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 8TH FEBRUARY 2011 / 19TH MAGHA 1932 RCRev..No. 343 of 2007() ------------------------ RCA.17/2006 of ADDL. DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY, N. PARAVUR RCP.10/2005 of RENT CONTROL COURT, ALUVA .................... REVISION PETITIONER/APPELLANT/PETITIONER :- -------------------------------------------------------------------------- JOHN, S/O.JOSEPH, 61 YEARS, THACHIL HOUSE, AISWARYA, CN/210 CONVENT ROAD, ANKAMALY. BY ADV. SRI.A.VIJAYAKUMAR SRI.A.N.SANTHOSH RESPONDENT(S)/RESPONDENT/RESPONDENT :- ------------------------------------------------------------------- ANKAMALY CO-OPERATIVE CONSUMER STORES LTD.NO.E 240, BY ITS SECRETARY. ADV. SRI.WILSON URMESE FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt RCRev..No. 343 of 2007 ORDER IN I.A.No.2845/2007 IN R.C.R.No.343/2007 Dismissed. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- N.K.BALAKRISHNAN, JUDGE. 8.2.2011 //True Copy// P.A. to Judge PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.343 of 2007 ------------------------------ Dated this the 8th day of February 2011 O R D E R Pius C. Kuriakose, J. The landlord is in revision. He is aggrieved by the judgment of the Rent Control Appellate Authority confirming the order passed by the Rent Control Court dismissing the eviction petition which he filed against the respondent M/s.Ankamaly Co-operative Consumer Stores Limited. 2. We have gone through the order passed by the Rent Control Court and the judgment of the Appellate Authority. We have heard Sri.A.Vijayakumar, the learned counsel for the revision petitioner and Mr.Wilson Urmese, the learned counsel for the respondent extensively. We have considered the question whether the judgment of the R.C.R. No.343 of 2007 -: 2 :- Appellate Authority is liable to be interfered with within the contours of Section 20 of Act 2 of 1965. 3. Even though Section 11(4)(v) was also quoted, the pleadings in the RCP would reveal that it was only the ground under Section 11(3) which was invoked by the landlord. The need projected under Section 11(3) was that the petitioner is a retiree from service and he needs income for sustain himself and his family. Hence he decided to start STD Booth cum Photostat shop in the petition schedule room which has an approximate area of 200 sq.feet and is situated on a very prominent junction of Ankamaly Municipality. The bonafides of the need was disputed. It was contended that the petitioner was having considerable income for his livelihood. It was alleged that the real intention of the petitioner was to induct a new tenant at a higher rent after evicting the tenant. It was also alleged that the petitioner intends to sell off the building after evicting the tenant. Without referring to any particular R.C.R. No.343 of 2007 -: 3 :- building it was contended that the landlord has other rooms in his possession for accomplishing his need even if there is a genuine need. 4. Before the Rent Control Court there was evidence only on the side of landlord who got himself examined as PW1 and got the Secretary to the local municipality as PW2. There was absolutely no counter evidence on the side of the respondent/tenant. Nevertheless the learned Rent Control Court would notice what is described in its order as an admission by PW1 in the box “that at the time of filing of the petition the upstair room was lying vacant”. According to the Rent Control Court when the landlord admits that he has upstair room vacant in his possession, he had an obligation to plead and prove special reason justifying the order of eviction. The learned Rent Control Court would also notice that in his oral evidence PW1 has stated that he had conceived the need in his mind in September, 2002 and instituted the eviction petition only in R.C.R. No.343 of 2007 -: 4 :- March 2005. It was further noticed by the Rent Control Court that the petitioner and his wife who was also employed had obtained retirement benefits after the retirement from the respective services. It was further noticed that though PW1 claimed that he had made arrangement for procurement of Photostat machine he had not produced any evidence to prove that claim. According to the Rent Control Court these all clearly indicate that the need is not bonafide. Therefore, on the basis that the need is not bonafide and at any rate, by virtue of the proviso to Section 11(3), the learned Rent Control Court dismissed the RCP. The Appellate Authority does not endorse the finding of the Rent Control Court regarding the bonafides of the need. Instead, the Appellate Authority assumes that the need is bonafide, Authority also noticed the so called admission in PW1's testimony to the effect that first floor room was vacant at the time of commencement of the proceedings and would accordingly dismiss the RCA taking R.C.R. No.343 of 2007 -: 5 :- the view that the first proviso to Section 11(3) operates. 5. We have extensively gone through the oral evidence adduced by PW1. On going through PW1's testimony, we are convinced that the appreciation of that testimony by the learned Rent Control Court and for that matter the Appellate Authority was highly improper. We were unable to find any admission in the testimony of PW1 to the effect that the first floor was remaining vacant at the time of filing of the RCP. Admission to the effect that the first floor building is only vacant is made when PW1 was giving evidence. It is also stated that the above information is conveyed to the landlord’s advocate also. There are tell tale circumstances which will show that at the time of institution of the RCP the first floor of the building was not vacant. The instant RCP is numbered 10/2005. Simultaneously the landlord had filed RCP 11/2005 in respect of the first floor portion. Since Section 11(4)(v) is one of the grounds invoked, in that RCP the landlord had R.C.R. No.343 of 2007 -: 6 :- taken out a commission for an immediate inspection of the building. The commissioner did inspect the same and submit a report to the effect that the building is in a state of disrepair. The above circumstance, in our view establish to the very hilt that at the time of filing of the present RCP, first floor room was not vacant at all. The vacancy of the first floor is an event subsequent to the filing of the present RCP. 6. As already indicated to the oral evidence adduced by PW1 there was absolutely no counter oral evidence. We feel that the authorities below could have found the need to be bonafide relying on the above oral evidence. We feel that the question whether the RCP is liable to be rejected under the first proviso to Section 11(3) should be reconsidered by the Rent Control Court. We are inclined to remit the matter back to the Rent Control Court for a fresh decision. 7. We notice another important aspect of the matter. R.C.R. No.343 of 2007 -: 7 :- The building in question is situated on the junction at Angamaly where National Highway 47 and the Main Centre Road meet. We are sure that if the building is let out today, the same will fetch several times what the same is fetching today, that is; Rs.650/-. We are inclined to refix the rent tentatively with effect from 1.3.2011 at Rs.2,500/- per mensem. This refixation is tentative and it is open to either party if aggrieved to move the Rent Control Court for regular fixation of fair rent under Section 5. Till fair rent is fixed, the respondent shall pay rent to the revision petitioner at the rate of Rs.2,500/- per mensem. The result of the above discussion therefore is as follows:- Order of the Rent Control Court and the judgment of the Rent Control Appellate Authority are set aside. RCP is remanded to the Rent Control Court, Aluva. That court is directed to permit both sides to adduce what ever further evidence they want to. The Court will pass revised order on the basis of evidence already on record and further R.C.R. No.343 of 2007 -: 8 :- evidence which may come to be on record. Parties will enter appearance before the Rent Control Court on 28.2.2011. That Court is directed to expedite matters and ensure that RCP is disposed of if possible before the court closes for mid summer vacation or at any rate within one month of the reopening of the court after mid summer vacation. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt