IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 RCRev..No. 338 of 2006() ------------------------ RCA.22/2004 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.10/2003 of RENT CONTROLLER (MUNSIFF) NADAPURAM. .................... REVISION PETITIONER/APPELLANT/PETITIONER: ------------------------------------------------------------------------- KOROTH ABDUL LATHEEF, AGED 42 YEARS, S/O.ABDULLA HAJI, TOONERI AMSOM AND DESOM, VATAKARA TALUK. BY ADVS. SRI.T.H.ABDUL AZEEZ, SRI.T.B.HOOD. RESPONDENT(S): RESPONDENTS/RESPONDENTS: ----------------------------------------------------------------------------- 1. KANACHERI MATHA, AGED 73 YEARS, W/O.KRISHNAN VAIDYAR, 'LAKSHMINI NIVAS', TOONERI AMSOM AND DESOM, VATAKARA TALUK. 2. VASU, AGED 48 YEARS, S/O.KRISHNAN VAIDYAR, 'LAKSHMINI NIVAS',TOONERI AMSOM AND DESOM, VATAKARA TALUK. 3. LAKSHMI, AGED 45 YEARS, D/O.KRISHNAN VAIDYAR, 'LAKSHMINI NIVAS',TOONERI AMSOM AND DESOM, VATAKARA TALUK. 4. DAMODARAN, AGED 43 YEARS, S/O.KRISHNAN VAIDYAR,'LAKSHMINI NIVAS', TOONERI AMSOM AND DESOM, VATAKARA TALUK. 5. KURUNGOTTUKANDI THAZHEKUNIYIL BALAN, S/O.POKKAN, AGED 58 YEARS,TOONERI AMSOM AND DESOM, VATAKARA TALUK. 6. KOROTH HAMEED, AGED 45 YEARS, S/O.ABDULLA HAJI, TOONERI AMSOM AND DESOM, VATAKARA TALUK. 7. KOROTH ASHRAF, AGED 38 YEARS, S/O.ABDULLA HAJI, TOONERI AMSOM AND DESOM, VATAKARA TALUK. R5 BY ADV. SRI.G.UNNIKRISHNAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. --------------------------------- R.C.R. No.338 OF 2006 ----------------------------------- Dated this the 17th day of June, 2010 O R D E R ~~~~~~~ PIUS C. KURIAKOSE, J. The landlord is in revision challenging the orders passed by the Rent Control Court and the Appellate Authority declining eviction on the grounds of bonafide need for own occupation and subletting which were invoked in the R.C.P. The need projected by the landlord in the context of the ground under sub-section 3 of Section 11 was that the landlord, who had a licence for conducting electrical wiring, needs a building, so that, he can conduct sale of all sorts of electrical goods therein. The allegations of the landlord in the context of the ground of subletting was that the tenants of the building are only respondents 1 to 4 and that the 5th respondent in the R.C.P., (the 5th respondent herein) who is in actual possession of the building is only an unauthorised sub-lessee or transferee. RCR.No.338/2006 2 The Rent Control Court, after elaborately considering the evidence which came on record consisting of Exts.A1 to A8, B1 to B14(a), oral evidence of PW1 and RW1, came to the conclusion that the need projected by the landlord was not bonafide. However, it was also found that the tenant was unsuccessful in proving that he satisfy either the ingredient to the 2nd proviso to sub-section 3 of Section 11 and also that the R.C.P. was liable to file by virtue of the said proviso to sub-section 3 of Section 11. Considering the grounds of subletting, the Rent Control Court would rely on the documents produced and conclude that the alleged sub- lessee, the 5th respondent, was a tenant in his own right and not a sub-lessee as respondents 1 to 4. Accordingly, the Rent Control Petition was completely dismissed by the Rent Control Court. The landlord preferred appeal to the Rent Control Appellate Authority. The Appellate Authority made denovo reappraisal of the entire evidence. However, that authority also concurred with all the conclusions of the Rent Control Court and dismissed the R.C.A. In this revision, RCR.No.338/2006 3 under section 20 of the Kerala Buildings (Lease and Rent Control) Act, the petitioner landlord has raised various grounds assailing the judgment of the Appellate Authority and the order of the Rent Control Court. 2. The learned counsel for the revision petitioner, Mr.T.H.Abdul Azeez, addressed extensive arguments before us on the basis of the grounds. According to him, the judgment of the Appellate Authority is vitiated by illegality, irregularity and impropriety as envisaged by Section 20 of Act. He requested that the judgment of the Appellate Authority be set aside and order of eviction be passed against respondents 1 to 5. All the submissions of Mr.Azeez were stiffly resisted by Mr. G.Unnikrishnan. 3. We have considered the rival submissions. We have scanned the judgment of the Appellate Authority and the order of the Rent Control Court. We have gone through the material to which our attention was drawn. We don't RCR.No.338/2006 4 find any infirmity about the judgment of the Appellate Authority, which under the statutory scheme is the final form of facts. The Appellate Authority agreeing with the Rent Control Court found that the building covered by Ext.A5 document had come to the vacant possession at a time when the landlord was conceiving the alleged need. That authority found that if there was an element of bonafide in the need projected, the landlord would have occupied that building for accomplishment of the projected need. It was also found that the non-mentioning of the need in the lawyer notice that was issued also had some relevance on the facts of this case. We feel that the approach of the Appellate Authority was reasonable and there is no infirmity about the decision of that Authority declining eviction under sub-section 3 of Section 11. It is seen from the judgment of the Appellate Authority that the learned counsel for the landlord conceded before that Authority that the ground of eviction on the ground of subletting is not pressed. Nevertheless, the Appellate RCR.No.338/2006 5 Authority went on to consider the merits of the eviction ground under Section 11(4)(i) and decided in our opinion rightly, that eviction ground under Section 11(4)(i) is not established. In short, we don't find any justification for interference with the judgment of the Appellate Authority under Section 20. 4. The learned counsel for the revision petitioner submitted that the rent of Rs.300/- which is being received by the landlord presently is ridiculously low. According to the learned counsel, the building is situated in a commercially vantage area of Nadapuram and with the building is let out today, the building will fetch at least Rs.5000 per mensem. The above submission was opposed by the learned counsel for the respondents, who, however, submitted that Rs.300/- may be on a low side when compared to the current rent rates. RCR.No.338/2006 6 5. We feel, having considered the rival submissions, that a sum of Rs.1500/- per mensem can be tentatively fixed as the rent payable by the 5th respondent, who is found to be the tenant. The 5th respondent shall pay rent to the petitioner at that rate with effect from 1.7.2010. We make it clear that the above fixation is tentative and if either party is aggrieved by such fixation, it is open to them to file a regular petition under Section 5 before the Rent Control Court. Result is that the RCR is dismissed and the rent payable by the 5th respondent is fixed with effect from 1.7.2010 at Rs.1500/-(Rupees one thousand five hundred only) per mensem. Parties are directed to suffer their respective costs. (PIUS C. KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) ps