IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 RCRev..No. 349 of 2010() ------------------------ RCA.24/2008 of RENT CONTROL APPELLATE AUTHORITY ,KOLLAM OPBRC.5/2007 of MUNSIFF COURT, KOTTARAKKARA .................... : APPELLANT IN RCA/RESPONDENT IN OP(BCC) ---------------------------------------------------------- HAMEED RAWTHER ABDUL AZEEZ,NEDIYAKAL PURAYIDOM,PADINJATTINKARA MURI,KOTTARAKKARA. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN RESPONDENT(S): RESPONDENT IN RCA/PETITIONER ------------------------------------------- DR.K.JAYACHANDRAN NAIR,PUTHEN PURACKAL VEEDU,KAIPUZHA MURI,KULANADA VILLAGE, FROM PULAMON KOIKKAL VEEDU,PADINJATTAKARA MURI,KOTTARAKKARA, PIN 686 602. ADV. SRI.P.GOPINATHAN NAIR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 349 OF 2010 ------------------------ Dated this the 10th day of January, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant under Section 20 is the judgment of the Rent Control Appellate Authority ordering eviction against the revision petitioner tenant under sub section (3) of Section 11. The parties will be referred to as the landlord and tenant. 2. The landlord filed the rent control petition against the tenant quoting Section 11(2) and 11(3) in the cause title portion of the petition. The relevant pleadings are only to the following effect; “2. Counter petitioner has to pay the current bill as well. Petitioner is entitled to realize the arrears of rent from 1995 August onwards with 6% interest. The petitioner bona fide needs the building for the reconstruction also is required for shifting my residence from Kulanada to Kottarakara. “ RCR.No.349/2010 2 3. The tenant through the statement of objections filed by him denied the title of the landlord. Apart from denying the title of the landlord, he set up title in himself and that too by adverse possession and limitation. The rent control court formulated the preliminary point as to whether the denial of title is bona fide. After enquiry, it was held that the denial of title is not bona fide. Thereafter, considering the evidence adduced by the parties, which consisted of Exts.A1 to A10, Exts.B1 & B2 and oral evidence of PW1 and RW1, the court below ordered eviction on the grounds under Section 11(2)(b) and Section 11 (5)of the Act. 4. Significantly the landlord did not not prefer any appeal against the above order of the rent control court. The tenant alone preferred an appeal and it is considering that appeal that the impugned judgment has been passed by the learned rent control appellate authority. Under the impugned judgment, the learned appellate authority has confirmed the finding of the rent control court that the denial of title is not bona fide; that order of eviction is liable to be passed under Section 11(2)(b). As regards these findings, the tenant do not have any serious complaint. RCR.No.349/2010 3 But the learned appellate authority went on to order eviction under Section 11(3) modifying the order of eviction under Section 11 (5). 5. Sri.P.B.Krishnan, learned counsel for the revision petitioner, would assail the impugned judgment of the appellate authority on the various grounds raised in the memorandum of revision. According to him, the learned appellate authority was not at all justified in ordering eviction under sub section (3) of Section 11 and that too after formulating the question as to whether the order of eviction passed under Section 11 (5) by the rent control court was sustainable. 6. All the submissions of Sri.P.B.Krishnan were resisted by Sri.P.Gopinathan Nair, learned counsel for the respondent/landlord. According to the learned counsel, the landlord had specifically invoked Section 11(3) and it was the rent control court which committed the mistake of ordering eviction under Section 11(5) of the Act. It is that mistake which is corrected by the learned appellate authority by this judgment. The appellate authority has every power to correct mistakes committed by the rent control court. It is a very genuine need RCR.No.349/2010 4 of the landlord to occupy the building after reconstruction. There is no irregularity, illegality or impropriety about the judgment of the appellate authority warranting invocation of the revisional jurisdiction, so submitted by the learned counsel. 7. We have very anxiously considered the rival submissions addressed at the Bar.We have gone through the copies of the pleadings which were supplied to us by the learned counsel. Though it is true that in the cause title of the rent control petition sub section (3) of Section 11 is quoted by the landlord, as we go through paragraph 2 what we find is that the pleadings raised by the landlord regarding his need, which we understand, is one to occupy the building himself after reconstructing the building are unsatisfactory. Due to the unsatisfactory nature of the pleadings, some prejudice has been occasioned to the tenant. We are unable to see how the rent control court could order eviction on the ground under sub section 5 of Section 11 with the present pleadings. In fact, according to us,eviction orders cannot be passed under sub section (5) of Section 11. Sub section (5) of Section 11 envisages “only directions to the tenant permitting the landlord to enter and carry out renovation within RCR.No.349/2010 5 a time to be fixed by the court”. The rent control court was certainly in error in ordering eviction under Section 11(5). But, the question is whether the appellate authority could have interfered with that order and substituted that order with eviction order under Section 11 (3) in an appeal preferred by the tenant. It is not submitted by the learned counsel for the respondent landlord that the landlord had filed a memorandum of cross objection. There is nothing in the judgment of the appellate authority to indicate that an order of eviction under Section 11(3) was canvased by the landlord before the appellate authority. The landlord was strongly supporting only the eviction order passed in his favour by the rent control court. We feel that this is a case, where for want of proper pleadings, appropriate reliefs could not be obtained by the landlord so far. 8. Under the above circumstances, we are inclined to interfere with the impugned judgment and the order of the rent control court and remand the matter to the rent control court giving direction regarding amendment of the pleadings. At the same time, we notice that the building in question is situated in a very important part of the Kottarakara town (very near to the RCR.No.349/2010 6 Kottarakara railway station). We are sure that if the building is let out today, the same will fetch much more than Rs.1,000/- per month. We are, therefore, inclined to refix the rent payable by the revision petitioner with effect from 6/6/2008 (the date on which the rent control court passed its order) at Rs.1,000/- per month. Till the fair rent of the building is fixed by the rent control court on a regular application filed in this regard by either party, the revision petitioner shall pay rent to the landlord with effect from 2/6/ 2008 at the rate of Rs.1,000/- per month. 9. The result of the above discussion is as follows; i). The revision petition is allowed. ii). The order of the rent control court and the judgment of the appellate authority to the extent they pertain to eviction order passed under Section 11(5) and 11 (3) are set aside. Iii). The order of eviction passed under Section 11 (2(b) is confirmed. The tenant is given one month's time from today to get that eviction order vacated under Section 11(2)(c). iv). The finding that the denial of title is not bona fide is confirmed. The rent payable by the revision petitioner for the petition schedule building is refixed with effect from 6/6/2008 at RCR.No.349/2010 7 the rate Rs.1,000/- per month. v). The rent control petition is remanded to the rent control court, Kokkarakara and that court is directed to permit the landlord to amend the pleadings so as to incorporate proper pleadings regarding his need for own occupation of the building after reconstruction. If pleadings are amended, the court will afford to the tenant an opportunity to raise counter pleadings. Once pleadings are completed, the rent control petition will be enquired into and opportunity will be given to both sides for adducing further evidence. Matters should be expedited and fresh orders will be passed in the rent control petition at the earliest and at any rate within four months of the parties entering appearance pursuant to this order. The parties will enter appearance before the rent control court on 27/1/2011. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk