IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 RCR. No. 194 of 2008 ------------------------- RCA.93/2005 of RENT CONTROL APPELLATE AUTHORITY (PRL. DISTRICT JUDGE), THALASSERY RCP.155/2004 of RENT CONTROL COURT (PRL.MUNSIFF), KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT: -------------------------------------------------------- MOOTHETH VERRAMTHOTTATHIL ABDUL RAHIMAN, S/O.MAMMED, AGED 54 YEARS, M/S.SUBAIDA MEDICALS, NEAR PAPPINISSERY RAILWAY GATE, PAPPINISSERY, THROUGH HIS POWER OF ATTORNEY HOLDER U.M.P. MOHAMMED JASEEL, S/O.B.P.MUHAMMED KUNHI, AGED 30 YEARS, R/AT U.P.M.HOUSE, CHUNGAM, PAPPINISSERY, KANNUR. BY MR.A.MOHAMED MUSTAQUE, ADVOCATE. MR.KAUSER EDAPAGATH, ADVOCATE. RESPONDENT/RESPONDENT/PETITIONER: ----------------------------------------------- P.T.P.HAMZAKUTTY HAJI, S/O.HAMEED, RESIDING AT PAPPINISSERY AMSOM DESOM, P.O.PAPPINISSERY, KANNUR. BY MR.C.KHALID, ADVOCATE MR.R.O.MUHAMED SHEMEEM, ADVOCATE. MR.T.P.SAJID, ADVOCATE. MR.D.ANIL KUMAR (ADV.COMMISSIONER) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R. No.194 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2009 ORDER Pius.C.Kuriakose, J. A tenant against whom order of eviction has been concurrently passed by the rent control court and the appellate authority under Sub Section 3 of Section 11 of the Kerala Buildings (Lease and Rent Control) Act 1965 is the revision petitioner. The pleadings have been correctly narrated by the rent control court and we propose to advert o the pleadings only very briefly. The landlord is a nonagenarian presently 97 years old. The need projected by him was that the building is required for occupation of his son Ashraf who is dependent on him so that Ashraf can shift his tube setting business which was being conducted in a rental building at the time of filing of the rent control petition over to the petition schedule building. The tenant contended that the need and the claim are not bonafide, that the rent control petition is liable to fail in view of the first proviso to Sub Section 3 of section 11 since the landlord was having under his ownership and RCR.No.194/08 2 possession another building having door No. VIII/831 within the same city, town or village. It was also contended that the tenant is entitled to the protection of the second proviso to Sub Section 3 of Section 11. 2. The rent control court on evaluating the evidence concluded that the need is bonafide and that the rent control petition was not liable to fail in view of the first proviso to Sub Section 3 of Section 11. As regards building No. VIII/831 pointed out by the tenant, it was found by the court that there was no documentary evidence to show that the landlord was in ownership and possession of the said building. As regards the tenant's claim for the protection of the second proviso to Sub Section 3 of Section 11, that court found that the tenant was gainfully employed in a gulf country and was not depending on the business which he is carrying on in the petition schedule building through his power of attorney holder, for his livelihood. The second limb of the second proviso was also found against the tenant. The appellate authority despite re-appreciation of the evidence would concur with all the findings of the rent control court and confirmed the order of eviction. RCR.No.194/08 3 3. In this revision petition, orders of the rent control court and the appellate authority are assailed on various grounds. After hearing Sri.Mohammed Mustaque, learned counsel for the petitioner and Sri.C.Khalid, learned counsel who took notice on behalf of the respondent/landlord when the matter came up for admission, this court passed the following order on 19/01/2009 : “ Heard Sri.Mohammed Mustaque, learned counsel for the revision petitioner for some time. Sri.Mohammed Mustaque drew our attention to Annexures A1 to A8, particularly Annexure A8 commission application, and submitted that during the pendency of the rent control appeal, a building which has more or less the same advantages as the petition schedule building fell vacant and the said room was let out by the landlord to one V.K.Mammu. Before the Rent Control Appellate Authority, interlocutory applications were filed by the revision petitioner, in the context of the above event, which is a very relevant bona fide requirement. Sri.Mustaque submitted that if a Commissioner is deputed from this court, the Commissioner will be able to submit very useful data before this court. RCR.No.194/08 4 2. Sri.C.Khalid, who took notice on behalf of the respondent submitted that no useful purpose is going to be served from the revision petitioner's point of view by issuing commission. He also submitted that revision petitioner is not presently in India. Having considered the rival submissions, we are inclined to issue commission. We appoint Sri.D.Anil Kumar of this court as Commissioner to inspect the petition schedule building in R.C.P.No.155/04 on the files of the Rent Control Court (Principal Munsiff Court), Kannur and also the building having door No.PP.XIII/499 presently occupied by Sri.V.K.Mammu and submit a report. The revision petitioner as well as the respondent are permitted to submit work memos before the Commissioner and the Commissioner will conduct inspection with reference to the aspects mentioned in the work memos and submit report. The initial remuneration for the commissioner is fixed at Rs. 15,000/-. The commissioner will be paid incidental expenses including those on travel. The amounts will be paid by the petitioner. The inspection will be conducted by the commissioner only after giving notice to the parties through their counsel appearing before this court. The RCR.No.194/08 5 inspection will be conducted and report will be submitted at the earliest.” 4. The Advocate Commissioner conducted inspection and filed a report. This report is marked as Ext.C1 and will form part of the records of the case. Ext.C1 will show that unlike the building occupied by the tenant Sri.V.K.Mammu made mention of in the order dated 19/01/2009, the petition schedule building has a spacious first floor area also. Ext.C1 further shows that Sri.Nooh, another son of the landlord/petitioner and brother of PW1, who was present at the time of inspection conceded that building having door No. VIII/831 with reference to which the protection of the first proviso to Sub Section 3 of Section 11 was claimed by the tenant did belong to the landlord and is presently under the lock and key of the landlord. 5. We have heard the submissions of Sri.Kauser Edapagath, learned counsel for the revision petitioner and those of Sri.C.Khalid, learned counsel for the respondent. Both the counsel addressed us very extensively on the basis of the grounds and in support of the judgment of the appellate authority respectively. Sri.Kauser argued that the question whether the landlord could have accomplished his avowed RCR.No.194/08 6 need by occupying the building which is let out to Sri.V.K.Mammu is to be answered in the light of the nature of the business which was being carried on by Sri.Ashraf. It was not the case of either Sri.Ashraf or the landlord that the landlord requires a spacious building so that Ashraf could shift his tube setting business. It is the present case of the landlord and Sri.Ashraf that a spacious building itself is necessary for accomplishing the need projected in the rent control petition. The landlord should plead and prove such need. The rent control petition therefore should be remanded, so as to enable the tenant to meet the present case of the landlord that he requires the petition schedule building itself and not the building subsequently let out to Sri.V.K.Mammu for accomplishing his need. Sri.Kauser would give more thrust in his submissions to the report of the Advocate Commissioner that building having door No. VIII/831 belongs to the landlord and is presently available with the landlord. Learned counsel submitted that it was the consistent case of the tenant that, that building is owned and possessed by the landlord and that because of such ownership and possession, eviction order cannot be passed, even if the RCR.No.194/08 7 need is found to be bonafide. Learned counsel would read over to us the testimony of PW1 in cross-examination and also the testimony of CPW1 in both chief-examination and cross-examination and argued that there is no effective challenge to the version of the tenant that if the landlord genuinely wants a building for his son Ashraf to carry on business in tube setting, such need can be accomplished by directing Ashraf to occupy the building having door No. VIII/831. 6. Sri.C.Khalid, learned counsel for the landlord would very stiffly resist all the submissions of Sri.Kouser. Learned counsel submitted that the very object of the rent control legislation which has made inroads into the right of the landlord which was otherwise almost absolute to evict his tenant by issuing notice under Section 106 is to ensure that a needy tenant is not evicted without genuine reasons. Sri.Khalid submitted that the tenant is gainfully employed in a gulf country and the ground floor portion of the petition schedule building is occupied by CPW1, the power of attorney holder, for conducting an English Medical Shop. First floor portion is let out by CPW1 to employees of nearby hotels for their stay. Sri.Khalid also submitted RCR.No.194/08 8 that the landlord/petitioner is 97 years old and that his long cherished need of accommodating his son in a building which belongs to him should be made possible atleast now when the landlord has reached the twilight stage of his life. Sri. Khalid was able to meet the submissions of Sri.Kauser in the context of the building let out to Sri.V.K.Mammu. However, when we asked a specific question to Sri.Khalid regarding the report of the Commissioner that building having door No.VIII/831 belongs to the landlord and is under the lock and key of the landlord, learned counsel had to confess that the said building belongs to the landlord. He further submitted that there are ever so many special reasons as to why the landlord prefers the petition schedule building for accommodating his son Ashraf. Sri.Khalid also pointed out that the landlord is getting only Rs. 500/- towards rent for the building and that it is very unlikely that the litigation which was instituted by the landlord for fixation of fair rent without prejudice to his rights to evict the tenant will be completed in the near future. He mentioned that the power of attorney holder of the tenant is making a fortune out of the petition schedule building while paying only a sum of Rs. 500/- to the RCR.No.194/08 9 landlord. 7. We have very anxiously considered the rival submissions addressed at the Bar in the light of the statutory provisions particularly the first proviso to Sub Section 3 of Section 11 and the judicial precedents pertaining to that proviso. We have gone through Ext.C1 Commissioner's report as well as the evidence of the parties in respect of building having door No. VIII/831. We feel that in the absence of special reasons justifying an order of eviction despite the landlord possessing building having door No.VIII/831, the order of eviction presently passed under Sub Section 3 of Section 11 cannot be sustained. But we agree with Sri.Khalid that the landlord did not get proper opportunity for showing that there are special reasons justifying passage of order of eviction despite possession of building having door No. VIII/831. Section 20(A) of the Rent Control Act gives ample power to the revisional court to remand the case to the appellate authority also rather than to the rent control court and under the statutory scheme, the appellate authority ( see section 23(1), 18(3) and Rule 16(2) of the Kerala Buildings (Lease and Rent Control) Rules, has RCR.No.194/08 10 got powers which are coterminous with that of the rent control court in deciding the issues. Considering the seniority of the landlord and the circumstance that the rent control petition was instituted way back in 2004, we are inclined to remand the rent control appeal to the rent control appellate authority after setting aside the order of eviction passed by the appellate authority. The result therefore is as follows: 8. The judgment of the appellate authority is set aside. The rent control appeal is remanded to the Rent Control Appellate Authority, Thalassery. That authority will permit the landlord to adduce further evidence in the case regarding special reasons which exist for justifying the order of eviction despite the landlord possessing building having door No. VIII/831. If evidence is adduced by the landlord, the tenant will be permitted to adduce counter evidence also. That authority will take fresh decision in the appeal after hearing both sides in the light of the evidence which has come on record. It is needless to mention that specific finding will be entered by the appellate authority regarding the applicability of the first proviso to Sub Section 3 of Section 11. RCR.No.194/08 11 We are convinced that the sum of Rs. 500/- which is presently being paid by the tenant to the landlord is far below the rent which the building will fetch if it is let out now. Tentatively, we re-fix the rent payable by the tenant at Rs. 1,000/- ( Rupees one thousand only). We make it clear that the above fixation is tentative and will be subject to the decision to be taken in the fair rent proceedings which are stated to be pending in appeal at the instance of the landlord. This order refixing the rent at Rs. 1,000/- will become operative only prospectively i.e. with effect from 01/04/2009. Considering the age of the rent control petition and the landlord, there will be a peremptory direction to the rent control appellate authority to complete the enquiry and pass revised judgment in the rent control appeal within six weeks of that court re-opening after mid-summer recess. Transmit the entire records forthwith. Rent Control Revision is allowed to the above extent. But in the circumstances, parties will suffer their costs. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE RCR.No.194/08 12 sv RCR.No.194/08 13