CHOYI Vs. AMOO

JUDGEMENT

(1.) This is the tenants' writ petition challenging the order made by the District Judge, Kozhikode, in Rent Control Revision Petition No. 100 of 1986. This case has come up before us on a reference made by Justice Chettur Sankaran Nair on the ground that an important question as to whether the District Judge acting as a revisional authority under the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965) (hereinafter referred to as the Act), having set aside the order of the Appellate Authority finding that in the meanwhile the Court of the Subordinate Judge has ceased to be the Appellate Authority can himself record findings as an Appellate Authority.

(2.) The relevant facts necessary for the disposal of this case may briefly be stated as follows: Respondents 1 to 6 made an application before the Court of Rent Controller, Payyoli, for eviction of the petitioners, invoking S.11(2), 11(3) and 11 (4)(1) of the Act The Rent Control Court by its order dated 30th March, 1985 dismissed the petition. On appeal, the Subordinate Judge, who was then the Appellate Authority, dismissed the appeal holding that the petition for eviction is barred under the proviso to S.11(3) of the Act, the petition for eviction having been filed within a period of less than one year from the date of acquiring the right to recover possession under an instrument of transfer inter vivos. In view of the said finding, the other findings recorded by the Rent Controller were not examined. The landlords then challenged the said order before the Revisional Authority, the District Judge, under S.20 of the Act. The Revisional Authority reversed the finding of the Appellate Authority and held that the application is not barred by the proviso to S.11 (3) of the Act and that it is maintainable. Having come to that conclusion, the Revisional Authority felt that the only course open to it is to remit the case to the Appellate Authority, having regard to the powers conferred on it in this behalf by S.20 A of the Act. By the time the revisional authority rendered its decision, the Court of Subordinate Judge which was notified as an Appellate Authority under S.18 of the Act had ceased to be an Appellate Authority, the District Judge having been notified as an Appellate Authority by notification dated 31-8-1989. The Revisional Authority says that he cannot remand the case to the Subordinate Judge who was earlier notified as an Appellate Authority as he has ceased to be the Appellate Authority, from the aforesaid date. Being confronted with a situation like this of not being able to remand the case to a non existent Appellate Authority, the revisional authority came to the conclusion that it now having become the Appellate Authority under the aforesaid Notification issued by the State Government, notifying the District Judge as an Appellate Authority, he can himself exercise the powers of the Appellate Authority and record findings on those issues on which the Appellate Authority had not recorded its findings. So saying, the District Judge purporting to function as the Appellate Authority records finding on the other issues on which the Rent Control Court had recorded findings against the landlords. The only matter on which the panics joined issue was the claim of the landlords for eviction on the ground of bona fide need. Reversing the findings on the Rent Control Court, the learned District Judge held that the requirement of the landlords is bona fide and that the tenants have failed to establish that they are dependent for their livelihood mainly from the income derived from the business they are carrying on in these premises. In view of these findings, the order of eviction has been passed. It is the said decision that is challenged in this writ petition.

(3.) Shri Mohankumar, the learned counsel appearing for the petitioners formulated three contentions in support of his contentions, namely, (1) that the finding in the impugned order that the application for eviction is not barred by the proviso to S.11 (3) of the Act is not in accordance with law, (2) that the finding regarding bona fide requirement of the landlords is vitiated by errors apparent on the face of the record and cannot be sustained, and (3) that the revisional Court could not have functioned both as a revisional Court as also as an Appellate Authority, as it purports to have done in the impugned order.