IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 RCRev..No. 6 of 2011(B) --------------------------- RCA.46/2009 of ADDL. RENT CONTROL APPELLATE AUTHORITY-I, TRIVANDRUM RCP.35/2008 of ADDL. MUNSIFF COURT/RENT CONTROL COURT, TVM .................... REVISION PETITIONER/RESPONDENT/1ST PETITIONER ------------------------------------------------------------- GEETHA.N., AGED 44 YEARS, D/O.LATE B.THANKAMMA, T.C.25/2171, THYVILA ROAD, NEAR AYURVEDA COLLEGE, PAZHAVANGADI, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): APPELLANT/RESPONDENT ------------------------------------------------- P.MOHANAKUMARI, W/O.LATE SIVARAJAN, T.C.26/2105, STATUE ROAD, STATUE, THIRUVANANTHAPURAM-695001. ADV. SRI.M.DINESH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/07/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.6 of 2011 ------------------------------------------------ Dated this the 18th day of July, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the landlady is the judgment of the Rent Control Appellate Authority declining eviction on the ground under Section 11(3) after setting aside the order of eviction which had been passed by the Rent Control Court. We have heard Smt.M.A.Zohra the learned counsel for the revision petitioner/landlady and Sri.M.Dinesh, the learned counsel for the respondent/tenant extensively. We notice from the impugned judgment that the learned Rent Control Appellate Authority interfered with the eviction order passed by the Rent Control Court mainly on the basis that a room (hereinafter referred to as room under the occupation of Jayakumar) is in the possession of the R. C. R. No.6 of 2011 -2- landlady. On the basis of the submissions addressed, we on 07/07/11 passed the following order. “As directed by this Court Mr.Jayakumar, the present tenant in occupation of the room adjacent to the room where Homeo Consultancy is being conducted, has filed an affidavit. According to that affidavit dated 15/06/11, he has been in possession of the room during the past 5 years. The RCP is instituted in 2008. The landlady has also produced two lease deeds. The earlier deed too is dated 01/06/09. This lease deed and the subsequent lease deed executed in renewal and the earlier lease deed would show that Sri.Jayakumar is in possession of the above room at least since 01/06/2009. According to Smt.Zohra, there were earlier lease deed executed by Jayakumar in favour of the revision petitioner's father and they are not traceable. Responding to a query, Smt.Zohra submitted that the room in possession of Jayakumar is a small room. The petition schedule room is at least double in size of that room. The petitioner's need can be accomplished only if a room like the petition schedule room is obtained. Mr.Dinesh the learned counsel appearing for the respondent sought time till Monday to report as to whether the petition schedule room is larger in size than the room possessed by Jayakumar. We direct both sides to produce before this Court photographs of petition schedule room as well as Jayakumar's room for perusal. Post on Tuesday.” R. C. R. No.6 of 2011 -3- 2. Pursuant to the above order both sides have produced photographs. Though we have scanned the photographs, we are not in a position to accept Smt.Zohra's submission that the room presently occupied by Sri.Jayakumar is only half the size of the petition schedule building. We feel that the following three issues should be reconsidered by the Rent Control Appellate Authority:- 1) When was the room let out to Jayakumar? Whether it was prior to the commencement of the RCP or during the pendency of the RCP? 2) Whether the room occupied by Jayakumar is smaller than the petition scheduled room? 3) Whether there is any other special reason for the landlady insisting on getting possession of the petition scheduled room itself. We feel that the evidence presently available on record is not sufficient to decide the above three issues correctly. R. C. R. No.6 of 2011 -4- We therefore, set aside the judgment of the Appellate Authority and remand RCA No.46/09 to the Additional Rent Control Appellate Authority, Thiruvananthapuram. The learned Additional Rent Control Appellate Authority is directed to permit both sides to adduce whatever evidence they want to in the context of the three issues noted above and to take a fresh decision in the case. We clarify that we have endorsed the finding of the Rent Control Court that the need projected by the landlady is bona fide. The further finding that the tenant is not entitled for the protection of the second proviso to sub Section 3 of Section 11 is also endorsed by us. The only issue that is being remanded to the Appellate Authority is the issue whether the RC proceedings will fail by virtue of the 1st proviso to sub Section 3 of Section 11. The Rent Control Appellate Authority will complete the enquiry and pass revised judgment within two months of the parties entering appearance before the R. C. R. No.6 of 2011 -5- Appellate Authority. If either party is applying for issuance of a commission, the learned Appellate Authority will allow the application. The parties will enter appearance before the Appellate Authority on 02/08/11. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-