IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936
RCRev..No. 62 of 2012 ()
------------------------AGAINST THE JUDGMENT IN RCA 132/2006 OF RENT CONTROL APPELLATE AUTHORITY (ADDL.DISTRICT COURT),THALASSERY DATED 31-08-2011
AGAINST THE ORDER IN RCP 253/2005 OF RENT CONTROL COURT (MUNSIFF COURT), KANNUR DATED 31-07-2006
## REVISION PETITIONER(S)/RESPONDENT/RESPONDENT:
------------------------------------------------------ -------------------
KUNDAN BIJU AGED 29 YEARS S/O. KUNHIRAMAN, MERCHANT, RISHA COMMERCIAL COMPLEX KANNAPURAM, P.O.CHERUKUNNU, KANNAUR.
BY ADVS.SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU
## RESPONDENT(S)/APPELLANT/PETITIONER:
P.V.RAVEENDRAN, AGED 62 YEARS S/O. KUNHAMBU, KANNAPURAM AMSOM, DESOM KANNUR, NOW WORKING AT SULTANATE OF OMAN, P.B.NO. 1384, POSTAL CODE-112, MUTTRASH, JIBROO
S. OF OMAN.
R1 BY ADV. R.SURENDRAN(NO MEMO) R1 BY ADV. SRI.N.NAGARESH
R1 BY ADV. SRI.K.BABU
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 01-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **K.T.SANKARAN & A.MUHAMED MUSTAQUE, JJ.**
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R.C.R.No.62 of 2012 A
-------------------------------------Dated this the 1[st] day of July, 2014
## **K.T.Sankaran, J.**
**==> picture [148 x 13] intentionally omitted <==**
The tenant challenges the order of remand made by the Rent Control Appellate Authority. The grievance of the tenant is that if the Appellate Authority thought it fit to remand the case, it should have been an open remand and the question of 'bonafide need' also should have been directed to be considered afresh by the Rent Control Court.
2. The respondent/landlord filed R.C.P.No.253 of 2005 on the file of the Rent Control Court, Kannur, against the petitioner/tenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The landlord contended that his
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brother-in-law Haridasan has no job or business, that Haridasan is dependant on him for the purpose of the building and that the tenant may be ordered to be evicted in order to make available the room for the business purpose of his brother-in-law Haridasan. Haridasan was examined as PW1 and the tenant was examined as RW1. The tenant also raised a contention that the landlord claimed enhancement of rent on previous occasions and the Rent Control Petition was filed as a ruse to evict the tenant and that the bonafide need projected by the landlord is not genuine.
3. The Rent Control Court held that PW1 is a dependant on the landlord for the purpose of the building. However, the Rent Control Court held that the bonafide need put forward by the landlord is not genuine since he had claimed higher rent on earlier occasions. The contention put forward by
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the tenant that since the landlord is having vacant possession of another room and therefore, the Rent Control Petition is hit by the first proviso to Section 11(3) was considered by the Rent Control Court and it was held that no vacant rooms are available in the possession of the landlord which can be utilised for the purpose of the business of PW1. Accordingly, the Rent Control Court held that the tenant is not entitled to the benefit of the first proviso to Section 11(3) of the Act. As regards the contention of the tenant that he is entitled to the protection of the second proviso to Section 11(3) of the Act, the Rent Control Court held that the tenant failed to prove the twin requirements of the second proviso to Section 11(3) of the Act. Accordingly, the Rent Control Court dismissed the Rent Control Petition.
4. The landlord filed R.C.A.No.132 of 2006 on the
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file of the Rent Control Appellate Authority, Thalassery. The Appellate Authority found that the bonafide need put forward by the landlord is genuine. It was held that the Rent Control Court was not justified in finding against the landlord with respect to bonafide need on the sole ground that the landlord claimed enhancement of rent. The Appellate Authority relied on the judgment of this Court in **John v. District Court (1992 (1) KLT 803)** . The Appellate Authority concurred with the view taken by the Rent Control Court as regards the plea of the tenant under the second proviso to Section 11(3) of the Act.
5. As regards the first proviso to Section 11(3) of the Act, the Appellate Authority remanded the case to the Rent Control Court for fresh consideration. The Appellate Authority also allowed I.A.No.1260 of 2011, the application filed by the
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landlord to produce additional document and the additional document was marked as Exhibit A6. The Appellate Authority also granted an opportunity to the landlord to lead evidence touching upon the case under the first proviso to Section 11(3) of the Act. The case of the tenant was that the landlord was having vacant possession of another room having an area of 1000 sq. ft. and therefore, the Rent Control Petition is hit by the first proviso to Section 11(3) of the Act. The Rent Control Court did not accept that contention put forward by the tenant. The landlord contended that the room mentioned by the tenant was leased out to U.A.E. Exchange even before the Rent Control Petition was filed. The tenant contended that Exhibit A3 produced by the landlord would show that the lease to U.A.E. Exchange was after filing of the Rent Control Petition. The landlord explained that Exhibit A3 was a renewal deed. An additional document was produced by the landlord before the
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Appellate Authority to show that the lease to U.A.E. Exchange came into existence even before the Rent Control Petition was filed. The Appellate Authority thought that straight away, no finding could be arrived at on the basis of Exhibit A6 and that evidence is required on that aspect. For that purpose, the case was remanded to the Rent Control Court. The Appellate Authority made it clear that the remand is only for the purpose of arriving at a finding on the first proviso to Section 11(3) of the Act and whether the Rent Control Petition should fail by virtue of a finding on that point.
6. We have carefully gone through the reasonings and findings rendered by the Rent Control Court as well as the Appellate Authority. Sri.V.R.K.Kaimal, the learned counsel appearing for the petitioner, submitted that the Appellate Authority has not arrived at a finding that PW1 is dependant
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on the landlord and that the bonafide need is genuine. He also submitted that the remand should have been an open remand touching upon all the points except probably the second proviso to Section 11(3) of the Act.
7. The Rent Control Court had found against the bonafide need only on the ground that the landlord had claimed enhancement of rent. While answering the point, the Appellate Authority had given much stress on that point. But, it was also found that the case put forward by the landlord is genuine. We do not find any ground to interfere with the finding of the Appellate Authority on point No.1 as to whether the need put forward by the landlord is genuine. Therefore, we are not inclined to accept the contention of the learned counsel for the petitioner that the remand should cover that point as well. As regards the second proviso to Section 11(3) of the Act, the
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findings of the authorities below are concurrent. Therefore, the Appellate Authority was right in holding that the remand would not cover the second proviso to Section 11(3) of the Act. The Appellate Authority remanded the case to the Rent Control Court only to consider the case with respect to first proviso to Section 11(3) of the Act and the landlord alone was given an opportunity to adduce evidence. We are of the view that the tenant also should have been given an opportunity to adduce evidence while dealing with the case under the first proviso to Section 11(3) of the Act.
Accordingly, we partly allow the Rent Control Revision as follows :
- (i) The order of remand is confirmed.
- (ii) The tenant also should get an opportunity to adduce
evidence while dealing with the case after remand.
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(iii) No interference is called for in respect of the other aspects of the case.
**K.T.SANKARAN JUDGE**
**A.MUHAMED MUSTAQUE JUDGE**
csl
