IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 RCRev..No. 183 of 2008(E) ------------------------ AGAINST JUDGMENT DATED 04/02/2008 IN RCA NO.38/2001 ON THE FILE OF THE DISTRICT COURT, KOLLAM RCP NO.6/1995 OF RENT CONTROL COURT, PUNALUR REVISION PETITIONER -------------------- ANIYAN THOMAS, AGED 45 YEARS, S/O.T.G.THOMAS ,JAYASREE BHAVAN NADUKUNNU MURI, PATHANAMPUAM VILLAGE. BY ADV. SRI.JOHNSON MANAYANI RESPONDENT(S): --------------- 1. SYYAD HUSSAIN ATTUMPURA THEKKETHIL VEEDU PATHIRIKKAL MURI, PATHANAPURAM VILLAGE 2. SHAJAHAN ATTUMPURA THEKKETHIL VEEDU PATHIRIKKAL MURI, PATHANAPURAM VILLAGE 3. NABEEL ATTUMPURA THEKKETHIL VEEDU PATHIRIKKAL MURI, PATHANAPURAM VILLAGE 4. SABU THOMAS,JAYASREE BHAVAN NADUKUNNU MURI, PATHANAMPUAM VILLAGE. 5. PRASAD THOMAS, JAYASREE BHAVAN NADUKUNNU MURI, PATHANAMPUAM VILLAGE. 6. PONNAMMA ABRAHAM, JAYASREE BHAVAN NADUKUNNU MURI, PATHANAMPUAM VILLAGE. 7. SOOSI SAM JOHN, JAYASREE BHAVAN NADUKUNNU MURI, PATHANAMPUAM VILLAGE. NOW AT AHAMMED RAMADAN, KAMA EAST, PB NO. 2574 DUBAI, UAE 8. LIZY @ ELIZABETH THOMAS KALLOOR PUTHEN VEEDU, KADAMINITTA PO PATHANAMTHITTA TALUK RCRev..No. 183 of 2008(E) 9. GRACY THOMAS, KONNAYIL VEEDU KANNANCODE, ADOOR, FROM JAYASREE BHAVAN PATHANAMTHITTA VILLAGE. 10.MANI @ RACHAL THOMAS, TEACHER C 10,HIGH SCHOOL, EDAVANNA PO,MALAPPURAM FROM JAYASREE BHAVAN,NOW RESIDING AT CHENNOTHEMOLIL HOUSE, CHEMBAKATHU EDAVANNA PO MALAPPURAM DISTRICT 11.GEORGE KIZHAKKE VEEDU, NADUKUNNU PATHANAPURAM, FROM KIZHAKKE VEEDU, KIZHAKKE THERUVU, KOTTARAKKARA TALUK. ADV. SRI.R.RAJASEKHARAN PILLAI FOR R1 SMT.SABINA JAYAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1708/2008 IN R.C.R No.183/2008 CLOSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 23/10/2008 \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.C.R.No.183/2008-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of October, 2008. ORDER Raman, J. The tenant is the revision petitioner, who is faced with an order of eviction passed both under Sections 11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short, 'the Act', passed by the appellate authority. Earlier, the landlord sought eviction both under Sections 11(3) and 11(4)(iv) of the Act. The Rent Control Court found in favour of the petitioners on the ground of bona fide need. It also made reference to the plea raised under Section 11(4)(iv) of the Act. So, however, it was not specifically ordered by the Rent Control Court that eviction is given both under Sections 11(3) and 11(4)(iv) of the Act, though indications were there to that effect. The tenant filed an appeal. The appellate authority, while confirming the order of the Rent Control Court made it clear that the order of eviction is passed both under Sections 11(3) and 11 (4)(iv) of the Act. Hence, this revision. R.C.R.No.183/2008 -:2:- 2. We heard the learned counsel Sri.Johnson Manayani appearing on behalf of the petitioner as also the learned counsel Sri.Rajasekharan Pillai appearing on behalf of the first respondent/caveator. 3. It was contended by the counsel appearing for the revision petitioner that in so far as no appeal is preferred by the landlord against the order passed by the Rent Control Court, and the Rent Control Court having ordered eviction only under Section 11(3) of the Act, the appellate court ought not have passed an order of eviction under Section 11(4)(iv) of the Act. According to him, in the absence of any appeal being filed by the landlord, the finding of Section 11(4)(iv) of the Act has become final and, if at all the order of eviction as ordered by the Rent Control Court under Section 11(3) of the Act alone could be confirmed. He has a further contention that the order of eviction passed under Section 11(3) of the Act is not sustainable in so far as the landlord has not mounted the box but only the Power of Attorney Holder. In support he relies on the decision in Joseph Mathew v. Jose Thomas [2005 (4) KLT 764 (SC)]. 4. The learned counsel appearing for the landlord on the other hand submits that it is not an invariable rule that the landlord should always be examined. It is sufficient if there is acceptable evidence to prove the R.C.R.No.183/2008 -:3:- bona fide need. Reliance is placed on the decision in C.Karunakaran (dead) by Lrs. v. T.Meenakshi [(2005) 13 SCC 99]. 5. However, after arguing the matter by both sides, the learned counsel for the landlord sought to withdraw his contentions under Section 11(3) of the Act and submitted that he will be satisfied if an order of eviction is confirmed under Section 11(4)(iv) of the Act. 6. The learned counsel appearing for the petitioner, sought time to get instructions on the offer so made. 7. Accordingly, we adjourned this matter to today. It was submitted that his client is also prepared to accept that offer. Accordingly, as agreed, the order of eviction under Section 11(3) of the Act is set aside. Order of eviction under Section 11(4)(iv) of the Act is sustained. The tenant will be entitled to the protection envisaged under Section 11(4)(iv) of the Act. The order of eviction under Section 11(4)(iv) of the Act is subject to further conditions as follows:- 1. The landlord shall submit an approved plan before taking actual delivery of the property. 2. The tenant is given two months time from today to give vacant possession of the property and he shall give undertaking to the court R.C.R.No.183/2008 -:4:- below within three weeks agreeing to give vacant possession on or before the expiry of the said period subject to his right to be re- inducted and subject to the conditions as above. 3. If there is any arrears of rent as on today, the entire arrears shall be cleared within a period of three weeks and also deposit the rent for the two months period. 4. Building shall be re-constructed within a period of 18 months from the date of taking the possession of the property. The R.C.R is disposed of as above. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.) ms