IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 RCRev..No. 58 of 2011() ----------------------- RCA.2/2008 OF RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.13/2006 OF RENT CONTROL COURT, KOLLAM .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ SWARNAPPAN, PROPRIETOR, CHAPPAL REPAIR AND SALES SHOP, M.C.NO.X/806, POLAYATHODU, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ HENRY, RESIDING AT HOUSE NO.12, ST.ANTONY'S COLONY, POLAYATHODU.P.O., POLAYATHODU, KOLLAM. 691 574. ADV. SRI.M.K.CHANDRA MOHANDAS FOR R SRI.R.NIKHIL FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- RCR. No. 58 of 2011 ----------------------------------------------- Dated this the 21st day of June, 2011 O R D E R Pius C.Kuriakose, J. After hearing the learned counsel on either side for some time on the 27th May 2011 it was noticed that the question which arises seriously is whether room No.X/809 belongs to the landlord was vacant at the time when the RCP commenced. Accordingly we directed the landlord to make available for our perusal any document issued by the Kollam Corporation or any other convincing document which will show that Room No.X/89 was being used by the landlord as a store room at the time when the RCP commenced. Today no convincing document and much less any document issued by the Kollam Corporation is placed before us by the learned counsel for the landlord. We feel that the issue as to whether RCP has to fail by virtue of the first proviso to sub-section (3) of Section 11 can be directed RCR.58/11 -2- to be decided by the Rent Control Court. We are therefore inclined to remit the RCP to the Rent Control Court for considering the said issue. 2. But we notice another aspect of the matter. The monthly rent of Rs.125/- presently being paid by the revision petitioner was fixed long ago. We feel that if the building is let out today, the same will certainly fetch much more than the present rate. We r-efix the rent with effect from 1-7-2011 at Rs.350/- per mensem. We make it clear that this re-fixation is tentative and it is open to either party to move the Rent Control Court for regular fixation of fair rent by resorting to Section 5. 3. The result of the above discussion is therefore as follows: The order of the Rent Control Court and the judgment of the Rent Control Appellate Authority are set aside. The RCP is remitted back to the Rent Control Court, Kollam for RCR.58/11 -3- the purpose of considering whether the RCP is liable to fail by virtue of the first proviso to sub-section (3) of Section 11. All other findings entered by the learned Appellate Authority in its judgment will remain. The Rent Control Court should permit both sides to adduce evidence in the context of the first proviso to sub-section (3) of Section 11 and a finding as to whether the RCP will fail by virtue of the above proviso should be rendered by the Rent Control Court on the basis of the evidence already on record and further evidence if any which the parties adduce. It is needless to mention that on the basis of that finding revised order should be passed in the RCP. The revision petitioner shall pay rent to the respondent at the rate of Rs.350/- per mensem with effect from 1-7-2011 till fair rent is fixed. The parties will enter appearance before the court on 15-7-2011. Transmit the records forthwith. The Rent Control Court will pass revised orders within four months of the parties RCR.58/11 -4- entering appearance. It is open to the Rent Control Court to allow the landlord to amend the pleadings and the tenant should be permitted to raise counter pleadings, if pleadings are amended and the enquiry should be on the basis of the amended pleadings. It is clarified that the amendment to be allowed should be confined to the question of special reasons under Section 11(3) first proviso only. (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-