IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 RCRev..No. 63 of 2010() ----------------------- RCA.13/2008 of RENT CONTROL APPELLATE AUTHORITY , PARAVUR RCP.18/2005 of RENT CONTROL COURT,ALUVA .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ V.K.SALIH ASHRAF, GEM AUTO SPARES, SHOP.NO.104, WARD NO.VI, BRIDGE ROAD, NEAR AROGYALAYAM HOSPITAL, ALUVA, ALUVA TALUK. BY ADV. SRI.S.B.PREMACHANDRA PRABHU RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. AYSHA BEEVI, W/O.P.I.ABDUL KHADER, PARILAKATHOOT CHEMBAKAM, PARAMBAYAM, NEDUMBASSERY.P.O, ALUVA TALUK. 2. HANSA BANU, W/O.K.A.ABDUL JALEEL, KARUKASSERY HOUSE, DESHABHIMANI ROAD, KARUKAPPILLY JUNCTION, KALOOR, KOCHI-17. SRI.K.A.JALEEL THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 63 OF 2010 ------------------------ Dated this the 25 th day of February, 2010 O R D E R Pius C.Kuriakose, J. The tenant is in revision and he challenges the order of eviction concurrently passed against him by the Rent Control Court and the Appellate authority on the ground of bona fide need for own occupation. The building belongs to two sisters who are the petitioners in the RCP. The need projected under sub section (3) of Section 11 was that the building is needed bona fide for occupation of P.I.Abdul Khader (PW3), who is the husband of the first petitioner(the first respondent in revision petition). Bona fides of the need was disputed and it was contended that the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11 before the Rent Control Court. The first petitioner in the RCP gave evidence as PW1 and her husband Sri.P.I.Abdul Khader gave evidence as PW3. The advocate commissioner, who is conducted a local inspection, was examined as PW2. On the side of the tenant, RCR.No.63/2010 2 he got himself examined as RW1. The documentary evidence consisted of Exts.A1 to A3 and C1 commission report. The Rent Control Court on evaluating the evidence came to the conclusion that the need projected was bona fide. Examining the tenant's eligibility for protection of the second proviso to sub section (3) of Section 11, it was held that the tenant was unsuccessful in proving that he satisfied either of the ingredients of that proviso. Accordingly, the order of eviction was passed under Section 11 (3). 2. The tenant preferred appeal to the Appellate Authority. The Appellate Authority made a reappraisal of the evidence, however, concurred with all the conclusions of the Rent Control Court and dismissed the appeal. 3. In this revision various grounds have been raised assailing the judgment of the Appellate Authority and Sri.S.B.Premachandra Prabhu, learned counsel for the revision petitioner addressed us on the basis of those grounds. The learned counsel submitted that the appreciation of evidence by the court below was erroneous. He pointed out that PW3 is a 65 year old man, who was previously doing business in Aluva and RCR.No.63/2010 3 he surrendered that building, keeping quiet for one year and thereafter only he has pressed his wife to file the present RCP. These circumstances are indicative of absence of bona fide. The revision petitioner challenged the finding of the court below that the petitioner is not entitled for the protection of the second proviso to Section 11(3). Such a finding is entered by the authorities below on the basis of the commission report. The commissioner reported that sale of lottery tickets is also being conducted by the tenant. But the authorities below failed to notice that business was also being conducted in the petition schedule building itself. 4. All the submissions of the learned counsel for the petitioner were resisted by Sri.K.A.Jaleel. He reminded us of the contours of this court's jurisdiction under Section 20 and submitted that there is no warrant for invocation of that jurisdiction in this case. The learned counsel submitted that having regard to the principles laid down by a Division Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (FB), the decision of the authorities that the tenant is not entitled for protection of the second proviso is not fault. He submitted RCR.No.63/2010 4 that the building in which PW3 was conducting business was a rented building which had to be surrendered to its owner. 5. As his last submission, Sri.Premachandra Prabhu requested that an year's time be granted to the petitioner to surrender the premises. This request is opposed by Sri.K.A.Jaleel, who submitted that granting of more than four months time will be unjust. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have carefully gone through the order of the Rent Control Court and the Judgment of the Appellate Authority. Keeping in mind contours of this court's jurisdiction under Section 20, which is revisional in nature, we notice that findings entered by the authorities below regarding the existence of the ground under sub section (3) of Section 11 are findings entered on the basis of the evidence which is actually available on record. As for the tenant's eligibility for protection of the second proviso, it is trite that both the ingredients of the second proviso to section 11(3) are in the conjunctive and it is the tenant's burden to establish that he satisfies both the ingredients. In this case we are in agreement with the finding of the RCR.No.63/2010 5 appellate authority that the tenant has failed to satisfy both the ingredients of the second proviso to sub section (3) of Section 11. 7. The upshot of the above discussion is as follows; i). The revision petition is dismissed. ii). Considering the request of the learned counsel for the revision petitioner for time, we are inclined to grant time till 30/11/2010 subject to the following conditions; The revision petitioner shall file an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the first respondent or her husband on or before 30.11.2010 and undertaking further through the same affidavit that arrears of rent due as on today will be discharged within one month from today and that occupational charges at the current rent rate will also be paid RCR.No.63/2010 6 without fail as and when the same falls due. It is made clear that the revision petitioner will be entitled for the benefit of time granted as above only if the affidavit as directed above is filed on time. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk