IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 RCRev..No. 98 of 2009() ----------------------- RCA.80/2007 of ADDL. DISTRICT COURT, VADAKARA RCP.45/2006 of MUNSIFF COURT, NADAPURAM .................... PETITIONER/APPELLANT/RESPONDENT (S): -------------------- SMR. PREETHA S.M., D/O. SANTHA KUMARI AMMA, 38 YEARS, RAMANILAYATHIL HOUSE, KAVILLUMPARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DIST. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): RESPONDENTS/PETITIONER --------------- 1. MEETHALE NEDUKKANDIYIL MAIMOONATH KUNHABDULLA HAJI, AGED 26 YEARS, CHERIYA PARAMBIL HOUSE, VILIAPPALLY AMSOM, MAYYANNUR DESOM, VATAKARA TALUK, KOZHIKODE DIST, KERALA STATE. 2. HARIS, S/O. KUNHABDULLA HAJI, 21 YEARS, CHERIYA PARAMBIL HOUSE, VILIAPPALLY AMSOM, MAYYANNUR DESOM, VATAKARA TALUK, KOZHIKODE DIST, KERALA STATE. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R .No.98 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2009 ORDER Pius.C.Kuriakose, J. A tenant against whom order of eviction on the ground under Sub Section 3 of Section 11 of Act 2 of 1965 has been concurrently passed by the Rent Control Court and the Appellate Authority is the petitioner in this revision petition. The need projected by the landlord in the context of sub section 3 of Section 11 was that the second petitioner who is the brother of the first petitioner landlady is a dependent on the first petitioner and that the landlady needs possession of the petition schedule building for the occupation of the second petitioner so that he can conduct a “ Bakery food manufacturing unit” in the building. 2. The bonafides of the need and the claim was challenged very seriously by the tenant who contended alternatively that in any event, he is entitled to the protection of the second proviso to Sub Section 3 of Section 11. The Rent Control Court on evaluating the evidence which consisted of Exts.A1 to A4, Exts.B1 to B14, Ext.C1 RCR.No.98/09 2 Commissioner's report, testimonies of PWs 1 and 2 and the testimony of RW1 would hold that the need and the claim of the petitioners is bonafide and also that the tenant has not succeeded in establishing that he satisfies either of the limbs of the second proviso to Sub Section 3 of Section 11. The Rent Control Appellate Authority re-appraised the evidence and concurred with all the conclusions of the Rent Control Court. 3. Sri.B.Krishnan, learned counsel for the revision petitioner has addressed us on the basis of the various grounds raised in the Rent Control Revision. He submitted that it has come out in evidence from the mouth of PWs 1 and 2 that for conducting a Bakery cum food manufacturing unit, minimum area required is around 1500 sq.ft.. He drew our attention to the Municipality Building Rules and submitted that having regard to the nature of the building, so much will be the minimum area required so that it can be used as a Bakery cum manufacturing unit. According to him, the side measurements shown in the schedule description of the building reveals that the plinth area of the building is below 60 Sq.ft. He further argued that the Advocate RCR.No.98/09 3 Commissioner has reported that the actual area of the petition schedule building is about 500 Sq.ft. Even the said area according to the learned counsel is insufficient for accomplishing the need projected by the landlady. 4. Sri.B.Krishnan would then submit that the second petitioner is put up some 30 kms. away from the place where the petition schedule building is situated. It is not practical that the second petitioner comes every day from his residential place to carry on business in the petition schedule building. According to the learned counsel this aspect of the matter which was not taken serious note of by the authorities below does reflect on the bonafides of the need. Sri.B.Krishnan then submitted that the finding of the authorities below in the context of second proviso to Sub Section 3 of Section 11 are erroneous. The Advocate Commissioner had clearly reported that no suitable buildings are available in the locality for the tenant to shift his business. As for the income derived from the petition schedule building, it is the main source of livelihood for the tenant, there was evidence - oral and documentary which was not correctly appreciated RCR.No.98/09 4 by the authorities below. 5. We have anxiously considered the submissions of Sri.B.Krishnan and we have gone through the rent control petition and gave attention to those items of evidence highlighted before us by the learned counsel. This court under Section 20 of Act 2 of 1965 is not expected ordinarily to re-appraise the evidence and substitute our conclusions for the conclusions entered by the authorities below especially when they are founded on evidence. Under the statutory scheme, the appellate authority is the final court on facts. Having gone through the judgment of the appellate authority, we find that the findings entered therein are all founded on evidence and it cannot be said that those findings are unreasonable. It is not disputed that the second petitioner, the brother of the landlady is without any job or other avocation for life. Both the sister and the brother testified before the rent control court in terms of the rent control petition that there is a genuine need for the second petitioner to start Bakery ( food manufacturing unit). The said testimony inspired confidence in the mind of the rent control court. The appellate authority also RCR.No.98/09 5 re-appreciated that testimonies and concurred with the rent control court. The same is the position as regards the tenant's eligibility for the protection of the second proviso to Sub Section 3 of Section 11. The Commissioner's report certainly appears to support the tenant's case that other buildings are not available in the locality. But then, the two limbs of the second proviso are in the conjunctive. Since we do not find any infirmity about the conclusions of the Rent Control Court that the tenant is not entitled to succeed in the first limb of the second proviso, we are of the view that even if the second limb is answered in fvour of the tenant, the same will not be of much consequence. The result of the above discussion is that the revision petition will stand dismissed. As his last submission, Sri.B.Krishnan sought for grant of reasonable time to the revision petitioner to surrender the premises. We feel that there is justification in this case for granting six month's time to the revision petitioner tenant for vacating the premises. Accordingly, even as we dismiss the rent control revision petition, there will be a direction to the execution court not to order and effect delivery of the petition schedule building in favour of the petitioners in RCR.No.98/09 6 the RCP till 15/12/2009 on condition that the revision petitioner files an undertaking in the form of an affidavit before the court below stating that he shall peacefully surrender possession of the petition schedule building to the petitioners in the RCP on or before 15/12/2009 and further that he shall discharge arrears of rent if any and continue to pay the rent which falls due subsequently till the date of actual surrender. PIUS.C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.98/09 7