IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 RCRev..No. 219 of 2008(C) ------------------------------- RCA.51/2005 of II ADDL.DISTRICT COURT & RCAA, ERNAKULAM RCP.140/2003 of III ADDL.M.C. & RENT CONTROL COURT, EKM .................... REVISION PETITIONERS/APPELLANTS IN RCA/RESPONDENTS IN RCP (TENANTS) ---------------------------------------------------------------------------- 1. LALITHA RAMAKRISHNAN, W/O.LATE K.S.RAMAKRISHNAN, ANITHA BHAVAN, KARIKKAMURI CROSS ROAD, COCHIN 682 011. 2. K.R.ROSHY, W/O.LATE K.S.RAMAKRISHNAN DO..DO.. 3. K.R.SOORAJ, S/O.LATE K.S.RAMAKRISHNAN DO...DO..... 4. K.R.ANITHA, D/O.LATE K.S.RAMAKRISHNAN DO....DO.... BY ADV. SRI.M.P.RAMNATH RESPONDENT(S): RESPONDENTS IN RCA/PETITIONERS IN RCP --------------------------------------------------------------------- 1. C.K.JINAN,S/O. C.R.KESAVAN VAIDHYAR, NO. 45, MAIN DEFENCE COLONY, INDIRA NAGAR BANGLORE 560O38 2. C.M.CHANDRIKA, D/O. C.K.MANILAL, 47-EXPRESS APARTMENT, RICHMOND ROAD, BANGLORE -25 RCR.219/08 -2- 3. C.M.LALITHA, D/O. C.K.MANILAL, CHANDRIKA BHAVAN, KARIKKAMURI ROAD, COCHIN 682 011. 4. C.M.SUNIL, S/O. C.K.MANILAL, CHANDRIKA BHAVAN, KARIKKAMURI ROAD, COCHIN 682 011. ADV. SRI.A.BALAGOPALAN FOR R1 TO 4 SRI.BASIL MATHEW FOR R1 TO 4 SRI.V.CHITAMBARESH, SENIOR ADVOCATE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.219 of 2008 ------------------------------------------------ Dated this the 27th day of October, 2010 ORDER Pius C. Kuriakose, J The tenants are in revision challenging the judgment of the Rent Control Appellate Authority, Ernakulam confirming the order of eviction passed against them by the Rent Control Court on the grounds under sub Section 3 of Section 11, sub Section 8 of Section 11 and under clause 3 of sub Section 4 of Section 11 of Act 2 of 1965. The parties will be referred to as tenants and landlords. The case of the landlords who are co-owners of the petition schedule building which is part of a larger commercial building by name “Chandrika Buildings” which abuts the prestigious Mahathma Gandhi road in Cochin city is that the tenants are R. C. R. No.219 of 2008 -2- in possession of the building as legal heirs of the original tenant one Ramakrishnan on a monthly rent of Rs.3,000/-. The averments in the context of sub Sections 3 and 8 are that landlord No.4 along with his wife Sophia are conducting business of churidar under the name and style “Ria” in the second room in the ground floor of the Chandrika building. Recently they have got the right of conducting a retail business of “Reliance Recron Bed” under the brand name “Honey Comb” which has very good scope. For accommodating the above business landlord No.4 and his wife have decided to shift the churidar business to the petition schedule room in the possession of the tenants. A room which is let out to the New India Assurance Company is situated on the first floor of the said building is on top of the room which is presently available with the petitioners and both those rooms are intended to be utilised for the said R. C. R. No.219 of 2008 -3- mattress business. The present room which is available with the landlords has an extent of only 312 sq. ft which is not sufficient for the requirements and due to lack of space their business is running into loss. Hence, the petitioners require the building in possession of the tenants for the bona fide own occupation of landlord No.4 and his wife. As the building is part of a larger building and as the landlords are in possession of another part, the landlords are entitled for order of eviction by way of additional accommodation also. The tenants are well placed and they will not be entitled for the protection of the second proviso to sub Section 3 of Section 11. The advantages which the landlord will gain will be more than hardship, if any, which the tenant may sustain by the order of eviction. 2. In the context of the ground under Section 11(4)(3) it is alleged that the tenants are in possession of commercial R. C. R. No.219 of 2008 -4- building at Vyttila Junction by name Alankar Building. It is also alleged that they have four buildings situated on the western side of the N.H. at the Anjumana Junction. It is further alleged that there are two buildings in their possession at the Paliam Road very near to B.T.H Hotel. It is further alleged that they have buildings of their own in Karakkamuri Cross Road. It is also alleged that the tenants have purchased seven rooms in a newly constructed multi storeyed commercial complex by name D.D. Corner Stone at Kadavanthra junction. All these buildings are lying vacant and they are more than sufficient for the requirement of the tenants. Objections and additional objections were raised by the tenants disputing the bona fides of the need and also the existence of the grounds under Section 11(8) and 11(4) (iii). The tenants claimed the protection of the second proviso to sub Section 3 of Section 11. They have given R. C. R. No.219 of 2008 -5- details as to the accommodation actually available with them and explained why those accommodations cannot be utilised for shifting the business conducted in the petition schedule premises. The Rent Control Court conducted a detailed enquiry and at trial the evidence consisted of Exts.A1 to A8, B1 to B3, Commissioners' Reports Exts.C1 and C2 and sketch C2(a) submitted by the Commissioner. The oral evidence consisted that of PW1 wife of landlord No.4 and that of tenant No.2. On evaluating the evidence, the Rent Control Court came to the conclusion that the landlords have established the existence of the eviction grounds invoked. Accordingly, order of eviction was passed. The Appellate Authority considering the appeal preferred by the tenants reappraised the evidence and concurred with all the conclusions of the Rent Control Court. Accordingly, RCA was dismissed. R. C. R. No.219 of 2008 -6- 3. In this revision under Section 20 various grounds have been raised by the revision petitioners and extensive arguments were addressed before us by Sri.M.P.Ramnath, the learned counsel for the revision petitioners and also by Sri.V.Chitambaresh, the learned senior counsel for the respondents and Sri.Basil Mathew who assisted Sri.Chitambaresh. The submissions of Sri.Ramnath were based on the grounds raised. Sri.Ramnath submitted that while the Rent Control Petition was pending before the Rent Control Court an identical ground floor room thitherto occupied by M/s Padma Meenakshi Toys & Games had fallen vacant and the landlords were keeping it vacant without using the same for their projected need. The Commissioner who submitted Ext.C2 report was actually taken for bringing the above information to the notice of the Rent Control Court. Before that Commissioner could visit, the landlords R. C. R. No.219 of 2008 -7- would fabricate evidence and stage-manage things in such a way that it would appear that arrangements are underway for commencement of business in that room. But after the Rent Control Petition was allowed what the landlord did was to let out that room to a new tenant M/s Himalaya Herbal Products. The tenants per se filed I.A.1909/05 in RCA.51/05 pointing out the subsequent event and seeking reception of photographs and negatives showing the subsequent event of letting out the building to Himalaya Herbal Products. The landlords did not file any counter affidavit in the above I.A. on time. Some two years thereafter they filed a counter affidavit wherein it is admitted that the vacant building in the ground floor was let out to Himalaya Products. Through the counter affidavit it was also sought to be brought out that due to an internal arrangement between the petitioners inter se the various rooms in the building have been decided R. C. R. No.219 of 2008 -8- to be used for their various personal purposes. To this counter affidavit a detailed reply affidavit was filed by the tenants. The Appellate Authority, however, would brush aside these subsequent events and the affidavit and dismiss the appeal in a casual manner. According to Sri.Ramnath the above subsequent event of an identical ground floor room ideally suited for accomplishing the need projected in the RCP, whether it be under Section 11(3) or under Section 11(8) being let out to a new tenant should demolish the bona fides of the claim. Sri.Ramnath would assail the decision of the statutory authorities on the ground under Section 11(4)(iii) also. Giving details of the various rooms which are admittedly in possession, Sri.Ramnath would argue that the buildings which admittedly came to the possession of the landlords are not reasonably sufficient for the requirement of the tenants which is for conducting their R. C. R. No.219 of 2008 -9- present business in the petition schedule building. Sri.Ramnath gave attractive reasons as to why the building at Vyttila and Anjumana junction could not be used at all and Karakkamuri area could not at all be used for shifting of the present business which is on M.G. Road. Even the rooms at Kadavanthra could not have been used, so submitted Sri.Ramnath. 4. All the submissions of Sri.Ramnath were forcefully opposed by Sri.Chitambaresh, senior counsel and also by Sri.Basil Mathew. The learned senior counsel was more emphatic with reference to the ground under Section 11(4) (iii). In this context, he drew our attention to the four additional documents which were produced in this Court along with I.A.278/10. These documents according to the learned counsel would show that the respondents have come to have ownership and possession of yet another R. C. R. No.219 of 2008 -10- building near Jewel Junction not far away from the petition schedule buildings. Respondents are persons more landlord like than the landlords and have the wherewithal to purchase any number of rooms on M.G. Road itself. 5. Having considered the rival submissions addressed at the Bar and taking into account the subsequent events highlighted before us by Sri.Ramnath and also the additional documents produced before this Court by the respondents/ landlords we are of the view that the issue should be reconsidered by the Rent Control Appellate Authority and that prejudice will be accordingly occasioned to the parties if we were to decide the issues finally. According to us, the existence of the various grounds under Sections 11(3), 11 (8) and 11(4)(iii) should be re-considered and decided by the Rent Control Appellate Authority. That Authority will also consider whether a combined order of eviction under R. C. R. No.219 of 2008 -11- Sections 11(3) and 11(8) can be passed in view of ruling decisions of this Court and the Supreme Court. As the Rent Control Petition is of the year 2003 and under the statutory scheme (see Sections 18(3) and 23 of Act 2 of 1965 and Rules 16(2) of Kerala Buildings (Lease and Rent Control) Rules) the learned Appellate Authority has co-equal powers with the Rent Control Court in the matter of holding enquiry we are inclined to direct the Rent Control Appellate Authority to record further evidence and take decision. 6. We notice that the Rent of Rs.3,000/- per mensem presently being paid is far below the rent which similar buildings on M.G. Road will fetch. We are inclined to re-fix the rent also. 7. The result of the discussion is that the judgment of the Appellate Authority and the order of the Rent Control Court are set aside and the Rent Control Appeal is remanded R. C. R. No.219 of 2008 -12- to the Rent Control Appellate Authority with a direction to take a fresh decision on the liability of the tenant to suffer the order of eviction under Sections 11(3), 11(8) and 11(4) (iii) of the Act. Both parties are permitted to adduce evidence both oral and documentary. The implications of the subsequent events will be considered by the Appellate Authority. It is open to the respondent/landlord to file necessary application for compelling the revision petitioners to produce documents. The enquiry will be completed and the Rent Control Appeal will be disposed within a period of four months of the parties entering appearance. The parties will enter appearance on 16/11/2010. The rent payable by the revision petitioners for the petition schedule premises is tentatively re-fixed with effect from 01/11/2010 at Rs.10,000/- per month. We make it clear that the revision petitioners, if aggrieved, are free to move the Rent Control R. C. R. No.219 of 2008 -13- Court for fixation of fair rent. Till such time fair rent is fixed in appropriate proceedings, the revision petitioners/tenants shall pay Rs.10,000/- as rent. PIUS C. KURIAKOSE JUDGE P. S. GOPINATHAN JUDGE kns/- & knc/-