IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 C.R.P No.786 of 2002 (A) ------------------------------ RCA.66/1997 of II ADDL. DISTRICT COURT, PALAKKAD RCP.48/1996 of ADDL.MUNSIFF COURT, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/1ST RESPONDENT ---------------------------------------------------------------- ALAVI HAJI S/O.KUNHI MARAKKAR,BUSINESS, DOOR NO.11/1239,MANNANCHIRA ROAD, BIG BAZAR,PALKKAD AND RESIDING AT HOUSE NO.26/661, PATTAM STREET,PALAKKAD. [DIED; LRs. impleaded] * SUPPLEMENTARY PETITIONERS 2. AMINA, AGED 75 YEARS, W/O LATE ALAVI HAJI, HOUSE NO.26/661, PATTANI STREET, PALAKKAD. 3. A.HAMSA, AGED 56 YEARS, S/O LATE ALAVI HAJI, HOUSE NO.26/661, PATTANI STREET, PALAKKAD. 4. A. YOUSUF, AGED 52 YEARS, S/O LATE ALAVI HAJI, RESIDING AT PALLIPURAM, PALAKKAD, PALAKKAD TALUK. 5. SUHARBAN RAHIM, AGED 44 YEARS, D/O LATE ALAVI HAJI, RESIDING AT POOLAKKAD, PALAKKAD TALUK. 6. ABDUL SALAM, AGED 41 YEARS, S/O LATE ALAVI HAJI, RESIDING AT PATTANI STREET, PALAKKAD. 7. SABIRA AJMAL, AGED 37 YEARS, D/O LATE ALAVI HAJI, RESIDING AT DOOR NO.38/219, FAZI MANZIL, PATTANI STREET, PALAKKAD, PALAKKAD TALUK. 8. MUHAMMED REFEEK, S/O LATE ALAVI HAJI, AGED 35 YEARS, RESIDING AT DOOR NO.20/661, PATTANI STREET, PALAKKAD. *[SUPPLEMENTARY REVISIONPETITIONERS 2 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE REVISION PETITIONER VIDE ORDER DT.01/04/04 IN I.A.175/04] R.C.R No.786 of 2002 (A) -2- BY ADV. SRI.H.BADARUDDIN RESPONDENT/RESPONDENT/PETITIONER: -------------------------------------------------- 1. PREMALATHA W/O. RANGARAJAN,RESIDING AT AROSAMORAN STREET,COIMBATORE TALUK. 2ND RESPONDENT/2ND APPELLANT/2ND RESPONDENT 2. MURUGAN S/O.SHANMUGHAN PILLAI,RESIDING AT 25/412,VITHUNNI,PALAKKAD. ADV. SRI.V.CHITAMBARESH FOR R1 SRI.T.C.SURESH MENON FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ C. R. P No.786 of 2002 ------------------------------------------------ Dated this the 1st day of July, 2009 ORDER Pius C. Kuriakose, J The tenant has come up in revision against order of eviction concurrently passed by the Rent Control Court and the Appellate Authority on the grounds of bona fide own occupation under Section 11(3) and sub letting under Section 11(4)(i). 2. The case of the landlady in the context of the ground under Section 11(3) was that she is presently put up at Coimbatore and that she wants to come down to Palakkad and conduct a petty business in the petition schedule building with the assistance of her husband. The bona fides of the need and the claim were denied by the revision petitioner/tenant. The C.R.P No.786 of 2002 -2- revision petitioner also claimed the protection of the second proviso to sub Section 3. The Rent Control Court enquired into RCP. The landlady herself was examined as PW1. In the context of the tenant's claim for protection of second proviso, as witness an autorikshaw driver was examined as PW2. On evaluating the evidence the Rent Control Court found that the need projected by the landlady was bona fide. It was also found that the tenant had failed in establishing that he satisfies either of the ingredients of the second proviso. Accordingly, eviction order was passed under Section 11(3). 3. The allegation of the landlady in the context of ground under clause 1 of Sub Section 4 of Section 11 was that a portion of the petition schedule building was sublet or transferred by the tenant to the second C.R.P No.786 of 2002 -3- respondent in the RCP (the second respondent Murugan). The allegation was that Murugan is unauthorisedly conducting his own business from the varandha of the petition schedule building. The contention of the tenant was that there is no sub lease or transfer. He contended that the second respondent was conducting a “thattu kada” on the premises belonging to the Municipality and not on any portion of the petition schedule building. The alleged sub lessee was examined as RW2. The tenant was examined as RW1. The Rent Control Court found that the second respondent is an unauthorised transferee or sub lessee and accordingly, ordered eviction under Section 11(4) (i) also. The Appellate Authority on considering the appeal preferred by the tenant re-apprised the evidence and concurred with all the conclusions of the C.R.P No.786 of 2002 -4- Rent Control Court and accordingly, the order of eviction was confirmed. 4. We have heard the submissions of Mr.H.Badruddin, the learned counsel for the revision petitioner and those of Sri.T.C.Suresh Menon, the learned counsel for the respondents. Assailing the findings of the authorities below on both the grounds Mr.H.Badruddin argued that the findings of the authorities in the context of the second proviso to Section 11 (3) was wrong. The evidence was to the effect that the tenant was depending for his livelihood mainly on the income derived from the business carried on by him. The evidence was also to the effect that in the locality no other suitable buildings were available for the tenant to shift his business. The suggestion to the tenant in cross examination was that C.R.P No.786 of 2002 -5- in certain far away places in Palakkad town several buildings were available. There was no suggestion at all that on the market road or in the immediate neighbourhood of the petition schedule building other buildings were available. Learned counsel submitted that the subsequent event of the tenant's passing away and one of the legal heirs of the deceased tenant alone carrying on business in the petition schedule building will have a fundamental impact on the landlady's right to get eviction. The legal heir of the deceased tenant who is presently carrying on the business is having no other source of income. It is that legal heir who is supporting his mother, the widow of the tenant. Mr.Badruddin also submitted that of late, the landlady has put up her own building in Coimbatore. Therefore, it is highly improbable that the C.R.P No.786 of 2002 -6- landlady will come down to Palakkad and carry on the business. The subsequent event eclipses the need projected by the landlady completely. 5. As regards the order of eviction passed under Section 11(4)(i), Mr.Badruddin asserted that there was no sub lease of any portion of the premises in favour of the second respondent. The second respondent is no longer present in the premises or anywhere near the petition schedule building. His whereabouts are not known. Even the “thattu kada” conducted by him does not exist at present. 6. All the submissions of Mr.Badruddin were resisted by Sri.T.C.Suresh Menon, the learned counsel for the respondent/landlady. 7. We have anxiously considered the rival submissions addressed at the Bar. We are unable to C.R.P No.786 of 2002 -7- accept the argument that the demise of the tenant and the present situation of one of the legal heirs of the deceased tenant carrying on his business in the petition schedule building, is a subsequent event which will have the impact of eclipsing the need projected by the landlady. As for the submission of the learned counsel that a new building has been put up by the landlady at Coimbatore and it is highly improbable that the landlady will not come down to Palakkad for doing business, there is no evidence on record to accept the above submission. 8. At any rate, having regard to the protection given by the statute under sub Section 12 of Section 11 to the tenants who are evicted on the ground of own occupation without justifiable reason, we are of the view that the above submission need not deter us C.R.P No.786 of 2002 -8- from confirming the order of eviction. The jurisdiction under Section 20 is a revisional one and in this jurisdiction this Court is not expected to re-appreciate the evidence and substitute this Courts findings for the conclusions on fact already entered into by the authorities below especially when those findings are founded on evidence. 9. Having gone through the order of the Rent Control Court and the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts, we find that the findings entered into by the appellate authority regarding the bona fides and also regarding the tenant's eligibility are founded on evidence. We do not see any warrant for interference. 10. Now coming to the order of eviction passed C.R.P No.786 of 2002 -9- under Section 11(4)(i), we record the submission of Mr.Badruddin that the alleged sub tenant is no longer present anywhere near the petition schedule building and that his whereabouts are not known. We also record the submission that the “thattu kada” which has been conducted has already been removed by the local authority. The proceedings in this revision will also reveal that actually, service of notice on the alleged sub tenant could not be made since his whereabouts are not known. 11. In view of the above and in view of the circumstances discussed above, we confirm the order of eviction passed under Section 11(3). But we are not examining the correctness of the order of eviction passed by the Rent Control Court and the Appellate Authority under Section 11(4)(i) as agreed to by the C.R.P No.786 of 2002 -10- learned counsel for the landlord. 12. As his last request Mr.Badruddin sought for one year's time to surrender the premises. Counsel for the respondent stiffly opposed the same. We feel that there is no justification for granting one year's time. However, by way of indulgence, we are inclined to grant time till 31/12/09 subject to the following conditions:- 13. The revision petitioner shall file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to peacefully surrender the petition schedule building to the respondent/landlady or her husband on or before 31/12/09. It shall also be undertaken that the entire arrears of rent, if any, due shall be discharged within one month and that the tenant will pay occupational C.R.P No.786 of 2002 -11- charges at the current rent rates till he actually surrenders the petition schedule building, as and when the same falls due. Affidavit as directed above shall be filed within one week from today, failing which the tenant will not get the benefit of time granted by this order. 14. This CRP is dismissed as above. No costs. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-