IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 RCRev..No. 259 of 2007() --------------------------------- RCA.9/2005 OF RENT CONTROL APPELLATE AUTHORITY(DISTRICT COURT), KALPETTA RCP.5/2002 OF RENT CONTROLLER(MUNSIFF MAGISTRATE), SULTHAN BATHERI .................... APPELLANT/RESPONDENT/PETITIONER: ---------------------------------------------------------- KOUSALYA, D/O KRISHNAN, "PREETHI NIVAS", KOTAKUNNU, SULTHAN BATHERY AMSOM DESOM, SULTHAN BATHERY TALUK. THROUGH P/A HOLDER, K.R.SUNIL KUMAR, S/O KOUSALYA, RESIDING AT "PREETHI NIVAS", KOTAKUNNU, SULTHAN BATHERY AMSOM DESOM, SULTHAN BATHERY TALUK. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE APPELLANTS/RESPONDENTS : ------------------------------------------ 1. V.V.DAYANANDAN, S/O KUNHUKUTTY, RESIDING AT ANANDA BHAVANAM, NEAR ST. MARTIN CHURCH, AMBALAVAYAL AMSOM DESOM, SULTHAN BATHERY TALUK. 2. THE PRESIDENT, NAVODAYA AYALKOOTTAM, NENMANI GRAMA PANCHAYATH KUNDUMBASREE, NAVODAYA VANITHA MESS, KOTTAKUNNU, SULTHAN BATHERY. 3. THE SECRETARY, NAVODAYA AYALKOOTTAM, NENMANI GRAMA PANCHAYATH KUNDUMBASREE, NAVODAYA VANITHA MESS, KOTTAKUNNU, SULTHAN BATHERY. ADV. SRI.T.A.RAMADASAN FOR R1 SRI.CIBI THOMAS FOR R2,3 SRI.CIBI THOMAS FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ln PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- R.C.R No.259 of 2007 -------------------------------------------------- Dated this the 30th day of November, 2011 O R D E R Pius C. Kuriakose, J Under challenge in this revision filed by the landlady is the judgment of the rent control appellate authority reversing the order of eviction which had been granted to her on the grounds of sub let and cessation of occupation. In fact the landlady had been issued with an order of eviction on the ground of Section 11 (2) (b) also and as we are told that the above order has been vacated under Section 11(2)(c), in this revision under Section 20 we need be concerned only the correctness of the appellate authority reversing the eviction order which had been passed on the ground of cessation of occupation under Section 11(4)(v) and sub letting under Section 11(4)(i). 2. We have heard the counsel for the revision petitioner and Sri.Cibi Thomas the counsel for the respondent in extenso. We shall firstly deal with the judgment of the appellate authority reversing the order of eviction which had been passed by the R.C.R No.259 of 2007 2 Rent Control Court on the ground of subletting. On going through the above judgment we find that it is on the reason that the statutory intimation notice as contemplated by the proviso to Section 11(4)(i) had not been issued to the tenant before instituting the eviction petition that the learned appellate authority interfered with the order of eviction. As issuance of the statutory intimation notice giving opportunity to the tenant to terminate the sub lease is mandatory except in cases where eviction is sought on the ground of subletting for the second time, the learned appellate authority's view cannot be faulted. We sustain the judgment of the appellate authority regarding the ground under Section 11(4)(i). 3. The learned counsel for the revision petitioner gave more thrust in his submission to the ground of cessation of occupation. It was submitted that it is clearly admitted by the tenant through the statement of objections filed by him as well as through the evidence which he gave as RW1, that during a period of more than six months continuously, he had closed down the business. He had no consistent case as to the reason for closing down the business. In the evidence he would say it is due to health reasons, whereas in the pleadings he says that it is due R.C.R No.259 of 2007 3 to financial constraints. In either case the reasons stated by him is not a sufficient reason. The counsel also pointed out that the statute requires only cessation of occupation for continuous period of six months without reasonable cause. The statue does not insist that the cessation should continue till the date of commencement of the rent control petition. The view taken by the appellate authority in that regard though the same is founded upon certain decisions of this Court is incorrect According to the counsel those decisions require reconsideration. The counsel also submitted that the monthly rent of Rs.500/- fixed in 1983 is ridiculously low. Mr.Cibi Thomas Counsel for the respondent would oppose all the submissions of the revision petitioner. According to him there is no illegality, irregularity and impropriety about the judgment of the learned appellate authority warranting interference in this revision. 4. We have given our anxious consideration to the submissions addressed by the learned counsel in relation to the context of ground under Section 11(4)(v). The question whether the cessation should continue till the date of institution of the rent control petition and the question whether the eviction order under Section 11(4)(v) can be averted by a tenant who re- R.C.R No.259 of 2007 4 occupies the building after having ceased to occupy the same continuously without reasonable cause for more than six months just prior to the commencement of the rent control petition is a moot of question. But we are not inclined to interfere with the judgment of the appellate authority for that reason because we find that the appellate authority has noticed that there were no sufficient pleadings from the part of the landlord regarding the existence of the eviction ground under Section 11(4)(v). The landlord had not pleaded in so many words that the tenant has ceased to occupy the building continuously for more than six months without reasonable cause. The pleadings raised by the landlord did not disclose the existence of the statutory ground. We are not persuaded to feel that the judgment of the appellate authority in the context of ground under Section 11(4)(v) warrants interference within the attenuated jurisdiction of this Court under Section 20. 5. However, we are in agreement with the learned counsel for the petitioner that the monthly rent of Rs.500/- being paid by the petitioner is ridiculously low. We re-fix the monthly rent at Rs.2,000/- per mensem with effect from 1.1.2012. It is open to either party to approach the Rent Control Court under R.C.R No.259 of 2007 5 Section 5 for regular fixation of fair rent. Till fair rent is fixed regularly the respondent shall pay to the revision petitioner monthly rent at the rate of Rs.2,000/- per mensem. We also make it clear that even though we have sustained the judgment of the appellate authority, we make it clear that it is open to the revision petitioner to seek eviction on the grounds of sub letting and any other the ground available to him now, by initiating fresh proceedings. When fresh proceedings are initiated, the statutory authorities should take decision in such perspective pleadings without being influenced by our present judgment confirming the judgment of the appellate authority. PIUS C. KURIAKOSE JUDGE K.HARILAL JUDGE ab