## IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN
WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932
RCRev..No. 144 of 2009(C) -----------------------------RCA.42/2004 of DISTRICT C COURT,KOLLAM RCOP.2/2001 of MUNSIFF COURT, KARUNAGAPPALLY
## PETITIONER/APPELLANT/PETITIONER
1. E.ABDUL SAMAD,ANCHAKKARANTAYYATHU VEEDU, PAIKUZHI MURI,OACHIRA.
2. V.KHADEEJA KUNJU,ANCHAKKARANTAYYATHU VEEDU,PAIKUZHI MURI,OACHIRA.
BY ADV. SRI.K.GOPALAKRISHNA KURUP
## RESPONDENT(S)/RESPONDENT/COUNTER PETITIONER
YUSUF KUNJU,JAJAS MANZIL,MEMANA,OACHIRA.
- ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 SRI.T.RAMPRASAD UNNI FOR R1 SRI.J.R.PREM NAVAZ FOR R1
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/12/2010, THE COURT ON THE SAME DAY PASSED THE
PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ.
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R. C. R. No.144 of 2009 -----------------------------------------------Dated this the 8[th] day of December, 2010
## **ORDER**
## _Pius C. Kuriakose, J_
Under challenge in this revision filed under Section 20 of Act 2 of 1965 by the landlords is the judgment of the Rent Control Appellate Authority, Kollam confirming the order of the Rent Control Court declining eviction on the grounds under sub Section 3 of Section 11 and also the ground under clause 3 of sub Section 4 of Section 11. The revision petitioners are son and mother respectively. The need projected by the landlords was that the first revision petitioner/son wants to conduct stationary business in the petition
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schedule building. The defence of the tenant was that the claim is not maintainable as in the year 1995, the landlords had instituted RCP No.9/95 urging the very same ground and did not prosecute that RCP. It was also contended that the need is not bona fide. It was further contended that at any rate, the tenants are entitled to the protection of the second proviso to sub Section 3 of Section 11. The landlord had not quoted Section 11(4)(iii) in the Rent Control Petition. However, in paragraph 8 of the Rent Control Petition it was clearly averred that the tenant had constructed two shop rooms and that those shop rooms are quite suitable for accommodating the hardware business which the
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tenant is conducting in the petition schedule building. The tenants' answer to the above ground urged in paragraph 8 was that the two rooms though possessed by the tenant are situated in a remote area of the village, they are not suitable for conducting the business which the tenant is conducting in the petition schedule building. In the enquiry conducted by the Rent Control Court, the parties gave evidence respectively as PWs.1 and RW1. The documentary evidence consisted of Exts.B1 and B2 and Ext.C1 Commission Report. The Rent Control Court on appreciating the evidence took the view that the non-prosecution of RCP.9/95 was fatal to the landlords' claim for eviction under Section 11(3). That court also
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noticed that the first revision petitioner was conducting a chicken stall in another building situated not far away from the petition schedule building. This according to the learned Rent Control Court amounts to suppression of a material fact. That court however found that the tenant was unsuccessful in proving that he is entitled for the protection of second proviso to sub Section 3 of Section 11. This finding was entered mostly on the basis of the admitted position that the tenant had constructed two buildings. The Rent Control Court did not discuss the ground under Section 11(4)(iii) for the obvious reason that the same had not been specifically invoked by quoting the section. In the result, the Rent Control
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Court dismissed the RCP.
2. The Appellate Authority considered the appeal preferred by the landlords. The Appellate Authority would practically endorse all the findings of the Rent Control Court and confirm the order declining eviction under Section 11(3). That Authority also agreed with the Rent Control Court that the tenants are not entitled for the protection of the second proviso to sub Section 3 of Section 11. Coming to the landlords plea for eviction under Section 11(4)(iii), the learned Appellate Authority noticed that no specific grounds have been invoked in the Rent Control Appeal and for that reason, the learned Appellate Authority did not consider the plea of the landlord. The appeal
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was dismissed.
3. In this revision under Section 20, the landlord have raised various grounds assailing the judgment of the Appellate Authority. Sri.K.Gopalakrishna Kurup, the learned senior counsel for the revision petitioners addressed very strenuous arguments before us based on all those grounds. All the submissions of Sri.Gopalakrishna Kurup were resisted by the learned counsel for the respondent who supported the impugned judgment of the Appellate Authority. According to the learned counsel for the respondent, when the findings entered by the two statutory authorities are concurrent and when they are founded on evidence this Court will not be justified in
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upsetting those findings making a re-appreciation of the evidence. We have anxiously considered the rival submissions addressed at the Bar. We have scanned the judgment of the Appellate Authority and we have gone through the order of the Rent Control Court. As desired by the counsel on either side, we have made a quick survey of the evidence also.
4. We shall first deal with the finding concurrently entered by the Rent Control Court and the Appellate Authority that the tenant is not entitled for the protection of the second proviso to sub Section 3 of Section 11. It is very clear to our mind that there is no infirmity, illegality, irregularity or impropriety about that finding. We
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confirm that finding straight away.
5. It is seen that the statutory authorities declined the order of eviction sought under Section 11(3) mainly on the reason that the landlord did not prosecute the RCP.9/95. The above reason in our opinion is not sound enough to decline the order of eviction under Section 11 (3). The principles of res judicata as enshrined in Section 11 of the Code of Civil Procedure or even the general principles of res judicata as understood in civil law are not applicable to Rent Control Proceedings. It is Section 15 which incorporates the principles to a certain extent to proceedings under the Rent Control Act. It is very clear to our mind that the present RCP filed six
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years after the earlier RCP is not liable to be rejected. Interestingly, the Rent Control Court never rejected the RCP applying Section 15. We hold that the Rent Control Petition was liable to be considered on merits and was not liable to be rejected under Section 15. Another reason stated by the statutory authorities for non-suiting the landlords under Section 11(3) is that under Ext.B1 partition deed, three rooms stood alloted to the first petitioner and his brothers and no special reasons have been pleaded or proved. It was also noticed by the authorities that the first revision petitioner conceded in the evidence that at the time of commencement of the RCP, he was having actual possession of those rooms. This according
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to the learned Rent Control Court amounts to suppression of material fact. This according to us, cannot be a valid reason in view of the principles laid down by a Division Bench of this Court in _Asher v. Hassankutty Hajee (2004(2) KLT 446)_ . Ext.B1 will show that the first revision petitioner is not an absolute owner but is only a co-owner along with his brothers. Yet another reason on the basis of which the claim under Section 11(3) was turned down is that the first revision petitioner was conducting chicken stall and this was not disclosed. The version of the landlord in evidence was that he stopped the chicken stall one year prior to commencement of the RCP. The learned Rent Control Court, however, did not accept the
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landlords version but preferred the version of RW2 that he had purchased chicken from the stall conducted by the first revision petitioner. We feel that it was not proper on the part of the Rent Control Court and the Appellate Authority to have relied solely on the oral version of RW2 to hold that the first revision petitioner was conducting chicken stall at the relevant time. According to us, the matter requires further enquiry and reconsideration. We strongly feel that the findings though concurrently entered by the statutory authorities that the need is not bona fide are not proper. However, we are not inclined to decide the issue finally. The same is the position as regards the ground under Section 11(4)(iii). It is clear on
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a reading of the rival pleadings that no prejudice has been occasioned to the tenants by the landlords not quoting Section 11(4)(iii) in their RCP. The non-raising of a specific ground in the RCA regarding Section 11(4)(iii) was certainly an omission. But the question is whether a tenant who is legally liable to be evicted on the ground under Section 11(4)(iii) should be allowed to benefit out of that omission. The legislative principle underlying Section 11(4)(iii) is that in a situation where there is acute accommodation shortage, landlord like tenants who are in possession of more buildings than necessary for their requirements should not be allowed to cling on to buildings taken by them on lease, so that
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those buildings can be made available either to a needy landlord or to other more needy tenants. Keeping in mind that legislative principle, we feel that the Rent Control Court should be directed to re-consider the issue under Section 11(4)(iii) also.
6. We notice another aspect of the matter. The monthly rent of Rs.500/- being paid by the respondent for the building situated in an important area in which the tenant is conducting hardware business was fixed more than two decades ago. According to us, the rent is far below the rent which the building will fetch if the same is let out today. We are inclined to re-fix the rent at Rs.2,500/- with effect from 01/01/11. This refixation is tentative and will be subject to regular
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fixation of fair rent at the instance of either party by the Rent Control Court.
7. The result of the above discussion is as follows:-
The impugned judgment as well as the order of the Rent Control Court are set aside. RCP is remanded to the Rent Control Court for taking a fresh decision under Section 11(3) as well as under Section 11(4)(iii). The finding that the tenant is not entitled to the protection of the second proviso to sub Section 3 of Section 11 is confirmed. The Rent Control Court will afford opportunity to both sides to adduce further evidence and will take a decision after hearing both sides on the basis of the evidence already on
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record and the evidence which comes to be on record. The rent payable by the respondent is fixed tentatively with effect from 01/01/11 at Rs.2,500/- per mensem. It is open to either party to move the Rent Control Court for regular fixation of fair rent. Parties will enter appearance before the Rent Control Court, Karunagappally on 23/12/10. Transmit the lower court records forthwith.
PIUS C. KURIAKOSE JUDGE
P. S. GOPINATHAN JUDGE
kns/-
