PUTHIYAPURAYIL KAMMADATHIL VALSALAN Vs. KAKKATHI SULOCHANA

JUDGEMENT

(1.) The petitioner is the tenant in R.C.P.No.277 of 2004 on the file of the Rent Control Court, Kannur, a petition filed by the respondents and their mother for an order of eviction under section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. While the rent control petition was pending, the mother of the respondents herein passed away and thereupon, the respondents herein were recorded as her legal heirs. After trial, the rent control court dismissed the petition for eviction by order passed on 31.08.2005. The rent control court held that the need put forward is not bonafide. It had however entered a finding that the tenant is not entitled to the protection of the second proviso to section 11(3) of the Act.

(2.) Challenging the order passed by the rent control court, dismissing the petition for eviction, the landlords filed R.C.A.No.36 of 2006 on the file of the Rent Control Appellate Authority, Thalassery. By judgment delivered on 30.01.2012, the appellate authority reversed the order of the trial court and held that the bonafide need put forward is true and genuine. The rent control appellate authority also held that though the tenant has proved the ingredients of the first limb of the second proviso to section 11(3) of the Act, he has not discharged the burden of proving the ingredients of the second limb of the second proviso. It was accordingly held that the tenant is not entitled to get the protection of the second proviso to section 11(3) of the Act. In the appeal, the tenant raised a contention that the landlords are in possession of building bearing door No.6/872 and therefore, the first proviso to section 11(3) of the Act, operates as a bar to an order of eviction being passed. The appellate authority after considering the said contention remanded R.C.P.No.277 of 2004 for the limited purpose of considering the question whether the first proviso to section 11(3) of the Act would operate as a bar in passing an order of eviction.

(3.) The tenant thereupon filed R.C.R.No.186 of 2012 in this court, canvassing the correctness of the finding entered by the appellate authority that the need put forward is bonafide and that the tenant is not entitled to protection of the second proviso to section 11(3) of the Act. A Division Bench of this court repelled the challenge to the said findings. This court however held that the enquiry to be held for the purpose of considering the question whether the first proviso to section 11(3) of the Act would be a bar in passing an order of eviction, need not be confined to one particular room namely room No.6/872 and that the parties are free to adduce evidence within the scope of the pleadings on either side. While the revision petition was pending, an advocate commissioner was appointed by this court and the report submitted by her, marked as Ext.C1, was forwarded to the trial court and the trial court was directed to try and dispose of the case expeditiously.