IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 RCRev..No. 313 of 2011() ------------------------ RCA.49/2009 of DISTRICT COURT, THRISSUR RCP.194/2005 of PRL.MUNSIFF COURT,THRISSUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ ASHOKAN, S/O.NARAYANAN, VADASSERY HOUSE, KSHB COLONY, (PO) PULLAZHY, THRISSUR DT. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): PETITIONERS -------------------------- 1. BHANUMATHY, W/O.NARAYANAN, THANDASSERY HOUSE, `SHANTHI', (PO) KANATTUKARA, THRISSUR DT.-680 011. 2. KRISHNAN, S/O.NARAYANAN, DO. ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA FOR R THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- R.C.R No.313 of 2011 -------------------------------------------------- Dated this the 13th day of December, 2011 O R D E R Pius C. Kuriakose, J The tenant is the revision petitioner. He challenges in this revision, order of eviction concurrently passed by the Rent Control Court and the appellate authority on the ground under sub Section 8 of Section 11. In fact the landlord had invoked the grounds of arrears of rent and the ground under Section 11(3) also. However, conceding that Section 11(3) and 11(8) are mutually exclusive, the landlord withdrew from the claim under Section 11(3). The Rent Control Court did not order eviction under Section 11(2)(b) as it was noticed that the at the time when the enquiry was conducted no rent was in arrears. 2. The need projected by the landlord who was conducting an auditing office in a portion of the larger building another portion of which is the building possessed by the revision petitioner, was that he needs the petition schedule premises possessed by the revision petitioner for providing more facilities and conveniences in his auditing office. The bonafides R.C.R No.313 of 2011 2 of the need for additional accommodation was disputed and it was contended that the advantages which the landlord will gain will not out weigh the hardships which the tenant will have to sustain by virtue of the eviction order. The Rent Control Court conducted an enquiry in which the evidence consisted of Exts.A1 to A11, C1 and the oral evidence of PW1 and RW1. On evaluating the evidence the Rent Control Court ordered eviction under sub Section 8 of Section 11. It was held that the advantages which the landlord will gain by getting eviction will out weigh the hardship of the of the tenant. The revision petitioner carried the matter in appeal to the appellate authority. The appellate authority made a re-appraisal of the evidence. However, the authority concurred with all the findings of the Rent Control Court and dismissed the R.C.A. In this revision under Section 20 various grounds are raised assailing the eviction order. 3. Sri.M.K.Dileepkumar, the learned counsel for the revision petitioner addressed submissions based on all grounds before us. Sri.Dileep Kumar submitted at the very outset that the need which was attempted to be proved by the petitioner through his evidence was not the need which was projected by the landlord in this rent control petition. The need projected in R.C.R No.313 of 2011 3 the rent control petition was the need to provide facilities in the landlord's auditing office. However, in evidence the need which was sought to be proved was the need to accommodate a Chartered Accountant. Sri.Dileepkumar highlighted that the landlord stated in his evidence that the need to accommodate a Chartered Accountant was conceived by him in his mind only one year prior to his giving oral evidence as PW1. Thus it has become clear that the need which is sought to be proved was not there in the mind of landlord even when the rent control petition was instituted. Mr.M.K.Dileepkumar then pointed out that during the pendency of the rent control petition two rooms in the second floor of the building fell vacant and those two rooms were let out by the landlord to other tenants on receiving higher rent. This conduct of the landlord in letting out the two rooms which fell vacant, will show that there is not an element of bonafides in the need for additional accommodation. Mr.M.K.Dileepkumar also argued that the explanation offered by the landlord for not seeking eviction of a tenant occupying the adjacent room in the ground floor was rather silly. The explanation was that he does not want the Chartered Accountant who is to be accommodated in the petition schedule building to come in contact with his clients. The findings concurrent though they may be are illegal, R.C.R No.313 of 2011 4 irregular and improper and hence there is warrant for interference. 4. Mr.Santhosh P.Poduval, the learned counsel for the respondent landlord however would oppose all the submissions of Mr.Dileepkumar. He would remind us of the contours of the jurisdiction under Section 20. According to him in the present jurisdiction this Court is not expected to make a re-appraisal of the evidence, for the purpose of substituting factual findings arrived by the fact finding authorities. The landlord had every reason for not ulitizling the rooms which fell vacant in the during the pendency of the proceedings. Those rooms were in the second floor and occupying those rooms will be inconvenient to the landlord and to the Chartered Accountant and also to the clients. More over as the landlord had already initiated the present rent control proceedings seeking eviction of the petition schedule building. The landlord was advised that he will get eviction. As regards the decision of the landlord to evict the revision petitioner rather than a tenant occupies the ground floor room, Mr.Poduval submitted that one of the reasons was what was stated in his evidence, and the other reason is that the ground floor room may fetch more rent. 5. We have given our anxious consideration to the rival R.C.R No.313 of 2011 5 submissions addressed at the Bar. We have scanned the judgment of the appellate authority and we have gone through the order of the Rent Control Court. We remind ourselves of the attenuated nature of the present jurisdiction. In the present jurisdiction we are not expected to make a re-appraisal of the evidence for the purpose of substituting findings of fact entered by the fact finding authorities. As for the present case, we find that the finding concurrently entered by the the rent control and the appellate authority that the need for additional accommodation is a bonafide one and that the advantages which the landlord will gain will out weigh the hardships which the tenant may sustain are findings founded on legal evidence available on record. We also notice the trite legal position that the standards of bonafides expected to be established in a claim under 11(8) are not so rigorous as in a claim under Section 11 (3). In short we don't find any warrant for interference. The revision petition will necessarily fail. 6. The learned counsel lastly requested for grating at least 1½ years time to surrender the above petition schedule building. The request was stiffly opposed by Mr.Santhosh P.Poduval. However, considering the fact that the petitioner is a senior citizen and he was in possession of the petition schedule R.C.R No.313 of 2011 6 building for decades, we feel that he can be allowed to continue for one more year, subject to certain conditions. Hence even as we dismiss the rent control revision there will a direction to the execution court to defer proceedings for delivery till 31.12.2012 subject to the following conditions: The petitioner files an affidavit before the execution court or the Rent Control Court undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 31.12.2012 and undertaking further to discharge arrears of rent if any within one month from today and to pay occupation charges with effect from 1.1.2012 at the rate of Rs.1,000/- per mensem till he surrender the petition schedule building. We make it clear that the revision petitioner will get benefit of time as allowed above only if he files the affidavit as stated above and honours the undertakings therein. PIUS C. KURIAKOSE JUDGE K.HARILAL JUDGE ab