IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 RCRev..No. 184 of 2009 (B) ------------------------ (RCA.85/2006 of II ADDL.DISTRICT COURT,ERNAKULAM RCP.18/2005 of MUNSIFF COURT,MUVATTUPUZHA) .................... PETITIONER/APPELLANT ----------------------------------------- BALAKRISHNAN NAIR S/O.KUNJU NAIR, PAYYANAVILLATTUVEETTIL HOUSE, ARAKKUZHA VILLAGE, PERUMBALLOOR KARA, MUVATTUPUZHA TALUK. BY ADVS. SRI.K.P.RAJEEVAN SRI.P.V.KURIACHAN RESPONDENTS: ---------------------- 1. SMT. SHAMNA SAITHULAL, D/O.PATHUMMA @ PATHUKUTTY, CHERIKAATHOTTATHIL, PUTHENVEETTIL HOUSE MUVATTUPUZHA VILLAGE, RANDAR KARA, MUVATTUPUZHA TALUK REPRESENTED BY HER MOTHER AND ATTORNEY SMT.PATHUMMA @ PATHUKUTTY, D/O.MAMMIKUTTY, (W/O.JAFFAR KHAN), CHERIKKAATHOTTATHIL RANDAR KARA, MUVATTUPUZHA TALUK. 2. SMT. PATHUMMA @ PATHUKUTTY, D/O.MAMMIKUTTY, (W/O.JAFFAR KHAN), CHERIKKAATHOTTATHIL RANDAR KARA, MUVATTUPUZHA TALUK. BY ADV. SRI.PAUL K.VARGHESE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------------ R.C.R.No.184 OF 2009 ------------------------------- Dated this the 12th day of November, 2010 O R D E R ~~~~~~~ Pius C. Kuriakose, J. Under challenge in this revision filed by the tenant under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court against the revision petitioner under sub section 3 of Section 11 of Act 2 of 1965. The parties are referred to hereunder as the landlady and the tenant. The case of the 2nd respondent herein (2nd petitioner in the RCP) was that she needs the building for occupation by the 1st respondent/1st petitioner in the RCP, her daughter, so that, she can conduct a beauty parlour therein. Tenant also contended that he is entitled to protection of 2nd proviso to sub section 3 of Section 11. The bonafides of the needs was disputed and it was contended that the claim is only a ruse to evict the tenant. The matter went for trial and the evidence before the Rent Control Court consisted of Exts.A1 to A5, oral evidence of PW1, B1 to B4 and the oral R.C.R.No.184/2009 2 evidence of RWs1 to 4. PW1 was the daughter/1st petitioner in the RCP. Eventhough the benefit of the 1st proviso to sub section 3 of Section 11 was not specifically raised, the tenant through his evidence tried to bring home that one room in the first floor of the larger building of which the petition schedule building is a part that remaining vacant. The Rent Control Court on evaluating the evidence held that the need projected in the RCP is bonafide. It was also held that the tenant was unsuccessful in proving that he satisfied either of the ingredients of the 2nd proviso to sub section 3 of Section 11. The Court also found that the petitioner was not liable to be rejected by virtue of the first proviso. Accordingly, eviction order was passed under sub section 3 of Section 11. The tenant preferred an appeal to the Rent Control Appellate Authority. The appellate authority reappraised the evidence and concurred with all the findings of the Rent Control Court. Accordingly the appeal was dismissed. 2. In this revision, various grounds have been raised assailing the judgment of the appellate authority. Sri.K.P.Rajeevan, learned counsel for the revision petitioner and R.C.R.No.184/2009 3 Sri.Paul K.Varghese, learned counsel for the respondents addressed us extensively. In fact, after hearing both sides for some time, this Court on 19.8.2009 directed the revision petitioner to produce certified copy of the Property Tax Assessment Register maintained by the Muvattupuzha Municipality in respect of room having Door No.12/39 in the upstair portion of the petition schedule building. A copy of this direction was also issued to the Secretary of the Muvattupuzha Municipality. The above order was passed in view of the assertion of the learned counsel for the revision petitioner that the above mentioned room is even now remaining vacant. Pursuant to the above order, certified copy of the Assessment Register was produced. Eventhough the same revealed that the building is in the possession of a tenant by name Raman, it was submitted by Sri.K.P.Rajeevan on the basis of the oral evidence available in this case that Sri. Raman had vacated. Accordingly, we directed the learned counsel for the respondents to produce documents which would show that Raman continues to be in possession. Today, as we took up the case for hearing, the learned counsel for the respondents placed before us the rent R.C.R.No.184/2009 4 chit executed by Raman, which prima facie shows that Raman was put in possession way back on 31.12.1985. The assertion of the learned counsel for the respondents was that Raman continues to be in possession. Mr.Rajeevan would again assert before us that as of now Raman is not in possession of the above room. We enquired of Mr. Rajeevan as to whether his client is prepared to take out a Commission for an immediate inspection of the building. Time was given till 1.45 p.m. to Mr.Rajeevan for consulting his client. Today, at 1.45 p.m when the case is taken up, it was submitted by Mr.Rajeevan that his client is not able to take out a Commission due to financial reasons. 3. The question that arises before us is whether the judgment of the Appellate Authority suffers from any illegality, irregularity and impropriety as envisaged under Section 20 of Act 2 of 1965. In our considered the view, the above question can be answered only in the negative. We have scanned the judgment of the appellate authority as well as the order of the rent control court. We find that the finding entered therein concurrently are reasonable findings entered on the basis of R.C.R.No.184/2009 5 evidence which is available on record. Admittedly, the room in question is the only room in which the 1st respondent is having any interest. It appears that there are three other rooms also. But it is not disputed that she has other daughters also. Even if the 2nd respondent mother is having a vacant room in the first floor, both the respondents are having special reasons for insisting on getting possession of petition schedule building for accomplishing the need of the 1st respondent. As already indicated, the petition schedule room is the only room which belongs to 1st respondent by virtue of Ext.A1 settlement deed. The submission of Mr.Rajeevan that PW1 is happily settled in a gulf country does not appeal to us. PW1 herself gave inspiring oral evidence before the Rent Control Court to the effect that once she gets possession of the building, she will come down and start the proposed beauty parlour in the petition schedule building. In this context, we notice that sub section 12 of section 11 gives adequate protection to an evicted tenant, if it is noticed that the building evicted on the ground under Section 11(3) is not utilised for the purpose for which eviction was obtained. The statutory appellate authority have on reappraisal of the R.C.R.No.184/2009 6 evidence concluded that the need is bonafide. Then the question is whether the 1st proviso will apply. As already indicated, 1st proviso cannot apply in this case. 4. The last question is whether the 2nd proviso to sub section 3 of Section 11 will apply. We don't find any infirmity with the finding concurrently entered by the two authorities below that the tenant was unsuccessful to prove the he satisfies either of the two ingredients. The revision necessarily has to fail. Accordingly, we dismiss the revision. 5. Sri.K.P.Rajeevan, as a last plea, requested that atleast one year's time be granted to the revision petitioner for surrendering the premises. This submission is opposed by Mr.Paul. Yet we feel, on the totality of the circumstances attending on this case, where the petitioner is conducting the business in Khadi materials, for granting atleast so much of time as requested by Mr.Rajeev. Hence, we direct the Execution Court to keep in abeyance all proceedings for delivery till 31.11.2011 subject to the following conditions: R.C.R.No.184/2009 7 The revision petition shall file an affidavit before the Execution Court, within one month from today undertaking to give peaceful surrender of the building to the respondents on or before 31.12.2011 and undertaking further that arrears of rent, if any, will be discharged within one month and that occupational charges at the current rent rate will also be paid till surrender without fail. 6. We make it clear that the revision petitioner will get benefit of time granted above only, if the affidavit is filed in time and undertakings are honoured without fail. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ps