KATTAKULATHIL PUNNAKKAL RIZWANA v. PANAYAN THATTA THEKKE VEETIL KARUNAKARAN NAMBIAR

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 21ST DAY OF JULY 2017/30TH ASHADHA, 1939 ## **RCRev..No. 44 of 2015 (E)** AGAINST THE JUDGMENT DATED 8.12.2014 IN RCA.NO.250/2010 OF THE RENT CONTROL APPELLATE AUTHORITY, THALASSERY AGAINST THE ORDER DATED 19.8.2010 IN RCP.NO.39/2010 OF THE RENT CONTROL COURT, KANNUR ## REVISION PETITIONER/RESPONDENT/PETITONER: KATTAKULATHIL PUNNAKKAL RIZWANA, D/O.SAKKAR, AGED 25 YEARS, RESIDING AT AL-SHANA, KANNOTHUMCHAL, KANNUR, THROUGH HER POWER OF ATTORNEY HOLDER OLIYATH VAZHAYIL SAKEER, S/O.MOIDU, AGED 52 YEARS, ALSHANA, KANNOTHUMCHAL, P.O.CHOVVA, KANNUR – 670 006. BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI ## RESPONDENT/APPELLANT/RESPONDENT: PANAYAN THATTA THEKKE VEETIL KARUNAKARAN NAMBIAR AGEDS/O.KARUNAKARAN NAMBIAR, 57 YEARS, ARCHITECT, BUILDING NO. TPN III 357 A, NEAR MAKKANI, SOUTH BAZAR, KANNUR -2 BY ADV. SRI.V.V.SURENDRAN BY ADV. SRI.P.A.HARISH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21.07.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K. Harilal & P. Somarajan, JJ.** **---------------------------------------------------R.C.R. No.44 of 2015 (E) ---------------------------------------------------Dated this the 21[st] day of July, 2017** ## **O R D E R** ## **Harilal, J.** The revision petitioner is the landlady, who has lost her order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), obtained from the Rent Control Court, in the appeal filed by the respondent/tenant (R.C.A.No.250 of 2010). The Rent Control Petition (R.C.P.No.39 of 2010) was filed under Sections 11(2) (b), 11(3), 11(4)(iii) and 11(4)(v) of the Act and the Rent Control Court granted an order of eviction under Section 11(2)(b) and 11(3) and rejected the claim under Sections 11(4)(iii) and 11(4) (v) of the Act. In the appeal filed by the tenant, the Appellate Authority modified the order under Section 11(2)(b) by setting aside that part of the order which permitted the landlord to claim enhanced rent after three years and setting aside the ## **R.C.R. No.44 of 2015 (E)** :: 2 :: order of eviction under Section 11(3) of the Act. This order is under challenge in this Revision. 2. It is the case of the landlord that she needs the petition schedule shop room for conducting business of ladies ready-made garment wears and averred that there is no other vacant room of her own in her possession, for starting the said business. The tenant resisted the said claim for eviction, contending that the _bona fide_ s of the need projected in the petition is a pretext for eviction only and there is no arrears of rent. However, after considering the evidence, on record, the Rent Control Court rejected the claim under Sections 11(4)(iii) and 11(4)(v) and allowed the claim under Sections 11(2)(b) and 11(3) of the Act, on a finding that the need projected in the petition is a _bona fide_ one and the rent was in arrears, as contended by the landlord. In appeal, the tenant had produced Exts.B6 to B12 documents and contended that two years after the passing of the eviction order, by the Rent Control Court, the landlord got vacant possession of one room and she let out the ## **R.C.R. No.44 of 2015 (E)** :: 3 :: said room to another tenant for a higher rent. According to the tenant, this subsequent event is having fundamental impact on the _bona fide_ s of the need projected in the petition and that also requires to be considered while considering the appeal. 3. The Appellate Authority marked the documents produced by the tenant as Exts.B6 to B12. An Advocate Commission was also appointed on the application of the tenant and the Commissioner filed Ext.C2 report and Ext.C3 plan. The Commissioner has reported the new occupation of the tenant in the shop room, which is alleged to have been let out after the passing of the eviction order, by the Rent Control Court. Relying on Exts.B6 to B12 and Exts.C2 and C3, the Appellate Authority found that, subsequently, the landlord has got vacant possession of another room, which was suitable for conducting the proposed business, and let out the same to another tenant for rent and the subsequent conduct will negative the _bona fide_ s of the need. In the above view, the Appellate Authority set aside the order of eviction passed ## **R.C.R. No.44 of 2015 (E)** :: 4 :: under Section 11(3) of the Act. Similarly, the Appellate Authority found that the order of eviction passed under Section 11(2)(b) of the Act requires interference in part, as the same has allowed enhancement in rent on the basis of the lease deed. The Appellate Authority observed that since the lease deed was an unregistered lease deed, that cannot be pressed into service to create any right for revision of rent. The landlord is not entitled to get enhancement in the quantum of rent on the basis of that lease deed. The above view is supported by the decision in _**Chandrakala**_ v. _**Soman (2004 (3) KLT 432)**_ and _**Asher**_ v. _**Hassankutty Hajee (2004 (2) KLT 446)**_ . 4. The learned counsel for the appellant submits that in the instant case, the decisions rendered in _**2004 (3) KLT 432**_ and _**2004 (2) KLT 446**_ will not come into play, as the lease deed in the instant case was executed for three months only, which requires no registration at all. Therefore, the enhancement in the quantum of rent was not liable to be set aside in view of the aforesaid decisions. The Subsequent ## **R.C.R. No.44 of 2015 (E)** :: 5 :: event, even if true, has no fundamental impact on the _bona fides,_ according to him. 5. Per contra, the learned counsel for the tenant contended that if the rent deed was for a period of three months only, the landlord cannot claim for enhanced rent after three years, if he continues to be in occupation of the petition schedule shop room after three months as tenant in holding over. 6. We find some substance in the argument advanced by the learned counsel for the tenant. Admittedly, the period of lease specified in the lease deed was for three months only. Needless to say, after three months, if he continues in occupation of the shop room, he shall be deemed to be a tenant in holding over only. If that be so, the landlord cannot claim enhanced rent for the period of holding over, after the expiry of the period specified in the lease deed. In the above view, we find that the landlord is not entitled to get enhanced rent after three months under the said lease deed, if the tenant ## **R.C.R. No.44 of 2015 (E)** :: 6 :: continues in occupation of the petition schedule shop room in holding over. In this view, we confirm the order passed by the Appellate Authority, though the decision referred to by the Appellate Authority is not squarely applicable to the instant case. 7. As regards the finding under which the _bona fide_ s of the need is set aside, we are of the opinion that if the landlord has let out any vacant building after the passing of the order, the said event has some fundamental impact on the _bona fide_ s of the need. But, in the instant case, Exts.B6 to B12 were produced in the appellate stage only. Therefore, the landlord had no opportunity to defend the subsequent event pleaded in the appellate stage properly, in accordance with law. In short, the documents were produced at the back of the landlord only. In this view, we find that the landlord must be given an opportunity to defend the subsequent event pleaded by the tenant at the appellate stage. 8. Hence, we set aside the impugned judgment passed ## **R.C.R. No.44 of 2015 (E)** :: 7 :: by the Rent Control Appellate Authority as well as the order passed by the Rent Control Court under Section 11(3) of the Act only and the Rent Control Petition is remitted back to the Rent Control Court. The Rent Control Court is directed to consider the claim under Section 11(3) afresh, in view of the subsequent event also. Both the parties are at liberty to adduce further evidence. The Rent Control Court shall dispose of the matter within a period of three months from the date of receipt of a copy of this order. The parties shall appear before the Rent Control Court on 16.8.2017. The Rent Control Revision is disposed of as above. ## **K. Harilal Judge** **P. Somarajan Judge** ahz/