IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 RCRev..No. 51 of 2011() ----------------------- RCA.128/2008 OF THE RENT CONTROL APPELLATE AUTHORITY, VADAKARA RCP.26/2007 OF THE RENT CONTROL COURT, VADAKARA .................... REV. PETITIONERS/RESPONDENTS/PETITIONERS ------------------------------------------------------------ 1. P.SACHINDRAN, AGED 64 YEARS, S/O. M.C.KRISHNAN, 26/205 C, DEVI KRIPA, GOVINDAPURAM, VALAYANAD AMSOM, KOZHIKODE. 2. P.PRASANNA, AGED 62 YEARS, D/O. M.C.KRISHNAN, ELAMBILAD HOUSE, ELATHUR, KOZHIKODE. 3. P.VASANTHA, AGED 61 YEARS, D/O. M.C.KRISHNAN, VADAKKAYIL HOUSE, CHENGOTTU KAVU, KOYILANDY, KOZHIKODE. 4. P.VANAJA, AGED 59 YEARS, D/O. M.C.KRISHNAN, NADAKUTHAZHE, JANATHA ROAD, PUTHUPPANAM AMSOM, VADAKKARA, KOZHIKODE. 5. P.MATHI, AGED 57 YEARS, D/O. M.C.KRISHNAN, VELUTHEDATH HOUSE, VENGALAM, CHEMANCHERY AMSOM, KOYILANDY, KOZHIKODE. 6. P.JAYASREE, AGED 53 YEARS, D/O. M.C.KRISHNAN, THEKKAYIL HOUSE, ORUKATTERI, VADAKARA. BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S RESPONDENT/APPELLANT/RESPONDENT: ------------------------------------ R.K.KUNHIRAMAN, AGED 66 YEARS, S/O. CHEKKU, THANIYULLA MALAYIL PARAMBU, PALAYAD NADA ROAD, PUTHUPPANAM, NADAKUTHAZHE AMSOM, KOZHIKODE. ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.51 of 2011 ---------------------------------------------------- Dated this the 16th day of June, 2011 Order Pius C.Kuriakose, J. Under challenge in this revision filed by the landlords is the judgment of the Rent Control Appellate Authority dismissing the R.C.P. completely after vacating the order of eviction which was passed by the Rent Control Court on the grounds under Section 11(3) and 11(4)(v) of Act 2 of 1965. On going through the judgment of the Appellate Authority, we find that the learned Appellate Authority invoked the first proviso to sub-section (3) of Section 11 and non-suited the landlords on the basis of a building evidenced by Ext.B3. It is common ground that the building mentioned in Ext.B3 fell vacant during the pendency of the proceedings. If it is during the pendency of the proceedings that Ext.B3 is fell vacant and became available to the landlords, it is not the first proviso to sub-section (3) of Section 11 that may apply. But the availability of a vacant building during the pendency of the proceedings and the failure of the landlords to RCR 51/11 2 occupy that building for accomplishing the need which they projected in the R.C.P. may be a circumstance which tells upon the bonafides of the need. Even assuming that the first proviso to sub-section (3) of Section 11 applies, then also it may be possible for the landlords to say that there are special reasons as to why they are insisting on getting possession of the building which is the subject matter of the R.C.P. itself. Mr.K.P.Balasubramanyan, learned counsel for the revision petitioners submitted that the landlords did not get any opportunity to show special reasons as to why they are insisting on getting possession of the building which is the subject matter of the R.C.P. itself for accomplishing their need. We find some force in the above submission of Mr.Balasubramanyan. 2. It is on reappreciating the evidence adduced by the parties the Appellate Authority disagreed with the Rent Control Court and took the view that the eviction ground under Section 11(4)(v) is not established in this case. Mr.Balasubramanyan requested that as the R.C.P. to the extent it relates to the ground under sub-section (3) of Section 11 is going back to the Rent Control Court, the landlords be given an opportunity to adduce RCR 51/11 3 further evidence to show that the tenant has ceased to occupy the building during the statutory period of six months. Mr.B.Krishnan, learned counsel for the respondent-tenant submitted that though there may not be serious objection in remanding the R.C.P. in respect of the ground under sub-section (3) of Section 11, a similar remand in respect of the ground under Section 11(4)(v) will not be justified. Notwithstanding the opposition raised by Mr.Krishnan, we feel that as the R.C.P. is going back to the Rent Control Court, it is better that the liability of the tenant to suffer eviction under Section 11(4)(v) also be re- examined. One of the submissions which persuaded us to take this view is the submission of Mr.Balasubramanyan that the landlords may be able to produce some documentary evidence to show that the tenant has ceased to occupy the building during the statutory period of six months. 3. We notice yet another aspect of the matter. The building in question is situated in a very important area of Vadakara which is one of the leading municipal towns in Calicut District. The building is fetching the landlords rent of just Rs.100/- per mensem. We are sure that if the building is let out today, it will RCR 51/11 4 fetch at least Rs.500/- per mensem to the landlords. We are, therefore, inclined to refix the rent tentatively at Rs.400/- per mensem subject to the regular fixation at the instance of either party by resorting to Section 5 of the Act. 4. The result of the above discussion is as follows: The judgment of the Rent Control Appellate Authority and the order of the Rent Control Court are set aside to the extent the same allows/disallows order of eviction and the R.C.P. is remanded to the Rent Control Court. The finding that the need of the landlord under sub-section (3) of Section 11 bonafide is confirmed. The Rent Control Court is directed to take a fresh decision on the question whether an eviction order is liable to be passed under sub-section (3) of Section 11 and Section 11(4)(v) of the Act against the respondent. That court shall permit both sides to adduce whatever further evidence, if any, including oral evidence in the context of sub-section (3) of Section 11. But in the context of Section 11(4)(v), both sides need be permittedto adduce only documentary evidence. The Rent Control Court is directed to pass revised orders on the basis of the evidence already on record and the further evidence which comes on RCR 51/11 5 record, as expeditiously as possible, at any rate, within a period of four months of the parties entering appearance pursuant to this remand order. The rent payable by the respondent is refixed with effect from 1.7.2011 at Rs.400/- per mensem. Till fair rent is regularly fixed by the Rent Control Court at the instance of either party by resorting to Section 5 of the Act, the respondent shall pay rent at the above rate. The parties are directed to enter appearance before the Rent Control Court on 5th July, 2011. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 51/11 6 RCR 51/11 7