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2012 Supreme(Ker) 356

High Court of Kerala
PIUS C. KURIAKOSE & A.V. RAMAKRISHNA PILLAI
Nalini
Versus
A.G. Abraham
RCR No.117 of 2012
Decided on: 23-05-2012

Advocates Appeared:
For the Petitioner:Sri. Jacob P. Alex, Joseph P. Alex, Advocates.
For the Respondent:K. Mohanakannan, Smt. A.R. Pravitha, Smt. Rashmi Ravindran, Smt. D.S. Thushara, Liju Stephen, Advocates.

Headnote:A. Kerala Buildings (Lease and Rent Control) Act, 1965, Section 11(8) - . Evidence Act, 1872, Section 20 -Court has to find out the additional accommodation and occupation of the adjacent building to the tenant claiming eviction under this section -findings without evidence to support the finding as misconception of the evidence is not the error of the law.

Judgment:-

Ramakrishna Pillai, J.

The revision petitioner who succeeded tenancy after the death of her husband Gangadharan, the original tenant of the petition mentioned room, is coming up in revision before this Court for the second time.

2. The respondents/landlords sought eviction of the revision petitioner and her children from the tenanted premises under Sections 11(2)(b) and 11(8) of the Kerala Buildings (Lease and Rent Control Act), 1965 (hereinafter referred to as the 'Act' for short) alleging that the tenants did not pay any rent with effect from 1.6.2005 and further that the respondents, who are residing at the rear portion of the building having two bed rooms and a kitchen, need additional accommodation for the son of the first respondent as negotiations for his marriage was going on and due to the inadequate residential convenience, nobody was willing to have an alliance with him.

3. The revision petitioner, who opposed the application, admitted the continuance of tenancy as the legal heir of late Gangadharan. However, she denied the allegation that she defaulted in paying the rent. It was further contended that the need alleged is only a ruse for eviction as the respondents are having other buildings for residence. It was the further case of the revision petitioner that the respondents are not using the tenanted premises for residential purposes. She also claimed that she is depending upon the income derived from the avocation that is being carried in the tenanted premises and no convenient buildings are there in the locality to shift the same.

4. The learned Rent Controller, after considering the evidence adduced, allowed eviction on both grounds. The appeal by the revision petitioner was allowed in part by the Rent Control Appellate Authority reversing the order of eviction under Section 11(2) (b). However, eviction under Section 11(8) was upheld.

5. The revision petitioner took the matter in revision before this Court and a Division Bench of this Court of which one among us (Pius C.Kuriakose,J.) was a party, allowed the revision by order dated 13th October 2011 and remanded the case to the Appellate Authority as it was found that additional evidence was required for ascertaining the aspects relating to occupation of the tenanted premises by the respondents as they have subsequently purchased a new residential building in the Housing Board Colony. This Court felt that to have a proper decision on the question of the bonafides of the need for additional accommodation, the parties be permitted to adduce further evidence.

6. After remand, evidence was taken by the Rent Control Appellate Authority. An Advocate Commissioner was deputed and a report was obtained. The respondents as well as the revision petitioner were examined by the Rent Control Appellate Authority. The Commissioner was examined as PW2. The report was marked as Ext.A2 series. The learned Rent Control Appellate Authority, on the basis of the evidence already on record as well as the evidence that was led in by the parties subsequent to the remand, dismissed the appeal confirming the order of the Rent Control Court under Section 11(8). Thus, the present revision.

7. We have heard the learned counsel for the revision petitioner and the learned counsel for the respondents. We have also perused the impugned revised judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court.

8. While Mr. Jacob P. Alex, the learned counsel for the revision petitioner argued that the impugned judgment is not legally sustainable as certain admissions made by PW1 after remand which would establish that the need alleged by the respondents for additional accommodation is not bonafide, has escaped the attention of the learned Rent Control Appellate Authority, Mr. Liju Stephen, the learned counsel for the respondents/landlords justified the impugned order contending that the standard of bonafides expected to be established by a landlord in a petition








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