IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 RCRev..No. 381 of 2010() ------------------------ RCA.81/2009 of RENT CONTROL APPELLATE AUTHOIRYT KOZHIKODE RCP.1/2007 of PRL.M.C.,KOZHIKODE-II .................... REVISION PETITIONER/APPELLANT/RESPONDENT : -------------------- A.R.SUBAIR, S/O. IBRAHIMKUTTY, AGED 45 YEARS, 'MYTHRI' KADALUNDI AMSOM, PAZHANCHANNUR DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.VINOD SINGH CHERIYAN SRI.V.T.MADHAVANUNNI RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- MACHINGAL MUHAMMAD HUSSAIN, S/O. MUHAMMAD, AGED 62 YEARS, KADALUNDI AMSOM, PAZHANCHANNUR DESOM, POST CHALIYAM, KOZHIKODE DISTRICT PIN 673301. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No.381 OF 2010 ------------------------ Dated this the 30th day of November, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against the revision petitioner tenant on grounds of arrears of rent under Section 11(2)(b) and bona fide need for own occupation under Section 11 (3). In fact, the landlord had invoked the ground under Section 11(4)(iii) also to evict the revision petitioner. But, the rent control court negatived that ground and the above order has become final. 2. On going through the impugned judgment of the rent control appellate authority, we notice that the order of eviction concurrently passed under Section 11 (2)(b) does not suffer from any infirmity at all. After all, orders of eviction passed on the ground of arrears of rent are only tentative orders which are liable to be vacated by making requisite deposits under Section 11 (2)(c). In that view of the matter, we confirm the order of rcr.No.381/2010 2 eviction passed under Section 11 (2)(b) granting to the revision petitioner one month time from today to get that order vacated by making requisite deposits and filing necessary application under Section 11 (2)(c). 3. The ground urged in the rent control petition by the respondent landlord was that he needs the petition schedule building for the purpose of conducting hotel business. It is conceded by him that he conducted the same business in the petition schedule building for 20 years and that business had to be discontinued on account of an acute condition of filaria which he had contracted. According to him, the ailment at present is only 40% and at any rate he will not have any difficulty in conducting the same business with the help of employees. The bona fides of the need was stiffly opposed by the tenant, who claimed the protection of the second proviso to subs section (3) of Section 11. At trial, by the rent control court, evidence consisted of oral evidence of PW1, the landlord, Exts.A1 o A3, the oral evidence of RW1 and Ext.B1 to B3. The rent control court on appreciating the evidence came to the conclusion that the need was bona fide . It was also concluded that the tenant rcr.No.381/2010 3 was unsuccessful in proving that he is entitled to the protection of the second proviso to sub section (3) of Section 11. 4. The learned appellate authority considered the appeal preferred by the revision petitioner. That authority made a through reappraisal of the entire evidence and concurred with all the findings of the rent control court. Accordingly, the RCA was dismissed. 5. In this revision under Section 20, various grounds are raised challenging the judgment of the appellate authority. The learned counsel for the revision petitioner would assail the judgment of the appellate authority on the grounds raised in the revision. The learned counsel submitted that the finding that the need is bona fide is erroneous. According to him, the landlord, in the first instance, filed a suit for mandatory injunction on the presumption that the revision petitioner is a licensee. That suit was decreed. However, in appeal, the above decree was reversed. In stead of pursuing the matter further in the second appeal, the landlord would institute the rent control petition accepting the status of the revision petitioner to be a tenant. This itself is indicative of absence of bona fides. The learned rcr.No.381/2010 4 counsel submitted that the landlord filed the rent control petition with a case that he needs to start hotel business for seeking out his livelihood. It came out in evidence that children of the landlord are well placed in life. This amounts to suppression of material facts. This disentitles the landlord to order of eviction from the rent control court. The learned counsel would very strenuously attack the finding of the statutory authorities regarding the applicability of the second limb of the second proviso to sub section (3) of Section 11. According to the learned counsel, the buildings, which have been found to be available to the tenant, are unnumbered buildings which stand the risk of being demolished by the local authority at any moment. Such buildings cannot be taken as suitable buildings for the purpose of second proviso to sub section (3) of Section 11. Lastly, the learned counsel submitted that if this court orders notice, there is a likelihood of the issue being settled, as the tenant is ready and willing to pay a very attractive rent to the landlords. 5. We have very anxiously considered the submissions of the learned counsel for the revision petitioner. We have gone rcr.No.381/2010 5 through the order of the rent control court and the judgment of the rent control appellate authority. The jurisdiction, under which we are presently sitting, is revisional in nature. In this jurisdiction, we are not ordinarily expected to reappraise the evidence and substitute our findings on facts for those entered by the statutory authorities, especially when they are entered concurrently. Having gone through the impugned judgment of the appellate authority, we are convinced that the findings entered therein regarding the bona fides of the need and regarding the applicability of the second proviso are all founded on evidence. It came out in evidence that the landlord's children are employed. But, what we find is that the need projected by the landlord is that he wants to conduct hotel business by himself. The evidence of PW1 inspired the rent control court and the appellate authority very much. It is not disputed that PW1 is experienced in hotel business and was conducting the same business for a period of 20 years. It was on account of filariasis that he became compelled to discontinue. His evidence, that he has recovered considerably and that he will be able to conduct business profitably by rcr.No.381/2010 6 engaging employees, was found acceptable to both the authorities. We do not find any reason why we should interfere with the above findings. As for the contention that the revision petitioner could be given protection of the second proviso to sub section (3) of Section 11, it is trite that both the ingredients of the second proviso are in conjunctive. When it is not seriously disputed that the revision petitioner is gainfully employed abroad, it will be very difficult for the revision petitioner to establish that the income, which he derives from the petition schedule building where he is conducting a medical shop, accounts for his main source of livelihood. This means that the first ingredient of the second proviso will necessarily has to be found against the revision petitioner. Once the first ingredient is found against the revision petitioner, it will necessarily follow that the revision petitioner will not be entitled for the benefit of the 2nd proviso at all. We are not impressed either by the submission of the learned counsel that all the buildings belonging to his wife and found by the statutory authorities to be available for the purpose of the second proviso are unnumbered buildings. If they are unnumbered, it is for the revision petitioner to take necessary rcr.No.381/2010 7 steps for getting those buildings numbered. The revision petition is liable to fail and will stand dismissed. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk