IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 RCRev..No. 245 of 2009() ------------------------ RCA.79/2007 of ADDL. DISTRICT COURT, VADAKARA .................... PETITIONER IN RCR- APPELLANT IN R.C.A- RESPONDENT IN R.C.P. -------------------------------------------------------------------------------------------- K.SUGAVATHY, W/O.MANOHARAN, DOOR NO.30/429, ONTHAM ROAD, VATAKARA AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT IN RCR- RESPONDENT IN R.C.A- PETITIONER IN R.C.P. ------------------------------------------------------------------------------------------------ 1. THADIPPARAMBATH KUNHIRAMAN, S/O.POKKINAN, CHEMMARATHOOR AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. *2. SANTHA, W/O. LATE THADIPPARAMBATH KUNHIRAMAN, CHEMMARATHOOR AMSOM AND DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. *3. LIJISH, S/O. DO. DO. DO. *4. JESSY, D/O. DO. IN DO. DO. (*ADDL. RESPONDENTS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 6.9.2010 IN I.A. NO.130 OF 2010) ADV. SRI.V.V.SURENDRAN FOR R2- R4 SRI.P.A.HARISH FOR R2-R4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. --------------------------- R.C.R No. 245 OF 2009 -------------------------- Dated this the 6thday of September, 2010 O R D E R Gopinathan, J. This is the second round of revision before this Court as against the order of eviction under Section 11(8) in RCP 53 of 2006 on the file of the Rent Control Court, Vadakara. The petition schedule building having a measurement of 1 ½ x 3 ½ (6 feet) koles is part of the ground floor of a two stored building in the heart of Vadakara. It was let out in 1968 to the father of the revision petitioner, late Nagappan. On the death of Nagappan, leasehold devolved upon the revision petitioner. The building was originally belonging to someone else. In 1978 it was purchased by the respondent, the petitioner before the Rent Control Court. He is now reported dead. His wife, daughter and son were impleaded as additional respondents 2 to 4. The deceased respondent instituted the petition before the Rent Controller seeking eviction under Section 11(2)(b), 11(4)(v) and 11(8) of Kerala Buildings (Lease and Rent Control) Act. 2. Regarding the eviction sought under Section 11(8), it was RCR No.245/09 2 contended that the respondent was running a hotel by name Highland Hotel and that the existing space available with the deceased respondent was not sufficient for running of the hotel and he wanted to expand the hotel business to the petition scheduled building also. Since eviction under other two grounds is now not in dispute, we are not mentioning about it. 3. The rent controller after due enquiry, allowed the petition under Sections 11(2) and 11(8) and eviction sought under Section 11 (4)(v) was declined. 4. As against the order under Section 11(2)(b) and 11(8), the revision petitioner preferred appeal. As against the order declining eviction under Section 11(4)(v), the late respondent preferred cross objection. The appellate authority dismissed the appeal confirming the eviction under Section 11(2)(b) and 11(8). Cross-objection was allowed and eviction was granted under Section 11(4)(v) also. Against that order, rent control revision 313 of 2008 was preferred. By order dated 3.6.2009 delivered by one of us (PCK(J)) while sitting in another Bench allowed the revision by vacating the order of eviction under Section 11(2)(b) and 11(4)(v) and remitted back the case to the appellate authority for providing an opportunity to the RCR No.245/09 3 respondent to take out a commission to examine the existing premises and to file a report relating to the eviction sought under Section 11(8). The parties were also permitted to adduce evidence, if they so chose. Thereupon, the respondent took out the commission. The Commissioner filed Ext.C2 report dated 11.8.2009 along with Ext.C3 sketch. The report and sketch submitted by the Commissioner were remitted back in pursuance to an order on the objection raised by the late respondent. Thereafter the commission submitted Ext.C4 report and Ext.C5 sketch. No further oral evidence was adduced from either side. The appellate authority on reappraisal of the materials on record arrived at a finding that the need projected by the respondent seeking additional accommodation under Section 11(8) is bonafide. Consequently, the order of revision under Section 11(8) was confirmed. Assailing the said order, this revision petition was preferred. 5. We heard the learned counsel appearing for the revision petitioner as well for respondents 2 to 4. 6. It is revealed out by Ext.C4 report that the plot 'I' in Ext.C5 sketch is now in the possession of the third respondent. Earlier he was doing some business and it is now kept closed. According to the RCR No.245/09 4 learned counsel for the revision petitioner that space is more than the area occupied by the revision petitioner and that regarding the actual requirement there is no evidence on record. According to the learned counsel, the plot "I" in Ext.C5 is more than sufficient to meet the additional accommodation pleaded in the petition. It is also argued that the need projected in the petition is for expanding the hotel run by the deceased respondent and at present, there is no material on record to come to a conclusion that any of the respondents 2 to 4 had any proposal to continue the business that was run by the deceased respondent or for expansion of the same and in this view of the matter, the additional accommodation sought itself is not surviving. On an anxious consideration of the pleadings, evidence and arguments from either side, we find that there are subsequent change of circumstance that may tilt the relief sought in the petition. We further find that the changed set of circumstances had created a vacuum in the evidence and pleadings as to whether the requirement for additional accommodation still survives; and if it survives, plot “I” in Ext.C5 would meet the requirement. Therefore, it would be just and proper to allow the additional respondents to amend the petition and to adduce any additional evidence regarding RCR No.245/09 5 their desire to continue the business run by the late respondent and the need for the expansion of the business. So also, since it is admitted that the plot “I” in Ext.C5 is now in possession of one of the additional respondents to whom the building is now vested would meet the requirement projected by the deceased respondent for expanding the business also requires due consideration by the rent controller. 7. In the above circumstances, we set aside the order impugned. With much reluctance, the matter is remitted back to the rent controller for fresh disposal after allowing the additional respondents to amend the pleadings, if they so chose, and to adduce any further evidence. Revision petitioner is also at liberty to file additional pleadings and adduce any evidence. We notice that the petition scheduled building was demised on lease as early as 1968. It measures about 150 Sq. feet. The rent payable is only Rs.25.50. It is ridiculously low. In the above circumstances, we find that tentative fixation of the rent is absolutely just and necessary. Taking into account that the petition scheduled building is situated in the heart of the Vadakara town very close to the court complex, we tentatively refix the rent at Rs.1,400/- per RCR No.245/09 6 month payable with effect from 1.10.2010. The rent now refixed is subject to fixation of fair rent by the competent forum. Parties are at liberty to move the appropriate forum for fixing the fair rent. There will be no order as to costs. The parties are directed to appear before the rent controller on 1.10.2010. Transmit the records forthwith. The rent controller shall dispose the petition as expeditiously as possible, not later than three months from 1.10.2010. PIUS C.KURIAKOSE, (JUDGE) P.S.GOPINATHAN, (JUDGE) vps