IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 RCRev..No. 57 of 2008() ---------------------------------- RCA.22/2005 of RENT CONTROL APPELLATE AUTHORITY, KASARAGOD RCP.22/2004 of RENT CONTROL COURT (MUNSIFF), HOSDRUG .................... PETITIONER/APPELLANT/RESPONDENT ----------------------------------------------------------- V.P. VENUGOPALAN, S/O.B.CHANDAN RESIDING AT VELLIKATH, AJANOOR VILLAGE HOSDRUG TALUK, P.O. AJANOOR, KASARAGOD DIST. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS/RESPONDENTS/PETITIONERS -------------------------------------------------------------------- 1. C. KUNHAMBU, S/O.KANNAN & KUMBA AMMA RESIDING AT AJANOOR, THENI, VELLIKOTH, AJANOOR VILLAGE, HOSDRUG TALUK, P.O.AJANOOR, KASARAGOD DIST. 2. V.P. RAMESH, S/O.B.CHANDAN, RESIDING AT VELLIKOTH, AJANOOR VILLAGE, HOSDRUG TALUK, P.O.AJANOOR, KASARAGOD. BY ADV. SRI.T.K.VIPINDAS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs RCRev..No. 57 of 2008 ORDER ON I.A. NO.553/2008 & I.A. NO.1066/2008 IN RCR NO.57/2008 DISMISSED 16/03/2011. SD/- PIUS C.KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.R.No.57 of 2008 ---------------------------------------------------- Dated this the 16th day of March, 2011 Order Pius C.Kuriakose, J. The tenant is the revision petitioner. He challenges in this R.C.R. the judgment of the Rent Control Appellate Authority confirming the orders of eviction passed against him by the Rent Control Court on the ground of arrears of rent under Section 11 (2)(b) and the ground of additional accommodation under sub- section (8) of Section 11 of Act 2 of 1965. In fact, the landlord had invoked the ground of bonafide need for own occupation under Sections 11(3) and 11(4)(i). But the Rent Control Court declined order of eviction on the ground under Section 11(4)(i). Since that order was not challenged by the landlord, it can be said that the above eviction ground no longer survives for consideration. As regards Section 11(2)(b), no serious arguments were addressed by the revision petitioner. He submitted that it will suffice if we grant one month's time to get the order vacated under Section 11(2)(c). RCR 57/2008 2 2. Though it was the ground under Section 11(3) that was invoked by the landlord, the Rent Control Court found that the ground which was available to the landlord is ground of additional accommodation under sub-section (8) of Section 11. Going by the pleadings, the landlord is conducting a cloth shop in a very small adjacent room in the petition schedule building. The need projected is that the landlord wants to expand his textile business. We are in agreement with the Rent Control Court that the ground which may be available for the landlord is the ground of additional accommodation under sub-section (8) of Section 11. 3. Even though Mr.M.Gopikrishnan Nambiar, learned counsel for the revision petitioner assailed the judgment of the Rent Control Appellate Authority (to the extent it relates to eviction order under Section 11(8)) on all the grounds raised in the appeal memorandum), the learned counsel would confine his submissions to the following points: 1. It is in evidence that a room in the very same larger building previously occupied by another tenant by name Krishnan is under the vacant possession of the landlord. The above room is admittedly of the same size as the petition schedule building. The RCR 57/2008 3 landlord has to offer an explanation as to why the above room is not utililised for accomplishing the need for additional accommodation. 2. The Rent Control Appellate Authority has not discharged its appellate function of making reappraisal of the evidence and arriving at independent conclusions of fact as the statutory final fact finding authority. Mr.Gopikrishnan Nambiar also submitted that no findings have been entered by the Appellate Authority regarding the applicability of proviso to sub-section 10 of Section 11. 4. All the submissions of Mr.Gopikrishnan Nambiar were opposed by Mr.Vipindas, learned counsel for the landlord. As regards the room which was previously occupied by Krishnan, Mr.Vipindas submitted that the above room is not an adjacent room and hence that room cannot be utilised for accomplishing the need for additional accommodation. As regards the argument of Mr.Gopirishnan Nambiar that the Appellate Authority did not enter independent findings on facts and did not make a reappraisal of the evidence, Mr.Vipindas would draw our attention to the last sentence in para 12 of that authority. According to RCR 57/2008 4 him, the Appellate Authority has made a reappraisal of the entire evidence. The learned counsel further submitted that by dismissing the appeal preferred by the tenant, the Appellate Authority endorsed all the findings entered by the Rent Control Court. Hence, the first and second points raised by Mr.Gopikrishnan Nambiar will not be available to the revision petitioner. 5. Mr.Vipindas also points out that the monthly rent of Rs.375/- presently paid for the building is very low and even that rent has been defaulted by the revision petitioner. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the order of the Rent Control Court and scanned the judgment of the Appellate Authority. We are in complete agreement with the statutory authorities that the apposite eviction ground which may be available in this particular case on account of the relative position of petition schedule building (the other portions of the larger building) is the ground under Section 11(8) and not the ground under Section 11(3). On going through the order of the Rent Control Court, we find that the said court has made a thorough RCR 57/2008 5 appraisal of the evidence and came to the conclusion that the need is bonafide and also that the advantage which the landlord gain will out weigh the hardship which may be sustained by the tenant. Mr.Vipindas certainly right in submitting that while dismissing the Rent Control Appeal what the Appellate Authority has done is to endorse the findings of the Rent Control Court. But we notice that under the statutory scheme (Section 18 of Act 2 of 1965 and Section 23 of the Act) the Rent Control Court and the Appellate Authority have equal powers in the matter of even permitting adduction of evidence. The Rent Control Appellate Authority is the final court on facts. As the final court on facts, the Appellate Authority was bound to make a de novo reappraisal of the evidence and also to enter findings on all vital factual issues which came up for decision. In the instant case, two vital factual issues arose for decision before the Appellate Authority. The first issue was whether the need for additional occupation projected is a bonafide one. The second issue was whether the advantage which the landlord gains will out weigh the hardship which may be sustained by the tenant due to the eviction order. True, the trend of decisions of this court as well as the Supreme RCR 57/2008 6 Court is to the effect that the standards of bonafides which are required to be established in a case for additional accommodation under sub-section (8) of Section 11 are so rigorous as in the case of a claim under sub-section (3) of Section 11. Neverthless, there is necessity to establish bonafides even in cases under sub- section (8) of Section 11. In the instant case, the learned Appellate Authority has claimed in para 12 that a survey and reappraisal of the evidence is made. But that is not sufficient. The Appellate Authority was bound to record its findings on the above vital factual issues on the basis of the survey and reappraisal of the evidence made by it. In short, the judgment of the Appellate Authority found to be tainted with illegality, irregularity and impropriety which warrants interference under Section 20 of the Act. We are, therefore, inclined to direct the Rent Control Appellate Authority to enter findings on the vital issues which arose in this case. As the R.C.A. is being remanded to the Rent Control Appellate Authority, the respondent-landlord will have to explain before that Authority as to why building which was previously occupied by Krishnan is not being utilised for accomplishing the projected need of additional RCR 57/2008 7 accommodation. 7. We find merit in the submission of Mr.Vipindas that the rent which the revision petitioner presently pays is very low. We are, therefore, inclined to refix the rent with effect from 1.4.2011 at Rs.1000/- per mensem. We make it clear that the above refixation is tentative and if either parties are aggrieved, it is open to them to file an application under Section 5 before the Rent Control Court for regular fixation of fair rent. Till fair rent is fixed regularly by the Rent Control Court, the revision petitioner shall pay rent at the above rate. The result of the above discussion is, therefore, as follows: The judgment of the Rent Control Appellate Authority to the extent the same pertains to the eviction ground under Section 11 (8) are set aside. The R.C.A. is remanded to the Appellate Authority for deciding the grantability of eviction order under Section 11(8) afresh. The Appellate Authority will enter specific findings as to whether additional accommodation is bonafide and also whether the advantage which the landlord gains by eviction will out weigh the hardship, if any, which may be sustained by tenant due to the eviction order. The rent payable by the revision RCR 57/2008 8 petitioner is fixed tentatively with effect from 1.4.2011 at Rs.1000/- per mensem. The parties will enter appearance before the Rent Control Appellate Authority on 6.4.2011. The learned Appellate Authority will pass revised judgment at the earliest and at any rate within two months of the court reopening after mid summer holidays. We confirm the order of eviction passed under Section 11(2)(b). It is open to the revision petitioner to get that order vacated by making requisite deposit and by filing application under Section 11(2)(c) within one month from today. PIUS C.KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd RCR 57/2008 9 RCR 57/2008 10