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 1ST FEBRUARY 2011 / 12TH MAGHA 1932 RCRev..No. 223 of 2006() -------------------------------- RCA.162/2005 of RENT CONTROL APPELLATE AUTHORITY & ADDL. DISTRICT COURT, VADAKARA RCP.128/2004 of RENT CONTROL/MUNSIFF COURT, VADAKARA .................... PETITIONER/APPELLANT/PETITIONERS :- ----------------------------------------------------------- 1. P.K.KELAPPAN, S/O. KUTTY, KUYYANDA MEETHAL, MARANTHUR P.O., VADAKARA. 2. ANEESH BABU, S/O. KELAPPAN, KUYYANDA MEETHAL, MARANTHUR P.O., VADAKARA. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/RESPONDENT/RESPONDENT :- ------------------------------------------------------------------ T.K.BALAN, S/O. KUNHIKANNAN, EENTHULLATHIL, PONNYAM AMSOM DESOM, PONNYAM P.O., THALASSERY. ADV. SRI.B.KRISHNAN FOR R1 SRI.R.PARTHASARATHY FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.223 of 2006 ------------------------------ Dated this the 1st day of February 2011 O R D E R Pius C. Kuriakose, J. The landlords are in revision. They are aggrieved by the judgment of the learned Appellate Authority dismissing the Rent Control Petition filed by them on the ground under Section 11(3) on the basis of a finding that the tenant/respondent is entitled for the protection of the second proviso to Sub section (3) of Section 11. 2. The finding that the need projected by the landlords is bonafide has become final. We confirm that finding. The learned Rent Control Court in the first instance held that the tenant does not satisfy the first ingredient of the 2nd proviso to Sub Section (3) of Section 11. This finding was entered by the Rent Control Court on the reasoning that the tenant did R.C.R. No.223 of 2006 -: 2 :- not produce the accounts pertaining to the business that was carried on in the petition schedule building. The court also noticed that it was in evidence that the tenant was having 10 cents of land whereon 10 yielding coconut trees were standing. According to the Rent Control Court it was the tenant's burden to show that the income that he derived from the tenanted premises, accounts for his main source of livelihood. The learned Appellate Authority under the impugned judgment has taken the view that when it was clear that the only other additional source of income of the tenant was the 10 coconut trees. It is a matter for easy inference that the main source for the tenant's livelihood is the welding workshop business carried on by him in the tenanted premises. 3. One of the prominent arguments addressed before us by Sri.T.G.Rajendran, the learned counsel for the revision petitioner was that the learned Appellate Authority ought not to have vacated the finding entered by the Rent Control Court in favour of the landlords regarding the first limb of the 2nd R.C.R. No.223 of 2006 -: 3 :- proviso on the basis of the appeal filed by the landlords. But on this argument Sri.B.Krishnan, the learned counsel for the respondent/tenant has fairly a convincing answer. The answer is that as the ultimate decision of the court was in favour of the tenant, the tenant could have supported the decision of the court even without filing a separate appeal or memorandum of the courts objections on the principles under Rule 22 of Order 41 CPC. We are therefore, not prepared to blame the learned Appellate Authority for having examined the correctness of the Rent Control Court's finding in the context of 1st proviso to Sub section (3) of Section 11. The only and the important question which arises for decision is whether the decision of the learned Appellate Authority that the tenant is entitled for the protection of 2nd proviso to Sub section (3) of Section 11 is legal, regular or proper. Having scanned the judgment of the learned Appellate Authority and having considered the submissions addressed before us by Sri.T.G.Rajendran and Sri.B.Krishnan and having kept in mind binding judicial precedents governing the issue such as the R.C.R. No.223 of 2006 -: 4 :- judgment of the Full Bench decision in Francis v. Sreedevi Varassiar [2003(2) KLT 230 (F.B.)] and the decision in Kunhamma v. Akkali Purushothaman [2007(3) KLT 599 SC], we feel that the consideration of the question whether the tenant is entitled for the protection of 2nd proviso to Sub Section (3) of Section 11 by the learned Appellate Authority was not proper. It appears to us that the learned Appellate Authority did not keep in mind the binding judicial precedents such as the judgment of the Full Bench in Sreedevi Varassiar's case which in clear terms lay down that the burden to show that the tenant satisfies both the ingredients of the 2nd proviso to Sub section (3) of Section 11 by adducing the best evidence is on the tenant himself. We however are not inclined to decide the issue finally. The matter needs a second look at the hands of the Rent Control Court. 4. We notice yet another aspect of the matter. The monthly rent of Rs.300/- which is being paid by the respondent to the revision petitioners for the tenanted building where the welding workshop is being conducted, in R.C.R. No.223 of 2006 -: 5 :- our view it is too low. We are inclined to refix the monthly rent with prospective effect subject to the right of either party to move the Rent Control Court under Section 5 for regular fixation of fair rent. The result of the above discussion is therefore as follows:- The finding of the Rent Control Court that the need projected in the RCP is bonafide and the finding of the learned Appellate Authority confirming the same is approved. The order of the Rent Control Court and the judgment of the Appellate Authority to the extent they pertain to the tenant's eligibility to protection of the 2nd proviso are set aside. The question whether the tenant is eligible for the benefit of the 2nd proviso is remanded back to the Rent Control Court. That court will afford opportunity to both sides to adduce further evidence in the context of the above question. A fresh decision will be taken on the basis of evidence already on record and evidence to be adduced by the parties. While taking decision, the learned Rent Control Court will have due regard to the binding judicial precedents governing the issue R.C.R. No.223 of 2006 -: 6 :- such as the Full Bench judgment in Sreedevi Varassiar's case and the Supreme Court's judgment in Kunhamma's case. The rent payable by the respondent with effect from 1.3.2011 is refixed at Rs.1,500/- per mensum. It is open to either party if aggrieved to move the Rent Control Court for regular fixation of fair rent and till fair rent is fixed, the respondent shall pay rent at Rs.1,500/- per mensum. The parties will enter appearance before the Rent Control Court, Vadakara on 28.2.2011. The learned Rent Control Court will expedite matters and ensure that revised order is passed early and at any rate within two months thereafter. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt