IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 RCRev..No. 260 of 2007() ------------------------ RCA.28/2005 of ADDL. DISTRICT COURT, PARAVUR RCP.19/2004 of MUNSIFF COURT,ALUVA .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- A.A.CECIL JOHN, S/O.ARAKAL ANTONY, LITR ARTS, VI/234,ACM BUILDINGS, TEMPLE ROAD,BANK JUNCTION, ALUVA. BY ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR RESPONDENT(S): APPELLANT/ADDITIONAL 2ND PETITIONER, --------------------------------------------------- K.C.BALAGOPAL, S/O. CHANDRASEKHARA MENON C-GARDENSIL, THOTTAKKATTUKARA, ALUVA WEST VILLAGE, ALUVA-683 108. ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/06/2009 ALONG WITH RCR NO. 287 OF 2007 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R .Nos.260 & 287 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of June, 2009 ORDER Barkath Ali, J. Both these revision petitions are under Section 20 of the Kerala Buildings ( Lease and Rent Control) Act 1965. The revision petitioner in R.C.R.No.260/07 is the tenant. R.C.R.No.287/2007 is by the landlord. 2. The deceased father of the petitioner in R.C.R.No.287/07 filed R.C.P.No.19/04 before the Rent Control Court, Aluva seeking eviction under Sections 11(2)(b),11(4)(iv) and 11(4)(v) of the Act on the ground that there are arrears of rent, that the landlord bonafide requires the building for reconstruction and that the tenant ceased to occupy the premises for more than six months without reasonable cause immediately prior to the filing of the rent control petition. The Rent Control Court dismissed the rent control petition holding that there are no arrears of rent, that the landlord did not produce the plan and licence for reconstruction of the building, that the landlord failed to prove that RCR.Nos.260/07 & 287/07 2 the tenant has ceased to occupy the premises continuously for a period of six months immediately prior to the filing of the Rent Control Petition. On appeal by the landlord, the Appellate Authority ( Additional District Judge, North Paravur) confirmed the findings of the Rent Control Court regarding the rejection of the claim for reconstruction, but found that there is arrears of rent and that the tenant has ceased to occupy the premises and ordered eviction under Section 11(2)(b) and 11(4)(v) of the Act. Challenging the said judgment and decree of the Appellate Authority, the tenant filed R.C.R.No.260/2007. The landlord filed R.C.R.No.287/2007 challenging the findings of the Rent Control Court and the Appellate Authority regarding the rejection of the claim for eviction for reconstruction. 3. Before the Rent Control Court, PWs 1 to 6 were examined, Exts. A1 to A10 were marked on the side of the landlord. The tenant got himself examined as RW1 and produced Exts.B1 to B9. Commissioner's report and sketch were marked as Exts.C1 and C1(a) respectively. Ext.X1 was also marked. As both these revisions arise out of the same judgment and decree of the Appellate Authority, these RCR.Nos.260/07 & 287/07 3 revisions are disposed of by a common judgment. 4. R.C.R.No.260/2007 - We shall first consider this revision filed by the tenant. Initially the Rent Control Petition was filed by the landlord Sri.K.A.Chandrasekhara Menon through his power of attorney holder and his son Sri.K.C.Balagopal. Subsequently Sri.Chandrasekhara Menon died and therefore his son was impleaded in the rent control petition as supplemental second petitioner. He claimed exclusive right over the building in question under Ext.A1 will (Certified copy) executed by his father and claimed to be the present landlord. As the tenant disputed the will, the landlord examined PW6, one of the attestors to the will. The Rent Control Court found that the will in question is not properly proved and that other legal heirs of the deceased first petitioner in the rent control petition have not been impleaded as parties in the rent control petition, that therefore the revision petitioner who is the second petitioner in the rent control petition has no locus standi to prosecute the petition after the death of the original landlord. The Appellate Authority reversed the findings of the trial court and found that even if the will is not RCR.Nos.260/07 & 287/07 4 proved, as the revision petitioner is one of the co-owners, he is entitled to continue the proceedings after the death of his father, the original petitioner in the rent control petition. The said finding of the Appellate Authority has not been challenged in this revision by the tenant. That being so, the above finding of the Appellate Authority that the present revision petitioner ( herein after referred to as the landlord) is entitled to continue the rent control proceedings on the death of his father is hereby confirmed. 5. The main point arises in the revision is whether the finding of the Rent Control Appellate Authority ordering eviction under Section 11(4)(v) of the Act that the tenant has ceased to occupy the premises in question continuously for a period of six months immediately prior to the filing of the Rent Control Petition can be sustained. The Rent Control Court rejected the plea of the landlord on this aspect as the Commissioner at the time of inspection found that the tenant is conducting his activities therein. Sri.T.K.Unnithan, learned counsel for the revision petitioner argued that the Commissioner who inspected the premises found that the tenant was conducting his RCR.Nos.260/07 & 287/07 5 activities therein and that therefore the Appellate Authority was not correct in holding that the tenant was not in occupation of the said room. We are of the view that the finding of the Appellate Authority on this point cannot be sustained. We have gone through the report of the Commissioner- Ext.C1 and the impugned judgment of the Appellate Authority. The Appellate Authority mainly relied on the fact that the Commissioner found no fan or electric light therein and that the phone bill for the relevant period was not produced and that the Commissioner found the materials kept therein covered by dust. But we are of the view that as the Commissioner found the tenant conducting his activities in the said shop room at the time of inspection of the premises, it cannot be said that he has ceased to occupy the said room. Therefore, in our opinion, the finding of the Appellate Authority on this point cannot be sustained and the same is liable to be set aside. Therefore, we find that the landlord is not entitled to have an order of eviction under Section 11(4)(v) of the Act. That being so, the revision petition has to be allowed. 6. R.C.R.No.287/07 - Next we shall consider this revision RCR.Nos.260/07 & 287/07 6 filed by the landlord. In this revision, the landlord mainly challenges the finding of the Rent Control Court which is confirmed by the Appellate Authority that the landlord has failed to prove that he bonafide requires the petition schedule room for reconstruction and the rejection of his claim for eviction under Section 11(4)(iv) of the Act. The Rent Control Court rejected the claim of the landlord on this aspect mainly on the ground that the petition schedule room is a part of a main building, that therefore it is not possible to demolish a part of the building and reconstruct the same and also that the necessary plan and permit have not been produced by the landlord. The Appellate Authority has also confirmed the said finding of the Rent Control Court. 7. Sri.Dinesh.R.Shenoy, learned counsel for the revision petitioner pointed out that actually the landlord has produced the plan and permit for reconstruction of the building before the Appellate Authority as I.A.No.684/06, that the Appellate Authority has failed to pass any orders on the same and that therefore the Appellate Authority is erred in finding that the landlord has not proved that he bonafide RCR.Nos.260/07 & 287/07 7 requires the petition schedule building for reconstruction. We find considerable force in the above argument advanced by Sri.Dinesh.R.Shenoy, counsel for the revision petitioner/landlord. On verifying the records, it is seen that the landlord has produced the plan and permit of the Municipality as I.A.No.684/06, but the Appellate Authority did not pass any orders on it. We therefore allow this revision and remand the Rent Control Appeal to the Appellate Authority for considering afresh whether the landlord bonafide requires the petition schedule building for reconstruction. Both sides will be permitted to adduce further evidence on this point before the Appellate Authority and the landlord is also permitted to prove that he has the ability to rebuild. 8. In the result, R.C.R.No.260/2007 is allowed. The finding of the Appellate Authority that the tenant has ceased to occupy the premises continuously for a period of six months without reasonable cause and ordering eviction under Section 11(4)(v) of the Act is set aside and we hold that the landlord is not entitled to an order of eviction under Section 11(4)(v) of the Act. RCR.Nos.260/07 & 287/07 8 R.C.R.No.287/2007 is allowed in part. The finding of the Rent Control Court that the landlord is not entitled to eviction under Section 11(4)(iv) of the Act, i.e. bonafide requirement of the landlord for reconstruction which is confirmed by the Appellate Authority is set aside. The Rent Control Appeal is remanded to the Appellate Authority to consider the said question afresh according to law and after giving both sides an opportunity to adduce evidence. The Appellate Authority shall receive in evidence the plan and permit produced by the landlord. The Appellate Authority shall dispose of the Rent Control Appeal as early as possible, but not later than six months from the date of receipt of the copy of this order. In the circumstances, both the parties shall suffer their own costs. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.Nos.260/07 & 287/07 9