N.L. Jose S/O Nellissery Lonappan v. Faisal Raj S/O Puthen Veettil Abdul Hameed and Rukkiya W/O Puthen Veettil Abdul Hameed

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935 RCRev..No. 152 of 2012 () -------------------------- AGAINST THE JUDGMENT IN RCA 5/2008 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR AGAINST THE ORDER IN RCP 84/2005 of RENT CONTROL COURT, THRISSUR REVISION PETITIONER/APPELLANT/RESPONDENT: ----------------------------------------------------------------------- N.L.JOSE S/O.NELLISSERY LONAPPAN, ARANATTUKARA VILLAGE THRISSUR TALUK BY ADVS.SRI.RENJITH THAMPAN (SR.) SRI.ROBSON PAUL SMT.P.R.REENA RESPONDENTS/RESPONDENTS/PETITIONERS: ------------------------------------------------------------------ 1. FAISAL RAJ S/O.PUTHEN VEETTIL ABDUL HAMEED, VELIYANNUR DESOM THRISSUR VILLAGE & TALUK-688001 2. RUKKIYA W/O.PUTHEN VEETTIL ABDUL HAMEED, VELIYANNUR DESOM THRISSUR VILLAGE & TALUK-688001 BY ADV. SRI.V.R.KESAVA KAIMAL ADV. SRI.N.M.MADHU THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: # **T.R. RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **--------------------------------------------------------** R.C.R. No.152 of 2012 **--------------------------------------------------------** Dated this the 23[rd] day of September, 2013 ## **O R D E R** ## **Ramachandran Nair, J.** Aggrieved by the order passed by the Appellate Authority allowing eviction under Section 11(3) of the Kerala Building (Lease and Rent Control) Act (hereinafter referred to as 'the Act') tenant of the building, has filed this revision petition alleging that orders have been passed by the authorities below without being satisfied about the genuine need of the landlord. It is pointed out that the landlord has failed to adduce sufficient evidence in spite of the opportunity granted by this Court through the order in R.C.R. No. 214 of 2011. RCR 152 of 2012 -:2:- 2. The plea raised by the landlord under Section 11(3) of the Act is one to occupy the petition schedule room as a godown for the stationary business which is run by him in another premises. The tenant resisted the eviction petition by raising various pleas. 3. The Rent Control Court initially allowed the rent control petition under Section 11(3) which was set aside by the Appellate Authority in appeal. Against that the landlord came up in revision before this Court as RCR 214 of 2011. 4. We have heard the learned Senior Counsel appearing for the revision petitioner Sri. Renjith Thampan and learned counsel Sri.N.M. Madhu appearing for the landlord. 5. The learned Senior Counsel Sri.Renjith Thampan mainly submitted that the landlord, in the earlier round of has for an litigation, sought RCR 152 of 2012 -:3:- opportunity to adduce evidence to establish that the building having door No.11/67 was not suitable for the landlord's purpose. But after remand without adducing any satisfactory evidence to establish the same, the landlord has given another explanation for occupying the petition schedule building which according to the learned Senior Counsel, is not germane to the situation arising for a decision in this case. 6. We have been taken through the orders passed by the authorities below, the report of the commissioner and the evidence of the landlord who was examined before the Appellate Authority after remand. It is submitted by the learned Senior Counsel that door No.11/67 is part of the same building which was vacated by its tenant and therefore unless there is a proper explanation by the landlord with regard to the RCR 152 of 2012 -:4:- non-suitability of the room for the purpose of godown, eviction could not have been ordered. It is also argued that the landlord is bound by the directions contained in the remand order. It is further submitted that evidence had to be adduced in compliance with the directions issued by this Court in the remand order. 7. Report of the Commissioner was made available before us by the learned Senior counsel and he has pointed out that as far as building having door No.11/67 is concerned, the Commissioner has reported that goods can be unloaded by taking three wheelers into door No.11/67. Therefore, it is argued that the learned Appellate Authority was not right in taking the view that the preference shown by the landlord for the petition schedule building could be accepted as goods can be loaded and unloaded there by parking auto and two wheelers. Same facilities are there for both the RCR 152 of 2012 -:5:- rooms as far as parking and unloading goods are concerned. It is also stated that as far as building having door No.11/67 is concerned the landlord gave an explanation that he had to agree to the former tenant in inducting another person for increased rent which according to the learned Senior Counsel, could not have been accepted by the Appellate Authority since that was not the reason pointed out before this Court in the earlier round of litigation. 8. Sri.N.M.Madhu, learned counsel for the landlord submitted that even if during the pendency of the eviction proceedings another room comes into possession of the landlord, what matters is the preference of the landlord to the petition schedule room and that the landlord should not be compelled to occupy the vacant room. In this connection he has pointed out a decision reported in **Valsan v. Furtal** RCR 152 of 2012 -:6:- **(2004 (3) KLT 1046).** In fact, the Division Bench of this Court in decision noted **supra** in paragraph No.6 has held as follows: “The landlord after having made a preference cannot be forced to occupy the premises B which became available subsequently unless the tenant's need is wholly satisfied which is a essentially question of fact. In a given case the landlord can rent out even the premises which came into his possession during the pendency of the rent control proceedings for a better rent. No duty is cast on the landlord to keep the premises idle and discontinue the rents control proceedings.” 9. The above observations could have weighed in his favour if that was pleaded before this Court in the earlier round of litigation for seeking a remand. But as RCR 152 of 2012 -:7:- rightly pointed out by the learned Senior Counsel Sri.Renjith Thampan the matter was mainly remanded to establish that door No.11/67 was not suitable for the landlord's purpose. 10. The learned counsel for the landlord had relied on the proof affidavit before the Appellate Authority as well as the portions of the crossexamination of the landlord to contend that he has clearly established that door No.11/67 is unsuitable for godown. We have scanned through the proof affidavit as well as portions of the cross-examination. Positive evidence had to be adduced before court as to the non suitability or otherwise of the room namely door No.11/67 to be used as a godown. Of course, the Appellate Authority has observed that the landlord has established special reason for not occupying door No.11/67 and there are no lack of bona fides to the RCR 152 of 2012 -:8:- requirement put forward by the landlord. But, still as proper and sufficient evidence has to be let in on the aspect of non-suitability and as the landlord is bound by the remand order, we are of the view that, evidence is lacking to show that door No.11/67 is unsuitable to be used as a godown. 11. Apart from the same it is pointed out by the Senior Counsel Sri.Renjith Thampan that door No.11/67 became vacant again during the pendency of this revision petition and the landlord has inducted another tenant. This aspect has also to be agitated afresh by the parties before the Appellate Authority as in this revision the only document produced is a reply obtained by the tenant under the Right to Information Act from the Corporation. 12. Therefore, we are not going into the merits on either way and set aside the order of the RCR 152 of 2012 -:9:- Appellate Authority and remand the matter back to the Appellate Authority again for considering afresh and the matter has to be considered in the light of the discussions made above. Both parties will file proper affidavits before the Appellate Authority explaining their respective pleas in the matter. In the result, the judgment of the Rent Control Appellate Authority is set aside. The matter is remanded to the Rent Control Appellate Authority for reconsideration afresh. The Appellate Authority will also permit both parties to adduce evidence. Parties will enter appearance before the Court below on 28.10.2013. ## **Sd/- T.R. RAMACHANDRAN NAIR, JUDGE** ## **Sd/- B. KEMAL PASHA, JUDGE** ul/- [True copy] _P.S. to Judge_