IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 RCRev..No. 265 of 2011 (D) ------------------------------- RCA.126/2005 of ADDL. DISTRICT COURT, THALASSERY RCP.149/2004 of PRL.M.C./RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT. -------------------------------------------------------- K.J.JOSEPHM, S/O.THOMMI, RINI NIVAS, KIZHUTHALLI, ELAYAVOOR AMSOM, DESOM, THAZHE CHOVVA, KANNUR. BY ADV. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S): RESPONDENTS/RESPONDENTS/PETITIONERS. ----------------------------------------------------------------------- 1. PEETTAYIL KAPPALLI REA MOL, W/O.A.K.SREENATHAN, THOTHEN PEETTAYIL HOUSE, P.O.THAZHE CHOVVA, ELAYAVOOR AMSOM,DESOM, KANNUR TALUK-670006 2. KALATHIL ARIKKATHAN SREENATHAN, S/O.BALAKRISHNAN, THOTHEN PEETTAYIL HOUSE, P.O.THAZHE CHOVVA, ELAYAVOOR AMSOM,DESOM, KANNUR TALUK-670006 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.265 of 2011 ------------------------------------------------ Dated this the 11th day of July, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the tenant is the order of eviction concurrently passed by the Rent Control Court and the Rent Control Appellate Authority on the grounds under sub Section 11(4)(ii) [use of the building in such a manner as to reduce the value and utility of the building materially and permanently] and the ground under Section 11(4)(3) [acquisition of other buildings by the tenant in the same city, town or village reasonably sufficient for his requirement]. The landlord has invoked ground under Section 11(3) also. The tenant by filing objections denied the existence of any of the eviction grounds. As regards the ground under Section 11(3), the tenant claimed the R. C. R. No.265 of 2011 -2- protection under the second proviso to sub Section 3 of Section 11. The Rent Control Court on evaluating the evidence adduced by the parties which consisted of Exts.A1 to A5, B1 to B3, Ext.C1 Commission Report and oral evidence of Pws.1 and 2 and RW1 came to the conclusion that the eviction grounds under Section 11(4)(ii) and under Section 11(4)(iii) stood established in the case. But as regards the ground of bona fide need for own occupation, it was found that the landlady was unsuccessful in proving that there was a bona fide need for her. In view of that finding, the Rent Control Court did not go into the question whether the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11. Accordingly, the Rent Control Court ordered eviction on the grounds under Section 11(4) (ii) and 11(4)(iii) only. The tenant preferred appeal before the Appellate Authority. Significantly, the landlord did not R. C. R. No.265 of 2011 -3- challenge the finding of the Rent Control Court in the context of the need under Section 11(3). The Appellate Authority under the impugned judgment after making a re- appraisal of the evidence dismissed the appeal confirming the findings of the Rent Control Court. 2. In this revision under Section 20, various grounds are raised assailing the eviction orders passed under Sections 11 (4)(ii) and 11(4)(iii). The revision petitioner also assails the refusal by the Rent Control Appellate Authority to go into the question whether the tenant is entitled to the benefit of the second proviso to sub Section 3 of Section 11. 3. Sri.K.C.Santhoshkumar, the learned counsel for the revision petitioner addressed us extensively on the basis of the various grounds raised. Sri.Santhoshkumar drew our attention to the pleadings raised by the landlady in the context of the ground under Section 11(4)(iii) and submitted R. C. R. No.265 of 2011 -4- that what is pleaded by the landlady is that the tenant has acquired possession of two residential buildings one at Thazhechovva and another at Kodaparamba. Counsel submitted that the further pleadings are to the effect that presently the tenant is not conducting any business in the petition schedule building and that he is residing in one building subsequently acquired by him. According to Sri.Santhoshkumar when it is admitted by the landlady herself that the tenant is occupying the subsequently obtained buildings for residential purposes, there was no warrant for finding that an eviction ground under Section 11 (4)(iii) is established. In order that eviction ground under Section 11(4)(iii) is established it should have been found that a building which is sufficient for the tenants requirement of conducting the business that is being conducted by the tenant in the petition schedule building R. C. R. No.265 of 2011 -5- has been obtained. Sri.Santhoshkumar would assail the order of eviction passed under Section 11(4)(ii) also. According to Sri.Santhoshkumar, the tenant did not do anything on the building. But as desired by the tenant, the landlady herself removed the wall separating the two rooms in the building so that the building could be converted as a hall suitable for the tenant's purpose. This cannot be a ground for eviction under Section 11(4)(ii). Sri.Santhoshkumar further submitted that as a statutory appellate authority the learned Rent Control Appellate Authority was not justified in not addressing the ground raised by the tenant that the Rent Control Court did not consider the crucial question of tenant's eligibility for protection of the second proviso to sub Section 3 of Section 11. 4. We have given our anxious consideration to all the R. C. R. No.265 of 2011 -6- submissions of Sri.Santhoshkumar. The question is whether there is warrant for invocation of the revisional jurisdiction under Section 20 of Act 2 of 1965 on the impugned judgment of the Appellate Authority which under the statutory scheme is the final court on facts. According to us, in this case, the above question can be answered only in the negative i.e. in favour of the landlord. We shall first deal the learned counsel for the revision petitioner that the Appellate Authority did not consider the question of the second proviso to sub section 3 of Section 11. 5. We will notice immediately that the above submission is apparently attractive. But in our view as the landlord did not challenge the order of eviction which was declined under Section 11(3), the above question is only academic. In the facts and circumstances obtaining in this case, no prejudice has been caused to the tenant by the R. C. R. No.265 of 2011 -7- failure of the learned Appellate Authority to consider the question of revision petitioner's eligibility for protection of the second proviso to sub Section 3 of Section 11. 6. We shall now deal with the eviction order passed under Section 11(4)(iii). As rightly noticed by the statutory authorities, the landlord's allegation that the tenant has acquired possession of two rooms in the locality one at Thazhechovva and another at Kodaparamba is really admitted by the tenant in his statement of objections filed to the RCP. True, the landlord's pleadings give room for some confusion. But when those pleadings are critically and carefully analysed it will be seen that what if at all has been admitted by the landlady is that the tenant is using one of the buildings acquired by him for his residential purposes. It was on appreciation of the evidence on record that the two statutory authorities found that the tenant has acquired R. C. R. No.265 of 2011 -8- possession of building reasonably sufficient for his requirement of conducting brick business. We do not find any warrant within the narrow contours of our revisional jurisdiction under Section 20 to interfere with those findings. 7. The same is the position as regards the findings concurrently entered by the two authorities in the context of the ground under Section 11(4)(ii). No acceptable evidence could be adduced by the tenant to prove that the conversion of the two room building as one hall was done by the landlady. What was let out was a two room building and what presently obtained is a one room building. The statutory authorities cannot be blamed for having concluded that the value and utility of the building from the point of view of the landlady has been reduced materially and permanently. The revision necessarily has to fail and will stand dismissed. R. C. R. No.265 of 2011 -9- 8. After our decision was made known to the learned counsel for the petitioner, he requested that at least six months' time may be granted to the tenant to surrender the premises. According to us, the request can be granted even without notice to the landlady. Hence, we direct the execution court to keep in abeyance all proceedings for delivery of the building to the landlady for a period of six months from today subject to the following conditions:- 9. The revision petitioner files 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 to pay the entire arrears of rent, if any, due as on date within one month and to pay occupational charges at the current rent rate without fail till actual date of surrender of the building. It will also be undertaken through the same affidavit that he will give peaceful surrender of the building R. C. R. No.265 of 2011 -10- to the landlady on or before the expiry of six months from today. We make it clear that the revision petitioner will get the benefit of time granted as above only if the affidavit as directed above is filed on time and the undertakings contained therein are honoured. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-