IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 RCRev..No. 45 of 2007() ----------------------- REVISION PETITIONER/APPELLANTS/PETITIONERS -------------------------------------------------------------- 1. KRISHNA JANAKI, 75 YEARS. 2. JAMUNA SATYAPRADEEP, 38 YEARS. 3. JAGADA RAJENDRAN, 35 YEARS. 4. JALAJA.M., 31 YEARS. PETITIONERS 2 TO 4 ARE REPRESENTED BY POWER OF ATTORNEY HOLDER AND MOTHER IST PETITIONER, KRISHNA JANAKI, ALL ARE RESIDING AT KASBA AMSOM DESOM, RAM MOHAN ROAD, 7 S I, CHINTAVALAPPU FLATS, KOZHIKODE. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S)/RESPONDENTS/RESPONDENTS: --------------- KANDAVANATHIL K.V.JOSE, S/O.K.V.VARKEY, AGE NOT KNOWN, BUSINESS, RESIDING AT PULINGOME AMSOM, DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. ADV. SRI.LATHEESH SEBASTIAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No.45 OF 2007 ------------------------ Dated this the d 1st ay of April, 2009 ORDER Pius C.Kuriakose, J. The landlords, whose application for eviction on the ground under clause (v) of sub section (4) of Section 11 (cessation of occupation) was dismissed by the Rent Control Court and the Appellate Authority concurrently, are the revision petitioners. 2. We have heard the submissions of Sri.T.K.Vipindas, learned counsel for the revision petitioners and those of Sri.Latheesh Sebastian, learned counsel for the tenant. Sri.Vipindas would submit that before the Appellate Authority, the revision petitioners filed I.A.1105/2006 producing certain documents and seeking their reception as additional evidence in the case. He complains that the Appellate Authority straight away dismissed the application accepting the contention of the tenant that those documents are notarised Photostat copies and they cannot be admitted. 2. Under the statutory scheme the power of the Rent RCR.No.45 of 2007 2 Control Court and the Appellate Authority to hold enquiry into the claim for eviction are co terminus. (See Section 23(1), Section 18 (3) of the Act and also Rule 16(2) of the Kerala Buildings ( Lease & Rent Control) Rules.) According to us, the Appellate Authority was justified in dismissing the I.A.No.1105/2006 filed by the petitioners for reception of additional evidence and thereafter dismissing the appeal preferred by the landlords on the reason that the evidence available on record is not sufficient to establish the ground of cessation of occupation. May be the documents, which were produced along with I.A. No.1105/2006, being the Photostat copies, were not admissible in evidence. But, then it could have been possible for the revision petitioners, who were appellants before the Appellate Authority, to substitute those documents by the originals or attested copies which were admissible as secondary evidence. The legislative object underlying Section 11 (5) (v) is that at a time when there is acute accommodation shortage, the tenant should not be allowed the luxury of having tenanted buildings with him unless he need the same for residential or commercial purpose as the case may be. There RCR.No.45 of 2007 3 was a commissioner's report in this case which offer prima facie evidence regarding the correctness of the petitioners' allegation. The evidence was that at the time when the building was inspected without notice to the tenant, the same was found closed. Further during the second inspection by the commissioner, it was found that the premises were occupied by the respondent tenant. It is submitted by the learned counsel for the revision petitioners that other evidence produced on the side of the landlords like records relating to the electricity consumption will also support the case of cessation of occupation by the tenant. 3. We feel that this is a case where the issue should be enquired into by Rent Control Appellate Authority. Section 20A of the Act would enable this court to pass order of remand to the Appellate Authority also. Hence we set aside the judgment under appeal and also order in I.A.1105/2006 and remand the appeal as well as I.A.1105/2006 back to the Rent Control Appellate Authority, Thalassery. That Authority will take fresh decision in the I.A. As well as in the RCA. If the parties are desirous, that Authority will permit both sides to adduce further RCR.No.45 of 2007 4 documentary evidence (other than the evidence sought to be produced through I.A.1105/2006) in support of their rival contentions. This means that the respondent tenant also can produce documentary evidence which will support his case that he has been actually carrying on business during the period of six months mentioned in the application earlier. The Rent Control Appellate Authority will complete further enquiry as ordered above and pass revised judgment in the appeal at the earliest and at any rate within four months of receiving a copy of this judgment. Transmit the entire lower court records forthwith to the Rent Control Appellate Authority including the Rent Control Court's records. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk