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 29TH JUNE 2011 / 8TH ASHADHA 1933 RCRev..No. 162 of 2009(D) ----------------------------- RCA.98/2008 of VI ADDL.DISTRICT COURT (RCAA), ERNAKULAM RCP.31/2007 of ADDL.MUNSIFF COURT(RENT CONTROL),KOCHI .................... REVISION PETITIONER/APPELLANT/PETITIONER ----------------------------------------------------- VICHITHRA KUMAR, AGED 60, S/O.SUKUMARAN, C.C.23/2434-B, PALAPARAMBIL, PALLURUTHY VELI, KOCHI-6. BY ADV. SRI.K.G.SARATHKUMAR RESPONDENT(S): RESPONDENT/RESPONDENT ---------------------------------------------------- V.S.MUHAMMED YUSUF, AGED 53, S/O.SHAHUL, C.C.23/2434-J, GARMENTS AND CHAPPALS, PALLURUTHY VELI, KOCHI-6. ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29/06/2011,ALONG WITH RCR NO.298 OF 2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. Nos.162 & 298 of 2009 ------------------------------------------------ Dated this the 29th day of June, 2011 ORDER Pius C. Kuriakose, J R.C.R. No.162/09 is filed by the landlord and RCR.298/09 is filed by the tenant. Under challenge in RCR.298/09 filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order passed by the Rent Control Court dismissing a petition for eviction filed by the landlord invoking sub Section 3 of Section 11 of Act 2 of 1965. The need projected by the landlord was the need to accommodate his dependant daughter PW2 so that she who is a Post Graduate with PGDCA can conduct computer centre. The tenant disputed the bona fides of the need and claimed that he is entitled to the protection of the second proviso to sub Section 3 of Section 11. The Rent Control R. C. R. Nos.162 & 298 of 2009 -2- Court found that the need is not bona fide. To find so, the Rent Control Court relied on the circumstance that a room belonging to the landlord was let out during the pendency of the RCP to another tenant. However, the court found that the tenant is not entitled for the protection of the second proviso. The Appellate Authority re-appraised the evidence and reversed the finding that the need is not bona fide. According to the Appellate Authority, there was nothing brought out in evidence to doubt the bona fides of the need projected by the father for accommodating his daughter who was remaining unmarried and was quite qualified to conduct the proposed Computer Centre. The Appellate Authority confirmed the finding of the Rent Control Court that the tenant is not entitled for the protection of the Second proviso to sub Section 3 of Section 11. However, the Appellate Authority also do not grant relief to the landlord. The Appellate Authority noticed that during the pendency of R. C. R. Nos.162 & 298 of 2009 -3- the RCP another room had fallen vacant and the landlord had let out that room to another tenant. According to the Appellate Authority, the landlord was obliged to disclose the availability of that room and not having done so, the RCP was liable to fail. 2. In these revisions various grounds are raised assailing the judgment of the Appellate Authority. We have heard the submissions of Sri.K.G.Sarath Kumar, the learned counsel for the revision petitioner/landlord and also those of Sri.R.S.Kalkura, the learned counsel for the tenant. Sri.Sarath Kumar submitted that it is true that one room had fallen vacant during the pendency of the RCP. Since that room became available to the landlord only during the pendency of the RCP the landlord cannot be blamed for not having disclosed to the availability of that room. According to Sri.Sarath Kumar the said room which was a very small room compared to the petition scheduled room, does not R. C. R. Nos.162 & 298 of 2009 -4- have road frontage and that room is now let out as a godown for Adithya Books who were already a tenant of the landlord occupying another room belonging to the landlord having road frontage. At any rate, the landlord has special reason for insisting on getting possession of the petition schedule room which is quite suitable for the proposed activity. Sri.R.S.Kalkura the learned counsel for the tenant would submit drawing our attention to the findings of the Rent Control Court that two rooms had fallen vacant during the pendency of the RCP. According to Sri.Kalkura, there is no evidence on the basis of which can be held that the rooms which fell vacant were not suitable for conduct of the proposed business. 3. We have considered the rival submissions addressed at the Bar. As the findings regarding bona fide need are divergent, we have made a re-appraisal of the evidence. What is discernible from the evidence is that after the filing R. C. R. Nos.162 & 298 of 2009 -5- of the RCP one room fell vacant as the tenant of that room vacated and the above room has been let out by the landlord. The identity of the tenant to whom the above room is let out is not clearly discernible from the evidence. The question that arises for consideration is whether the landlord was bound to disclose to the Rent Control Court regarding the availability of that room within the purview of the first proviso to sub Section 3 of Section 11. According to us, as the above room fell vacant only during the pendency of the RCP the landlord cannot be blamed for not having disclosed about the availability of that room to the Rent Control Court. At the same time, if as a matter of fact a room has fallen vacant during the pendency of the RCP, the landlord will have to offer an explanation to the court as to why he could not have utilised that room for accommodating his daughter for accomplishing the need projected in the RCP. Sri.Sarath Kumar submitted before us that the room which fell vacant R. C. R. Nos.162 & 298 of 2009 -6- when compared to the petition schedule room is a very small room without any road frontage. We enquired of Sri.Sarath Kumar as to whether his claimant will be prepared to take out a commission from this Court for settling the controversy. Sri.Sarath Kumar submitted that he may not be able to answer the query without consulting his client. We feel having re-appraised the evidence that it is necessary that the question as to which was the room that fell vacant during the pendency of the RCP and as to whether that room was sufficient for the conduct of the proposed business by the landlord's daughter are to be answered by the Rent Control Court. The Appellate Authority has powers under the statutory scheme equal to the Rent Control Court in the matter of permitting enquiry. We feel that the issue whether the room which fell vacant during the pendency of the proceedings could have been utilised by the landlord for accommodating his daughter can be remitted back to the R. C. R. Nos.162 & 298 of 2009 -7- Rent Control Appellate Authority. 4. The result of the above discussion is as follows:- The finding of the Rent Control Appellate Authority that the need is bona fide is confirmed so also the finding that the tenant is not entitled for the protection of the second proviso is confirmed. The RCA is remitted back to the Rent Control Appellate Authority for deciding the following questions:- 1) Which room belonging to the landlord fallen vacant during the pendency of the Rent Control Petition ? 2) Whether that room was sufficient for the conduct of the proposed Computer Centre by the landlord's daughter ? Both sides can be permitted to adduce evidence on the above two questions. The Rent Control Appellate Authority will take a decision on the question whether the order of eviction is liable to be passed under Section 11(3) on the basis of the evidence already on record and the evidence R. C. R. Nos.162 & 298 of 2009 -8- which comes to be on record before the Authority. Parties will enter appearance before the Rent Control Appellate Authority on 17/07/11. Transmit the lower court records forthwith to the Rent Control Appellate Authority, Ernakulam. If any one of the parties apply for issuance of a commission, the Appellate Authority will favourably consider such application. The Appellate Authority will complete the enquiry and pass revised judgment at the earliest, and at any rate, within two months of parties entering appearance pursuant to this order of remand. 5. These RCRs are thus, allowed by way of remand. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. Nos.162 & 298 of 2009 -9-