IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 RCRev..No. 192 of 2006() ------------------------ ( RCA.15/2005 of DISTRICT COURT, KOZHIKODE RCP.26/1996 of MUNSIFF COURT, NADAPURAM) .................... REVISION PTNR./RSPDT.IN RCA/PTNR.IN RCP/LAND LORD: ---------------------------------------------------------------------- IYYATTIL MAYAN HAJI, S/O. KUNHAVULLA HAJI, AGED 66 YEARS, VELLIYODE AMSOM, BHOOMIVATHUKKAL DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. SRIC.M.MOHAMMED IQUABAL SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT/APPELLANT IN RCA/RESPONDENT IN RCP/TENANT: ------------------------------------------------------------------------------------------------ CHALUPARAMBATH HASHIM, S/O.IBRAYI, AGED 46 YEARS, VELLIYODE AMSOM, KOTIYURA DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16.11.2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING VK PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ----------------------------------- R.C.R.No.192 OF 2006 ----------------------------------- Dated this the 16th day of November, 2010 O R D E R ~~~~~~~ Pius C. Kuriakose, J. Under challenge in this revision filed by the landlord is the common judgment of the Rent Control Appellate Authority allowing an appeal filed by the tenant and dismissing the cross objections filed by the landlord. The landlord instituted the RCP invoking the ground under sub section 3 of Section 11 and under clause (iii) of sub section 4 of Section 11. The need projected by the landlord under Section 11(3) was that the building is needed bonafide for occupation by is son Jaleel for conducting stationery business. The tenant disputed the bonafides and contended that the petition would liable to fail by virtue of provisos 1 and 2 of sub section 3 of Section 11. The ground under 11(4)(iii) was raised with reference to the room adjacent to the petition schedule building. Significantly, that room also belong to the landlord and had been let out to the same tenant just prior to the letting out of the petition schedule building. The Rent Control Court in the first instance declined R.C.R. No.192/2006 2 the order of eviction under 11(3) and ordered eviction under 11 (4)(iii). The tenant alone preferred appeal. That appeal was also dismissed by the appellate authority. Against the judgment of the appellate authority, the tenant filed the revision to this Court. The above revision CRP No.2101/1999 was allowed by this Court which set aside the orders of the Rent Control Court and the Appellate Authority and remanded the RCP to the Rent Control Court for fresh consideration under sub section 3 of Section 11 and clause (iii) of sub section 4 of Section11 and additional grounds, if any, to be raised. Parties were given liberty to adduce further evidence also. After remand, the landlord did not seek amendment of the pleadings for incorporation of additional grounds. Landlord did not adduce further evidence also. The evidence in the case was only the oral evidence of landlord as PW1 and that of the tenant as RW1. Apart from Exts.A1 to A3, B1 to B5 and C1 to C3 . The Rent Control Court on appreciating the evidence came to the conclusion that the landlord was unsuccessful in proving the bonafides of the case. It was also found that the 1st proviso to sub section 3 of section 11 operates against the landlord. The R.C.R. No.192/2006 3 Rent Control Court came to the conclusion that the eviction ground under section 11(4)(iii) is established. Accordingly, RCP was allowed to the extent of ordering eviction under Section 11 (4)(iii). The tenant alone preferred appeal against the order of eviction passed under Section 11(4)(iii). In that appeal, the landlord filed memorandum of cross objections urging that 11(3) should have been allowed. By the impugned common judgment the learned appellate authority has allowed the appeal filed by the tenant holding that the letting out of the two rooms by the landlord were simultaneously done and also that the evidence on record was not sufficient to conclude that the eviction under 11 (3) was bonafide. 2. In this revision under Section 20 filed by the landlord various grounds have been raised. But, significantly, all the grounds raised are confined to the eviction ground under section 11(4)(iii). It is not urged even for a moment that the Rent Control Appellate Authority should have ordered eviction under Section 11(3) also. R.C.R. No.192/2006 4 3. Mr.Mohammed Iquabal, learned counsel for the revision petitioner, addressed arguments on the basis of various grounds. He also urged that though no specific ground is raised regarding Section 11(3) and there is justification for ordering eviction under Section 11(3) on the evidence available on record. According to him, the need projected by the landlord under Section 11(3) was the need to accommodate the son. For manifesting that need, the most competent person is the landlord, who has been examined as PW1. The statutory authorities should have accepted the evidence and ordered eviction. The learned counsel would assail the finding of the appellate authority regarding the ground under Section 11(4)(iii). According to him, the crucial point of time with reference to which the issue is to be decided is the point of time of filing the RCP. At the time of commencement of the RCP, the tenant was in possession of two rooms and one room was sufficient for his requirements. In that view of the matter, the appellate authority should have ordered eviction under Section11(4)(iii) also. R.C.R. No.192/2006 5 4. All the submissions of Mr.Iquabal were resisted by the learned counsel for the respondent. We have considered the rival submissions made at the Bar. We have scanned the order of the Rent Control Court and the judgment of the Appellate Authority. We have kept in mind the statutory provisions as well as binding judicial precedents. We find it extremely difficult to permit the revision petitioner to urge in this revision, in the total absence of any ground in that regard, that eviction order should have been passed under Section 11(3) also. In any event, we are of the considered view that on the evidence on record eviction order under Section 11(3) should not have been passed. The need projected is the need to accommodate Jaleel. Jaleel is the most competent person to have given evidence, the facts of this case. Jaleel is not examined. PW1, the landlord was not in a position to say as to where Sri.Jaleel is presently available. In such a situation, the authorities below cannot be faulted for having taken the view that the bonafides of the need is not established. We agree with the authorities below in their conclusion regarding ground under Section 11(3). The same is the position regarding the ground under Section 11(4)(iii). The R.C.R. No.192/2006 6 finding by the appellate authority that the leases in respect of the two rooms is contemporaneous is based on a correct appreciation of the evidence available in this case. Even the submission of Mr.Iquabal before us was that the petition schedule building was taken after the other building had been taken. If that be so, it is clear to our mind that the acquisition of the petition schedule building was for accomplishing the need which existed and could not have been satisfied by the building earlier taken. We don't find any illegality, irregularity or impropriety about the order declining eviction under Section 11(4)(iii) also. But, we notice another aspect of the matter. The building situated in an important area of Nadapuram is fetching to the landlord monthly rent of Rs.150/-only. The current rate of Rs.150/- per month was fixed admittedly in 1984. According to us, the above rate is far below the rent which the building may fetch if it is let out today. We, therefore, inclined to refix the rent payable by the respondent at Rs.1000/- per month with effect from 1st December, 2010. The above refixation is tentative R.C.R. No.192/2006 7 and if either party is aggrieved, it is open to him to move the Rent Control Court under section 5 for regular fixation of rent. Till such time as fair rent is fixed the respondent shall pay rent at the rate of Rs.1000/- per month. Result is RCR is dismissed. Rent payable by the respondent is fixed at the rate of Rs.1000/- per month with effect from 1.12.2010. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ps