IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 RCRev..No. 270 of 2009() ------------------------ RCA.47/2006 of RENT CONTROL APPELLATE AUTHORITY , KOTTAYAM RCP.57/2004 of RENT CONTROL COURT .,KOTTAYAM ................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER -------------------------------------------------------------------- P.K.ABDUL KHADER, FAIZAL MANZIL, NEAR BOAT JETTY, KOTTAYAM. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. MYMOONA, D/O.LATE MOOSA, MAKKARAYIL HOUSE, MUZHUPPILANGATTU VILLAGE, THALASSERRY, KANNUR DISTRICT. 2. HAJARA, D/O.LATE MOOSA, MAKKARAYIL HOUSE, MUZHUPPILANGATTU VILLAGE, THALASSERRY, KANNUR DISTRICT. 3. SABIRA, D/O.LATE MOOSA, MAKKARAYIL HOUSE, MUZHUPPILANGATTU VILLAGE, THALASSERRY, KANNUR DISTRICT. 4. FATHIMA, D/O.LATE MOOSA, MAKKARAYIL HOUSE, MUZHUPPILANGATTU VILLAGE, THALASSERRY, KANNUR DISTRICT. SRI.C.VATHSALAN SRI.RAKESH ROSHAN THUSHARA V. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO. 3356/2009 IN RCR NO. 270/2009 DISMISED 17/12/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- K.SURENDRA MOHAN, JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 270 OF 2009 ------------------------ Dated this the 17th day of December, 2009 O R D E R Pius C.Kuriakose, J. The tenant against whom an order of eviction was concurrently passed on the grounds of arrears of rent and bona fide need for own occupation is the petitioner in this revision under Section 20. The respondents sought to evict him on the ground under clause (ii) of sub section (4) of Section 11 of Act 2 of 1965 also. But the Rent Control Court ordered eviction only on the ground of arrears of rent and bona fide need for own occupation. The eviction under section 11(4)(ii) was concurrently declined by the Rent Control Court and the Appellate Authority and we do not find any infirmity about that decision of the authorities below. As for the eviction order passed under the ground of arrears of rent, it is agreed by both sides that as of now no rent is in arrears and there is an agreement that order of eviction under Section 11 (2) (b) can be vacated invoking powers under Section 11 (2)(c). Accordingly, we vacate the order of eviction passed under Section 11 (2) (b). RCR.No.270/2009 2 2. The need projected by the landladies, who are four in number, in the RCP was that their husbands are presently without any job or avocation and that they want to carry on business in the petition schedule room as well as in the three other rooms in the larger building of which the petition schedule room is a part. We are informed that the tenants in the other rooms have already vacated. Bona fides of the need projected was disputed by the revision petitioner, who contended also that he is entitled for the protection of the second proviso to sub section (3) of Section 11. The Rent Control Court consolidated the RCPs and tried them jointly. Before the Rent Control Court, the third petitioner in the RCP and her husband got themselves examined respectively as PW1 and PW2. On behalf of the tenants, RW1 the tenant in RCP No. 58/2004 was examined. The Rent Control Court on appreciating the evidence came to the conclusion that the need projected by the landladies was bona fide and that the tenants were unsuccessful in proving that they are entitled for the protection of the second proviso to sub section (3) of Section 11. The Appellate Authority concurred with all the conclusions of the Rent Control Court and confirmed RCR.No.270/2009 3 the order of eviction passed under Section 11 (3). 3. In this revision under section 20, various grounds are raised challenging the correctness of the order of the Rent Control Court and the Judgment of the Appellate Authority. We have heard the submissions of Sri. Liju M.P., learned counsel for the revision petitioner and those of Sri.C.Vathsalan, learned counsel for the respondents. 4. Sri.Liju M.P. Learned counsel for the revision petitioner submitted that the plea of the landladies is that their husbands were without any employment or avocation and that the building in question is required so that they can conduct businesses. But the evidence of PW1 and PW2 is to the effect that the husbands of at least three of the landladies are presently having business ( business in copra, steel and plywood) at Thalassery- their home town. The learned counsel also submitted that it is very unlikely that the husbands of the landladies, who are presently put up at Thalassery in the family house together, will come over to Kottayam which is at a distance of more than 300K.M.for doing business. According to the learned counsel, the finding of the authorities below that the RCR.No.270/2009 4 evidence is to the effect that husbands of the landladies are presently without employment or business is the result of misreading of evidence by those authorities. Sri.Liju read over to us the evidence of PW1 and PW2 and also that of RW1. 5. Sri.C.Vathsalan, learned counsel for the respondents/landladies would forcefully resist all the submissions of Sri.Liju. He would support the order of the Rent Control Court and the judgment of the Appellate Authority on the various reasons stated therein. He submitted that in this jurisdiction under Section 20 of Act of 1956, this court is not expected to reappraise the evidence. According to him, the evidence adduced by PW1, PW2 and RW1 has been properly appreciated by the authorities below. He also submitted that the revision petitioner did not adduce even formal counter evidence to the evidence adduced by the landladies. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the pleadings and we have gone through the testimonies of PW1, PW2 and RW1. We are unable to agree with the authorities below that PW1 and PW2 have given convincing evidence to the effect that the RCR.No.270/2009 5 husbands of the four landladies are presently without any employment or avocation for life. The evidence at the most is to the effect that husband of PW1(PW2) who was presently running a hotel in Andra Pradesh is presently unemployed. For the husbands of the other landladies, what we notice from the evidence is that their husbands are presently having some business at Thalassery- their home town. This is an aspect of which the more authentic evidence can be given by those husbands only. We feel that non examination of the husbands of the landladies other than PW1 is a material omission in the evidence of the landladies in this case. We are of the view that on the facts and circumstances of the case, an opportunity can be given to the landladies to examine the husbands of the other three landladies also. The power of the Rent Control Appellate Authority to hold enquiry in terms of the statutory provisions is co terminus with that of the Rent Control court itself. Since the RCP is an old one, we are of the view that in this case, the Appellate Authority itself can be directed to permit the respondents to examine the husbands of the landladies 1, 2 & 4. RCR.No.270/2009 6 7. We notice that the petition schedule building is situated at Pulimood junction which is commercially a vantage point in the Kottayam Municipal town and that the monthly rent of Rs.600/- presently being paid by the revision petitioner is very low. We are, therefore, of the view that the rent payable by the revision petitioner can be prospectively enhanced subject to fixation of fair rent by the Rent Control Court at the instance of either of the parties. 8. Result of the above discussion is as follows; i). The judgment of the Appellate Authority is set aside. ii). The appeal is remanded to the Appellate Authority. The Appellate Authority is directed to permit the landladies to examine the husbands of the landladies 1, 2 and 4 as further witness on their side. They are also permitted to produce any other documentary evidence which may support their case that the husbands of the landladies are presently without any RCR.No.270/2009 7 employment. If further evidence is adduced by the landladies, the revision petitioner also should be permitted by the Appellate Authority to adduce counter evidence. Iii). The Appellate Authority will take fresh decision in the matter on the basis of the evidence already on record and further evidence, which may be adduced, at the earliest and at any rate within two months of the parties entering appearance before the Appellate Authority pursuant to this judgment. iv). The revision petitioner shall pay the rent to the respondents/landladies at the rate of Rs.1500/- per month with effect from 1/1/2010. 7. We make it clear that the above fixation of rent is tentative and will be subject to regular fixation of fair rent by the Rent Control Court if either of the parties are aggrieved. Parties RCR.No.270/2009 8 are directed to enter appearance before the Rent Control Appellate Authority 15/1/2010. Transmit the entire records forthwith to the Rent Control Appellate Authority, Kottayam. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk