IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 22ND OCTOBER 2010 / 29TH ASWINA 1932 RCRev..No. 266 of 2007() ------------------------ RCA.18/2006 of RENT CONTROL APPELLATE AUTHROITY ,ALAPPUZHA. RCP.14/2001 of RENT CONTROL COURT, ALAPPUZHA .................... REVISION PETITIONER(APPELLANT/CR.PETITIONER) ---------------------------------------------------------------- SANKU BHASKARAN, TEA SHOP, NEAR PUNNAPRA MARKET PUNNAPRA MURI, PUNNAPRA VILLAGE, ALAPPUZHA BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENT(S): (RESPONDENTS/PETITIONERS) ---------------------------------------- 1. SURESH BABU, S/O.PADMANABHAN, SURESH BHAVAN, PUNNAPRA MURI PUNNAPRA VILLAGE, ALAPPUZHA. 2. BALAKRISHNAN, S/O.GOVINDAN SUBIL NIVAS, PUNNAPRA MURI, PUNNAPRA VILLAGE, ALAPPUZHA. 3. VISWANATHAN, S/O.KESAVAN, KOYIPPARAMBIL PUNNAPRA MURI, PUNNAPRA VILLAGE, ALAPPUZHA. ADV. SRI.K.S.HARIHARAPUTHRAN FOR R1,2 SRI.GEORGE MATHEW FOR R1,2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 266 OF 2007 ------------------------ Dated this the 22nd day of October, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision under Section 20 is the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court finding that the tenant revision petitioner is not entitled for protection of the second proviso to sub section (3) of Section 11. In fact, at the instance of the landlords, the RCP was remanded by the Rent Control Appellate Authority to the Rent Control Court by its judgment dated 29/11/2004. In paragraph 7 of the above judgment, it is observed by the appellate authority as follows; “ Though parties have let in evidence on this point, I feel that since a finding was not entered by the learned Rent Controller, the finding if any recorded by me will cause prejudice to the parties, because it will affect RCR.No.266/2007 2 their right of appeal. That being so the matter requires a remit to the trial court for considering the point as to whether the respondent is entitled to the protection contemplated under the 2nd proviso to section 11 (3) of Act 2 of 1965.” Saying so, the appeal was allowed in part and the RCP was remanded back to the Rent Control Court for determining the point as to whether the respondent is entitled to the protection contemplated under the second proviso to sub section (3) of Section 11. 2. Pursuant to the remand, the parties appeared before the Rent Control Court. The tenant sought leave of the Court to adduce evidence in support of his contention that he is entitled for the protection of the second proviso to section 11(3). The Rent Control Court however took the view that the remand order passed by the Appellate Authority does not permit the parties to adduce evidence and that the remand order is only to the effect that finding should be entered regarding the tenant's eligibility for protection of the second proviso on the basis of the evidence RCR.No.266/2007 3 already adduced. The rent control court would appreciate the evidence, which the parties had already adduced, and find that the tenant was unsuccessful in proving that he is entitled for protection of the second proviso and accordingly the order of eviction was passed. It is that order which was confirmed by the appellate authority by the impugned judgment endorsing the Rent Control Court's view regarding the scope of the remand order dated 29/11/2004. 3. In this revision under Section 20 various grounds have been raised by the tenant assailing the judgment of the appellate authority. Sri.K.V.Sadananda Prabhu, learned counsel for the revision petitioner, submitted that the authorities below were not justified in refusing to admit the evidence which was sought to be adduced by the revision petitioner. According to him, when an issue is remanded by a court of appeal or revision to a subordinate court for fresh decision, it is implicit that the subordinate court concerned is empowered to permit both parties to adduce evidence. Unless it is so implied, the order of remand itself becomes meaningless. The learned counsel submitted that the revision petitioner understood the order of RCR.No.266/2007 4 remand to be one directing the Rent Control Court to take decision on the basis of evidence already on record and the further evidence to be adduced by the parties. With such an understanding, an application was filed for adduction of further evidence, but the application was dismissed. Even a commission application was dismissed, so submitted by Mr.Prabhu. 4. All the submissions of Mr.Sadananda Prabhu were opposed by Sri.K.Hariharaputhran, learned counsel for the respondents landlords. The learned counsel submits that it is not correct to say that the commission application filed by the petitioner was dismissed by the rent control court. The commission application was actually allowed and the commissioner filed a report also. The learned counsel would strongly support the view of the Rent Control Court and the Appellate Authority that the remand order passed in RCA No.36/2002 does not enable the court to permit the parties to adduce evidence. Mr.Hariharaputhran submitted that against the remand order, the revision petitioner preferred a revision before this court as RCR No.141/2005. Even that revision was dismissed. Therefore, it is not open to the revision petitioner RCR.No.266/2007 5 now to urge that he is entitled to adduce evidence. 5. We have considered the rival submissions. We have incorporated a copy of the judgment in RCR No.141/2005 passed by this court in a revision which was directed against the remand order in RCA No.36/2002. Though it is true that the RCR was dismissed, it appears to us that this court understood the remand order as one granting opportunity to the revision petitioner to establish that he is entitled for the benefit of the second proviso to section 11(3) of the Act and no serious prejudice is caused to him by the remand order. It is clear to our mind that when this court says that the remand order has granted opportunity to the revision petitioner to establish that he is entitled for the protection of the second proviso to sub section (3) of Section 11, the revision petitioner has been given permission to adduce evidence, as in our opinion the normal method of establishing facts in a court of law is by adduction of evidence. At the same time, we are not impressed by the submission of Mr. Sadananda Prabu that the Rent Control Court dismissed the commission application filed by the tenant after the remand. What we find from the record is that the commission RCR.No.266/2007 6 application was allowed and the commissioner filed report also. Having allowed the commission application and obtained the report, the Rent Control Court should not have refused to receive that report in evidence. For this reason also, we hold that the landlords are not entitled to resist the plea of the revision petitioner for adduction of evidence for the purpose of establishing that he is entitled for protection of the second proviso. We are inclined to give opportunity to the revision petitioner to adduce evidence. At the same time, we are not inclined to do so unconditionally. 6. We notice that the petition schedule building, wherein the revision petitioner is conducting a tea shop, abuts the National Highway between the Medical College and the Polytechnic at Alapuzha. The building has a plinth area of around 750 sq. feet. According to us, the monthly rent of Rs.25/-, which the petitioner is liable to pay to the respondent, is ridiculously low. We are, therefore, inclined to refix the rent payable by the revision petitioner with effect from 1/11/2010. Accordingly, we refix the rent with effect from 1/11/2010 at Rs.1,000/- per month. We make it clear that the above refixation is tentative RCR.No.266/2007 7 and it is open to either party to move for fixation of fair rent by filing appropriate application under Section 5. Till such time as fair rent is fixed, the respondent shall pay the rent at the rate of Rs.1,000/- per month. 7. The result of the above discussion is as follows; i). The impugned judgment of the Appellate Authority as well as the order of the Rent Control Court are set aside. ii). The RCP is remanded back to the Rent Control Court. That court is directed to take fresh decision on the question that the tenant revision petitioner is entitled to the protection of the second proviso to sub section (3) of Section 11 after permitting the tenant to adduce further evidence. Iii). The commission report already filed should be treated as part of the records of the case. The tenant should be granted opportunity to adduce oral as well as documentary evidence. If the tenant adduces further evidence, the landlords also should be permitted to adduce counter evidence. The Rent Control Court will take fresh decision on the basis of the evidence already on record and further evidence which may be adduced. RCR.No.266/2007 8 iv). As the RCP is for the year, 2001, we direct the Rent Control Court to give top priority to the RCP and ensure that RCP is disposed of at the earliest keeping in mind the statutory time frame for disposal of rent control petitions. v). We also make it clear that the remand order is confined only to the question of the tenants eligibility for protection of the second proviso to section 11 (2). vi). The parties will enter appearance before the Rent Control Court on 9/11/2010. Transmit the lower court records forthwith to the Rent Control Court. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk RCR.No.266/2007 9 RCR.No.266/2007 10 PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 266 OF 2007 ------------------------ Dated this the 7th day of September, 2010 O R D E R Pius C.Kuriakose, J. Today also there is no representation for the revision petitioner. Hence the RCR is dismissed for default. PIUS C.KURIAKOSE,JUDGE RCR.No.266/2007 11 P.S.GOPINATHAN, JUDGE dpk