IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 RCRev..No. 4 OF 2004() ---------------------- RCA.138/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM RCP.14/2000 OF RENT CONTROL COURT, KOCHI REVISION PETITIONER/APPELLANT/RESPONDENT: T.K.BAVA S/O. KOYAKUTTY, C.C.4/1525, FORT COCHIN. BY ADV. SRI.S.SREEKUMAR RESPONDENT/RESPONDENT/PETITIONER J.M.HAMZA S/O. MOHAMMED ALI, MIG - 17, SANTHI NAGAR, KOOVAPADAM, KOCHI-2. BY ADV. SRI.R.D.SHENOY (SR.) SRI.S.VINOD BHAT THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR 4/2004 I.A. NO. 18/2004 & 2313/2005 IN RCR 4/2004 // DISMISSED // SD/- 22.5.2008. P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. //TRUE COPY// P.S. TO JUDGE KNC/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = R.C.R. NO. 4 OF 2004 = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 23RD DAY OF MAY, 2008. J U D G M E N T Raman, J. This is a revision, at the instance of the tenant, filed under the Kerala Buildings (Lease and Rent Control) Act (for short, 'the Act'). The respondent/landlord sought eviction of the rented premises on the grounds mentioned under Sections 11(4)(iii) and 11(4)(iv) of the Act which was allowed by the Rent Controller and confirmed in appeal. This Court, while admitting the revision, as per order dated 16.3.2004, declined to grant stay of the order of eviction passed by the court below after considering the balance of convenience and placing strong reliance on the findings of the court below that the demised premises are in such a condition that they need re-construction and the landlord requires the building bona fide for re- construction of the same. In the above circumstances, what survives for consideration is only the order of eviction passed under Section 11(4)(iii) of the Act. 2. Under Section 11(4)(iii) of the Act, the landlord can seek eviction RCR 4/2004 :2: of the tenanted premises pursuant to the rental arrangement, if the tenant is already in possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirement in the same city, town or village. According to the landlord, the tenant has already acquired a building. However, it turned on evidence that the tenant has not acquired any building in his name, though a building is acquired in the name of his wife. Going by the section, it may be either acquired by the tenant or he should be in possession of a building which is reasonably sufficient for his requirement and that building so acquired or possessed must be within the same city, town or village. The landlord had not adduced any evidence except his ipsi dixit as PW.1 to show that the tenant is in actual possession of the said building though acquired in the name of his wife. Therefore, the landlord has not discharged his burden of proving that the tenant is in possession of the building in question so as to attract Section 11(4)(iii) of the Act. The court below placed reliance on the evidence of CPW.1 to find that the tenant's wife has no income and she is depending upon the tenant for her livelihood and drew an inference therefrom that the acquisition of the building must have been done by using the money of the tenant. But it must be bear in mind that the landlord in the petition for eviction had no such case that the building was acquired by the tenant using his own funds RCR 4/2004 :3: and the acquisition was made in the name of his wife. On the other hand, the specific plea raised was that the tenant himself has acquired the building. Once it is shown that the tenant has not acquired any building in his name, then the landlord ought to have amended the pleadings if he had a case that though the acquisition was made in the name of his wife, the required fund for the same has come from the husband and therefore, the acquisition should be deemed to have been made in the name of the tenant. There is no such plea raised and no evidence is also adduced. Both the courts below have therefore, erred in ordering eviction under Section 11(4) (iii) of the act. In such circumstances, we vacate the order passed by the court below under Section 11(4)(iii) of the Act. Since the building has already been re-constructed, the tenant is entitled to be re-inducted in to possession of an equal area which was in his possession before reconstruction. Since this Court has already ordered that landlord shall not let out the premises to any other party without prior permission, necessarily a shop room of an area of 80 sq. feet must be available to be allotted to the tenant. It is agreed that one room having an area of 80 sq.feet in Building bearing No. 4/1528 of the Cochin Corporation is kept vacant. It is the case of the landlord that he has not inducted anybody there. If so, the tenant may be re-inducted in possession RCR 4/2004 :4: of the said area of 80 sq.feet. Since it is for the court below to fix the final fair rent for the area allotted to the tenant based on evidence to be adduced by both sides, we direct that till such time the court below fixes the fair rent finally, an amount of Rs. 1000/- (Rupees one thousand only) be paid by the tenant to the landlord and on fixing the fair rent, whatever amount has been paid by the tenant as per this order shall be adjusted towards such fair rent. The revision is allowed as above. There will be no order as to costs. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-