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. 260 of 2009() ------------------------ RCA.20/2007 of D.C. & SESSIONS COURT,KOZHIKODE RCP.191/2004 of PRL.M.C.,KOZHIKODE-II .................... REVISION PETITIONER/RESPONDENT: ----------------------------------------- A.VIJAYAN, AGED 50 YEARS, SON OF DAMODARAN, SHOP NO.4/223, BEYPORE VILLAGE, P.O.BEYPORE, KOZHIKODE. BY ADVS. MR. JACOB ABRAHAM MS. KOCHUMOL KODUVATH RESPONDENT(S): APPELLANTS: ------------------------- 1. P.RIYAS, AGED 34 YEARS, SON OF HAMZAKOYA, PILAKKAL HOUSE, BEYPORE VILLAGE, P.O.BEYPORE, KOZHIKODE. 2. P.RASHEED, AGED 31 YEARS, SON OF HAMZAKOYA, PILAKKAL HOUSE, BEYPORE VILLAGE, P.O.BEYPORE, KOZHIKODE. 3. SAMEER, AGED 29 YEARS, SON OF HAMZAKOYA, PILAKKAL HOUSE, BEYPORE VILLAGE, P.O.BEYPORE, KOZHIKODE. 4. RAJULA, AGED 24 YEARS, DAUGHTER OF HAMZAKOYA, PILAKKAL HOUSE, BEYPORE VILLAGE, P.O.BEYPORE, KOZHIKODE. ADV. MR. K.M.FIROZ FOR R1-4 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR.260/09 ORDER ON I.A.3240 OF 2009 IN RCR.260 OF 2009 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 23.2.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.260 of 2009 ---------------------------------- Dated this the 23rd day of February, 2010 O R D E R -------------- Pius C.Kuriakose,J. The tenant is in revision. Even though several grounds were invoked by the landlord to evict him the only ground which he urged mainly is the ground under Section 11(3). The need projected was that the building is required for the own occupation of 2nd respondent herein, i.e. the 2nd petitioner in the Rent Control Petition. The bonafides of the need was disputed by the tenant. He contended that the Rent Control Petition was liable to be rejected by virtue of first proviso to Section 11. He further contended that at any rate he will be entitled for protection to the second proviso to Section 11(3). The evidence at trial consisted of Ext.A1 to A4, B1 to B11 and oral testimonies of PW1 and DW1. The Rent Control Court came to the conclusion that the need is not bonafide. That court also held that the tenant is entitled to the protection of second proviso to Section 11(3). That court further found that the landlord is having vacant RCR.260/2009-B 2 possession of two rooms, one in the ground floor having Door No.4/225 and the other in the first floor having Door No.4/226 and there are no special reasons for eviction of order to be passed in spite of such possession by the landlord. Thus, under Section 11(3) the application was completely dismissed by the Rent Control Court. 2. In appeal preferred by the landlord the learned Rent Control Appellate Authority made a thorough re- appreciation of the entire evidence on record, particularly Ext.B1 document relied on by the tenant and Ext.A2, A3 and A4 documents relied on by the landlord. Appreciating Ext.B1 in conjunction with Ext.A2, A3 and A4 documents, learned District Judge would hold that the case of the tenant that building Nos:4/225 and 4/226 are under vacant possession of the landlord at the relevant time is not correct. Thus the Appellate Authority held that the Rent Control Petition was not liable to be filed by virtue of first proviso to Section 11 (3). The Appellate Authority reread and reappreciated the evidence of PW1. It was noticed that his first version in chief examination that he needs the building for doing business for himself was not shaken in cross-examination. Appellate Authority accepted that version and held that the need was RCR.260/2009-B 3 bonafide. Coming to the question of the tenant's liability for the protection the Appellate Authority, concurred with the Rent Control Court and held that tenant was successful in satisfying the first ingredient of second proviso. Further it was held that the tenant was unsuccessful in proving that he satisfies the second ingredient. It was noticed in the above context that tenant did not have a definite contention that other buildings are not available on rent affordable by the tenant. According to the Appellate Authority the burden was on the tenant to prove that suitable buildings are not available in the locality for him. The tenant was found not successful in proving to satisfy the second ingredient of the second proviso. It was accordingly held that the tenant is not entitled to protection under the second proviso. 3. In this revision under Section 20 various grounds have been raised by the tenant assailing the decision of Appellate Authority and Sri.Jacob Abraham, learned counsel addressed us on the basis of those grounds. Learned counsel drew our attention to Ext.B11, A2, A3 and A4. He submitted that the appreciation of these documents by the Appellate Authority was erroneous. He highlighted that the relevant entry in Ext.A3 licence register has been entered much prior RCR.260/2009-B 4 to Rent Control Petition. He referred also to Ext.B11. He submitted that going by Ext.B11 the buildings are vacant. According to him, Ext.B11 is a document as envisaged by Section 26 of Act 2 of 1965. All submissions of Mr. Jacob Abraham were resisted by Mr. K.M. Firoz, learned counsel for the respondents. 4. We have anxiously considered the rival submissions. We have gone through the items of evidence produced before us. We have scanned order of Rent Control Court and judgment of Appellate Authority. According to us only two questions seriously arise for decision by us. (1). Whether the RCP is liable to fail by virtue of first proviso to Section 11? and (2). Whether the tenant is entitled for the protection of second proviso to Section 11(3)? As for the basic question whether the need is bonafide, we notice that Appellate Authority has correctly appreciated the evidence given by PW1 and chosen to accept the evidence. Coming to the question of whether the RCP is liable to fail by virtue of first proviso to Section 11(3), we notice that the finding entered by the Appellate Authority that the two buildings pointed out by the landlord are not vacant and are in occupation of tenant is a finding entered by that Authority on RCR.260/2009-B 5 appreciating the relevant documents. We do not find any reason to disagree with the Appellate Authority. As for the question whether the tenant is entitled for protection of second proviso to sub-section (3) it is remembered that both the ingredients are conjunctive. Once it is shown, that tenant has not succeeded in proving either of the ingredients, he is not entitled to protection of second proviso to Section 11(3). In this case the authorities below found that the tenant has not succeeded in proving the second ingredient. As already noticed by the Appellate Authority, the tenant was conceded that some buildings were available in the locality. When such a confession is made by the tenant it is for the tenant to examine those concerned with those buildings and prove that the buildings are not available or are unsuitable. In short we do not find any illegality, irregularity, impropriety or infirmity about the decision of the Rent Control Appellate Authority that the tenant has not satisfied the second limb of the proviso to sub-section 3. Necessarily the RCR has to be dismissed. However, considering the request of the tenant for granting time, we are inclined to grant time till 31.8.2010 subject to certain conditions. Result of the above discussions is as follows: RCR.260/2009-B 6 R.C.R. is dismissed. No costs. Execution court is directed not to order delivery of the petition schedule building to the respondent till 31.8.2010 subject to the following conditions:- Revision petitioner shall file an affidavit before the execution court undertaking to give peaceful surrender of the building in question to the 2nd respondent in the RCR on or before 31.8.2010. Through the same affidavit it will be undertaken that arrears will be discharged within six weeks and occupational charges will be paid at the current rent rate till they give actual surrender. We make it clear that the revision petitioner will become entitled for benefit of the time granted under the judgment only if he files an affidavit on time. Affidavit as directed above will be filed within one month from today. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb