IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 RCRev..No. 62 of 2008() ---------------------------------- RCA.70/2006 OF IST ADDITIONAL DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.122/2005 OF RENT CONTROLLER/ ADDITIONAL MUNSIFF COURT-I, KOZHIKODE .................... REVISION PETITIONER/RESPONDENT/RESPONDENT-TENANT: -------------------------------------------------------------------------------------------- M.P. HAMSA, S/O.ALAVI, AGED 52 YEARS, PALLIPARAMBA, PUTHIYANAGADI AMSOM AND DESOM, OF KOZHIKODE TALUK. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT/APPELLANT/PETITIONER-LANDLADY: ----------------------------------------------------------------------------- LILLY VINCENT, W/O.LATE VINCENT, AGED 67 YEARS, KAVUNGALTHAZHAM, KACHERY AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ FOR CAVEATOR. ADV. SMT.M.SHAJNA. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs RCRev..No. 62 of 2008 ORDER ON I.A. NO.668/2008 IN R.C.R. NO.62/2008 DISMISSED 07/06/2011. SD/- PIUS C.KURIAKOSE, JUDGE SD/- N.K.BALAKRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = R.C.R. NO. 62 OF 2008 = = = = = = = = = = = = = = = = Dated this the 7th day of June, 2011. O R D E R PIUS C. KURIAKOSE,J. Under challenge in this revision filed u/s 20 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed on the ground under S.11(3) of Act 2 of 1965. The need projected by the landlady was that her daughter who was at that time employed overseas wants to come down and start ladies tailoring unit and fashion-wear manufacturing unit. The bonafides of the need was disputed. It is contended that the RCP is liable to fail by virtue of the first proviso to sub section 3 of S.11. It is further contended that the tenant is entitled to the benefit under the 2nd R.C.R. NO. 62 OF 2008 -:2:- proviso to sub.sec.(3) of S.11. The Rent Control Court in the first instance would hold that the need is not bonafide. This was because the landlady had not produced any documents which would go to support her case that her daughter who was presently employed in a foreign country has come back and wants to start business. However the Rent Control Court considered the question whether the RCP is liable to fail under the 1st proviso for the reason that the landlady was not in possession of any other vacant building and eviction was declined under sub.sec.(3) of S.11. The landlady preferred an appeal before the Appellate Authority. The landlady produced original passport of her daughter. On being convinced that the landlady's daughter was back in her home town the Rent Control Appellate Authority R.C.R. NO. 62 OF 2008 -:3:- would reverse the finding entered into by the Rent Control Court in that regard and find that the need is bonafide. The Appellate Authority would confirm the finding of the Rent Control Court on the ground that the first proviso to sub.sec.(3) of S.11 does not operate against the landlady. Rent Control Court as well as the learned Appellate Authority would concurrently find that the tenant was unsuccessful in establishing the entitlement to the 2nd proviso to sub.sec.(3) of S.11 and accordingly the Appellate Authority ordered eviction under sub.sec.(3) of S.11. 2. In this revisional jurisdiction u/s 20 various grounds are raised challenging the judgment of the Appellate Authority. Sri.A.V.M.Salahuddeen, learned counsel for the revision petitioner addressed appealing arguments R.C.R. NO. 62 OF 2008 -:4:- before us on the basis of various grounds. Though Sri.Salahuddeen argued on all grounds he gave thrust to those grounds based on the proviso to sub.sec.(3) of S.11. Sri.Salahuddeen pointed out that the plaint schedule building has three rooms in the ground floor and three rooms in the first floor. The petition schedule room is one bearing door No.5/678-C. According to Sri.Salahuddeen the middle room in the ground floor of this building was found to be closed, when the Advocate Commissioner inspected the building on two occasions. When the Advocate Commissioner found that the rooms were closed, it was the burden of the landlady to have adduced cogent evidence to convince the authorities that the said rooms are not vacant. The rent chit produced by the landlady to show that the above room is in the possession of a tenant is an old R.C.R. NO. 62 OF 2008 -:5:- rent chit. The landlady could have very well facilitated the opening of the room occupied by the tenant if there is a tenant or could have examined the tenant and proved that the said room is occupied by the tenant and is not actually vacant. Learned counsel requested that the judgment of the Appellate Authority be set aside and the matter be remanded either to the Appellate Authority or the Rent Control Court by enabling the landlady to prove by examining the tenant or by facilitating inspection of the inside of the room by a Commissioner. 3. The submissions of Sri.A.V.M.Salahuddeen were resisted by Sri.M.K.Firoz, learned counsel for the respondent. Mr.Firoz reminded us of the contours of our jurisdiction u/s 20 and submitted that in view of the present jurisdiction we won't be justified in upsetting the finding of the Rent R.C.R. NO. 62 OF 2008 -:6:- Control Court and Appellate Authority in the context of the first proviso to sub.sec.(3) of S.11. Just because a room is remaining closed it cannot be assumed that the room is vacant. Landlady had produced old rent receipts and the present rent receipts. Identity of the tenant was also spoken to by the landlady. Thus she has discharged her burden. If the tenant wanted to prove that the above room is vacant the tenant could have examined the tenant who is said to be in possession of middle room in the ground floor. That burden was not discharged by the tenant. There is no warrant for interference in revision side. 4. We kept in mind the contours of the jurisdiction u/s 20 as well as judicial precedence pertaining to invocation of revisional jurisdiction u/s 20 of Act 2 of 1965. R.C.R. NO. 62 OF 2008 -:7:- We find that the findings concurrently entered upon by the Appellate Authority and the Rent Control Court that the RCP is not liable to fail by virtue of the first proviso to sub-s.(3) of S.11 are findings founded on legal evidence available on record. The Commissioner only reported that the middle room in the ground floor was found closed. The landlady had given evidence to the effect that the room is not under vacant possession. The tenant's name was mentioned. The tenant could have examined that tenant and proved that he no longer occupies the building. That burden has not been discharged. The tenant cannot now insist that the landlady should examine that tenant. In short we do not find any warrant for interference. We dismiss the revision. R.C.R. NO. 62 OF 2008 -:8:- 5. As a last plea Sri.Salahuddeen requested that a reasonably a long period of time may be granted for surrendering vacant possession. Taking into account the totality of the circumstances which attend on this case we feel that the tenant can be granted one year's time, i.e. till 15.6.2012 to surrender vacant possession subject to the following conditions. 6. The tenant shall file an affidavit before the execution Court on or before 15.6.2012 undertaking to give surrender of the petition schedule room to the landlady within one year from this day and undertaking further to discharge the arrears of rent within one month and to pay occupational charges at the rate of Rs.1,000/- per month with effect from 1.7.2011 till the date of actual surrender. R.C.R. NO. 62 OF 2008 -:9:- 7. We further order that the landlady shall produce affidavit duly sworn to by the tenant who is in occupation of the middle room in the ground floor of the building in question in which the tenant says that he continues to be in possession of the said building(Door No.5/678/C). Only if such an affidavit is filed this judgment will operate. Both the affidavits shall be filed within one month from the date of receipt of a copy of the judgment. Sd/- PIUS C. KURIAKOSE, JUDGE. Sd/- N.K. BALAKRISHNAN, JUDGE. ul/- [ True copy ] P.S. to Judge.