IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 RCRev..No. 205 of 2010() ------------------------ RCA.28/2007 of RENT CONTROL APPELLATE AUTHROITY, TRIVANDRUM RCP.2/2004 of MUNSIFF COURT,ATTINGAL .................... REVISION PETITIONERS/RESPONDENTS/PETITIONERS: ----------------------------------------------------------------- 1. ASSIA BEEVI, W/O.A.MUHAMMED SYED, SALIM NIVAS, OPPOSITE LTC OFFICE, ATTINGAL. 2. A.HASEENA, D/O.ASSIA, SALIM NIVAS, OPPOSITE LTC OFFICE, ATTINGAL. 3. A.SALIM, S/O.MOHAMMED SYED, SALIM NIVAS, OPPOSITE LTC OFFICE, ATTINGAL. 4. M.FEROZ, S/O.MOHAMMED SYED, SALIM NIVAS, OPPOSITE LTC OFFICE, ATTINGAL. BY ADV. SRI.K.M.VARGHESE SRI.SHAHUL HAMEED MOOPPAN RESPONDENT(S): APPELLANT/COUNTER PETITIONER: -------------------------------------------- K.HARIKUMAR, S/O.KRISHNAN NAIR, MALAYA PRESS, OPPOSITE HEAD P.O., ATTINGAL, THIRUVANANTHAPURAM. ADV. SRI.R.S.KALKURA FOR R SRI.M.S.KALESH SRI.V.VINAY MENON 2RI.M.AJAY (IRUMPANAM) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 205 OF 2010 ------------------------ Dated this the 19h day of November, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 is the judgment of the rent control appellate authority remanding the rent control petition to the rent control court for a fresh decision on the grounds under sub section (3) of Section 11 and clause(iii) of sub section (4) of Section 11. The rent control court ordered eviction against the respondent/tenant on both the above grounds. 2. Appeal was preferred by the tenant before the appellate authority. One ground, which was seriously urged before the appellate authority, was that the rent control court was in error in dismissing the commission application filed by the tenant for issuance of a commission for local inspection, so that evidence could be had regarding the tenant's defences under section 11(3) and also under Section 11(4)(iii). It was urged that the commission application should not have been dismissed by the RCR.No.205/2010 2 rent control court on the ground of delay. The above ground impressed the learned appellate authority. The appellate authority took the view that, though the commission application is filed belatedly, the rent control court could have allowed the commission application. It was accordingly, that the order of the rent control court was interfered with and the rent control petition was remanded to the rent control court. 3. In this revision under Section 20, various grounds have been raised assailing the judgment of the appellate authority. On 26/7/2010, when this RCR came up before this court for admission, the learned counsel for the revision petitioner sought time to seek instructions from the party as to whether the party is prepared to give up his claim based on sub section (3) of section 11. Subsequently, on 27/7/2010, the learned counsel for the revision petitioners submitted that the landlady is withdrawing from her claim for eviction under sub section (3) of section 11 and submitted that she will be satisfied with the order of eviction under Section 11(4)(iii). In view of that submission, this court ordered urgent notice on admission by speed post for the purpose of examining the correctness of the RCR.No.205/2010 3 remand order passed by the appellate authority in the context of eviction ground under section 11 (4)(iii). It will be noticed that such an order was passed by this court in view of the assertion of the learned counsel for the petitioners that there is documentary evidence in this case which will show that the tenant has come to be in possession of two rooms which are reasonably sufficient for the tenant's requirements. 4. On notice, the tenant has entered appearance through advocate R.S.Kalkura and we have heard Sri.K.M.Varghese, learned counsel for the revision petitioners and Sri.R.S.Kalkura, learned counsel for the respondent in detail. 5. The short question, which arises before us, is whether there is warrant for interfering with the order of remand passed by the rent control appellate authority to the extent the same pertains to the rent control petition filed under Section 11 (4)(iii). The learned counsel for the revision petitioners is right when he submits that in a situation where a tenant is shown to be in possession of buildings other than the petition schedule premises, it will be the tenant's burden to show that those buildings are not reasonably sufficient for the tenant's RCR.No.205/2010 4 requirements. In the present case Exts.A1 and A4 sale deeds will show that the tenant has come to be in ownership and possession of two rooms. Under such circumstance, it is the tenant's burden to show that those rooms are not reasonably sufficient for meeting the tenant's requirement. The contention of the tenant before the rent control court was that those rooms are not reasonably sufficient for his requirements. It was for substantiating that contention also, that the tenant filed the commission application, so that the commissioner can inspect those rooms and submit a report regarding the facilities available in those rooms including the nearness of those rooms to the commercial areas of the town. The above commission application was dismissed by the rent control court on the ground of delay. Later, after trial the learned rent control court ordered eviction under Section 11(4)(iii) stating the reason that the tenant did not adduce the best evidence of commission report in the context of his defence under section 11(4)(iii). The appellate authority, on a reappraisal of the entire materials, thought that the rent control court should not have dismissed the commission application. RCR.No.205/2010 5 6. We do not find any infirmity about the rent control appellate authority thinking so. The order of remand was in our view also justified. We feel that the appellate authority should have imposed terms on the appellant(the respondent herein) while passing the above order and enabling the respondent to take commission. 7. Mr.Varghese drew our attention to Section 18(3) of Act 2 of 1965 and also to Rule 16(2) of Building (Lease & Rent Control) Rules and submitted that under the statutory scheme, the appellate authority has almost co-equal powers with the rent control court in the matter of conducting enquiry. The submission of the learned counsel for the revision petitioner is certainly correct. But, it was considering the practicality of the situation that the learned appellate authority thought it proper to remand the matter to the rent control court itself, we are not inclined to interfere with the above course adopted by the appellate authority. 8. We notice another aspect of the matter. The rent of Rs.350/- being paid by the respondent/tenant for the petition schedule premises, which are two rooms in Attingal town, is RCR.No.205/2010 6 ridiculously low. We are inclined to refix the rent tentatively with effect from 1/1/2011 at Rs.1,000/- per month. It is open to either party if aggrieved to apply for regular fixation of fair rent invoking section 5 of the Rent Control Act. 9. The result of the above discussion is as follows; 10. The revision petition is disposed of in the following terms. i). The impugned remand order passed by the appellate authority is sustained, but the same is modified by incorporating a condition that the same will operate only if the respondent pays to the revision petitioners either directly or through their advocate in this court within two weeks from today a sum of Rs.2,500/- by way of cost and produces receipt before the rent control court. ii). The rent payable by the respondent for the petition schedule room is refixed at Rs.1,000/- per month with effect from 1/1/2011. These refixation is subject to the regular fixation of fair rent under Section 5 of the Rent Control Act, if any party is aggrieved by the fixation done under this judgment. Iii). The parties are directed to enter appearance before the RCR.No.205/2010 7 rent control court on 30/12/2010. iv). The rent control court will allow application for issuance of commission if any filed by the tenant. Since the landlady has given up her clh aim for eviction under section 11 (3), the tenant should be allowed to file a fresh commission application and the rent control court will appoint a commissioner at the earliest. v). The court below will conduct further enquiry and pass revised order at the earliest and at any rate within three months of parties entering appearance pursuant to this order. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk