IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 RCRev..No. 183 of 2011 (A) ------------------------------ RCA.2/2002 of RENT CONTROL APPELLATE AUTHORITY/DISTRICT COURT, KASARAGOD RCP.16/2000 of ADDL.MUNSIFF, KASARAGOD .................... PETITIONER/APPELLANT/RESPONDENT/TENANT ----------------------------------------------------- T.H.ABDULLA, S/O.C.T.HASSANKUTTY HAJI, MERCHANT, DOOR NO.K.M.C.XVI-672, M.G.ROAD, KASARAGOD, KASARAGOD TALUK, P.O.KASARAGOD. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): RESPONDENT/PETITIONER/LANDLORD --------------------------------------------------------------- T.A.MUHAMMED KUNHI, S/O.T.A.ABDULKHADER HAJI, RESIDING AT THURTHI, KASARAGOD VILLAGE, KASARAGOD TALUK, P.O.KASARAGOD. 671 001. ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA, SMT. SANTHY S. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R No.183 of 2011 ------------------------------------------------ Dated this the 28th day of June, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him on the ground under sub Section 3 Section 11. In fact, the landlord had invoked various other grounds of eviction. But, the only ground on which eviction is ordered is the ground under sub Section 3 of Section 11 and hence, in this revision we can confine to the above ground. 2. The need projected by the landlord was that he has no business or employment and needs to occupy the building for conducting grocery business. The bona fides of the need was disputed. It was contended that the landlord is R. C. R No.183 of 2011 -2- having several other source of income. It was also contended that the tenant is entitled to the protection of the second proviso to sub Section 3 of Section 11. During the course of his examination as PW1, the landlord confessed that he was a Director in Chemmad Essential Oil Factory dealing with sandalwood oil manufacturing which according to the landlord was a partnership firm in which the other partners are the landlord's brothers. When this aspect of the landlord's evidence was highlighted before the statutory authorities, they would take the view that some more evidence requires to be adduced on the side of the tenant regarding the business conducted by the landlord and the income he derived therefrom. Both the authorities have concurrently concluded that the need projected by the landlord is bona fide. It was also concluded by both the authorities that the tenant was unsuccessful in proving that R. C. R No.183 of 2011 -3- he satisfies the two ingredients of the second proviso. 3. Even though the landlord was served with notice of this RCR, he has not turned up before this Court for resisting this RCR. Extensive submissions were addressed before us by Sri.Gopikrishnan Nambiar, the learned counsel for the petitioner. Sri.Gopikrishnan would highlight before us the evidence of PW1, the landlord. According to him, the Rent Control Court and the Appellate Authority have gone wrong in ignoring the admissions by the landlord that he is a Director/Partner of Chemmad Essential Oil Factory. This admission is fatal to the claim of the landlord. This admission has proved that the landlords averment that he was without any job or business was not correct. The landlord is guilty of having suppressed material facts from the Rent Control Court and the same should dis-entitle him to relief at the hands of the statutory authorities. The R. C. R No.183 of 2011 -4- statutory authorities were not at all justified in insisting that in spite of the landlord's admission regarding his interest in Chemmad Essential Oil Factory, the tenant should have adduced further evidence to show as to what is the interest of the landlord in the above business and as to what is his income deriving therefrom. Sri.Gopikrishnan Nambiar would also attack the finding of the two authorities that the tenant is not entitled for the protection of the second proviso to sub Section 3 of Section 11. 4. We have given our anxious consideration to the submissions of Sri.Gopikrishnan Nambiar. We have considered the evidence of PW1 which was read over to us by the learned counsel. We have scanned the judgment of the Appellate Authority and the order of the Rent Control Court. 5. We, at the very outset find that there is no infirmity R. C. R No.183 of 2011 -5- about the finding of the Rent Control Court and the Appellate Authority that the tenant has not succeeded in proving that he satisfies the two ingredients of the second proviso to sub Section 3 of Section 11. We hold confirming the finding of the statutory authorities that the tenant is not entitled to the protection of the second proviso. 6. It is clear on a reading of PW1's testimony, particularly his cross examination that the landlord is a Director or Partner in a major industrial concern dealing with sandalwood oil viz. Chemmad Essential Oil Factory in which the other partners or Directors are his own brothers. Of course, he has stated in his evidence that he is not in a position to say that as to what is the total turnover of that business. As Director or Partner, PW1 should be having access to the records of Chemmad Essential Oil Factory and it is seen that in re-examination no explanation is R. C. R No.183 of 2011 -6- forthcoming as to why in spite of his interest in Chemmad Essential Oil Factory, he needs to do business in the petition schedule building also. It is not the law that a person should have only one business. But when the landlord was having interest in another major industry or business, he was expected to disclose in the Rent Control Petition regarding that interest and to state why he needs to evict the tenanted building also for conducting another additional business. In the instant case, for reasons best known to him the landlord has not disclosed his interest in Chemmad Essential Oil Factory to the Rent Control Court. According to us, concurrent though they may be, the findings entered by the two authorities that the need is bona fide requires re- consideration. We feel that the landlord can be permitted to amend the pleadings and the Rent Control Court can be directed to take a fresh decision on the basis of the evidence R. C. R No.183 of 2011 -7- already on record and further evidence the parties may adduce. 7. The building in question is situated on M.G. Road, Kasaragod. The current rent of ` 1,000/- per mensem was fixed in 1993. We are sure that if the building is let out today, the same will fetch a much higher rent. We are inclined to re-fix the rent as a condition with effect from 01/08/11 subject to regular fixation of fair rent by the Rent Control Court under Section 5 at the instance of either of the parties. 8. The result of the above discussion is therefore, as follows:- The judgment of the Rent Control Appellate Authority and the order of the Rent Control Court are set aside to the extent the same pertains to the finding regarding the bona fides of the need. The finding regarding the tenant's R. C. R No.183 of 2011 -8- eligibility for the protection of the second proviso is confirmed. The RCP is remanded to the Rent Control Court. The Rent Control Court is directed to permit the landlord to amend the pleadings so as to incorporate necessary averments regarding the landlord's interest in Chemmad Essential Oil Factory and also regarding the landlord's need to conduct the proposed business in the petition schedule building. If pleadings are amended by the landlord, the tenant should be allowed to raise additional pleadings. 9. The landlord should be permitted to adduce further evidence and if further evidence is adduced by the landlord, the tenant will be permitted to adduce further counter evidence. 10. The rent payable by the revision petitioner is fixed with effect from 01/08/11 at ` 2,500/- per mensem. This re- fixation is tentative and it is open to either party to move R. C. R No.183 of 2011 -9- the Rent Control Court under Section 5 for regular fixation of fair rent. Till fair rent is fixed the revision petitioner shall pay rent at the rate of ` 2,500/- per mensem. The parties will enter appearance before the Rent Control Court, Kasaragod on 29/07/11. That court is directed to ensure compliance with the above order and to pass revised order within four months thereafter. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-