IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 RCRev..No. 15 of 2010() ----------------------- RCA.37/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM RCP.14/2006 of PRL.M.C., KOCHI .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------- NARAYANAN, AGED 70 YEARS, SON OF SRI.KUTTY, 12/811, GEETHA PRINTERS, KAPPALANDI MUKKU, THOPPUMPADY VILLAGE KOCHI TALUK, RESIDING AT THARAYIL HOUSE, NEAR KOKERS THEATRE, FORT KOCHI. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER RESPONDENT(S): PETITIONER: -------------------------- SHOUKATH ALI, AGED 62 YEARS, SON OF SRI.MUHAMMED KOYA, 12/877, KAPPALANDI MUKKU, THOPPUMPADY VILLAGE, KOCHI TALUK. ADV. SRI.THOMAS CHAZHUKKARAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 15 of 2010 ``````````````````````````````````````````````````````` Dated this the 11th day of January, 2010 O R D E R Pius C. Kuriakose, J. The tenant being aggrieved by order of eviction concurrently passed by the Rent Control Court and the Rent Control Appellate Authority on the ground of bonafide need for own occupation has come up in revision. The building in question is a commercial building situated at Kappalandi Mukku, a commercially important locality in West Kochi. The need projected by the landlord was that the building is required for own occupation after reconstruction by his son Saffrulla. The bonafides of the need and the claim were disputed by the tenant. The tenant also claimed that even if the need is found to be bonafide, he is not liable to be evicted since he is entitled to the protection of the second proviso to sub-section (3) of Section 11. In fact, the landlord filed RCP.No.15/2006, seeking to evict the tenant in occupation of the adjacent building and the need projected was a need of his son to occupy the new building to be RCR.15/2010 : 2 : put up after demolishing the two buildings. The evidence consisted of the oral testimonies of PW1, the landlord, PW2, the Advocate Commissioner, PW3, the needy's son, PW4, the Foreman of Kuri in which PW3 was a subscriber, RW1, the tenant, and RW2, the tenant in RCP No.15/2006. The documentary evidence consisted of Exts.A1 to A19 and B1 to B3 series apart from C1 Commission report and C1(a) rough sketch submitted by the Advocate Commissioner. The Rent Control Court, on evaluating the evidence, came to the conclusion that the need projected by the landlord is a bonafide one and that the tenant was unsuccessful in proving that he satisfies either of the ingredients of the second proviso to sub-section (3) of Section 11. On the basis of the evidence, which came on record, an argument was raised before the Rent Control Court that the RCP is liable to be rejected, since the landlord is having vacant possession of buildings having door Nos.816 and 817 situated not far away from the petition schedule building. The above argument was also repelled by the Rent Control Court, accepting the landlord's case that those buildings do not belong to the landlord but are buildings taken on RCR.15/2010 : 3 : lease by the landlord. Accordingly, the Rent Control Court ordered eviction on the ground under sub-section (3) of Section 11. The Appellate Authority re-appraised the evidence and concurred with all the conclusions of the Rent Control Court and dismissed RCA No.37/2008. 2. We have heard the submissions of Mr.Anil S. Raj, learned counsel for the revision petitioner, and also those of Mr.Thomas Chazhukkaran on behalf of the landlord. Sri.Anil S.Raj drew our attention to the first proviso to sub-section (3) of Section 11 and also to the oral evidence adduced by PW1. According to him, the landlord has conceded in his evidence that the landlord is in possession of room Nos.816 and 817. When the landlord stated that those rooms were belonging to another person, he was challenged to produce the rent receipts pertaining to those rooms. Though he agreed to produce the rent receipts, the receipts were never produced. According to the learned counsel, it was obligatory that the landlord pleaded and proved special reasons for justifying order of eviction despite having possession of room Nos.816 and 817. RCR.15/2010 : 4 : 3. Mr.Anil S.Raj further argued that the apposite eviction ground to be evicted by the landlord in this case was the ground of reconstruction. According to him, it was to over read the third proviso to Clause 4 of Section 11 under which the landlord is bound to reinduct the evicted tenant into the newly reconstructed building that the landlord in this case invoked sub-section (3) of Section 11. According to the learned counsel, if the landlord does not have money enough to put up a better building big enough to occupy the tenant also, the revision petitioner/tenant is ready and willing to advance necessary funds to the landlord so that a bigger building can be put up on the side of the petition schedule building. Mr.Anil S.Raj further submitted that the evidence of the landlord as PW1 and the evidence of the son of the landlord as PW3 is to the effect that the son will be carrying on business in the very same line as of the father ie, business in hardware and paint. According to him, no prudent landlord will permit a competitor, even if he is his own son, to start a business in the very same line in close proximity to his business place. As his last submission, Sri.Anil S.Raj requested for grant of at least one year's time for RCR.15/2010 : 5 : surrendering the premises. 4. All the submissions of Sri.Anil S.Raj were very stiffly resisted by Mr.Thomas Chazhukkaran. He submitted that the fact finding authorities, namely, the Rent Control Court and the Appellate Authority, have, on a correct appreciation of the evidence adduced by PW1and PW3, come to the right conclusion that the need projected by the landlord for accommodating his own dependent son is a bonafide one. According to him, the total extent of the plot in which the petition schedule building is situated is around 3 cents. He pointed out that the tenant, who was in occupation of the buildings which was the subject matter of RCP No.15/2006, has already evicted and the building occupied by him is already diminished for the proposed reconstruction. According to Mr.Thomas Chazhukkaran, the landlord has money enough only to put up a building which is just sufficient for the purpose of his son's requirement. Whatever excess money the landlord has he will be interested in investing in his own business and, if necessary, for investing in the proposed business of the son. The landlord is not prepared to agree to the idea for receiving money RCR.15/2010 : 6 : from the tenant for constructing a larger building so that the tenant can also accommodate in the newly constructed building. Mr.Thomas Chazhukkaran submitted that after the cross examination was over, receipts pertaining to room Nos.816 and 817 admittedly in the possession of the landlord issued by Sulekha Bhai Trust, landlord of those buildings, were actually produced. There is no obligation for the landlord to raise pleadings in the context of the first proviso since the landlord does not have ownership over room Nos.816 and 817. The learned counsel submitted that the tenants are adopting all sorts of methods for protracting eviction. He pointed out that very recently O.S.No.1/2010 has been filed by Smt.Vimala, wife of the revision petitioner, before the Cochin Sub Court, seeking an injunction and in that suit, I.A.No.5/2010 has been filed, seeking temporary injunction restraining the execution court from delivering the property over to the landlord on the premises that the plaintiff therein is the tenant. Mr.Thomas Chazhukkaran referred to the statement of objections filed in the RCP and submitted that the definite plea raised by the revision petitioner is that the revision RCR.15/2010 : 7 : petitioner is the tenant ever since 1967 and that he is paying the rent. The suit is a collusive affair between the husband and the wife for the purpose of protracting the inevitable eviction. Mr.Thomas Chazhukkaran submitted that even if the court is inclined to grant any time for the revision petitioner for surrendering the premises, the same may be made conditional upon O.S.No.1/2010 being withdrawn. 5. We have considered the rival submissions addressed at the bar. The jurisdiction of this Court under Section 20 of Act 2 of 1965 is revisional in nature and this Court is expected presently to re-appraise the evidence for substituting conclusions of fact entered by the fact finding authority, namely, the Rent Control Court and Appellate Authority, especially when they are founded on evidence. Having gone through the order of the Rent Control Court and judgment of the appellate authority, we notice that the findings entered therein that the need projected by the landlord is a bonafide one including the findings entered regarding the contention of the tenant in the second limb of the second proviso to sub-section (3) of Section 11 and the contention urged before RCR.15/2010 : 8 : the Rent Control Court. They were findings of plea that the RCP is liable to fail by virtue of the first proviso to sub-section (3) of Section 11 and are findings entered on the basis of ..... In order that the first proviso to sub-section (3) of Section 11 operative it is not sufficient that the landlord is in possession of other buildings within the same city. The relevant question, therefore, is as to whether the landlord has ownership over room Nos.816 and 817. The landlord's definite stand is that the landlord does not have ownership. That being so, the landlord does not have a statutory obligation to raise pleadings in the context of the first proviso to sub-section (3) of Section 11. Now, we have gone through the PW1's evidence by the extent it pertains to the availability of room Nos.816 and 817 to the landlord. It is true that the landlord stated in his evidence that he will produce the rent receipts. Mr.Thomas Chazhukkaran submitted before us that the landlord did produce rent receipts pertaining to room Nos.816 and 817 though they were never party in evidence. The learned counsel for the revision petitioner was not in a position to assert before us that door Nos.816 and 817 are rooms belonging to the landlord. His RCR.15/2010 : 9 : argument was only that the landlord having agreed to produce the receipt, he should have produced the receipts sufficient earlier. We are of the view that the courts below were justified in accepting the landlord's version that rooms having Nos.816 and 817 did not belong to the landlord. 6. Now, coming to the argument of the revision petitioner that sub-section (3) of Section 11 was invoked deliberately for over reading the provisions of the second proviso to clause 4 of Section 11, we notice that the above aspect of the matter being considered by the authorities below and decided in favour of the landlord. The size of the plot is not very large. It is a printing press which is being conducted in the petition schedule building presently by the revision petitioner, who will naturally be interested in having his printing press re-located in the ground floor portion of the petition schedule building. The ground floor portion of the proposed new building will not be much enough to accommodate a printing press and the proposed hardware and paint business of the landlord's son. Even assuming that the tenant will be ready to have his printing press on the first floor, the landlord's version is as RCR.15/2010 : 10 : he has money enough to put up a single storied building. That is the landlord's version and the landlord's expression .........where in revision we are not prepared to direct the landlord to put up a double storied building even against his present proposal which is based on the building permit already issued to him by the local authority. We must say that we do not find any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965 for interfering with the judgment of the appellate authority which under the statutory scheme is the final court on facts. 7. Now, coming to the last plea of the revision petitioner for time to vacate the premises, Mr.Thomas Chazhukkaran's submission in this context was that grant of time should be conditional on O.S.No.1/2010 being vacated. Having regard to the totality of the circumstances, we notice some merit in the submission of Mr.Thomas Chazhukkaran that O.S.No.1/2010 is a last ditch endeavour by the wife in unison with her husband to delay the eviction order. Mr.Anil S.Raj also submitted that his client will be advised to withdraw O.S.No.1/2010. We record the above submission. RCR.15/2010 : 11 : 8. Under the above circumstances, even as we dismiss the RCR, we direct the execution court not to order and evict delivery of the petition schedule building till 31-07-2010 subject to the following conditions: The revision petitioner will file an affidavit before the execution court within seven days from today, undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 31-07-2010. Through the very same affidavit, it should be undertaken that arrears of rent, if any, will be paid within one month and the occupational charges at the same rate will also be paid as and when the same falls due. It is made clear that the revision petitioner will be entitled for the benefit of time granted only if the affidavit is filed on time. (PIUS C. KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) aks