IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 RCRev..No. 98 of 2008() ---------------------------------- RCA.133/2006 OF RENT CONTROL APPELLATE AUTHORITY & II ADDITIONAL DISTRICT COURT, KOZHIKODE RCP.102/2005 of PRINCIPAL MUNSIFF COURT-I, KOZHIKODE .................... REVISION PETITIONER/IST RESPONDENT/PETITIONER --------------------------------------------------------------------------------- P.M. NAFEESA BASHEER, D/O.HASSANKOYA, RESIDING AT WEST HILL EXHIBITION ROAD, PUTHIYANGADI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS/APPELLANT & 2ND RESPONDENT/RESPONDENTS: ------------------------------------------------------------------------------------------------- 1. THAZHE VAZHAYIL RAGHAVAN NAIR, S/O.UNNI NAIR, EDAKKULAM AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE. 2. PRAMOD, S/O.RAGHAVAN NAIR, THAZHE VAZHAYIL HOUSE, EDAKKULAM P.O. EDAKKULAM AMSOM AND DESOM, KOYILANDY TALUK. R1 & R2 BY ADV. SRI.S.ANANTHAKRISHNAN, SRI.N.K.SUBRAMANIAN. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.98 of 2008 ---------------------------------------------------- Dated this the 22nd day of March, 2011 Order Pius C.Kuriakose, J. The landlady is the revision petitioner. She challenges in this revision the judgment of the Rent Control Appellate Authority dismissing her R.C.P. after reversing the eviction order which had been granted to her by the Rent Control Court on the grounds under sub-section (3) of Section 11 of Act 2 of 1965. In fact, the Rent Control Court had ordered eviction on the ground of arrears of rent also. That order has become final and we are told that the above order has been got vacated under Section 11(2)(c). 2. The need projected by the landlady in the R.C.P. was that she wants to demolish the petition schedule room as well as the adjacent two rooms so that she can put up a shopping complex. Only sub-section (3) of Section 11 was invoked and apart from pleading that a shopping complex is proposed to be put up in place of the existing old building, the landlady did not raise a specific pleading as to how and in what manner she will be RCR 98/08 2 constructing the shopping complex. In the evidence given by the husband of the landlady who was examined as P.W.1, he would state that the landlady's intention is to occupy a portion of the shopping complex herself and to let out the remaining portions to the tenants. The Rent Control Court without appreciating the evidence properly would order eviction under sub-section (3) of Section 11 itself. The Rent Control Appellate Authority on considering the appeal preferred by the tenant has passed the impugned judgment. According to the learned Appellate Authority, from the evidence of P.W.1 itself it is clear that the proposal is to construct a shopping complex and let out portions at least to other tenants. The Appellate Authority would find that the eviction ground which may be available to the landlady is the one under Section 11(4) (iv). However, noticing that there was no proper pleadings or evidence to support such an eviction order, would dismiss the R.C.P. It was also held that the R.C.P. is bereft of bonafides. In this revision filed by the landlady various grounds are raised challenging the judgment of the Appellate Authority. 3. Mr.C.P.Mohammed Nias, learned counsel for the RCR 98/08 3 petitioner would address very persuasive arguments before us based on all grounds. Mr.Nias argued that there is every justification for passing an order of eviction under Section 11(4) (iv) giving the statutory first option to the respondents for reinduction. All the submissions of Mr.Nias were resisted by Mr.Ananthakrishnan, learned counsel for the respondents- tenants. According to him, for an eviction order to be passed under Section 11(4)(iv), there has to be proper pleadings first. In addition to pleadings, there has to be evidence regarding the existence of the statutory prerequisites such as evidence regarding the condition of the building, the availability of a building plan and licence by the landlord and the financial capacity of the landlord to carry out the reconstruction. In the absence of pleadings or evidence, this court will not be justified in ordering eviction under Section 11(4)(iv) at all. 4. Mr.Nias submitted that Ext.C1 Commissioner's report will show to the very hilt that the building is in a dilapidated condition. He would request as a last submission that this court permits the landlady to amend her pleadings and to adduce evidence regarding existence of the statutory prerequisites. RCR 98/08 4 5. We have given our anxious consideration to the submissions addressed by Mr.Mohammed Nias and Mr.Ananthakrishnan. We must notice immediately that we do not find much infirmity about the judgment of the Rent Control Appellate Authority dismissing the R.C.P. in which the only eviction ground invoked was the ground under sub-section (3) of Section 11. We also feel, as the Appellate Authority appears to have felt that the apposite eviction ground which may be available to the landlady is the ground under Section 11(4)(iv). But as rightly pointed out by Mr.Ananthakrishnan, before eviction order is passed under Section 11(4)(iv), the Rent Control Court has to be satisfied about the existence of the statutory prerequisite such as condition of the building, availability of a building plan and licence, the capacity of the landlord to carry out the reconstruction and the profitability of the proposal from the landlord's point of view. We also find merit in the submission of Mr.Ananthakrishnan that basic pleadings are necessary before eviction order is passed under Section 11(4)(iv). Having anxiously considered the entirety of the facts and circumstances which attended on this case and the submissions addressed at RCR 98/08 5 the Bar, we feel that this is a case where the landlady should initiate fresh proceedings for evicting the respondents by invoking the eviction ground under Section 11(4)(iv). Of course, the condition of the building warrants reconstruction as is clear from Ext.C1 commission report. But the R.C.P. lacks proper pleadings. As we have already noticed, before eviction order is passed under Section 11(4)(iv), the Rent Control Court has to be satisfied on evidence regarding availability of a building plan and licence and the capacity of the landlady to carry out the reconstruction. The same is lacking in this case. We are, therefore, inclined to permit the landlady to initiate fresh proceedings for eviction on the ground of reconstruction. 6. At the same time we notice that the monthly rent of Rs.60/- which is being paid by the tenants for the building which is situated in a commercially very important area in Calicut Corporation is ridiculously low. We refix the rent payable by the tenants tentatively at Rs.300/- per mensem with effect from 1.4.2011. The above refixation is subject to regular fixation of fair rent by the Rent Control Court on the basis of the application submitted by either party. RCR 98/08 6 7.The result of the above discussion is, therefore, as follows: The R.C.R. is disposed of permitting the landlady to institute a fresh R.C.P. against the respondents invoking the ground of Section 11(4)(iv). The landlady is permitted to produce Ext.C1 commission report as an item of evidence in the prospective new R.C.P. If a fresh R.C.P. is filed by the landlady on or before 1.6.2011, the Rent Control Court will give priority to the same and dispose of the same in accordance with law after affording opportunity to both sides for substantiating their rival contentions early and at any rate within the statutory time frame of four months. The rent payable by the respondents is tentatively refixed at Rs.300/- per mensem with effect from 1.4.2011. We make it clear that if other grounds for eviction are available to the landlady, she is free to invoke those grounds also. The order declining eviction under Section 11(3) is confirmed. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 98/08 7 RCR 98/08 8