IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 RCRev..No. 97 of 2009(C) ----------------------------- RCA.34/2003 of D.C. ,KOLLAM RCP.5/2000 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER/RESPONDENT/RESPONDENT --------------------------------------------- D.PARAMESWARAN ACHARI, AJAYA NIVAS, CLAPPANA SOUTH MURI, CLAPPANA VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT(S)/APPELLANT/PETITIONER: ----------------------------------------------- DAMODARAN GOPINATH SUDHINAM VEEDU, PADANAYARKULANGARA NORTH MURI KARUNAGAPALLY VILLAGE. ADV. SMT.C.S.SHEEJA FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.97 of 2009 ------------------------------------------------ Dated this the 14th day of October, 2009 ORDER Pius C. Kuriakose, J The tenant challenges the order of eviction passed by the Rent Control Appellate Authority in reversal of the decision of the Rent Control Court. The respondent/landlord sought to evict the revision petitioner on the grounds of arrears of rent and bona fide own occupation. The need projected in the context of the ground under sub section 3 of section 11 was that the building is required for the purpose of conduct of garment business by the landlord. The Reference Court dismissed the Rent Control Petition completely. The Appellate Authority concurred with the decision of R. C. R. No.97 of 2009 -2- the Rent Control Court in the context of the ground of arrears of rent. However, reversing the finding of the Rent Control Court, it was found by the Appellate Authority that the need projected by the landlord is a bona fide one and that the tenant is not entitled for the protection of the second proviso to sub section 3. 2. We have heard the submissions of Sri.V.N.Achutha Kurup, the senior counsel for the revision petitioner and those of Sri.P.S.Sheeja, the learned counsel for the respondent/landlord. Apart from assailing the judgment of the Appellate Authority on the various grounds raised in this RCR, Sri.Kurup drew our attention to the affidavit dated 5th October, 2009 filed by his client, the tenant. He submitted that the landlord has already shifted his business by name 'Shyam Industries' which was previously functioning in R. C. R. No.97 of 2009 -3- a rented building to his own building having Door No.606 in Ward No.8 of Karunagappally Panchayath. 'Shyam Industries', he submitted, is presently functioning in that building. 'Shyam Industries' is engaging eight workers and the building in which he used to conduct the above business previously was vacated by him and is seen occupied by other tenants. The above subsequent event of the landlord shifting 'Shyam Industries' to his own building according to the learned senior counsel is a subsequent event having a fundamental impact on the landlord's right to evict the tenant. The landlord has filed an affidavit on 7th October, 2009 answering the averments contained in the tenant's affidavit. It is stated in the landlord's affidavit that shifting of 'Shyam Industries' to his own building in Karunagappally was done under compelling R. C. R. No.97 of 2009 -4- circumstances. The landlord of the building in Clappana where 'Shyam Industries' was previously functioning demanded for vacant possession of that building. Therefore, he became compelled to shift his unit to his residential house. It is in the residential premises of th landlord that 'Shyam Industries' is presently shifted. This is only a temporary arrangement. This temporary arrangement had to be made lest the landlord should become compelled to stop the business which is his sole means of livelihood. It is also stated in the affidavit that after shifting of 'Shyam Industries' to the residential premises, the business has become dull since it is about one kilometre away from the National High way. It is claimed that if 'Shyam Industries' is shifted to the petition schedule building, the business will flourish R. C. R. No.97 of 2009 -5- since the petition schedule building is situated in a commercially important area. The affidavit goes on to explain the circumstances under which the landlord became inclined to surrender the building at Clappana village. 3. Sri.Kurup submitted that it was out of his own volition that the respondent/landlord shifted his business 'Shyam Industries' to his residential premises situated in Karunagappally town. The building where 'Shyam Industries' is presently functioning is situated in a commercially important area unlike the petition schedule building situated near to the Mat of Matha Amrithanandamayi Devi. The landlord of the premises where 'Shyam Industries' was previously functioning had not initiated any legal proceedings at all for evicting the respondent from that building. The R. C. R. No.97 of 2009 -6- shifting was voluntarily done after the Rent Control Court dismissed the Rent Control Petition. 4. The submissions of the learned senior counsel were very forcefully resisted by Smt.Sheeja. She submitted that every word of the affidavit sworn to by the landlord is true. 5. Having considered the rival submissions, we are of the view that the impact of the subsequent event of the landlord shifting his manufacturing unit by name 'Shyam Industries' over to his own residential premises should be examined by the Appellate Authority since such shifting can have some impact on the landlord's right to obtain eviction of the petition schedule building. The matter may require further enquiry also. In view of the urgency projected by the landlord, we are inclined to relegate the issue back to R. C. R. No.97 of 2009 -7- the Appellate Authority itself. The Appellate Authority also has co-equal powers in the matter of conducting enquiry in terms of section 18(3), section 23 of Act 2 of 1965 and Rule 11, (7) and (8) of Building Lease and Rent Control Rules in the matter of enquiry and adduction of evidence by the parties. 6. The rent presently being paid by the tenant is only Rs.40/- which we feel is far below the fair rent which the building may fetch. When it was suggested to the learned counsel for the landlord that pending final decision, the rent can be enhanced, she submitted that what the landlord needs is the building and not higher rent. Still we feel that there is justification for re-fixing the rent tentatively. 7. In view of the above discussions, we dispose of the RCR in the following terms:- R. C. R. No.97 of 2009 -8- 8. The judgment of the Rent Control Appellate Authority is set aside. That Authority is directed to take a fresh decision taking into account the implications of the subsequent event of the landlord shifting 'Shyam Industries' to his premises within the limits of Karunagappally Panchayath. Both sides will be permitted to adduce whatever evidence they want to in the above connection and revised judgment will be passed by the Appellate Authority on the basis of the entirety of the evidence which comes on record, at the earliest, and at any rate, within four months of receiving a copy of this judgment or parties entering appearance before the Appellate Authority pursuant to this remand. We also tentatively re-fix the rent payable by the revision petitioner for the petition schedule building prospectively with effect from 1st R. C. R. No.97 of 2009 -9- November, 2009 at Rs.500/- per mensem. This tentative re-fixation is without prejudice to the right of the either party to move the competent court for fixing fair rent. Parties shall appear before the Appellate Authority on 03/11/09. Transmit the lower court records forthwith to the Appellate Authority. 9. This RCR is thus, allowed by way of remand. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-