IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 447 of 2003()
1. P.M.ISMAIL, BOMBAY HARDWARES,
... Petitioner
Vs
1. ABBAS S/O.HYDROSE, THEMBADATH BUILDING,
... Respondent
2. ABDUL SALIM @ SALIM S/O. HYDROSE, DO.DO.
For Petitioner :SRI.S.K.BRAHMANANDAN
For Respondent :SRI.S.SHYAM
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/11/2010
O R D E R
PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ.
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CRP. No. 447 of 2003
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Dated this the 23rd day of November, 2010
O R D E R
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P.S.Gopinathan, J.
Revision petitioner is the respondent tenant in RCP. 28/97
on the file of the Rent Controller, Alwaye. The respondents
landlords are the petitioners before the Rent Controller. They
instituted the above petition stating that the petition schedule
building along with other 9 rooms were purchased by them
together as per Ext.A1 sale deed in the year 1991 and that the
revision petitioner is occupying the petition schedule building
as a tenant with a current rent @ Rs.78/- per month and doing
hardware business. The first respondent was employed in
Indian Aluminium Company from where he obtained voluntary
retirement and as such he was devoid of any avocation of his
own and to start a business in hardware the petition schedule
building was bona fide required. It was also alleged that the
rent of the petition schedule building was kept in arrears and
despite the notice to discharge, the arrears of rent was not paid.
With these pleadings the respondents sought for an order of
CRP.No.447/2003 2
eviction under Section 11(2)(b) and 11(3) of the Kerala
Buildings (Lease and Rent Control) Act (hereinafter referred to
as the ‘Act’).
2. The revision petitioner denied the bona fide need and
contended that the petition is only a ruse to get an order of
eviction and further contended that there was no arrears of
rent. The revision petitioner also claimed immunity from eviction
under the first and second proviso to section 11(3).
3. During the course of the enquiry, on the side of the
respondents, PWs 1 to 3 were examined. Revision petitioner was
examined as RW1. On the side of the respondents, Exts.A1 to
A13 were marked. On the side of the revision petitioner, Exts.B1
to B9 were marked. Exts.X1 and X2, two third party documents
were also marked. The Rent Controller on an appraisal of the
evidence arrived at a finding against the respondents.
Consequently the petition was dismissed. Feeling aggrieved the
respondents preferred appeal as RCA. 13/01 before the Rent
Control Appellate Authority, North Paravur. The Appellate
CRP.No.447/2003 3
Authority by the impugned judgment dated 29.8.2002 reversed
the finding of the Tribunal regarding bonafide need urged.
Consequently, the Appeal was allowed in part. While setting
aside the order of the Rent Controller in part, an order of
eviction under Section 11(3) of the Act was granted. The order
declining eviction under Section 11(2)(b) was confirmed.
Assailing the legality, correctness and propriety of the judgment
of the Appellate Authority granting eviction under Section 11(3)
of the Act, this Revision Petition was preferred under Section 20
of the Act.
4. The revision petitioner filed a petition as
I.A.No.3344/2009 reporting material change of circumstances
after the institution of the revision petition filed before this
Court. One circumstance that was alleged is that the
respondents had preferred a petition as RCP No.19/92 against
another tenant seeking eviction under Section 11(3) and 11(4)(i)
of the Act. In that petition, eviction under section 11(3) was
sought by advancing bonafide need of the 2nd respondent to start
a business. That petition was allowed under Section 11(4)(i).
CRP.No.447/2003 4
Eviction sought under 11(3) was declined. Though the
respondents therein preferred appeal and revision, those
proceedings ended in favour of the respondents. The petition
schedule building therein was got evicted and the respondents
took possession of the petition schedule building and thereafter
it was partitioned into two and one portion was let out to
Sankaran Namboodiri in the year 2003 and another portion was
let out to Devapal V.V. and Company. In the year 2007, the
portion occupied by Sankaran Namboodiri was got vacated and
then let out to Smt.Bindu Sreenivasan. The portion occupied by
Devapal V.V and Company was vacated in the year 2008 and it
was let out to Mohammed Jafar.
5. Yet another contention that was raised is that building
bearing door No.8/7(8) occupied by one Reji at the time of
Ext.A1 was vacated and it was again let out to Sofia Sreenivasan
in the year 2002. Lease in favour of Sofia Sreenivasan was
terminated in the year 2003 and then it was let out to
Smt. Nirmala. Third contention that was raised is that building
bearing door No.8/10 and 8/11 which was subject matter of RCP
CRP.No.447/2003 5
No. 5/2005 was also subsequently let out by the respondents.
But it is revealed that the building bearing door Nos.8/10 and
8/11 are the upstair portions. There is no case for the revision
petitioners that the need urged by the respondents could be met
out by the building bearing door Nos.8/10 and 8/11 as those
rooms are situated in the upstairs. But, according to the learned
counsel for the revision petitioner, if the respondents had a
bonafide need as alleged in the petition they could have started
the business in the building got evicted in RCP 19/92 or in the
building bearing door No.8/7(8). The subsequent lease of those
buildings, according to the learned counsel, tell tales lack of
bonafides.
6. Learned counsel for the respondents, canvassing our
attention to the averments contained in the counter affidavit,
submitted that the building got evicted in RCP No.19/92 was let
out on the hope that the respondents could succeed to get the
petition schedule building evicted on disposal of this revision
petition. It was also submitted that by oral partition that building
was set apart to the share of the 2nd respondent and that the
CRP.No.447/2003 6
ground urged in the petition is for the bonafide need of the 1st
revision petitioner. It was further submitted that the subsequent
lease transactions were in favour of sub tenants inducted by the
tenants and the respondents were forced to demise the building
in favour of the sub tenants to avoid litigations. According to the
learned counsel for the revision petitioner, the oral partition is
only a lame reason, now invented and liable to be rejected
outright.
7. Having heard either side, it is not in dispute that
certain subsequent events, which may, in the ordinary course, be
sufficient to tilt the decision of this petition one way or other,
had occurred. In the event, the respondent had got evicted other
buildings and it was subsequently demised by separate lease to
strangers, the bonafide need urged in this petition is to be
doubted. On the other hand, some explanations are given by the
respondents. The correctness and reliability of those
explanations are to be decided on pleadings and evidence. But in
the absence of pleadings and evidence to that effect, we are not
in a position to arrive at a just conclusion. Therefore, we are not
CRP.No.447/2003 7
expressing any opinion. We find that regarding the changed
circumstances, there should be additional pleadings and
additional evidence to that effect. Therefore, the matter requires
a remand to the Rent Controller with liberty to either party to
amend the pleadings and to adduce evidence regarding the
subsequent acquiring of possession of the two other buildings,
one in RCP.No.19/92 and the other building occupied by Reji.
8. In the result, while allowing this Revision Petition, the
judgment of the Appellate Authority as well as the order of the
Rent Controller are set aside and the matter is remitted back to
the Rent Controller for fresh disposal after allowing the parties
to amend the pleadings to the extent mentioned above and to
adduce further evidence.
9. Incidentally, we notice that the revision petitioner is
paying only Rs.78/- as the rent of the petition schedule building
which was let out decades back. The current rent is abysmally
low. It is submitted that the petition schedule building is
situated in a most important part of Aluva Municipality in Bank
CRP.No.447/2003 8
Junction. The plinth area of the petition schedule building is
about 500 sq.feet. Taking into account of the prevailing rent
rate, we find that it would be just and appropriate to
provisionally fix the fair rent of the petition schedule building at
Rs.7500/- with effect from 1/12/2010. Hence, we provisionally
fix the fair rent of the petition schedule building at Rs.7500/-
with effect from 1/12/2010 with liberty to either party to move
the Rent Controller for fixing the fair rent. Till the fair rent of the
petition schedule building is fixed on a regular application by
either party, the rent fixed provisionally would remain in force.
Parties are directed to appear before the Rent Controller
on 15.12.2010. We hope that this matter being an old one, the
Rent Controller shall give priority for disposing the same.
(PIUS C.KURIAKOSE, JUDGE)
(P.S.GOPINATHAN, JUDGE)
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