IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RCRev..No. 76 of 2009() ----------------------- RCP 7/2006 OF RENT CONTROL COURT, KARUNAGAPPALLY RCA.6/2008 of D.C. & SESSIONS COURT,KOLLAM .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER: ------------------------------------------------- VARGHESE, S/O.KURUVILA, VARALIVILAYIL THEKKETHIL, THEKKUMMURI KIZHAKKU, THAZHAVA VILLAGE, FROM VADAKKEPARAMBIL VEEDU, MARKET ROAD, AMBALAPPUZHA VILLAGE. BY ADV. SRI.K.SASIKUMAR SRI.S.SREEDUTT RESPONDENT : RESPONDENT/PETITIONER: ------------------------------------- ABDUL VAHEED, S/O.ASANARU KUNJU, KOCHUVILAYIL VEEDU, MANAPPALLY VADAKKEMURI, PAVUMBA VILLAGE, THAZHAVA. BY ADV. SRI.B.SURESH KUMAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. --------------------------------------------- R.C.R. 76 of 2009 --------------------------------------------- Dated: JULY 6, 2009 ORDER Barkath Ali, J. In this revision under sec.20 of the Kerala Buildings (Lease and Rent Control) Act, by the defeated tenant, the concurrent findings of the Rent Control Court and the Appellate Authority ordering eviction under sec.11(3) of the Act are challenged. 2. The revision respondent/landlord filed RCP 7 of 2006 before the Rent Control Court (Munsiff), Karunagappally, claiming eviction under sec.11(2)(b) and 11(3) of the Act on the ground that the tenant has kept rent in arrears from June 2005 onwards and that the landlord bona fide required the petition schedule building to construct a shopping complex for starting a super market and restaurant on the first floor and also for conducting a lodge. The tenant resisted the claim contending that he is entitled to protection under sec.106 of the Kerala Land Reforms Act as during 1965 itself the tenant took the vacant plot on lease and constructed a shed therein, that there are no arrears of rent, that the bona fide need urged by the landlord is not genuine, that the main source of income of the tenant is the income derived R.C.R. 76 of 2009 2 from the saw mill conducted in the petition schedule property and that there are no other suitable property available in the locality for carrying on his business, that the landlord has other properties in his possession and that therefore the landlord is not entitled for an order of eviction. 3. Pws.1 to 5 were examined and Exts.A1 to A17 were marked on the side of the landlord before the lower court. The revision petitioner/tenant examined Rws.1 to 4 and produced Exts.B1 to B11 before the lower court. The report of the commissioner was marked as Ext.C1. On an evaluation of evidence the Rent Control Court ordered eviction under sec.11(3) of the Act, but declined to give an order under sec.11(2)(b) of the Act which was confirmed in appeal by the Appellate Authority (District Judge, Kollam). The rent control court also found that the tenant is not entitled to protection of the second proviso to sub-sec.(3) of sec.11 of the Act. 4. Arguing the revision, Sri.K. Sasikumar, learned counsel for the revision petitioner/tenant submitted that either in the rent control petition or in evidence, PW.2, the landlord, did not mention about the own occupation of the premises by the R.C.R. 76 of 2009 3 landlord and that on that ground itself the claim for eviction by the landlord has to be rejected. 5. Both the courts below have found that the bona fide need urged by the landlord (Pw.2) is genuine and that the tenant is not entitled to protection under the second proviso to sub-sec. (3) of sec.11 of the Act. We find no reason to interfere with the said finding of both the courts below. But there is another aspect. On going through the RCP and the evidence of PW.2 it is seen that he did not say anything about the own occupation of the building to be reconstructed. Therefore we feel that an opportunity should be given to the landlord to prove about his own occupation of the premises after reconstruction. Before this court the landlord has filed an affidavit stating that after reconstruction he will occupy the premises. He has further stated that the construction of the shopping complex is for his own occupation. The learned counsel for the tenant submitted that he may be given an opportunity to cross-examine PW.2 on this point as no evidence is adduced by the landlord before the rent control court on this point. We find force in the above contention. Therefore we feel that the matter can be remanded R.C.R. 76 of 2009 4 to the Appellate Authority for deciding the question of own occupation. The Appellate Authority shall grant an opportunity to both parties to adduce further evidence on this point. If the landlord so chooses, PW.2 can be recalled and allowed to adduce further evidence regarding the bona fide need. The tenant would be entitled to cross-examine the landlord on this point. In the result, the revision petition is allowed by way of remand. The case is remanded to the Appellate Authority for deciding the question of own occupation by the landlord. Both parties will be entitled to adduce further evidence before the lower court on this point. The Rent Control Appellate Authority shall dispose of the mater as early as possible, and at any rate within four months from the date of receipt of a copy of this order. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-