IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 73 of 2003()
1. UMADEVI AMMA
... Petitioner
Vs
1. UPENDRAN
... Respondent
For Petitioner :SRI.SHINOD.G.P
For Respondent :SRI.JACOB SEBASTIAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :21/10/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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R.C.R.No.73 OF 2003
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Dated this the 21st day of October 2010
ORDER
Basheer, J.
About 15 years ago, the two ladies before us instituted a petition seeking
eviction of the tenanted premises invoking Section 11(2)(b), 11(3), 11(4)(ii) and
11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The primary
ground of eviction as projected in the petition was under Section 11(3) of the
Act. Petitioners/landladies, who are co-owners, pleaded that the tenanted
premise comprising six rooms on the ground floor, were required for the bona
fide own occupation of petitioner No.2, who is none other than the daughter of
petitioner No.1, to start a garment making unit.
2. The claim for eviction was understandably resisted by respondent
herein very stoutly. However, the Rent Control Court ordered eviction under
Section 11(3) and 11(8) of the Act. The order of eviction was passed in
September 1998.
3. The tenant preferred an appeal against the above order in 1999. The
appeal remained pending on the file of the appellate authority for four years. By
judgment dated February 28, 2003 the appellate authority allowed the appeal
filed by the tenant and dismissed the Rent Control Petition. Hence this revision
petition.
4. Seven years have passed after institution of this revision petition.
After hearing learned counsel for the parties, we are of the view that the
R.C.R.No.73 OF 2003
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impugned judgment passed by the appellate authority is liable to be interfered
with and the matter will have to be remitted to the appellate authority for fresh
consideration.
5. The appellate authority noticed that just prior to the institution of the
eviction petition, the land ladies had filed a suit for injunction against the tenant
to restrain him from carrying out certain alterations/modifications in the
tenanted premises without their consent. Ad-interim order of injunction was
passed by the Munsiff Court in the suit. However, it appears that the
defendant/tenant pointed out that the landladies had mentioned in the plaint
that the rent of the building was Rs.1500/- per month though it was actually
Rs.500/- only. He alleged that a forged or fabricated rent deed had been
produced by the landladies in the suit in order to mislead the court. Anyhow,
the landladies withdrew the suit after instituting the present eviction petition.
6. A perusal of the impugned judgment of the learned Appellate
Authority will show that the above civil litigation between the parties has very
heavily weighed with the learned Judge. A major portion of the judgment has
been devoted to this aspect. The learned Judge tested the bonafides of the
landladies in the back drop of the above civil litigation. After completing that
exercise, the learned Judge turned his attention to Exts.A4 to A8 documents.
Ext.A4 was a license obtained by petitioner No.2 to start a small scale unit.
Ext.A8 was the renewal of the said license. Exts.A6 and A7 were related to the
loan advanced by a bank to start the unit.
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7. After referring to these documents, the appellate authority proceeded
to observe that petitioner No.2 had apparently started the business in
readymade garments already in the upstair portion of the building. According
to the learned Judge, the above business was not started at the time of
institution of the petition as is evident from these documents and obviously they
came into existence after “the dispute arose between the parties”. After
making this observation, the learned Judge proceeded to accept the contention
of the tenant that these documents were created for the purpose of filing a
petition for eviction and therefore the need alleged by the landladies cannot be
said to be bonafide. We have referred to the above conclusions made by the
appellate authority only to indicate that the learned Judge had seemingly
attached great importance to the civil litigation. We are not making any further
observation or comment on the manner in which the learned Judge has
approached the issue.
8. While adverting to the contention of the tenant that the landladies
were in possession of some other buildings not only of their own but also that of
their relatives in the vicinity of the petition scheduled building, the appellate
authority found that the said contention is without any merit or substance. As
regards the claim made by the landladies that they intended to make suitable
modification to the building, the appellate authority observed that the report of
the Advocate Commissioner indicated that such a conversion or modification
was not feasible or advisable. We refrain from making any observation on this
aspect at this stage. In our view,the impugned judgment is liable to be set aside.
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9. Accordingly, the impugned judgment is set aside. The case is remitted
to the appellate authority for fresh disposal in accordance with law. If the
parties want to adduce further evidence in the matter, it will be open to them to
do so. The appellate authority shall dispose of the matter as expeditiously as
possible, at any rate, within three months from the date of receipt of a copy of
this judgment. Parties shall appear before the court below on 12th November,
2010.
Registry shall send back the lower court records to the Rent Control
Appellate Authority, Kollam forthwith.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
jes/pm