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 31ST MAY 2010 / 10TH JYAISTHA 1932 RCRev..No. 27 of 2004() ----------------------- RCA.39/2001 of I ADDL. DISTRICT COURT, PALAKKAD RCP.87/1999 of PRL.MUNSIFF COURT, PALAKKAD .................... REVISION PETITIONER/1ST RESPONDENT/PETITIONER: ------------------------------------------------------------ 1. PANDURANGAN, S/O. THIRUMALA GOWDER, RESIDING AT VADAKKANTHARA AMSOM, PALAKKAD TALUK. (*DIED) *SUPPL.REVN.PETITIONERS: *2. P.PARIMALAM, WIDOW OF PANDURANGAN *3. P.SENTHIL KUMAR, S/O.LATE PANDURANGAN *4. P.MAHESWARI, D/O.LATE PANDURANGAN *5. P.ANAND KUMAR, S/O.LATE PANDURANGAN *6. S.DIVYA LAKSHMI, D/O.LATE PANDURANGAN ALL ARE RESIDING AT 30/828, SHANMUGHA NILAYAM, VADAKKANTAHRA ROAD, PALAKKAD-678 012. (*SUPPLEMENTAL REVN.PETITIONERS 2 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE REV.PETITIONER AS PER ORDER DT.16.3.2010 IN I.A.2359/09 IN RCR.27/04) BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA SRI.JIBU P THOMAS SRI.P.S.APPU SRI.C.A.ANOOP (...2) RCR.27/04 (2) RESPONDENT(S): APPELLANTS/RESPONDENTS 2 TO 5/RESPONDENTS: ---------------------------------------------------------- 1. P. ARUMUGHAN, S/O. PONNUMALA ASARI. 2. VISWANATHAN,S/O. PONNUMALA ASARI. 3. PETTACHI, D/O. PONNUMALA ASARI. 4. MANICKAL, D/O. PONNUMALA ASARI. 5. JANU, D/O. PONNUMALA ASARI. 6. ANDAVAN, S/O. PONNUMALA ASARI. ALL ARE RESIDING AT SUNDARAMAKADAM VEEDU, VISWAKARMA NAGAR, MEPARMBU, PALAKKAD. ADV. SRI.DEVAN RAMACHANDRAN FOR R1 & R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.27 of 2004 ---------------------------------- Dated this the 31st day of May, 2010 O R D E R ---------------- Pius C.Kuriakose,J. The landlord is in revision. He sought to evict the tenant on the ground of arrears of rent under Section 11(2) (b), bonafide need for own occupation under Section 11(3) and misuse of the building under Section 11(4)(2). It is agreed to before us by both sides that the ground which seriously survives for consideration is the landlord's claim for eviction on the ground under Section 11(3). Hence we shall refer to the pleadings only in respect of that ground. 2. The need projected by the landlord was that the building is required bonafide for occupation by his second son, PW2 for the purpose of starting stationery business. The bonafides of the need was disputed by the tenant. It was contended by the tenant that the petition was liable to fail by virtue of the first proviso to Section 11(3). It was also contended by him that he is entitled to the protection of the RCR.27/2004 2 second proviso to Section 11(3). The rent control court would analyse the entire evidence which came on record i.e. to say PW1 to 3, AW1 to 3, RW1 to 3 and Ext.B1 to B5(a) and Ext.X1 and X2 and come to the conclusion that the need projected under Section 11(3) was a bonafide one. It was also concluded that the Rent Control Petition was not liable to fail by virtue of either of the proviso to Section 11(3). Accordingly order of eviction was passed under Section 11 (3). The learned appellate authority, however, would find that the landlord as PW1 had conceded in his evidence that he was having vacant possession of a building. According to the appellate authority, as it is conceded by the landlord that he is having vacant possession of the building, he is obliged to disclose the availability of that building with him and to show special reason as to why he is entitled to order of eviction under Section 11(3). Even though the explanation of the landlord is that he has only 2 other rooms on Sultanpetta (in area where petition schedule building is situated) and that those two rooms are in the occupation of his other two sons was noticed, the learned appellate authority took the view RCR.27/2004 3 that since the availability of those two rooms had not been disclosed and no pleadings have been raised showing special reasons the petition was liable to fail by virtue of Section 11 (3). Hence the appellate authority without interfering with the finding entered by the Rent Control Court regarding bonafide need and in context of second proviso to Section 11 (3) would hold that petition should fail by virtue of first proviso. Accordingly the order under Section 11(3), passed by the Rent Control Court was set aside. 3. In this revision filed by the landlord, various grounds have been raised assailing the decision of the appellate authority and Sri.V.Chitambaresh, learned counsel for the revision petitioner would address arguments on the basis of the grounds challenging the decision of the appellate authority to decline eviction under Section 11(3). Mr. Chitambaresh submitted that the finding by the appellate authority that the landlord is having vacant possession of the building is entered with respect to the building which is shown in schedule F of Ext.A1 partition deed. According to the learned senior counsel, in respect of the F schedule RCR.27/2004 4 property in Ext.A1, a partition suit is pending before court between the parties. Learned senior counsel referred to the judgment of this court in Jerry Joseph v. Selvaraj (2002 (2) KLT 129) and also in Asher v. Hassankutty Hajee (2004 (2) KLT 446) and submitted that it is trite that in order that first proviso to Section 11(3) applies the landlord should have absolute ownership over the vacant building possessed by him. In the instant case since F-schedule property is only co- ownership property proviso to Section 11(3) cannot have any application. 4. Even though the submissions of Mr.Chitambaresh based on Asher v. Hassankutty Hajee and Jerry Joseph v. Selvaraj (cited supra) were attractive, on going through the judgment of the appellate authority we find that the finding by that authority that the petition was liable to be failed by virtue of first proviso to Section 11(3) had been entered not with reference to the building included in F-schedule of Ext.A1. When this aspect of matter was brought to the notice of the senior counsel, he would submit that the finding that the landlord has admitted that he is in possession of a building RCR.27/2004 5 included in schedule-D of Ext.A1 is result of misreading of the evidence by the learned appellate authority. According to him, even if his client's answers in cross-examination regarding the room has created some confusion, the aspect has been clarified in re-examination. Learned senior counsel submitted that RW1 tenant conceded that he raised the contention under Section 11(3) of first proviso with respect to the building at Kunnathurmedu and also the buildings which are presently occupied by landlord's other two sons. 5. The learned counsel for the respondent would defend the judgment of the appellate authority. The learned counsel would submit that this court under Section 20 is not expected to re-appreciate the evidence and substitute conclusions of fact arrived at by the appellate authority which is the final court on facts under the scheme of the statute. Learned counsel would read over to us the evidence of PW1 in full and show that PW1 has stated that at least one room belonging to him absolutely is kept closed. This being so, it was for the landlord to have pleaded and proved special reasons. The learned counsel would then submit that the RCR.27/2004 6 finding by the appellate authority that the tenant is not entitled for protection of second proviso is contrary to the evidence. As a last plea the learned counsel submitted that in case this court is inclined to interfere and order eviction, the tenant may be granted at least one year's time to vacate since the furniture business, which is being carried on, accounts for only source of livelihood. 6. We have very anxiously considered the rival submissions. In view of the divergence in the findings entered by the Rent Control Appellate Authority and Rent Control Court we have made a re-appraisal of the evidence in the case particularly the oral evidence adduced by PW1, PW2 and RW1. We are convinced that the landlord has not made any admission that he is in vacant possession of room which is allotted to him absolutely under schedule D of Ext.A1 partition deed. Kunnathurmedu is admittedly a residential area situated far away from Sultanpetta where the petition schedule building is situated. As for the F schedule property (the Gowder Theatre premises) it is clear from Ext.A1 that those properties are kept in common. It is not clear from the RCR.27/2004 7 evidence as to whether any subsequent partition suit is instituted in respect of F schedule property. But Ext.A1 itself shows that F schedule property is common property over which the landlord does not have absolute ownership. Moreover, it is clear on a reading of F schedule that the same does not take in any separate building suitable for conduct of stationery business. The above discussion means that the finding of the appellate authority that the landlord was bound to disclose the availability of vacant buildings and to show special reasons as envisaged by first proviso to Section 11(3) is illegal and liable to be interfered with. 7. As for the argument of the learned counsel that tenant is entitled to protection of second proviso we find that the finding that tenant was unsuccessful in proving that he satisfies the two ingredients of the second proviso which are in the conjunctive, has been entered concurrently on the basis of evidence by the Rent Control Court and the Rent Control Appellate Authority. Having regard to the attenuated nature of jurisdiction under Section 20 we are unable to say that the said finding is illegal, irregular and improper so as to justify RCR.27/2004 8 interference in revision. 8. The last submission of the learned counsel for the respondent that a reasonably long period should be granted for surrendering the premises if eviction is being ordered, was opposed very seriously by the learned senior counsel. However, taking into account the totality of the circumstances in this case we feel that there is justification for granting time till 31.3.2011. Hence RCR will be decided on the following terms:- The judgment of the appellate authority to the extent it declines order of eviction under Section 11(3) is set aside. Order of eviction passed by the Rent Control Court under Section 11(3) is restored. The execution court is directed not to order and effect delivery of the petition schedule building till 31.3.2011 on condition that the 1st respondent representing himself and the other respondents submits an undertaking before the execution court in the form of an affidavit undertaking to give peaceful surrender of the building to the revision petitioner on or before 31.3.2011 and undertaking further to clear off arrears of rent if any within RCR.27/2004 9 one month and also to pay occupational charges at the current rent rate as and when the same falls due till they give actual surrender. Respondent will not be entitled for the benefit of time granted as above unless they file affidavit as directed above on time. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb