IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 241 of 2005()
1. PUTHIYA VANIYAN VEETTIL KAMALAKSHI,
... Petitioner
Vs
1. MEETHALEPURAYIL IBRAHIM KUTTY,
... Respondent
For Petitioner :SRI.M.V.AMARESAN
For Respondent :SRI.A.MUHAMMED MOSHTAQUE, COVEATOR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :29/10/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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R.C.R NO: 241 OF 2005
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Dated this the 29th October, 2009.
JUDGMENT
PIUS C.KURIAKOSE, J.
Under challenge in this revision petition filed by the tenant is
the order of eviction concurrently passed against the revision
petitioner accepting the need for own occupation projected by the
respondent-landlord. The landlord’s case was that he who was
employed previously in Saudi Arabia was expelled from that country
on amnesty and that presently he is jobless and he needs to start
business in the petition schedule building. Exts.A3 and A4
documents were produced by the revision petitioner before the
Rent Control Court in endeavour to prove that the pleaded case is
true. In fact the oral evidence by the respondent was in conformity
with the fact that the respondent has been compelled to come back
to India. The tenant, apart from contending that the need is not
bonafide also contended that the landlord is in possession of other
buildings of his own in possession and that the petition is liable to
be rejected due to the first proviso to Sub Section (3) of Section 11
of the Kerala Buildings (Lease and Rent Control) Act, 1965,
RCR 241/2005 2
hereinafter referred to as the ‘Act’. He has alternatively contended
that he is entitled to the protection of the second proviso to Section
11(3). On evaluating the evidence the Rent Control Court would
find that the need projected by the landlord in the RCP and spoken
to by him in evidence as P.W.1, is a bonafide one. That Court also
found that on the basis of Ext.A9 property tax assessment register
that the rent control petitioner was not liable to fail by virtue of the
first proviso of Sub Section 3 of Section 11. It was further found
that the tenant was unsuccessful in proving that he satisfies either
of the ingredients of the second proviso to Sub Section (3).
2. In appeal preferred by the revision petitioner tenant the
appellate authority re-appraised the evidence. That authority on
appreciating Exts.A3 and A4 accepted the case of the tenant that
those two documents by themselves do not prove that the landlord
was expelled from Saudi Arabia on amnesty. In fact before the
Appellate Authority it was brought to the notice of that Authority
that the landlord had gone back to Saudi Arabia. An affidavit to
that effect was filed by the tenant. The landlord filed a counter
statement wherein he admitted that he had gone back to Saudi
Arabia. The landlord’s explanation was that on account of delay
caused in getting back possession of the building he had no other
go than back to Saudi Arabia since he needed money for
RCR 241/2005 3
supporting himself and his family. The Appellate Authority
accepting the explanation offered by the landlord found that the
landlord is not expected to remain idle till such time as vacant
possession of the building in question is obtained. Accordingly the
Appellate Authority concurred with the conclusions of the Rent
Control Court and dismissed the appeal.
3. We have heard the submissions of Mr. M.V.Amaresan for
the revision petitioner and those of Mr. A. Muhammed Mustaque for
the respondent. Mr. M.V.Amaresan drew our attention to Exts.A3
and A4 and also to the pleadings raised. He submitted that
Exts.A3 and A4 do not prove the averments in the RCP. The best
evidence to prove the averments in the RCP was the passport. The
non-production of the passport should arouse adverse inferences
against the landlord. The learned counsel submitted that the
Appellate Authority has chosen to confirm the order of eviction
taking into account the circumstance that the landlord was jobless
and that the landlord belongs to this country. But the landlord’s
case as pleaded by him in the RCP was that he was compelled to
leave Saudi Arabia since he was expelled on amnesty. It is not his
case that he would not have continued in Saudi Arabia even if he
was not expelled. It is a very lucrative job that the landlord has
secured in Saudi Arabia. The above subsequent event eclipses need
RCR 241/2005 4
if any, which existed at the time when the RCR was originally filed.
The learned counsel referred to the finding of the authorities below
in the context of the first proviso to Sub Section (3) of Section 11
and submitted that there is conflict between Exts.A9 and B1 both
of which are property tax assessment registers enjoying the
presumptions of Section 26 of Act 2 of 1965. In the teeth of that
conflict, in the absence of more responsible evidence coming from
the side of the Panchayath, the authorities below were not justified
in relying on Ext.A9 the subsequent document. The oral evidence
of P.Ws 1 and 2 were to the effect that the new building was put up
by them jointly. The documents show that all the rooms stand
assessed to property tax in the name of P.W.2 only. This has been
deliberately done.
4. All the submissions of Mr. Amaresan were very stiffly
resisted by Mr. A. Mohammed Mustaque. The learned counsel
placed strong reliance on the judgment of the Supreme Court in
Gaya Prasad v. Pradeep Srivastava {2001(1) KLT 753 (SC) to
answer the argument of Mr. Amaraesan made in the context of
subsequent event of landlord securing a job in Saudi Arabia. The
important question according to Mr. Mustaque is whether the
petitioner landlord is jobless and nobody can say that a landlord
who belongs to Payyannur is projecting a malafide need when he
RCR 241/2005 5
says that he wants to come back to Payyannur. Mr. Mustaque also
referred to a Bench decision of this Court in Eanu Haji v. Mustafa
{2004(2) KLT 668} to which one of us (Pius C. Kuriakose,J) was a
party and the counsel submitted that the landlord is not expected
to remain jobless for indefinite duration of time especially when it
is notorious that litigations like the present one take decades to
come to a final close.
5. We have very anxiously considered the rival submissions
addressed at the Bar. According to us the question whether the
need of the landlord is a bonafide one, the most important
question to be answered by the authorities under the Rent Control
Act not been properly considered by the Rent Control Court and the
Appellate Authority. Proper consideration would necessitate
scrutiny of the pleadings and the evidence. As we notice the
pleaded case was that the landlord was expelled from Saudi Arabia
on amnesty and that he is presently jobless. The evidence did
reveal that the above case was not correct. At the same time, the
need of a person belonging to Payyannur presently working abroad
to come back to Payyannur and to do business in his own building
at Payyannur can ordinarily be accepted to be a bonafide need,
provided proper pleadings are there. The implications of the first
proviso to sub-section (3) of Section 11 are that if the landlord is in
RCR 241/2005 6
possession of another vacant building belonging to him, then,
unless special reasons are pleaded and established, the landlord
will not be granted order of eviction. The evidence regarding the
availability of other buildings with the landlord in this case gives
room for some confusion. We are of the view that the landlord can
be given an opportunity to amend his pleadings and to adduce
fresh evidence on all aspects of the case including bonafides of the
need and the operation of the first proviso to sub-section (3) of
Section 11. As for the question whether the tenant is entitled to
the second proviso to sub-section (3), we are of the view that the
finding concurrently entered in that context by the authorities
below does not warrant any interference.
6. The result is that we set aside the order of the Rent
Control Court and the Appellate Authority and remand RCP
19/1998 to the Rent Control Court, Taliparamba. That Court is
directed to take a fresh decision on the following questions:-
a) Whether the need of the landlord under Sub
Section (3) of Section 11 of the Act is bonafide.
b) Whether the RCP is liable to fail by virtue of Sub
Section (3) of Section 11 of the Act. That Court is directed
to permit the parties to amend the pleadings.
7. The top priority will be given to the RCP which was
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instituted in the year 1998. Once pleadings are completed and pre
trial steps are over the RCP will be special listed for trial. The trial
will be taken up on a day to day basis and revised judgment will be
passed early, at any rate within three months of the parties
entering appearance pursuant to this order of remand. The parties
will enter appearance before the Rent Control Court, Taliparamba
on 11.1.2010.
8. We notice that the monthly rent of Rs.350/- presently
being paid by the revision petitioner-tenant is far below the
reasonable rent for like buildings. We tentatively refix the rent at
Rs.700/- per month making it clear that it will be open to both sides
to move the competent Court for fixation of fair rent.
PIUS C.KURIAKOSE
Judge
K. SURENDRA MOHAN
Judge
jj
PIUS C.KURIAKOSE &
K.SURENDRA MOHAN, JJ.
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L.A.A.NO:
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JUDGMENT
Dated: