IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 RCRev..No. 168 OF 2010() ------------------------ RCA.3/2008 OF THE RENT CONTROL APPELLATE AUTHORITY,KOLLAM RC(OP) 11/2006 OF THE PRINCIPAL RENT CONTROL COURT, KOLLAM .................... REVISION PETITIONER/RESPONDENT/CR. PETITIONER: ---------------------------------------------------------- RAJU,S/O.JANARDHANAN, AGED 46 YEARS, KONEZHATHU THARAYIL, SAKTHIKULANGARA P.O., SAKTHIKULANGARA CHERRY, KOLLAM. BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR RESPONDENT/APPELLANT/PETITIONER: -------------------------------------------- INDIRADEVI D/O.KUTTI AMMA,SREEBHAVAN, SAKTHIKULANGARA P.O.,SAKTHIKULANGARA CHERRY, KOLLAM. ADV. SRI.B.SURESH KUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.C.R. NO. 168 OF 2010 = = = = = = = = = = = = = = = = DATED THIS, THE 6TH DECEMBER, 2010. O R D E R Pius C. Kuriakose, J. Under challenge in this revision under Section 20 of the Kerala (Buildings (Lease & Rent Control) Act 1965 (Act 2 of 65), is the judgment of the Rent Control Appellate Authority, ordering eviction against the revision petitioner for the first time under sub-section 3 of Section 11 of the Act. The landlady had invoked the ground of arrears of rent also for evicting the revision petitioner. Both the authorities have concurrently declined eviction under that ground. In the absence of any revision by the landlady, in this revision we need be concerned only with the legality, regularity and propriety of the eviction order passed by the Appellate Authority on the ground under sub-section 3 of Section 11. 2. The need projected by the landlady was that her daughter Jolly (PW.2) is to be accommodated in this building so that PW.2 who is an Engineering Graduate, can use the building for conduct of tuition classes for Engineering students. It was averred that PW.2 is a graduate in Engineering and that she genuinely intends to set up tuition classes for engineering students in the building. The bona fides of the need was very RCR 168/2010 2 seriously disputed. It was pointed out that PW.2 is put up at Baroda in Gujarat along with her husband, who is a manager in a company, there. It was also contended that PW.2 is permanently put up at Baroda. It was pointed out that even for her confinement and delivery she did not come over to Kavanad - her native place; but only her mother went to Baroda to attend on her. The tenant also claimed protection of the second proviso to sub-section 3 of Section 11. In the enquiry conducted by the Rent Control Court, the evidence consisted of Exts.A1 to A6, B1 and the oral evidence of PWs 1 and 2 and CPW.1. PW.1 was the landlady and CPW.1 was the tenant. On evaluating the evidence, the learned Rent Control Court noticed that Pw.2 came to Kollam for giving evidence in the case only on the day she was examined by the court. The Rent Control Court also noticed that delivery of both the children of PW.2 took place at Baroda and not in her home village. The court also noticed that no documentary evidence was adduced by the landlady to show that her daughter was experienced in teaching. On these reasons, it was held that the need is not bona fide. However, regarding the tenant's eligibility for protection under the second proviso to Section 11(3), it was held that it is for the tenant to prove that he has satisfied the two ingredients. It was held that the tenant did not succeed in doing so. However, eviction under Section 11(3) was declined. RCR 168/2010 3 3. The learned Appellate Authority considered the appeal preferred by the landlady and reappraised the evidence. The learned Appellate Authority would reverse the finding of the Rent Control Court regarding the bona fides of the need and ordered eviction after approving the finding rendered by the Rent Control Court regarding the tenant's eligibility for the protection under the second proviso to Section 11(3). The learned Appellate Authority was very much impressed by the oral evidence given by PWs 1 and 2. On the basis of the documents such as ration card, electoral card etc., the learned Authority came to the conclusion that the permanent residence of PW.2 was at Kavanad, her home village and not in Baroda. In this context, the learned Appellate Authority noticed that the tenant's version that PW.2 seldom comes over to Kavanad is not correct. Another circumstance which weighed with the Rent Control Court to find that the need is not bona fide, is that one vacant room was available with the landlady. But according to the Appellate Authority, that room was too small to accommodate students and the furniture, which are very much necessary for the conduct of tuition centre. On an overall appreciation of the evidence adduced on the side of the landlady, the Rent Control Appellate Authority came to the conclusion that the need is bona fide. The Appellate Authority, therefore, interfered with the negative order passed by RCR 168/2010 4 the Rent Control Court and ordered eviction under Section 11(3) of the Act. 4. In this revision under Section 20 of the Act, the tenant has raised various grounds assailing the judgment of the Appellate Authority. Learned counsel for the revision petitioner addressed strenuous arguments before us on the basis of those grounds. Drawing our attention to the evidence in the case, the learned counsel submitted that the conclusions of fact arrived at by the Appellate Authority are not supported by materials. It was highlighted that the husband of PW.2 is an employee in a managerial position in a reputed company in Baroda and that PW.2 has been happily residing with the husband and her two children at Baroda. According to the learned counsel, it is highly improbable that PW.2 will come over to Kavanad and reside along with her mother for the purpose of conducting tuition classes. There is no documentary evidence on the basis of which, it can be held that PW.2 is experienced in taking tuition classes. The judgment of the Appellate Authority, according to the learned counsel, is illegal, irregular and improper as the same is contrary to the evidence in the case. 5. All the submissions of the learned counsel for the revision petitioner were opposed by the learned counsel for the respondent/landlady. We have very anxiously considered the rival submissions. We have also RCR 168/2010 5 gone through the judgment of the Appellate Authority and the Rent Control Court. The question that arises for our decision is whether the judgment of the learned Appellate Authority warrants any interference under Section 20 of the Act. The answer for that question necessarily has to be in the negative. We have made a re-appraisal of the evidence in the case. The entire testimony of PW.2, the defacto claimant was read over to us. We find that nothing has been brought out in cross examination to shake her credit and credibility. True, there is some evidence to hold that the landlady is in possession of a vacant building. But there is further evidence which shows that the above vacant room is too small to accommodate the students attending the tuition classes and the necessary furniture. We enquired of the learned counsel for the revision petitioner as to whether the revision petitioner is willing to shift his business to that building. The answer was in the negative. If that room is not suitable for the use of the revision petitioner, he will not be justified in insisting that the said room is suitable for PW.2's purpose. There may not be any direct evidence regarding the bona fide need except the oral version of the person who harbours the need. This is a case where both the landlady and her dependant daughter for whom the building is sought to be evicted have given evidence . On a re- appreciation of the evidence, we are convinced that the view taken by the RCR 168/2010 6 learned Appellate Authority that the above evidence is inspiring, is not illegal, irregular or improper. 6. As regards the protection of the second proviso to Section 11(3), we notice that the findings are concurrent and based on evidence. Therefore, we find no ground for interference with the judgment of the Appellate Authority. The revision petition is without merit and it is accordingly dismissed. 7. Learned counsel for the revision petitioner made a last appeal for grant of at least 18 months time for surrendering vacant possession of the building. We do not think that we will be justified in granting such a long period. However, we think, in the totality of the circumstances, that there is justification in granting time till 15.12.2011 subject to certain conditions. 8. The result of this Rent Control Revision Petition is as follows: The Rent Control Revision Petition is dismissed. The eviction order is confirmed and the execution is kept in abeyance till 15.11.2011 on the following conditions: (i) The revision petitioner shall file an affidavit within three weeks from today, undertaking as follows: (a) that he shall surrender vacant possession of the building to the respondent herein on or before 15.11.2011, (b) that he shall discharge RCR 168/2010 7 arrears of rent if any, within two months from today and (c) he shall pay at the rate of Rs. 1,000/- per month towards occupational charges of the building with effect from 1.12.2010 without any default. In the event of filing the affidavit as above and honouring the undertaking, the trial court/execution court shall keep the order of eviction in abeyance till 15.11.2011. On proof of breach of any of the above conditions, the respondents are at liberty to get the order of eviction executed at once. PIUS C KURIAKOSE, (JUDGE) P.S. GOPINATHAN, (JUDGE) knc/-