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 3RD JANUARY 2011 / 13TH POUSHA 1932 RCRev..No. 112 of 2007() --------------------------------- RCA.81/2002 of RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT ADHOC-II), THALASSERY RCP.200/1999 of RENT CONTROLLER/MUNSIFF COURT, THALASSERY .................... REVISION PETITIONER/RESPONDENT/RESPONDENT :- ----------------------------------------------------------------------------- 1. CHAMBALAN RAGHAVAN (DIED), S/O.KANNA, AGED 81 YEARS, NO OCCUPATION, NEAR SREE KOORUMBA KAVU, MUZHAPPILANGAD AMSOM AND DESOM, KANNUR TALUK. ADDL.2. K.VANAJA, W/o.RAGHAVAN, AGED 54 YEARS, SREE KURUMBA QUARTERS, MUZHAPPILANGAD AMSOM, AND DESOM, KANNUR DISTRICT. ” 3. SHAJI C.K., AGED 34 YEARS, SREE KURUMBA QUARTERS, MUZHAPPILANGAD AMSOM, AND DESOM, KANNUR DISTRICT. ” 4. SHANI C.K., AGED 30 YEARS, SREE KURUMBA QUARTERS, MUZHAPPILANGAD AMSOM, AND DESOM, KANNUR DISTRICT. ” 5. JISHA C.K., AGED 28 YEARS, SREE KURUMBA QUARTERS, MUZHAPPILANGAD AMSOM, AND DESOM, KANNUR DISTRICT. ” 6. NEESHMA, AGED 17 YEARS, SREE KURUMBA QUARTERS, MUZHAPPILANGAD AMSOM, AND DESOM, KANNUR DISTRICT. ADDITIONAL P2 TO P6 ARE IMPLEADED AS PER ORDER DT.13.12.2010 IN I.A.No.2792/2010 IN RCR.112/2007. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S)/APPELLANT/PETITIONERS :- ---------------------------------------------------------------- 1. AERUMMAL BALAKRISHNAN, S/O.JANAKY, AGED 60 YEARS, `YAMUNA', MUZHAPPILANGAD, AMSOM AND DESOM, KANNUR TALUK. RCRev..No. 112 of 2007 2. P.V.SATHI, D/O.JANAKY, AGED 57 YEARS, NO OCCUPATION, SANKAR NIVAS, MOOZHIKKARA AMSOM AND DESOM, THALASSERI TALUK. 3. P.V.INDIRA, D/O.JANAKY, AGED 55 YEARS, NO OCCUPATION, ANJALI, PANOOR AMSOM DESOM, THALASSERY TALUK. 4. AERUMMAL HARIKUMAR, S/O.JANAKY, AGED 40 YEARS, THAYYIL HOUSE, MUZHAPPILANGAD AMSOM AND DESOM, KANNUR TALUK. ADV. SRI.P.NARAYANAN FOR R1 TO 4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.112 of 2007 ------------------------------ Dated this the 3rd day of January 2011 O R D E R Pius C. Kuriakose, J. Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority, Thalassery ordering eviction against the revision petitioner on the ground of Sub section (3) of Section 11 in reversal of a negative order passed by the learned Rent Control Court dismissing the RCP. The need projected by the landlords, who are five in number, is that the 5th respondent herein one Mr.Harikumar wants to conduct a day care for his livelihood in the petition schedule building. One of the prominent contentions raised was that the landlords are having in their possession other buildings and that there are no special reasons as to why they should evict the R.C.R. No.112 of 2007 -: 2 :- revision petitioner from the petition schedule building. They would also contend that atleast one room in the larger building, of which the petition schedule building is another room, was let out by the landlords recently, that is just prior to filing of the RCP. It became evident that the landlords had let out a vacant room forming part of the larger building and another part of the petition schedule building some time prior to the filing of the RCP. Thus, question seriously arose as to when the above room was let out. The landlords' version was that the same was let out in 1998 more than one year prior to the filing of RCP. The tenant's version was that it was let out just one month prior to the RCP. The Rent Control Court on evaluating the evidence dismissed the RCP taking a view that the need is not bonafide. The Appellate Authority however, reversed the decision of the Rent Control Court and ordered eviction. 2. In this revision various grounds are raised by the tenant assailing the judgment of the Appellate Authority. R.C.R. No.112 of 2007 -: 3 :- Sri.K.V.Pavithran, the learned counsel for revision petitioner addressed arguments on all those grounds Sri.Mohanan and Sri.P.Narayanan, the learned counsel for the landlords resisted all the submissions of Mr.Pavithran. 3. The question that arises for consideration is as to when one of the rooms in the five room structure was let out by the landlords, whether it was immediately prior to the filing of the RCP or more than one year earlier to the filing of the RCP. First proviso to Sub section (3) of Section 11 can operate only if the landlords are in possession of vacant building belonging to the landlords at the time of commencement of the RCP. But if it becomes evident that landlords have let out an identical room belonging to them just prior to filing of the RCP or at a time they were harbouring the bonafide need in the RCP, then the same can reflect on the question whether the need is bonafide. 4. After considering the submissions addressed at the Bar we directed the respondents by order dated R.C.R. No.112 of 2007 -: 4 :- 15.12.2010 to make available for our perusal the rent kaychit executed by one Mr.Babu, the new tenant, in favour of the landlords and posted the case on 21.12.2010. On 21.12.2010 the learned counsel sought further time to produce the document. It was accordingly the case was posted to this day. Today the learned counsel for the landlords submitted that the landlord will not be in a position to produce the kaychit and the kaychit was in the custody of his mother who is no more. The learned counsel also submitted that if time is given the landlord may be able to produce some document which will prove that it was in 1998 that the building was let out to Mr.Babu. We are not inclined to grant further time. We are inclined to remit the matter back to Rent Control Court. 5. We notice another aspect of the matter that the monthly rent payable by the revision petitioner for the building in question situated within the area of Thalassery Municipality at the rate of Rs.125/- is very low. The R.C.R. No.112 of 2007 -: 5 :- submission of the learned counsel for the landlord that for an adjacent room the tenant is paying Rs.500/- per month was not seriously disputed. We are therefore, inclined to refix the rent tentatively at Rs.500/- per mensem with effect from 1.2.2011. The result of the above discussion is as follows :- The judgment of the learned Appellate Authority and order passed by the learned Rent Control Court are set aside. RCP.200/99 is remanded to the Rent Control Court, Thalassery. That court is directed to take fresh decision regarding the order of eviction passed on the ground of Sub section (3) of Section 11. The question as to when the room was let out to Mr.Babu will be specifically enquired into. Both sides are given opportunity to adduce further evidence. Fresh decision will be taken on the basis of evidence already on record and further evidence which may be adduced by the parties. The rent payable by the revision petitioner for the R.C.R. No.112 of 2007 -: 6 :- building is refixed tentatively with effect from 1.2.2011 at the rate of Rs.500/- per mensem. We make it clear that the above refixation is tentative. If either party is aggrieved, it is open to them to move the learned Rent Control Court and get the fair rent fixed under Section 5. Till fair rent is fixed the revision petitioner shall pay rent at the rate of Rs.500/- per mensem. The parties shall appear before the Rent Control Court on 7.2.2011. That court is directed to expedite matters and take fresh decision early and at any rate within three months of appearance of parties. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt