IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 RCRev..No. 8 of 2007() ---------------------- RCA.172/1998 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.220/1997 OF RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER (RESPONDENT/PETITIONER) --------------------------------------------------------------- N.KATHEEM, S/O.SAVAN, 'RAHIYA MANZIL', CHUNGAM, PAPPINISSERI, KANNUR.(DIED) ADDL. PETITIONERS: 2. RABIYA.K. D/O N.KATHEEM, “RABIYA MANZIL” CHUNGAM, PAPPINISSERY, KANNUR. 3. SABIRA.K. D/O N.KATHEEM, DO. 4. NOUSHAD K. S/O N.KATHEEM, -DO- 5. SHABEEB K. S/O N.KATHEEM, -DO- WHO ARE THE LEGAL HEIRS OF THE DECEASED SOLE REVISION PETITIONER IMPLEADED AS SUPPLEMENTAL REVISION PETITIONERS 2 TO 5 VIDE ORDER DT. 17-10-2008 IN IA. 2326/08. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT: APPELLANT/RESPONDENT ----------------------------------- C.K.LAKSHMANAN, S/O.KUMARAN, BUILDING NO.671, MILL ROAD, VALAPATTANAM, KANNUR. ADV. SRI.P.M.PAREETH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------------------- RCR. No. 8 of 2007 ----------------------------------------------- Dated this the 22nd day of March, 2011 O R D E R Pius C.Kuriakose, J. This revision under Section 20 was filed by the landlord and on his demise, is being pursued by the additional revision petitioners, his legal heirs. The landlord filed petition for eviction on the grounds of arrears of rent, bona fide need for own occupation and the ground that the tenant is in possession of another building reasonably sufficient for his requirements in the same city, town or village (the grounds under Section 11(2)(b), 11(3) and 11 (4)(iii) respectively). The Rent Control Court ordered eviction on the ground of bona fide need for own occupation and the ground that the tenant is in possession of another building. However, considering appeal RCA No. 172 of 1998 filed by the tenant the Rent Control Appellate Authority vacated the order of eviction passed under Section 11(3), while confirming the order of eviction passed RCR.8/07 -2- under Section 11(4)(iii). In this revision filed by the landlord we have to be concerned only with the ground of eviction under sub-section (3) of Section 11. 2. The need projected under Section 11(3) by the landlord was that he is a Gulf returnee, who has a large family to be supported by him. He is presently unemployed and without any regular source of income. He needs the building for starting a provision store and the building is quite suitable for starting the proposed provision store. The bonafides of the above need was disputed by the tenant who contended that he is entitled for the protection of the second proviso to sub-section (3) of Section 11. It was contended that the petition schedule room is too small to accommodate a provision store. It was also contended that the landlord has other rooms in his RCR.8/07 -3- possession. In the enquiry conducted by the Rent Control Court the evidence consisted of Exts. A1 to A3 and the oral evidence of PW-1 and that of RW-1. On evaluating the evidence, the Rent Control Court concluded that the need projected by the landlord is bona fide. However, coming to the question of the tenant's eligibility for the benefit of the second proviso, it was held that the tenant was unsuccessful in proving that he is entitled for the protection of the second proviso. Accordingly, it was held that eviction order was liable to be passed under Section 11(3) and hence the Rent Control Court ordered eviction under Section 11(3) against the tenant. The Rent Control Appellate Authority however, on a reappraisal of the evidence would come to the conclusion that the need projected by the landlord is not bona fide. Nevertheless, the finding that RCR.8/07 -4- the tenant is not entitled for the protection of the second proviso was confirmed. In the result, the order of eviction passed under Section 11(3) was vacated by the learned Appellate Authority. 3. In this revision, various grounds are raised assailing the judgment of the Appellate Authority under Section 11(3). Sri. T. Sethumadhavan, learned counsel for the revision petitioner addressed strenuous arguments based on those grounds. All the submissions of Mr. Sethumadhavan were resisted by Sri. P.M. Pareeth, learned counsel for the tenant. According to us, the subsequent event of the original landlord passing away has considerable impact on the liability of the respondent tenant to be evicted on the ground of sub-section (3) of Section 11. It is seen that many of the additional revision petitioners, the legal heirs of the original landlord RCR.8/07 -5- who have now come on record, are persons who have apparently other sources of income. Whether they collectively or any one of them individually needs possession of the petition schedule building for conducting the provision store which was proposed by their father, is a matter which cannot be decided on the basis of the evidence presently available on record. The learned counsel for the revision petitioners requested that the matter be remanded to the Rent Control Court. We feel that on considerations of convenience of the court and parties it is better to permit the petitioners to go in for a fresh rent control petition, so that the Rent Control Court can take decision in the rent control petition without being influenced by the findings entered in the present proceedings. The result of the above discussion is as follows: RCR.8/07 -6- 4. We dispose of the RCR permitting the additional revision petitioners to initiate a fresh rent control petition on the ground under sub- section (3) of Section 11 and any other grounds which are available to them. If fresh RCP is instituted within one month of the court reopening after mid-summer vacation, the learned Rent Control Court will enquire into the same and take a decision without being influenced by the findings entered in the impugned judgment regarding the bonafides of the claim. The Rent Control Court will give top priority and make every endeavour to ensure that the RCP is disposed of within the statutory time frame. We re-fix the rent payable by the respondent at Rs.250/- per mensem with effect from 1-4-2011. This re-fixation is tentative and it is open to either party to move the Rent Control Court by appropriate petitions under RCR.8/07 -7- Section 5 for fixation of fair rent. Till fair rent is regularly fixed, the respondent shall pay the rent at the rate of Rs.250/- per mensem (PIUS C.KURIAKOSE, JUDGE) (N.K. BALAKRISHNAN, JUDGE) ksv/-