IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 RCRev..No. 68 of 2006(E) ----------------------- RCA.5/2002 of I ADDL. DISTRICT COURT, TRIVANDRUM RCP.105/2000 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER/APPELLANT/COUNTER PETITIONER: ---------------------------------------------------- SHEELA CHANDRAN, PROPRIETRIX, P. MADHAVAN THAMPY METAL WORKS SHOP NO.3 & 4, T.C.NO.21/1401, VASANTHAM TOWERS, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHEER RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------------------- SMITHA ANIRUDHAN, W/O. M.N. RENJITH VASANTHAM, KOWDIAR, THIRUVANANTHAPURAM. ADV. SRI.MILLU DANDAPANI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.461/2006 IN RCR.68 /2006 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 14.7.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.68 of 2006 ---------------------------------- Dated this the 14th day of July, 2010 O R D E R ---------------- Pius C.Kuriakose,J. Under challenge in this revision filed by the tenant is the order of eviction concurrently passed by the statutory authorities against the revision petitioner/tenant on the ground under Section 11(3). It has come out in evidence that one of the contentions raised by the tenant answering in defence to the landlord's claim was that the claim is not bonafide; that at any rate the Rent Control Petition is liable to be fail by operation of first proviso to Section 11(3). The contention based on first proviso to Section 11(3) was urged mostly with reference to building having door No.6 in the ground floor of Vasantham Towers- a five storied commercial complex- a part of which is the petition schedule premises where the revision petitioner is conducting business in Aluminium, RCR.68/06 2 Steel and Brass vessels under the name and style, 'P.Madhavan Thampi'. The revision petitioner had a case that room No.6 and the adjacent room No.5 together form one unit and that at the time of commencement of the RCP the same was in the possession of another tenant for the purpose of conducting 'M/s.Aravind Fashion Jewellery' and that during the pendency of the proceedings the above room fell vacant and is now let out to a new tenant by name 'Vinayaka Stores'. In fact, before the Appellate Authority additional evidence was produced by the revision petitioner regarding this letting out in favour of Aravind Jewellery. The Appellate Authority, however, would appreciate the evidence on record and come to the conclusion that at any rate the landlord had special reasons to insist on getting possession of the petition schedule premises themselves. 2. Sri.Pirappancode V.S. Sudheer, learned counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlord addressed extensive arguments before us and one issue which became most RCR.68/06 3 contentious was whether the landlord has special reasons for insisting on getting possession of the petition schedule premises despite having come to possession of room No.6 or room No.5. For resolving that controversy, this court deputed Adv.Thomas J. Anakkallunkal as commissioner. The commissioner, after conducting inspection, submitted his report producing Annexures A- series photographs and B-series 3-D computer sketch pertaining to the entire shopping complex belonging to the landlord and particularly the rooms in controversy namely room Nos.5 and 6. It has been clearly reported by the Advocate Commissioner that the total carpet area of room No.6 is 66.94 Sq.m., which is about two times the area of the petition schedule premises. It is also reported by him that room No.5 is adjacent to room No.6 and that room No.6 is presently used as a godown by the occupant of room No.5. It is further reported that there is provision for accessing room No.5 from room No.6 and vice versa. Learned counsel for the respondent did not dispute the genuineness of the various Annexures RCR.68/06 4 produced by the Advocate Commissioner. Neither did he dispute the factual correctness of what is reported by the Advocate Commissioner to this court. But, according to him, the commission report and Annexures notwithstanding it will be possible for him to convince this court that the landlord was justified in insisting on getting the possession of the petition schedule building itself for the projected need which is found to be bonafide. 3. Despite the persuasive submissions of the learned counsel for the respondent, we are not inclined to decide the issue finally. We feel that the issue whether the Rent Control Petition is liable to fail by virtue of first proviso to Section 11(3) and the further issue whether the need of the landlord can be found to be bonafide in view of his conduct in not occupying room No.6 despite having given possession during the pendency of the proceedings should be reconsidered by the statutory authorities. We notice that the endeavour by the revision petitioner/tenant to have this issue re- RCR.68/06 5 considered by the Appellate Authority by producing documents regarding letting of room No.6 to Vinayaka Stores was unsuccessful. We therefore are inclined to relegate the issue to the Rent Control Court. At the same time we notice that the rent of Rs.1,750/-, which is being presently paid by the revision petitioner for the petition schedule premises situated at Peroorkada junction as part of a first class commercial complex belonging to the landlord, is too low. We are inclined to re-fix the rent payable by the revision petitioner for the building in question till he is vacated at Rs.5,000/- per mensem with effect from 1.8.2010. 4. Result of the above discussion is as follows: The order of the Rent Control Court and the judgment of the Appellate Authority are set aside. The finding that the tenant is not entitled for the protection of the second proviso to sub section 3 of Section 11 is confirmed. RCP is remanded to the Rent Control Court, Thiruvananthapuram. That court is directed to take fresh decision on the following issues: (i) Whether the RCR.68/06 6 need is bonafide? and (ii) Whether RCP is liable to fail by virtue of first proviso to Section 11(3)? The rent is fixed tentatively at Rs.5,000/- per mensem with effect from 1.8.2010. We make it clear that the above re-fixation is only tentative and it is open to either party to move Rent Control Court for re-fixation of fair rent. The parties will appear before the Rent Control Court on 17.8.2010. Transmit the records forthwith. The Rent Control Court will expedite matters and ensure that fresh decision is taken at the earliest, at any rate, within three months from parties appearing before that court. 5. We feel that it is a splendid work that has been done by the Advocate Commissioner appointed by this court. We direct the revision petitioner to pay an additional remuneration of Rs.5,000/- by cash to him against the receipt for his services. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb RCR.68/06 7 PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R.. No.68 of 2006 ---------------------------------- Dated this the 31st day of May, 2010 O R D E R ---------------- Pius C.Kuriakose,J. Heard, learned counsel for the revision petitioner and the learned counsel for the respondent further. The issue as to whether the premises which had been let out to M/s.Aravind Jewellery (having Door No.6 in the ground floor of Vasantham Towers) has more or less the same advantages, locational and space-wise as the petition schedule premises continues to be contentious. Even the commissioner's report available in the case and photographs, Annexure-A series produced today are not sufficient to remove the confusion. Mr.Pirappancode V.S. Sudheer submitted that his client is ready to take out a commission from this court so that there is more clarity on the above aspect. Considering the oral application for issuance of commission made by Sri.V.S. Sudheer we appoint Adv.Thomas J. Anakkallunkal as commissioner to conduct a local inspection and report on the following RCR.68/06 8 aspect Whether room No.6 in the ground floor of Vasantham Towers at Peroorkada belonging to the respondent (the room which had been let out to M/s.Aravind Fashion Jewellery) is enjoying more less the same advantages as the petition schedule rooms where revision petitioner is conducting business under the name and style 'P.Madhavan Thampi Metals'? The report of the commissioner shall contain details regarding the extent of frontage, the carpet area and other relevant features of the room. Inspection will be conducted by the commissioner with notice to the parties through their Advocates in this court. The remuneration payable to the commissioner is fixed at Rs.15,000/- which will be paid to the commissioner by cash by the revision petitioner. All Incidental expenses including those on travel will be paid to the commissioner by the revision petitioner. Commissioner will conduct inspection at the earliest and submit report without undue delay. Post after three weeks. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. RCR.68/06 9 okb