IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 CRP.No. 452 of 2002() --------------------- RCA.51/1999 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.62/1996 of PRL.M.C., KOCHI .................... REVN. PETITIONER: RESPONDENT IN RCA NO.51/99 & PETR.IN RCP.NO.59/96 ------------------------------------------- KALA DEVI, W/O. RAJAN, RESIDING AT SREEVARAHAM, THIRUVANANTHAPURAM, NOW RESIDING AT PADMA NIVAS, PALLURUTHY, BINNY ROAD, KOCHI-6. BY ADV. SRI.VADAKARA V.V.N.MENON SRI.T.N.SUKUMARAN RESPONDENTS: APPELLANT IN RCA.NO.51/99 & RES.IN RCP.NO.59/1996 -------------------------------------------------------------- DINESH PRABHU S/O LATE ANANDA PRABHU, C.C.NO.18/385 (OLD) BINNY ROAD,PALLURUTHY,KOCHI-6. BY ADV. SRI.S.VINOD BHAT THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/07/2008,ALONG WITH CRP NO.454 OF 2002 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ C.R.P.Nos.452/2002 and 454/2002 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 9th day of July, 2008 O R D E R RAMAN, J. Both the above civil revision petitions arise out of a common order passed by the Rent Control Court in Rent Control Petitions 59/1996 and 62/1996 dated 27/01/1999 and which is the subject matter of the appeal in R.C.A Nos.51/1999 and 52/1999 and were disposed of by a common order dated 13/11/2001. 2. The landlady is the petitioner in both the above civil revision petitions. The landlady sought eviction of the tenanted premises which are situated at Palluruthy. The tenants were occupying the adjacent rooms in a building belonging to the landlady. The eviction was sought under bona fide need for own occupation under Section 11(3) of the Kerala Building (Lease and Rent Control) Act, (hereinafter referred to as the 'Act'). The petitioner/landlady hails from this area and she was residing in a rented premises nearby to the family house where her ailing mother was residing. It was the case of the landlady that there was nobody to look after the mother and so she wanted to permanently reside here. She was examined as PW.1 and she deposed before the Court that there was nobody to look after her ailing mother and she has C.R.P.Nos.452/2002 and 454/2002 -:2:- no other house or earning and there is no other building owned or possessed by her. Her husband was working in a company, Kerala State Drugs and Pharmaceuticals Ltd. as an operator at Alappuzha. Even at the time of her examination as PW.1 she deposed that her husband got a transfer to Thiruvananthapuram since they did not get vacant possession of the buildings in question. Even though a suggestion was made to her while in the box that they are now residing at Thiruvananthapuram in a building owned by her husband, she denied the same and stated that it is a rented premises. The Rent Control Court, after appreciating the materials on record, came to a conclusion that the petitioner landlady has proved the bona fide need of the building in question and ordered eviction. It was also found that the tenants are not entitled to the benefit of the second proviso to Section 11(3) of the Act. On appeal by the tenants, the appellate authority reversed the findings of the Rent Control Court mainly taking note of the subsequent events said to have taken place. In that regard, the appellate authority found that the testimony of PW.1 does not show a desire or intention to come back to Palluruthy. It was further pointed out that the landlady neither pleaded nor testified that she was prepared to reside separately in the petition schedule building, even if her husband was working at Thiruvananthapuram. Further it is stated that C.R.P.Nos.452/2002 and 454/2002 -:3:- the landlady has not projected that her husband was trying to get a transfer back to Alappuzha again, if the building was vacated. We have gone through the evidence of PW.1 in this regard. There is nothing to indicate in the evidence of PW.1 having deposed that there is any intention on the part of the landlady and her husband to settle at Thiruvananthapuram permanently. All that she deposed was that because she did not get vacant possession of the premises, her husband got a transfer from Alappuzha to Thiruvananthapuram and resided in a rented premises. The finding that there is any permanent intention on the part of the landlady and her husband to settle at Thiruvananthapuram is an inference drawn on the basis of surmises and not supported by evidence. True that at the time of filing of eviction petition, the landlady was residing at Palluruthy as pleaded but no doubt she deposed that her husband got a transfer to Thiruvananthapuram later. But she also added to say that it is because she did not get vacant possession that her husband got a transfer to Thiruvananthapuram. This aspect of the matter has been completely brushed aside by the appellate court while re-appreciating the evidence on record. It is true that a subsequent event can be looked into to decide the bona fides of the petitioner seeking eviction under Section 11(3) of the Act but a mere transfer of the husband of the landlady in the peculiar circumstances of C.R.P.Nos.452/2002 and 454/2002 -:4:- the case and, under the compelling circumstances to reside outside Palluruthy totally in a different town or place by itself is no ground to show that there is any lack of bona fides in the petition. Unless there is evidence on record to show that there is a total change of circumstances by which the landlady has given up her idea to settle at Palluruthy or that she had intended to settle elsewhere or that she had changed her mind to settle subsequently at Thiruvananthapuram, there cannot be a situation warranting an interference in the finding of bona fides. Normally, the bona fide need has to be decided as pleaded and as on the date of the petition. The subsequent change of the circumstances, if any, can be looked into to negate the contention of a landlord seeking eviction on a bona fide need. But those circumstances must be strong enough to spell a change in the situation affecting the bona fide need pleaded in the case, that the bona fide need as pleaded in the petition has since been lost by subsequent events. There is absolutely no such evidence available to draw such inference by the appellate court. The findings of the trial court is after appreciating the oral evidence in the case, and in the absence of any material to show that the said finding is perverse, normally appellate court cannot interfere with the opinion formed by the trial court. Hence, we find that the appellate authority was not justified in interfering with the order of the Rent Control Court C.R.P.Nos.452/2002 and 454/2002 -:5:- which had the benefit of appreciation of the demeanour of the witnesses examined in the case. The appellate court confirmed the finding of the trial court as regards the finding under the second proviso to Section 11(3) of the Act, and agreed with the Rent Control Court that the tenant is not entitled to the benefit of the second proviso to Section 11(3) of the Act. 3. We, therefore, set aside the order of the appellate court dismissing the eviction petition and that of the Rent Control Court is restored. Revision petitions are allowed. The parties shall bear their respective costs. 4. Considering the fact that the tenants are in occupation of the building and are doing business, it is only appropriate that the tenants be given some reasonable time to give vacant possession of the building. Accordingly, we direct that the execution of the order of eviction of the Rent Control Court as affirmed by this Court will be deferred for a period of five months on the following conditions:- i. That the tenants shall file an undertaking in the form of an affidavit before the Execution Court agreeing to surrender vacant possession of the premises on or before the expiry of five months period as aforesaid and such undertaking shall be given within a period of three weeks from today. C.R.P.Nos.452/2002 and 454/2002 -:6:- ii. That they shall also deposit the entire arrears of rent, if any, as on date before the expiry of the aforesaid period of three weeks before the Execution Court. iii.That they shall not induct any third party into the premises. iv.That they shall continue to pay the amount equivalent to the rental value for use and occupation, until vacant possession of the premises is surrendered to the landlord. In case the tenants fail to comply with any of the aforesaid conditions, the order of eviction passed by the authorities below shall become enforceable forthwith. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms