Rajan Babu v. Viswanatha Pillai

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **&** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932** **RCRev..No. 130 of 2006()** **---------------------------------** **RCA.11/2002 of I ADDL. RENT CONTROL APPELLATE AUTHORITY, THIRUVANANTHAPURAM. RC(OP) No.8/2000 of RENT CONTROL COURT, ATTINGAL** **....................** ## **REVISION PETITIONER/APPELLANT/PETITIONER :-** **-------------------------------------------------------------------------** **RAJAN BABU, S/O. DAMODHARAN, SATHAMANI MANDIRAM, CHITTATTINKARA DESOM, ATTINGAL VILLAGE.** **BY ADV. SRI.M.R.ANANDAKUTTAN SRI.B.SATHIQ SMT.SHIRMILA. C.S. SRI.MAHESH ANANDAKUTTAN** ## **RESPONDENT(S)/RESPONDENT/COUNTER PETITIONER :-** **---------------------------------------------------------------------------------** **VISWANATHA PILLAI, S/O. GOPALA PILLAI, SUDHARMANI VILASOM, CHITTATTINKARA DESOM, ATTINGAL VILLAGE.** **ADV. SRI.M.R.RAJESH FOR R1** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/02/2011 ALONG WITH RCR NO. 294 OF 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** **RCRev..No. 130 of 2006** ## **ORDER IN I.A.No.861 OF 2006** Dismissed. **SD/- PIUS C. KURIAKOSE, JUDGE.** **SD/- N.K.BALAKRISHNAN, JUDGE.** 7.2.2011 //True Copy// P.A. to Judge ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ----------------------------------** **R.C.R. Nos.130 & 294 of 2006 ---------------------------------------Dated this the 7[th] day of February 2011** ## **O R D E R** ## Pius C. Kuriakose, J. Both the tenant and landlord are in revision challenging the judgment of the Rent Control Appellate Authority. The landlord invoked the ground of arrears of rent, bonafide need for own occupation under Section 11 (3), the ground of cessation of the occupation without reasonable cause under Section 11(4)(v) and the ground of user of the building in a manner as to reduce its utility and value under Section 11(4)(ii). The existence of all the four grounds was very specifically disputed by the tenant through a counter. On the pleadings, the rent control petition was enquired into and in the enquiry the evidence ## R.C.R. Nos.130 & 294 of 2006 -: 2 :- consisted of PW1, Exts.A1 to A4(a). Apart from the oral evidence of CPW1, Ext.B1 was marked on the tenant's side. As regards the ground of arrears of rent, what the Rent Control Court did was to record the submission of the landlord's counsel that the entire arrears allegedly due was paid off during the pendency of the proceedings and that the eviction sought on the above ground is not pressed. Accordingly the Court declined eviction on the ground under Section 11(2)(b). On appreciating the evidence adduced by the parties the court found none of the other grounds stood established. Accordingly the RCP was completely dismissed. The learned Appellate Authority under the impugned judgment made a detailed reappraisal of the evidence. The learned Appellate Authority would endorse the findings entered by the Rent Control Court under Sections 11(3), 11(4)(ii) and 11(4)(v) and decline eviction on those grounds. However, as regards the ground under Section 11(2)(b) the learned Appellate Authority R.C.R. Nos.130 & 294 of 2006 -: 3 :- would take the view that discharge of the arrears of rent subsequent to the institution of the RCP will not enable the tenant to escape from the liability for eviction under Section 11(2)(b). Without referring to the observation of the Rent Control Court that eviction sought on the ground of Section 11(2)(b) is not pressed, the learned Appellate Authority would order eviction under Section 11(2)(b). Thus, the appeal was allowed to the limited extent of ordering eviction under Section 11(2)(b). RCR 294/2006 which is filed by the tenant, it is the eviction order passed by the learned Appellate Authority under Section 11(2)(b) that is challenged, while in RCR 130/2006 filed by the tenant which is the order of the Appellate Authority judgment declining eviction on the other ground of which is under challenge. 2. Extensive arguments were addressed before us by Smt.M.A.Zohra, the learned counsel for the landlord and by Mr.M.R.Rajesh, the learned counsel for the tenant. We have R.C.R. Nos.130 & 294 of 2006 -: 4 :- very anxiously considered the arguments addressed by both the counsel. We have gone through the judgment of the learned Appellate Authority. It is very clear our mind that the judgment of the Appellate Authority to the extent it confirms the decision of the Rent Control Court to decline eviction on the ground under Section 11(3) and 11(4)(v) not suffer from illegality, irregularity or impropriety as contemplated by Section 20 of Act 2 of 1965. The need projected under Section 11(3) also was the need to use the building in question as godown for a bakery business which the landlord conducted elsewhere. It has become evident in the case that in the building where bakery business was being conducted the landlord had started an agency of S.D.Pharmacy. Though the landlord claimed in evidence that he had not stopped bakery business and he stated that he will be able to prove that bakery business is being continuing, no evidence at all was adduced by the landlord to substantiate his claim that bakery business was being R.C.R. Nos.130 & 294 of 2006 -: 5 :- continued. Even on the admission of the landlord, that in the building where bakery business was being conducted, agency of S.D.Pharmacy is started it was thus clear that the volume of bakery business had reduced. This circumstance along with the failure on the part of the landlord to adduce evidence to substantiate his claim that he is continuing the bakery business weighed with the statutory authorities to conclude that the need is not bonafide. We do not find any infirmity about this. 3. The ground under Section 11(4)(v) was sought to be substantiated on the basis of the circumstance that electricity supply to the building was disconnected subsequently. Nature of the activity conducted by the tenant is one which requires electricity. But the evidence in the case show that disconnection of electricity was affected by the KSEB after the commencement of the RCP. In order that ground 11(4)(v) is ordered, cessation for a period of six months continuously up to the date of institution of the RCP ## R.C.R. Nos.130 & 294 of 2006 -: 6 :- is necessary. Evidence here is not to hold that there is such cessation. We find sufficient ground to confirm the concurrent finding of the authorities regarding the ground under Section 11(4)(v). 4. Coming to under Section 11(4)(ii) according to us even pleading of the petitioner did not make out such a ground under Section 11(4)(ii). It is alleged that due to the non payment of electricity charges by the tenant, the landlord has become liable to the Electricity Board for payment of charges. We are sure that even if the allegation of the landlord is true, this is will not amount to a ground under Section 11(4)(ii). We do not find any infirmity about the order concurrently passed declining the ground under Section 11(4)(ii). 5. We shall now deal with the decision of the Appellate Authority the order of eviction under Section 11 (2)(b). The reasoning of the learned Appellate Authority is that in a circumstance where the rent in arrears is not R.C.R. Nos.130 & 294 of 2006 -: 7 :- discharged within the period of 15 days after the receipt of notice under the proviso to Section 11(2)(b) within the statutory period of 15 days, order of eviction under Section 11(2)(b) shall follow and discharge of all the arrears during the pendency of the RCP or after the expiry of 15 days cannot stand in the way of the court passing an order of eviction under Section 11(2)(b). The above view of the learned Appellate Authority is sound in law. However in this particular case, the petitioner landlord himself had submitted before the Rent Control Court that as the entire arrears of rent is discharged subsequent to the commencement of the proceedings he does not require an order of eviction under Section 11(2)(b). Smt.Zohra, the learned counsel for the landlord submitted before us that the observations of the learned Rent Control Court regarding such submission by the petitioner is wrong. If the landlord had any such grievance that what the Rent Control Court incorporated in its order was contrary to what ## R.C.R. Nos.130 & 294 of 2006 -: 8 :- actually transpired in the Court, the remedy of the petitioner was to move Rent Control Court itself for review. The same having not been done, the landlord cannot get an order of eviction under Section 11(2)(b). We therefore are inclined to vacate the order of eviction passed by the Appellate Authority under Section 11(2)(b). Of course we notice that even as on today rent is in arrears. The cause of action for proceedings under the proviso to Section 11(2)(b) is a recurring one and it is always open to the petitioner landlord to invoke the above ground after issuing statutory demand notice under the proviso to Section 11(2)(b). 6. We notice another important aspect of the matter. The petition schedule building situated in a commercially important area of Attingal Town is fetching to the landlord only Rs.1000/- per mensem as rent. We are sure that it is far below the rent the building would have fetched if it is let out today. We are inclined to tentatively refix the rent payable by the tenant for the building in question with effect from R.C.R. Nos.130 & 294 of 2006 -: 9 :- 1.3.2011 at Rs.3500/- per mensem. There is stiff opposition from the side of Mr.Rajesh to refixation of rent by us. According to him the current rent is quite reasonable. We make it clear that the above fixation is tentative and if either party is aggrieved, he is free to move the Rent Control Court for regular fixation under Section 5. If any such application for fixation of fair rent under Section 5 is received the Rent Control Court will fix the fair rent on the basis of the evidence which come on record in the case keeping in mind the principles laid down by this Court and Supreme Court in **Edger Ferus** v. **Abraham Ittycheria** [2004 (1) KLT 767] and **Edger Ferus** v. **Abraham Ittycheria** [2009 (4) KLT 673 (SC)]. Till fair rent is fixed by the Rent Control Court, the respondent shall pay rent with effect from 1.3.2011 at Rs.3500/- per mensem. RCR 130/2006 is dismissed. RCR 294/2006 is allowed and eviction passed by the Appellate Authority under Section 11(2)(b) is vacated. We make it clear that R.C.R. Nos.130 & 294 of 2006 -: 10 :- this judgment will not stand in the way of the petitioner initiating fresh proceedings for eviction on all grounds including the ground of Section 11(2)(b). **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt