IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 RCRev..No. 42 of 2009(D) ----------------------- RCA.13/2003 of D.C. & SESSIONS COURT,KOLLAM RCOP.40/2000 of ADDL.MUNSIFF COURT, KOLLAM .................... REV.PETITIONER/RESPONDENT/COUNTER PETITIONER: ------------------------------------ M.M.SALIM, S/O.M.M.HANEEFA, SATHAR MANZIL, CURZON ROAD, KOLLAM. BY ADVS. MR. ALEX N.MATHEW (KOLLAM) MR. H.RAMANAN MR. JAMES JOSE RESPONDENT(S): APPELLANT/PETITIONER: ----------------------------------- PRADEEP NAIK, S/O.LATE RAMANATHA BATTAR, VAYIYAMUKKU HOUSE, KOTTAKKAKAM, KOLLAM. ADVS. MR. RAJA VIJAYARAGHAVAN MR. M.T.SURESHKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.42 of 2009 ---------------------------------- Dated this the 23rd day of February, 2010 O R D E R --------------- Abdul Rehim,J. The respondent in RC(OP) 40/2000 on the files of the Rent Control Court, Kollam is the revision petitioner. The respondent/landlord filed petition seeking eviction on the ground of bonafide need, under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short the Act). According to the landlord the petition schedule building, which forms part of a row of shops, is situated on the southern side of a property having 70 cents in extent which contains his residential building. Since there is no motorable access to the said property and to the residential building, the landlord wanted to demolish the petition schedule shop room and also another shop room situated on its western side to create vehicular pathway to the property and to the residential building situated on its back. Hence eviction was sought for under S.11(3). 2. Evidence before the Rent Control Court consisted of oral testimony of landlord examined as PW1 and Ext.A1 to A3 documents marked on his behalf. The revision RCR.42/2009 2 petitioner/tenant was examined as DW1. DW2 is the accommodation controller examined as a witness on his behalf. Ext.C1 commission report and C2 mahazar was also marked in evidence. The Rent Control Court after elaborate consideration of the evidence on record found that the landlord was not successful in proving that the need projected is genuine and bonafide. Therefore the petition was dismissed. In appeal before the Appellate Authority (the District Court, Kollam) the evidence was totally re-appraised. The Appellate Authority found that the need put forth by the landlord to have a spacious opening to the property and to the residential building for access of vehicles, is genuine and bonafide. In reversal of findings of the Rent Control Court, the Appellate Authority found that the tenant is liable to be evicted for the need projected by the landlord. 3. In this revision petition the tenant contended that, the Rent Control Court having found the need as not bonafide has not adverted to the aspects of protection provided under the second proviso to S.11(3). Sri. H. Ramanan, learned counsel for the revision petitioner, argued before us that there was specific contention raised by the tenant before the Rent Control Court that the business conducted in the petition RCR.42/2009 3 schedule room is the main source of livelihood of the tenant and his family and that there are no other suitable buildings available in the locality for shifting of the business. But the Rent Control Court having found that the need projected is not genuine and bonafide has not considered the point as to whether the tenant is eligible for protection under the second proviso. But the Appellate Authority with due advertence to the evidence adduced on this aspect, had arrived at a conclusion that the tenant was not successful in proving both limbs under the second proviso to S.11(3). It is observed that not even a scrap of paper was produced to prove the income actually earned by the tenant from the business carried on in the premises. Inspite of the fact there is evidence to the effect that the business was having Sales Tax Registration, the tenant had failed to produce any Books of Accounts to show that the income derived from the business is the main source of his livelihood. Coming to the second limb of the second proviso, the Appellate Authority found that DW2, the Accommodation Controller when cross-examined has admitted that vacancies are only rarely reported to that authority. Therefore the Appellate Authority found that the tenant was not at all successful in proving both the limbs of the second RCR.42/2009 4 proviso. 4. Sri. H. Ramanan, learned counsel for the petitioner, contended that since the Rent Control Court has not considered the aspect of second proviso the tenant was prevented from adducing proper evidence on that particular aspect. We notice that, it was the burden of the tenant to adduce evidence in proving claim seeking protection under the second proviso to S.11(3), as held by this court in a Full Bench decision reported in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (F.B). Eventhough the Rent Control Court has not considered the evidence adduced on the aspect of the second proviso, we are not persuaded to accept that the non consideration had in any manner caused prejudice to the petitioner. In the matter of adducing evidence on the aspect of the second proviso, it could not be contended that there was any denial of opportunity. The Appellate Authority, being the final fact finding authority, had elaborately considered the evidence on this aspect and found that the tenant is not entitled for protection provided under the second proviso to Section 11(3). 5. Sri.H. Ramanan raised further contention before us that, the Rent Control Petition filed by the landlord against the RCR.42/2009 5 neighbouring tenant was also dismissed and that the matter is now pending in appeal. Contention is that unless the landlord get eviction of the building belonging to that tenant, the need projected could not be accomplished. But we are of the opinion that merit of this Rent Control Petition filed against the tenant has to be decided on the basis of evidence adduced in this case. The other Rent Control Petition was not jointly tried or disposed of by any common judgment. Therefore we are not persuaded to accept the contention that outcome of that Rent Control Petition filed against the neighbouring tenant, should have a bearing in the decision of this case. On the other hand, Sri.Raja Vijayaraghavan, learned counsel for the respondent submitted that the Rent Control Appeal filed with respect to the other tenant is pending disposal before the District Court, Kollam. We notice that if the need urged for evicting the tenant under Section 11(3) could not be accomplished within the stipulated time, the tenant is at liberty to invoke remedy available under Section 11(12). Therefore the contention in this regard is not a ground to interfere with the findings arrived by the Appellate Authority. 6. Under the above mentioned circumstances we find no infirmity, illegality, irregularity or impropriety with the RCR.42/2009 6 findings rendered by the Appellate Authority which is the final fact finding authority. In the attenuated revisional jurisdiction under Section 20 of the Act, we do not find any merit which warrants interference for reversal of the impugned findings. Accordingly the revision petition is liable to be dismissed. 7. However, Sri.H. Ramanan, learned counsel for the revision petitioner, sought indulgence of this court in granting one year period for surrendering vacant possession of the tenanted premises, on the ground that the tenant has to find out alternate accommodation for shifting the business conducted in the schedule premises. Sri. Raja Vijayaraghavan, learned counsel appearing on behalf of the respondent/landlord strongly opposes such plea. Having considered facts and circumstances of the case we are of the opinion that the tenant can be permitted to grant time for a period of one year to vacate the schedule premises, subject to certain conditions. 8. In the result the Rent Control Petition is disposed of with the following directions: (i). While dismissing the Rent Control Revision we grant time for the revision petitioner/tenant to hand over vacant possession of the scheduled building to the RCR.42/2009 7 respondent/landlord, till 28.2.2011, subject to the condition that the revision petitioner shall file an affidavit before the execution court or the Rent Control Court, as the case may be, within a period of three weeks from today, undertaking that he will hand over vacant possession of the schedule premises to the landlord on or before 28.2.2011 and also undertaking that arrears of rent if any due will be paid within a period of one month from today. In the affidavit the tenant will also undertake to pay occupational charges at the prevailing rate of monthly rent periodically, till surrender of possession of the scheduled building. (ii). The execution court is directed to adjourn delivery of the scheduled building till 1.3.2011, once filing of the affidavit and payment of arrears of rent and occupational charges as directed above is noticed. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb RCR.42/2009 8