IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 48 of 2010()
1. KRISHNANKUTTY,S/O.PACHU,THAZHETHODIYIL,
... Petitioner
Vs
1. RAMAKRISHNAN,S/O.KUMARAN,SUDHA NIVAS,
... Respondent
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.P.R.VENKATESH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :17/02/2010
O R D E R
PIUS C. KURIAKOSE &
C. K. ABDUL REHIM, JJ.
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R. C. R. No.48 of 2010
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Dated this the 17th day of February, 2010
ORDER
Pius C. Kuriakose, J
The tenant is in revision. He challenges the
order of eviction passed against him by the Rent
Control Appellate Authority on the grounds of
arrears of rent under section 11(2)(b); on the
ground that the tenant has other buildings
reasonably sufficient for the tenant’s requirement
under section 11(4)(iii); and additional
accommodation under section 11(8). The Rent
Control Petition was instituted by the
respondent/landlord invoking the grounds under
section 11(2)(b), 11(4)(ii) and 11(4)(iii) and 11
R. C. R. No.48 of 2010 -2-
(8). The Rent Control Court after taking evidence
would allow the RCP only on the ground of arrears
of rent and the ground under section 11(4)(iii).
The landlord did not prefer any appeal against the
order of the Rent Control Court disallowing
eviction on the grounds under section 11(4)(ii)
and 11(8). The tenant preferred appeal and the
impugned judgment has been passed by the
Appellate Authority in that appeal. The learned
Appellate Authority noticed that the landlord had
not preferred any appeal or any memorandum of
cross objections challenging the decision of the
Rent Control Court disallowing eviction on the
grounds under section 11(4)(ii) and 11(8). The
Appellate Authority accepted the challenge which
R. C. R. No.48 of 2010 -3-
was made on behalf of the landlord during the
course of arguments in the appeal against the
order of the Rent Control Court disallowing
eviction under section 11(8) and has proceeded to
order eviction under section 11(8) also apart from
confirm the eviction order passed by the Rent
Control Court.
2. When this RCR came up for admission, we
have heard the submissions of Mr.D.Krishna
Prasad, the learned counsel for the revision
petitioner and those of Sri.R.Azad Babu who had
lodged a caveat on behalf of the respondent/
landlord. It is apparently invoking the principles
underlying Order 41 Rule 22 that the learned Rent
Control Appellate Authority ordered eviction under
R. C. R. No.48 of 2010 -4-
section 11(8) notwithstanding the non-filing of
any appeal or memorandum of cross objection by
the landlord. According to us, Order 41 Rule 22
would only enable the respondent/landlord to
object to any findings in the order impugned in
the RCA which are against him. It was open to the
landlord to have filed a memorandum of cross
objection in this particular case. The landlord by
not filing any regular appeal or memorandum of
cross objections was ready and willing to suffer
the negative order which was passed by the Rent
Control Court in the RCP to the extent it pertains
to sub section 8 of section 11. Sri.Azad Babu, the
learned counsel for the respondent was unable to
support the action of the Appellate Authority in
R. C. R. No.48 of 2010 -5-
ordering eviction under section 11(8). Hence, we
straight away vacate the judgment of the Rent
Control Appellate Authority ordering eviction
against the revision petitioner/tenant on the
ground under sub section 8 of section 11.
3. The learned counsel for the revision
petitioner would assail the eviction order passed
by the Rent Control Appellate Authority on the
grounds of arrears of rent and the ground under
section 11(4)(iii) on the various grounds raised in
the memorandum of revision. Sri.Azad Babu,
however, would support those eviction orders on
the various reasons stated in the judgment of the
Appellate Authority. He reminded us of the
contours of this Court’s jurisdiction under section
R. C. R. No.48 of 2010 -6-
20 and submitted that there is no warrant under
section 20 for interfering with the findings
concurrently entered by the Rent Control Court
and the Appellate Authority.
4. We have anxiously considered the rival
submissions. As for the order of eviction passed
under section 11(2)(b) concurrently, we notice
that the finding that the rent is in arrears as
alleged by the landlord entered by the authorities
below is on the basis of the evidence which was
available on record. After all, it is a provisional
order of eviction which is passed under section 11
(2)(b). It is always open to the tenant to have an
order vacated by making deposits under section
11(4)(ii). Hence, we are not interfering with the
R. C. R. No.48 of 2010 -7-
order of eviction passed concurrently by the
authorities below. We confirm that order and
grant the revision petitioner two months’ time
from today for making requisite application under
section 11(4)(2) for getting that order vacated.
5. Equally so the finding of the Appellate
Authority which is the final fact finding authority
under the statutory scheme that the revision
petitioner is liable to be evicted on the ground
under section 11(4)(iii) is founded on evidence.
The Advocate Commissioner reported on the basis
of a local inspection conducted with notice to the
revision petitioner also that the revision petitioner
has put up a three storied building just 15 metres
away from the petition schedule premises which is
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just one room. It was reported that excessive
areas are available in the first floor as well as in
the second floor of the three storied building. The
argument of the learned counsel for the revision
petitioner before us was that the activity which is
carried on by the revision petitioner is gold dye
works which require heavy machinery and for
conducting the said business a room in the ground
floor itself is necessary. But the Commissioner
reported that the buildings actually available
under the vacant possession of the revision
petitioner is reasonably sufficient for the revision
petitioner’s requirement of conducting dye works.
That being so, it was up to the revision petitioner
to have filed objections to the Commission Report
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and substantiated those objections by citing the
commissioner as a witness. The revision petitioner
did not do so. He opted to rely on the oral
evidence adduced by his son as RW1 alone.
Moreover, we notice that the statutory
requirement is not that the alternate building in
the possession of the tenant should be perfectly
suitable. The requirement is only that it must be
reasonably sufficient. We feel that the finding
concurrently entered by the authorities below that
the premises in the vacant possession of the
revision petitioner is reasonably sufficient does
not suffer from any infirmity as envisaged by
section 20. It will also be noticed that the revision
petitioner himself was a landlord and at the place
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where the three storied building is now
constructed there was an old building occupied by
a tenant of his. That tenant was got evicted
through the Rent Control Proceedings on the
ground that the revision petitioner needs that
building for his own occupation. After evicting that
tenant he did not occupy that building, instead he
pulled down that building and constructed this
multi storied building. There was at least five
rooms in the ground floor of that building. What
the revision petitioner did was to sell off all those
five rooms. Having done so, it is not open to the
revision petitioner now to contend that he requires
a room in the ground floor itself for his purpose.
Principles of evicting are also applicable to
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decision making by the statutory authorities under
the Rent Control Act. See Rule 11(8) of Kerala
Building (Lease & Rent Control) Rules. It is most
equitable on the part of the revision petitioner to
insist on a ground floor room itself, now.
6. The result of the above discussion is that
the RCR is stand allowed only to the extent of
vacating the order of eviction passed under
section 11(8). It stands dismissed in other
respects. However, considering the request of the
revision petitioner we are inclined to grant time to
the revision petitioner to surrender the premises
till 30/06/2010. Revision Petitioner shall file an
affidavit before the execution court within ten
days from today undertaking to give peaceful
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surrender of the building to the respondent/
landlord on or before 30/06/10. It will also be
undertaken through the same affidavit that
arrears of rent will be discharged within two
months and occupational charges at the current
rent rate of Rs.250/- will be paid to the
respondent as and when the same falls due till
such time as surrender is made.
PIUS C. KURIAKOSE
JUDGE
C. K. ABDUL REHIM
JUDGE
kns/-