K. P. Vijayan v. K. T. Muhammed

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 RCRev..No. 150 of 2011() -----------------------RCA.175/2005 of ADDL. DISTRICT COURT, THALASSERY RCP.23/2004 of MUNSIFF COURT, THALASSERY .................... ## REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ K.P.VIJAYAN, S/O.KANNAN, KUNDAPILAKKOOL, PERINGALAM AMSOM DESOM, P.O.PANOOR, THALASSERY TALUK. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ K.T.MUHAMMED, S/O.KUNHIMOOSA, AGED 44 YEARS, RESIDING AT 'MABEETH', PANOOR AMSOM DESOM, THALASERY TALUK. ADV. SRI.C.KHALID FOR R1 SRI.T.P.SAJID FOR R1 THIS RENT CONTROL REVISION HAVE COME UP FOR ADMISSION ON 14/12/2011, ALONG WITH RCR NO. 153 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & K. HARILAL,JJ.** .................................................................... R.C.R.NOs.150 & 153 OF 2011 ................................................................... Dated this the 14[th] day of December, 2011. ## **JUDGMENT** ## **Pius C. Kuriakose, J.** Under challenge in these revisions by the tenant is an order of remand passed by the Rent Control Appellate Authority. The rent control court and the appellate authority held concurrently that the need projected by the respondent/landlord to accommodate his niece is bonafide and that the niece, who is computer literate and holds the MCA degree, can start computer job works and coaching centre in the petition schedule building. The niece was examined for proving the need. The evidence inspired the rent control court and the appellate authority. The rent control court held that the need is bonafide and that the tenant was unsuccessful in proving the two ingredients of the second proviso. However the order of eviction was declined on the basis of Ext.B5 - a document produced by the tenant. Ext.B5 was to the effect that the landlord was in vacant possession of a building. Before the rent control R.C.R.NOs.150 & 153 OF 2011 : 2 : appellate authority, the landlord produced a certified copy of the assessment register pertaining to the building covered by Ext.B5, but pertaining to a longer period of time (1993– 2005). The documents produced by the landlord showed that the building which is the subject matter of Ext.B5 is in the possession of a tenant by name Krishnan. The learned appellate authority thought that the issue whether the rent control petition is liable to be rejected due to the operation of the first proviso should be reconsidered by the rent control court in the light of Ext.B5 and the document produced by the landlord before the appellate authority. Accordingly the order of the rent control court dismissing the RCP was set aside and the RCP was remanded to the rent control court for a fresh decision on the question whether the first proviso to subsection (3) of Section 11 will operate. 2. We have heard the submissions of Sri. Gracious Kuriakose – learned counsel for the revision petitioner and Sri. T.P. Sajid. Sri. Gracious even though addressed submissions on various grounds raised in the RCR, he would ultimately confine his request for making the order of R.C.R.NOs.150 & 153 OF 2011 : 3 : remand passed by the appellate authority an open one. The request is that the rent control court be directed to take a fresh decision on all the issues including the issue of the bonafide's of the need, operation of the first proviso and tenant’s eligibility for protection of the second proviso. Sri. Gracious submitted that PW1 - the niece for whose the building is sought to be vacated has secured a permanent employment in a College in Vadakara. He further submitted that the niece’s mother has constructed a commercial building at Panoor. He also submitted that the niece’s husband's family have acquired possession of other buildings at Vadakara. According to Sri. Gracious, these are all subsequent events which have a fundamental impact on the respondent’s right to evict the revision petitioner. The rent control court should be directed to consider the implications of these subsequent events. 3. Sri. T.P.Sajid the learned counsel for the respondent per contra would oppose the submissions of Sri. Gracious. He rely upon the judgments of this Court in **Ganesh v. Varghese** (2005 (1) KLT 282), **Choyi v. Amoo** (1990 (2) KLT R.C.R.NOs.150 & 153 OF 2011 : 4 : 282) and **Kunhammed Koya v. Nallalam Saw Mills** (2010 (4) KLT 79). With particular reference to the judgment in **Kunhammed Koya’s** case Sri. Sajid submitted that under the scheme of the Act and the Rules, the power of the rent control court and the appellate authority in the matter of adduction of evidence are co-equal. He argued on the basis of **Ganesh’s case** that even without preferring a memorandum of cross objection, it is open to the landlord to challenge the order of remand when it is challenged by the tenant. 4. We have given our anxious consideration to the rival submissions addressed at the bar. According to us, the finding concurrently entered by the rent control court and the appellate authority that the revision petitioner is not entitled for the benefit of second proviso to subsection (3) of Section 11 is a correct finding on evidence. The above finding does not warrant interference. We confirm that finding. Then we come to the question whether the finding concurrently entered by the two statutory authorities that the need projected by the respondent under subsection (3) of R.C.R.NOs.150 & 153 OF 2011 : 5 : Section 11 to accommodate his niece is a bonafide one. We do not find any infirmity about that finding. But at the same time we feel that if two of the several subsequent events highlighted before us by Sri. Gracious are true, those events can have effect on the respondent's right to evict the revision petitioner. The first of the subsequent events, the implications and corrections of which should be considered by the rent control court pursuant to the order of remand presently passed, is the alleged event of PW1 securing a permanent employment in a College near Vadakara. The other event is PW1's mother putting up a commercial building in Panoor which is said to be ideal for the commencement of the venture proposed by PW1 to be conducted in the petition schedule building. According to us, as the rent control petition is going back to the rent control court the truth and implications of the above two subsequent events can also be enquired into. The rent control court is directed to enquire into (apart from the points directed to be enquired into by the rent control appellate authority under the impugned judgment) the following R.C.R.NOs.150 & 153 OF 2011 : 6 : points also (1) whether PW1 has secured a permanent employment in a College in Vadakara (2) Whether PW1’s mother has constructed a commercial building at Panoor and if so, whether PW1 has reasons for insisting on getting possession of the petition schedule building itself. The learned rent control court shall afford opportunities to both sides to adduce evidence. As the rent control petition is a very old one, the rent control court is directed to give top priority to the rent control petition and pass final orders at the earliest and at any rate within three months of parties entering appearance before the rent control court. Parties shall appear before the rent control court on 2.1.2012. We notice another aspect of the matter. The monthly rent which is being paid by the revision petitioner to the respondent is just Rs.100/- per mensem. We are sure that if the building is let out today, the same will fetch at least Rs.600/- per mensem. We refix the rent payable by the revision petitioner to the respondent at Rs.600/- per mensem. If either party is aggrieved, it is open to them to move for ## R.C.R.NOs.150 & 153 OF 2011 **==> picture [20 x 9] intentionally omitted <==** regular fixation of fair rent under Section 5. The revision petitioner shall pay rent with effect from 01.01.2012 to the respondent at Rs.600/- per mensem till fair rent is fixed. ## **PIUS C. KURIAKOSE, JUDGE.** **K. HARILAL, JUDGE.** ## **cl**