IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 RCRev..No. 41 of 2011(D) ---------------------------- RCA.42/2008 of DIST COURT, ALAPPUZHA RCP.9/2006 of PRL. RENT CONTROLLER, CHERTHALA .................... REVISION PETITIONERS/APPELLANTS/PETITIONERS ---------------------------------------------------------- 1. RADHA BHASI,W/O.LATE P.A.BHASKARAN NAIR, CHIRAYINMEL,KUTHIATHODE.P.O,KUTHIATHODU VILLAGE, CHERTHALA. 2. SABITHA GOPALAKRISHNAN, W/O.DR.GOPALAKRISHNAN OF -DO- -DO- 3. RAJEEV BHASI,S/O.LATE P.A.BHASKARAN NAIR OF -DO- -DO- 4. SAJEEV BHASI,S/O.LATE P.A.BHASKARAN NAIR OF -DO- -DO- BY ADV. SRI.P.GOPAL RESPONDENT(S): RESPONDENT ----------------------------------- P.R.CHANDRADATHAN,S/O.RAMAN,PRIYA AGENCIES,KUTHIYATHODE.P.O,RESIDING AT RAM NIVAS, KUTHIYATHODE.P.O,CHERTHALA-688532 ADV. SRI.M.P.RAMNATH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.41 of 2011 ------------------------------------------------ Dated this the 2nd day of August, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the landlords is the judgment of the Rent Control Appellate Authority dismissing the Rent Control Appeal and confirming the order of the Rent Control Court declining eviction on the ground of arrears of rent under Section 11(2)(b) and on the ground of bona fide need for own occupation under Section 11(3) - the two grounds which were invoked in the Rent Control Petition. The revision petitioners/landlords are the legal heirs of the late P.A.Bhaskaran Nair alias Kuthiathodu Bhasi who had let out the building to the respondent/tenant on a monthly rent of ` 1,000/-. The allegation of the landlords regarding arrears of rent was that the respondents have defaulted payment of R. C. R. No.41 of 2011 -2- rent to the effect of ` 45,282/- for the period up to October, 2005. The need projected by the landlords under sub section 3 of Section 11 was the bona fide need for own occupation i.e. for the purpose of commencement of a clinic by PW2, the husband of the second revision petitioner who is a dependent of the petitioner for the purpose of building. It was urged that PW2 is a Doctor by profession with specialisation in Orthopedics. It was urged that PW2 retired from Government Service and intends to start a clinic. It was also urged that PW2 is settled down in Kuthiathodu, a place where building is situated and is presently residing in the Tarward house along with the petitioners 1 and 2. It was also urged that the petition scheduled room is the most suitable one for the purpose of starting a clinic for PW2 on account of its proximity to the family house. 2. Respondents/tenants filed objections contending that late Bhaskaran Nair was purchasing building materials from R. C. R. No.41 of 2011 -3- his shop and after adjustment of rent substantial amounts are due to him and as such, he is not a defaulter. It was also contended by him that the need for starting clinic for PW2 lacks bona fides and that the landlords are having other suitable buildings available with them for the same purpose. The evidence at trial by the Rent Control Court consisted of Exts.A1 to A7, Exts.B1 to B3 series, Ext.C1 Commission Report and oral evidence of PWs.1 and 2 and that of RW1, the tenant. The Rent Control Court held that Ext.B1 accounts produced by the tenant in support of his claim that amounts are due to him from the landlord cannot be believed or acted upon. Ext.B1 accounts was found to be not trustworthy. It was held that there were over writings and corrections of page numbers and that the same was not kept in due course of business and could not be relied on. However, it was held that the burden of proving that rent is in arrears as alleged is on the landlords and they have not R. C. R. No.41 of 2011 -4- discharged that burden and accordingly it was held that the landlords are not entitled for an order of eviction passed under Section 11(2)(b). Appreciating the evidence adduced in the context of ground under Section 11(3), It was held that the need was not established to be bona fide. However, it was held that the tenant is not entitled for the protection of the second proviso to sub section 3 of Section 11. The landlords carried the matter in appeal to the Appellate Authority. The Appellate Authority concurred with all the findings of the Rent Control Court and dismissed the appeal. 3. In this revision various grounds are raised assailing the judgment of the Appellate Authority. Sri.P.G.Parameswara Panicker senior counsel addressed arguments before us based on the various grounds raised in the RCR. All the arguments of Sri.P.G.Parameswara Panicker were resisted by Sri.M.P.Ramnath, the learned counsel for the respondent. The learned senior counsel and R. C. R. No.41 of 2011 -5- Sri.M.P.Ramnath were permitted to highlight before us certain aspects of the evidence, particularly the documents produced on either sides. We have given our anxious consideration to the submissions addressed. To the extent necessary for appreciating those arguments, we have made a quick survey of the evidence also notwithstanding the revisional nature of our present jurisdiction. We have scanned the judgment of the Appellate Authority and the order of the Rent Control Court. We are of the view that the decision concurrent though the same be, taken by the statutory authorities in the context of the eviction grounds invoked by the landlords under S. 11(3) requires re- consideration. According to us, the burden of proof for establishing a plea of discharge in the nature of the rival pleadings raised by the parties in the context of ground of arrears of rent was wrongly cast by the statutory authorities on the landlord and that they did not have due regard to R. C. R. No.41 of 2011 -6- Section 9 of Act 2 of 1965. Similarly we also feel that the issue as to whether the need is bona fide and the further issue as to whether the RCP is liable to fail by virtue of any of the provisos to sub section 3 of section 11 ought to be re- considered by the Rent Control Court. We also feel that parties should be allowed to amend pleadings in the context of the first proviso to sub section 3 of section 11. 4. We notice another aspect of the matter. The monthly rent presently being paid by the tenants is very low when compared to the rent prevailing in the locality for similar buildings. We feel that subject to regular fixation of fair rent under section 5 rent should be re-fixed. 5. The result of the above discussion therefore, is as follows:- The judgment of the Appellate Authority and the order of the Rent Control Court are set aside and the RCP is remanded to the Rent Control Court for taking fresh decision R. C. R. No.41 of 2011 -7- on the question as to whether an eviction order is passed under Section 11(3). The landlords are permitted to amend their pleadings so as to incorporate necessary averments conceding the availability of two rooms in the locality giving special reasons. If the landlords amend the pleadings, the tenant should be permitted to raise counter pleadings. The Rent Control Court shall decide all the relevant issues including the main issue whether the need is bona fide and the second issue is as to whether the tenant is liable to vacate by virtue of first proviso and the third issue as to whether the tenant is entitled to the protection of the second proviso to Section 11(3). We pass an order of eviction under Section 11(2)(b) finding that rent is in arrears as alleged by the landlords. The tenant is given two months time from today for getting the order of eviction vacated by making the requisite deposits under Section 11(2)(c). The learned counsel submitted that in view of the intimacy R. C. R. No.41 of 2011 -8- relationship which the parties maintained during the lifetime of late Bhaskaran Nair alias Kuthiathodu Bhasi the tenant can be absolved from the liability of paying interest on the rent. We record the submission. The Rent Control Court shall deal with and dispose of the prospective application under Section 11(2)(c) taking into account the above submission. The rent is re-fixed with effect from 1-9-2011 at Rs.2000/- per mensem. This is subject to regular fixation of fair rent by the Rent Control Court at the request of either party. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns & ksv/- R. C. R. No.41 of 2011 -9-