IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 CRP.No. 1122 of 2003(E) ----------------------- RCA.65/2000 of ADDL.DISTRICT COURT, KOZHIKODE RCP.43/1999 of MUNSIFF COURT, VADAKARA .................... REVN. PETITIONER(S)/RESPONDENT/PETITIONER: --------------------- CHEMBRAKUNIYIL KUMARAN, S/O. CHATHU, BUSINESS, ERAMALA AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S)/APPELLANT/RESPONDENT: --------------- DURAI PANDIAN, BUSINESS, S/O. KUMARA SWAMI NAIDU, ORKATTERI BAZAR, AKHILA TRADERS, BUILDING NO.E.P.9/361, ORKKATTERI DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.S.NIRMAL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- C.R.P. No.1122 of 2003 ---------------------------------- Dated this the 18th day of June, 2010 O R D E R --------------- Pius C.Kuriakose,J. Under challenge in this revision filed by the landlord under Section 20 is the judgment of the Rent Control Appellate Authority setting aside the order of eviction passed in his favour under Section 11(3). In fact the landlord petitioner had invoked the ground of arrears of rent and the ground of misuse of the building under Section 11(4)(ii) also. But it is conceded before us by the senior counsel Sri.Sugunapalan that those two grounds do not survive for consideration and it will suffice if we examine correctness of the decision of the Appellate Authority to decline eviction on the ground of bonafide need for own occupation. According to Mr.Sugunapalan, learned senior counsel for the petitioner, the Appellate Authority declined eviction CRP.1122/03 2 mainly on the reason that PW2, the dependent nephew/family member of the landlord, was not experienced in conducting grocery business. Learned senior counsel submitted that PW2 could gain experience by conducting grocery business and hence it was not proper for the Rent Control Court and the Appellate Authority to say that there is no experience for PW2. The learned senior counsel would assail the decision of the Appellate Authority to dismiss the Rent Control Petition by virtue of the first proviso to Section 11(3). He would lastly submit that the respondent/tenant has ceased to occupy the building continuously for more than six months without any reasonable cause. The response of Mr.S.Nirmal, learned counsel for the respondent to the above submission was that the respondent is not contacting him at all. He in fact reported no instructions. He would concede that the version of the senior counsel that respondent has ceased to occupy the premises is CRP.1122/03 3 probable. 2. We have scanned the judgment of the Appellate Authority. We do not find any infirmity about the decision of the Appellate Authority declining eviction under Section 11(3) warranting correction under Section 20. At the same time we find much merit in the submission of the senior counsel that the respondent has become liable to be evicted on the ground of cessation of occupation under Section 11(4)(v). We also found merit in the submission that contract amount of Rs.650/- fixed 15 years ago is far below the rent the building will fetch if the same be let out today. In view of the above, we feel that even as we decline to interfere with the judgment of the Appellate Authority, we can remand the Rent Control Petition to the Rent Control Court directing that court to permit the petitioner landlord to amend the Rent Control Petition so as to incorporate a fresh ground under Section 11(4)(v). We also feel that the rent payable by CRP.1122/03 4 the respondent, if he wants to continue in possession of the building, should be re-fixed suitably. 3. The result of the above discussion is as follows: The order of the Appellate Authority declining eviction on the ground under Section 11(3), 11(4)(ii) and 11(4(b) are confirmed. The order dismissing Rent Control Petition is set aside and RCP.43/1999 is remitted back to the Rent Control Court, Vadakara. That court is directed to favourably consider any application for amendment of pleadings which the landlord may file for incorporating additional ground under Section 11(4)(v) and to take a fresh decision regarding the tenant's liability to be vacated, under that ground. We re-fix the rent payable by the respondent for the building perspectively with effect from 1.7.2010 at Rs.2,000/- per mensem. The respondent will be liable to pay the rent which is fixed tentatively with effect from 1.7.2010. If parties are aggrieved by fixation of the rent as above, it is open to CRP.1122/03 5 them to file application before the Rent Control Court for regular fixation of fair rent. Rent Control Court will decided the RCP early, at any rate within six months of receiving a copy of this judgment. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb