IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 270 of 2009()
1. P.K.ABDUL KHADER, FAIZAL MANZIL,
... Petitioner
Vs
1. MYMOONA, D/O.LATE MOOSA,
... Respondent
2. HAJARA, D/O.LATE MOOSA,
3. SABIRA, D/O.LATE MOOSA,
4. FATHIMA, D/O.LATE MOOSA,
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :17/11/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
------------------------
R.C.R.No. 270 OF 2009
------------------------
Dated this the 17th day of December, 2009
O R D E R
Pius C.Kuriakose, J.
The tenant against whom an order of eviction was
concurrently passed on the grounds of arrears of rent and bona
fide need for own occupation is the petitioner in this revision
under Section 20. The respondents sought to evict him on the
ground under clause (ii) of sub section (4) of Section 11 of Act 2
of 1965 also. But the Rent Control Court ordered eviction only
on the ground of arrears of rent and bona fide need for own
occupation. The eviction under section 11(4)(ii) was concurrently
declined by the Rent Control Court and the Appellate Authority
and we do not find any infirmity about that decision of the
authorities below. As for the eviction order passed under the
ground of arrears of rent, it is agreed by both sides that as of
now no rent is in arrears and there is an agreement that order
of eviction under Section 11 (2) (b) can be vacated invoking
powers under Section 11 (2)(c). Accordingly, we vacate the
order of eviction passed under Section 11 (2) (b).
RCR.No.270/2009 2
2. The need projected by the landladies, who are four in
number, in the RCP was that their husbands are presently
without any job or avocation and that they want to carry on
business in the petition schedule room as well as in the three
other rooms in the larger building of which the petition schedule
room is a part. We are informed that the tenants in the other
rooms have already vacated. Bona fides of the need projected
was disputed by the revision petitioner, who contended also
that he is entitled for the protection of the second proviso to sub
section (3) of Section 11. The Rent Control Court consolidated
the RCPs and tried them jointly. Before the Rent Control Court,
the third petitioner in the RCP and her husband got themselves
examined respectively as PW1 and PW2. On behalf of the
tenants, RW1 the tenant in RCP No. 58/2004 was examined.
The Rent Control Court on appreciating the evidence came to the
conclusion that the need projected by the landladies was bona
fide and that the tenants were unsuccessful in proving that they
are entitled for the protection of the second proviso to sub
section (3) of Section 11. The Appellate Authority concurred
with all the conclusions of the Rent Control Court and confirmed
RCR.No.270/2009 3
the order of eviction passed under Section 11 (3).
3. In this revision under section 20, various grounds are
raised challenging the correctness of the order of the Rent
Control Court and the Judgment of the Appellate Authority. We
have heard the submissions of Sri. Liju M.P., learned counsel for
the revision petitioner and those of Sri.C.Vathsalan, learned
counsel for the respondents.
4. Sri.Liju M.P. Learned counsel for the revision petitioner
submitted that the plea of the landladies is that their husbands
were without any employment or avocation and that the
building in question is required so that they can conduct
businesses. But the evidence of PW1 and PW2 is to the effect
that the husbands of at least three of the landladies are
presently having business ( business in copra, steel and plywood)
at Thalassery- their home town. The learned counsel also
submitted that it is very unlikely that the husbands of the
landladies, who are presently put up at Thalassery in the family
house together, will come over to Kottayam which is at a
distance of more than 300K.M.for doing business. According to
the learned counsel, the finding of the authorities below that the
RCR.No.270/2009 4
evidence is to the effect that husbands of the landladies are
presently without employment or business is the result of
misreading of evidence by those authorities. Sri.Liju read over
to us the evidence of PW1 and PW2 and also that of RW1.
5. Sri.C.Vathsalan, learned counsel for the
respondents/landladies would forcefully resist all the submissions
of Sri.Liju. He would support the order of the Rent Control Court
and the judgment of the Appellate Authority on the various
reasons stated therein. He submitted that in this jurisdiction
under Section 20 of Act of 1956, this court is not expected to
reappraise the evidence. According to him, the evidence adduced
by PW1, PW2 and RW1 has been properly appreciated by the
authorities below. He also submitted that the revision petitioner
did not adduce even formal counter evidence to the evidence
adduced by the landladies.
6. We have very anxiously considered the rival submissions
addressed at the Bar. We have gone through the pleadings and
we have gone through the testimonies of PW1, PW2 and RW1.
We are unable to agree with the authorities below that PW1 and
PW2 have given convincing evidence to the effect that the
RCR.No.270/2009 5
husbands of the four landladies are presently without any
employment or avocation for life. The evidence at the most is to
the effect that husband of PW1(PW2) who was presently
running a hotel in Andra Pradesh is presently unemployed. For
the husbands of the other landladies, what we notice from the
evidence is that their husbands are presently having some
business at Thalassery- their home town. This is an aspect of
which the more authentic evidence can be given by those
husbands only. We feel that non examination of the husbands of
the landladies other than PW1 is a material omission in the
evidence of the landladies in this case. We are of the view that
on the facts and circumstances of the case, an opportunity can
be given to the landladies to examine the husbands of the
other three landladies also. The power of the Rent Control
Appellate Authority to hold enquiry in terms of the statutory
provisions is co terminus with that of the Rent Control court
itself. Since the RCP is an old one, we are of the view that in
this case, the Appellate Authority itself can be directed to permit
the respondents to examine the husbands of the landladies 1, 2
& 4.
RCR.No.270/2009 6
7. We notice that the petition schedule building is situated
at Pulimood junction which is commercially a vantage point in
the Kottayam Municipal town and that the monthly rent of
Rs.600/- presently being paid by the revision petitioner is very
low. We are, therefore, of the view that the rent payable by the
revision petitioner can be prospectively enhanced subject to
fixation of fair rent by the Rent Control Court at the instance of
either of the parties.
8. Result of the above discussion is as follows;
i). The judgment of the Appellate
Authority is set aside.
ii). The appeal is remanded to the
Appellate Authority. The Appellate Authority
is directed to permit the landladies to
examine the husbands of the landladies 1,
2 and 4 as further witness on their side.
They are also permitted to produce any
other documentary evidence which may
support their case that the husbands of the
landladies are presently without any
RCR.No.270/2009 7
employment. If further evidence is
adduced by the landladies, the revision
petitioner also should be permitted by the
Appellate Authority to adduce counter
evidence.
Iii). The Appellate Authority will take
fresh decision in the matter on the basis of
the evidence already on record and further
evidence, which may be adduced, at the
earliest and at any rate within two months
of the parties entering appearance before
the Appellate Authority pursuant to this
judgment.
iv). The revision petitioner shall pay
the rent to the respondents/landladies at
the rate of Rs.1500/- per month with effect
from 1/1/2010.
7. We make it clear that the above fixation of rent is
tentative and will be subject to regular fixation of fair rent by the
Rent Control Court if either of the parties are aggrieved. Parties
RCR.No.270/2009 8
are directed to enter appearance before the Rent Control
Appellate Authority 15/1/2010.
Transmit the entire records forthwith to the Rent Control
Appellate Authority, Kottayam.
PIUS C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
dpk