IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 CRP.No. 2675 of 2002() ------------------------------- RCA.15/2001 of ADDL. DISTRICT COURT(RENT CONTROL APPELLATE AUTHORITY), NORTH PARAVUR RCP.21/1998 of MUNSIFF-CUM-RENT CONTROLLER, NORTH PARAVUR .................... REVN. PETITIONER/RESPONDENT/PETITIONER: --------------------------------------------------------------------- PRASANNA, W/O.NANU, NAYIPPADIYIL, CHIRAKKAKAM KARA, VARAPUZHA VILLAGE, PARAVUR TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): APPELLANT/RESPONDENT ----------------------------------- AUGUSTINE @ CHINNADAS, S/O.ATTULLY ANTONY, THEVARKKADU MURI, VARAPUZHA VILLAGE, PARAVUR TALUK. ADV. SRI.K.K.MOHINUDHEEN FOR R1 SRI.P.K.MEETHIYAN KUNJU FOR R1 SRI.T.H.ABDUL AZEEZ THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ln PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- C.R.P No.2675 of 2002 -------------------------------------------------- Dated this the 30th day of November, 2011 O R D E R Pius C. Kuriakose, J In this revision under Section 20 the landlady challenges the judgment of the Rent Control Appellate Authority reversing the eviction order which had been granted to her by the Rent Control Court under Section 11(3). The petition building is the up stair portion of a two storied building. In the ground floor portion a bakery business under the name and style Prasanna Bakery is according to the landlady being conducted by her daughter, who at the time of institution of the rent control petition was unmarried. The landlady has admitted in the rent control petition that at a distance of 1 Km from the petition schedule building, she herself is conducting another bakery by name Major Bakery. According to her she lost her husband recently and after the demise of the husband she is having financial constraints. Her daughter who is conducting Prasanna Bakery is to be given in marriage. Hence she needs the petition schedule building so that she can conduct an ice cream parlor therein. The bonafides of the need was disputed by the tenant who contended that she is entitled for the protection of the second proviso of Section 3 of Sub Section 11. Eviction order was sought and granted under Section 11(2)(b) also we are told eviction order under Section 11(2)(b) was confirmed by the appellate authority. We therefore in this revision need have to be concerned only with the correctness of the judgment of the appellate authority. 2. It is on the basis of evidence adduced by PW1, the landlady that the Rent Control Court came to the conclusion that the need is bonafide. We were taken through the entire cross examination of PW1. We find that the landlady has stood the cross examination reasonably well. The appellate authority however thought otherwise. The landlady’s case was that Prasanna Bakery was at that time being conducted by the landlady’s daughter who by the time of rent control petition came up for trial has been married to a man belonging to Thrissur. According to the appellate authority the idea of landlady’s daughter who is married to somebody at Thrissur, who is working at Thrissur as a tailor coming all the way from Thrissur everyday to conduct Prasanna Bakery is inherently improbable. When we explore into the realm of probabilities, the view of the appellate authority cannot be said to be irrational. But we find that not even a suggestion is made in the cross examination of PW1 as to the possibility of the landlady’s daughter married to somebody in Thrissur, conducting the bakery in Varapuzha. The distance between Varapuzha and Thrissur will be around 60-70 Kms. May be the landlady's son- in-law owns a car, or there is some other speedy mode of conveyance in which case it may be possible the landlady’s daughter to commute everyday from Thrissur to Varapuzha. According to us in the absence of any suggestions in the cross examination of PW1 regarding possibility of landlady’s daughter- in-law commuting every day between from Thrissur and Varapuzha, the appellate authority was not justified in concluding that the landlady’s version as PW1 is false. At any rate the appreciation of oral evidence given by PW1 by the learned appellate authority in our opinion was not proper. We feel that the issue should be considered by the appellate authority. 3. At the same time we notice another aspect to be considered. The building situated in a commercially important area of Varapuzha is fetching to the landlady monthly rent of Rs.275/- only. The landlady version in chief examination given in 12 years earlier is that the reasonable monthly rent for the building will be Rs.1,000/- per mensem. There was no cross examination on that reason. We are sure that the if the building is let out to the same it will fetch Rs.1,500/- per mensm. We hence are inclined to re-fix the monthly rent tentatively with effect from 1.1.2012. The result of the discussion is as follows: i) The judgment of the appellate authority is set aside. ii) The R.C.A is remanded to the rent control appellate authority, North Paravur. iii) The learned appellate authority is directed to make a re-appraisal of the evidence and to hear both sides and to pass revised judgment in the RCA. iv) The rent payable by the respondent is re-fixed with effect from 1.1.2012 at the rate of Rs.1,500/- per mensenm, we make it clear that this re-fixation is tentative and if either party is aggrieved they can approach the Rent Control Court under Section 5 of the Rent Control Act for deliver fixation of fair rent. Till fair rent is fixed regularly the respondent shall pay rent to the revision petitioners at the rate of Rs.1,500/- per mensem. v) The revision petitioner is directed to send a copy of this judgment as soon as he receives the same to the respondent by registered post with acknowledgment due. vi) It is needless to mention that the rent control appellate authority will expedite matters and dispose of the R.C.A at the earliest. PIUS C. KURIAKOSE JUDGE K.HARILAL ab JUDGE