve interrogation to the landlady. That application was opposed by the tenant and it was stated that PW2 is not a partner nor is he conducting any such business as stated in the petition. Mr.Mohamed Mustaque has drawn our attention to the document obtained from the Commercial Tax Officer which would show that PW2 is a partner of the firm M/s.Pearl Ceramics and Granite Bakklam and as such the affidavit sworn to by PW2 that he is not conducting any business and that he is not a partner of the business is proved to be not true. The learned counsel submits that this document could not be produced before the learned Appellate Authority since the tenant came to know that RCR.No.13/2011 3 PW2 is conducting business only when the case was taken up for hearing and it was at that juncture the application to serve interrogation on the landlady was filed. Mr.Mohamed Mustaque submits that it is not the case of the landlady that she or husband (PW2) is conducing business and that the business is not sufficient to eke out his livelihood or that it was done only as a temporary measure and so in view of the document now obtained from the Commercial Tax Officer, the matter requires reconsideration to test the veracity of the claim purforward by the landlady. 3. Mr.Grashious Kuriakose learned counsel for the landlady submits that even if it is assumed that PW2 was a partner in a business as alleged by the tenant that will not preclude him from conducting the hotel business in the petition schedule building. The learned counsel further submits that PW2 cannot be asked to sit idle for years on end till he gets vacant position of the building and so even if he became a partner or started conducting business temporarily that will not in any way affect the bona fides of the need putforward by the landlady. It is noticed that the landlady did not come forward with such a case RCR.No.13/2011 4 but on the other hand, it was stated that PW2 was not a partner at all and was not doing any such business. Bearing in mind all those aspects especially the factum of business stated to have been started by PW2, we find that the tenant has to be given an opportunity to adduce further evidence in the matter and for that purpose the matter has to be remanded to the Rent Control Court. It is needless to say that the landlady should also be allowed to adduce counter evidence if any. 4. We notice that the rent that is presently paid by the tenant is only Rs.3,00/-. It was stated to have been fixed two decades ago. Considering the rent that would be prevailing in the locality, we find that the petition schedule building would fetch at least Rs.1,500/- per month . Accordingly, we refix the monthly rent at that rate. In the result, the revision is allowed. The order passed by the Rent Control Court and confirmed by the learned Appellate Authority is set aside and the RCP No. 164/2006 is remanded to the Rent Controller (Additional Munsiff, Kannur) for fresh decision). The tenant/revision petitioner shall pay monthly rent at the rate of 1500/- to the landlady with effect from 1-4-2011. RCR.No.13/2011 5 If either party is aggrieved by the same, he can move the Rent Control Court for regular fixation of fair rent. Parties will appear before the Rent Control Court on 5/4/2011. The Rent Controller shall make every effort to see that the Rent control petition be disposed of at the earliest and at any rate within two months from the day of reopening of the court after mid summer holidays. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk RCR.No.13/2011 6 PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 13 OF 2011 ------------------------ Dated this the 23rd day of February, 2011 RCR.No.13/2011 7 O R D E R Pius C.Kuriakose, J. No representation for the revision petitioner today also. Hence, this Revision Petition will stand dismissed for default. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk