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 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 RCRev..No. 246 of 2008(E) ------------------------ RCR.26/2004 of RENT CONTROL APPELLATE AUTHORITY( DISTRICT Court), MANJERI RCP.5/2002 of RENT CONTROL Court( MUNSIFF Court), MANJERI .................... REVISION PETITIONERS/1ST RESPONDENT/PETITIONER: -------------------------------------------------------------------- T.P.ABDUL ALI, S/O.THONDIPARAMBAN MOHAMMED, ARECODE AMSOM DESOM,ERNAD TALUK. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S)/APPELLANT & 2ND RESPONDENT/RESPONDENT: --------------------------------------------------------------------------- 1. KONNALATH ALI S/O.MOHAMMED, ARECODE, ERNAD TALUK. 2. KONNALATH ABDUL SALAM, S/O.BEERAN MOIDEEN, ARECODE, ERNAD TALUK. ADV. SRI.SAJU.S.A FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 246 OF 2008 = = = = = = = = = = = = = = = = Dated this the 25th day of February, 2011. O R D E R Balkrishnan,J. The landlord is in revision. The petition for eviction was filed u/s 11(2) (b), 11(4)(1) and 11(3) of Act 2 of 1965. It was contended by the landlord that the tenant kept the rent in arrears which according to him was at the rate of Rs.300/- per month. The petition schedule building was sublet by the first respondent to the 2nd respondent and transferred exclusive possession to the 2nd respondent. The case of the landlord is that he bona fide needs the petition schedule building so as to enable his son to conduct business in foot-wears. The claim was resisted by the tenant contending that no rent was kept in arrears and that the rate of rent R.C.R. NO. 246 OF 2008 -:2:- payable was only Rs.300 per month. The allegation of sublease was denied. It was stated that the first respondent is a physically handicapped person and so the 2nd respondent was only helping the first respondent in the conduct of the business. It was also stated that though he had gone abroad seeking employment, he could not get a job in Riad and so he had to come back to the native place. The business in the petition schedule building is actually conducted by the first respondent with the help of the 2nd respondent and the allegation to the contrary is not true. It was contended that the son of the landlord is actually conducting business in footwear's in another shop belonging to the landlord and so the need is not bonafide. He has also two other vacant rooms in his possession, i.e. Room Nos.801 and 806 and as such even if the landlord wants to accommodate his son to conduct the business he can R.C.R. NO. 246 OF 2008 -:3:- do so in any of those rooms. 2. Before the Rent Control Court the landlord was examined as PW1 and Exts.A1 and A2 were marked. The first respondent was examined as RW1. 2nd respondent remained exparte. 3. After analysing the evidence the Rent Control Court found that the rent was kept in arrears and hence order of eviction was passed u/s 11(2)(b). The Rent Control Court also found that the first respondent was employed in gulf and that the business was actually conducted by the 2nd respondent. Since no evidence was produced by the tenant to show that he was doing the business for and on behalf of R1, the Court below came to the conclusion that there was an objectionable sublease. Hence eviction was ordered u/s 11(4)(i) also. 4. Accepting the evidence given by PW1 that there are no other vacant rooms in the possession of the R.C.R. NO. 246 OF 2008 -:4:- landlord suitable for conducting shoe mart business and the evidence given by PW1 that his son intends to conduct business in shoe mart, the learned Rent Controller ordered eviction u/s 11(3). 5. The learned Appellate Authority after reappreciating the evidence found that the rent due was paid subsequent to the filing of RCP. Hence the order of eviction passed u/s 11(2)(b) was vacated. The finding that R2 is only a helper of the first respondent and there is no satisfactory evidence to show that there was transfer of exclusive possession of the petition schedule building, the learned Appellate Authority set aside the order of eviction passed u/s 11(4) (i). It was further held by the learned Appellate Authority that the landlord was having in his possession two other shop rooms and no special reason was offered for not occupying those two rooms. Hence finding that the R.C.R. NO. 246 OF 2008 -:5:- claim u/s 11(3) is hit by the first proviso, order of eviction granted u/s 11(3) was also vacated. 6. Learned counsel for the revision petitioner has argued in detail. It is submitted by her that the learned Appellate Authority was not justified in vacating the order passed u/s 11(2)(b) of the Act since admittedly the rent in arrears was not paid within the prescribed period and the subsequent payment of rent is not sufficient to disallow the claim u/s 11 (2)(b) of the Act, even though the tenant may be entitled to get that order vacated u/s 11(2)(c). Hence the Appellate Authority was not correct in setting aside the order u/s 11(2)(b) of the Act. 7. We find force in that submission. The rent was admittedly not paid within the prescribed period on getting the notice sent under the proviso to S.11(2)(b). Hence the judgment of the learned Appellate Authority to R.C.R. NO. 246 OF 2008 -:6:- the extent it vacated the order of revision u/s 11(2)(b) is set aside and the order of the Rent Control Court u/s 11 (2)(b) is restored. However the tenant is entitled to get that order vacated within one month from today. 8. The evidence adduced on the side of the first respondent is that he was abroad for more than 8 years. He contended that he was in search of employment, but could not get any employment there. That contention does not appeal to us. Admittedly he was in gulf country for about 8 years. It is the admitted case that the 2nd respondent was conducting business in the petition schedule building. It was contended by R1 that R2 was only assisting him(R1) as he is a physically handicapped person. Learned counsel for the revision petitioner submits that the alleged physical disability of the respondent did not preclude him from going abroad and remaining in Riad for nearly 8 years. So the R.C.R. NO. 246 OF 2008 -:7:- contention that R2 was only a helper and that there was no sublease cannot be accepted. However we notice that R2 remained exparte and the evidence would show that he had already left the tenanted premises and went abroad. Therefore it would amount to termination of sublease on getting notice u/s 11(4)(i). In view of what is stated above the landlord is not entitled to get an order of eviction u/s 11(4)(i) of the Act. To that extent the judgment of the learned Appellate Authority has to be confirmed. 9. Another point pressed into service by the learned counsel for the revision petitioner is the ground u/s 11(3). The landlord who was examined as PW1 swore before Court that his son Mohammed Shijin intends to start a shoe mart in the petition schedule building and so he bonafide needs the building. In the counter statement it was stated by the first respondent R.C.R. NO. 246 OF 2008 -:8:- that there are two rooms belonging to the landlord (bearing Nos.801 and 802) lying vacant. It was further contended that another room bearing No.806 was also in the possession of the revision petitioner wherein he was doing stationery business. It was alleged that subsequently it was given to one Nazar for conducting a hotel. Learned counsel for the revision petitioner submits that those two rooms are situated by the side of a bakery and those rooms are not having road frontage and that those two rooms are not ideal for conducting 'shoe mart'. Sri.Krishnanunni, learned senior counsel appearing for the first respondent submitted that no specific plea was raised by the landlord projecting any special reason for seeking eviction of the building. Learned counsel further submits that when there is evidence to show that the landlord was having in his possession two rooms which would be suitable for his R.C.R. NO. 246 OF 2008 -:9:- business it is for him to offer special reasons for getting eviction of the tenanted building. It is pointed out that Mohammed Shijin for whose need the petition schedule premises is sought to be evicted was not examined and as such there is dearth of evidence regarding the need projected also. 10. But, however, we feel that an opportunity has to be given to the landlord to examine his son Mohammed Shijin for whose need the petition schedule shop room is required. Similarly the landlord must also show that even though he has got two other rooms in his possession there are special reasons for claiming eviction of the petition schedule room. Hence we are inclined to set aside the judgment of the learned Appellate Authority to the extent it pertains to the claim u/s 11(3) of the Act. R.C.R. NO. 246 OF 2008 -:10:- 11. The landlord contended that the present rent is only Rs.600/- and as per the lease agreement it has to be enhanced by 10% every year. Taking note of the fact that the petition schedule building is situated in an important locality and that the tenant is conducting a cool bar, we refix the monthly rent at Rs.1,500/- payable with effect from 1.4.2011. 12. In the result the revision petition is allowed in part. The order of eviction passed u/s 11(2)(b) is sustained but the tenant is given one month's time to get that order vacated. The claim for eviction u/s 11(4) (i) rejected by the learned Appellate Authority stands confirmed. The judgment of the learned Appellate Authority rejecting the claim u/s 11(3) is set aside and the RCP is remanded to the Rent Control Court, Manjeri for fresh consideration. The landlord is given liberty to cause amendment to the RCP within two R.C.R. NO. 246 OF 2008 -:11:- weeks from the date of appearance before the Rent Control Court, in which event the tenant, first respondent would also be entitled to file additional pleadings. The tenant R1 shall pay monthly rent at the rate of Rs.1,500/- with effect from 1.4.11. If he is aggrieved by the refixation of rent done by us he can move the Rent Control Court u/s 5 of the Act for regular fixation of fair rent. But till then he shall pay rent at the rate of Rs.1,500/- per month. 13. The learned Rent Controller shall dispose of the matter at the earliest. Parties are directed to appear before the Rent Control Court on 16.3.2011. PIUS C. KURIAKOSE,JUDGE. N.K. BALAKRISHNAN,JUDGE. ul/-