IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 RCRev..No. 376 of 2011() ------------------------ RCA.47/2009 of THE RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCOP NO.47/2008 OF THE RENT CONTROL COURT, KOLLAM) .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER : -------------------- AMEER HAMSA, S/O. MUTHALIF, PURADAYIL, VENGRA, THODIYOOR, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.S.MOHAMMED AL RAFI SRI.M.P.MUHAMMAD FAZIL RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- DOUGLES BURKE, S/O. BAY BAY WILLIAM, AGED 72 YEARS, MORNING STAR, 7/668, NEAR SANKAR HOSPITAL, KOLLAM 691001. BY ADV. SRI.RAJA VIJAYARAGHAVAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 376 OF 2011 ------------------------ Dated this the 4th day of October, 2011 O R D E R Pius C.Kuriakose, J. The tenant challenges in this revision filed 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 under sub section (3) of Section 11. The landlord had invoked grounds of arrears of rent and additional accommodation also. But, the Rent Control Court declined eviction on those two grounds and that order has become final. Therefore, in this revision we need have to be concerned only with the correctness of the eviction order concurrently passed under sub section (3) of Section 11. 2. The need projected by the landlord under sub section (3) of Section 11 was that the building is needed bona fide for occupation by his dependent son who is conducting trade in gift RCR.No.376/2011 2 articles in the first floor of the same building. It was averred that, as the first floor room occupied by his son did not have visibility, the son is in need of the petition schedule building, where the revision petitioner is conducting business in opticals, so that his son can have show room for displaying his stock-in- trade. 3. Bona fides of the need was disputed by the tenant who contended that the business of the landlord's son has been running at a loss for several years and that the need now projected that the business requires to be expanded is a bereft of bona fides. It was also contended that if the need was bona fide the landlord could have sought eviction of other tenants, who were in occupation of bigger rooms. It was further contended that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. At trial by the Rent Control Court, the evidence consisted of Exts.A1 to A3, Exts.B1 to B5 and the oral evidence of PW1, the landlord, and PW2, the son for whom the building was sought. Oral evidence on the side of the revision petitioner/tenant consisted of DW1, the Accommodation Controller, and DW2 the tenant himself. RCR.No.376/2011 3 Apart from that, there was a commission report and plan which were marked as Exts.C1 and C1(a) respectively. Ext.X1 was the attested copy of the vacancy register produced by the Accommodation Controller. The Rent Control Court on evaluating the evidence came to the conclusion that the need was bona fide. It was also concluded that the rent control petition was not liable to fail by virtue of either the first proviso or the second proviso to sub section (3) of Section 11. 4. Even though the tenant preferred an appeal to the Rent Control Appellate Authority and the Appellate Authority made a reappraisal of the evidence, that authority would concur with all the findings of the Rent Control Court and dismissed the appeal. 5. In this revision under section 20, various grounds are raised challenging the judgment of the Appellate Authority. Sri.S.Mohammed Al Rafi learned counsel for the revision petitioner addressed submissions based on all the grounds. Sri. Raja Vijaya Raghavan learned counsel who had lodged a caveat on behalf of the respondent was also permitted to address submissions and he addressed submissions resisting the submissions of Mr.Mohammed Al Rafi. RCR.No.376/2011 4 6. Mr.Mohammed Al Rafi would submit that the need projected in the Rent Control Petition that PW2, whose business in gift articles already being conducted in the first floor of the same building have been running at a loss continuously, wants to expand that business by opening show room in the petition schedule building is inherently bereft of bona fides. The learned counsel submitted that if the need was bona fide, PWs1 and 2 could have thought in terms of evicting the other tenants in the same building who were in occupation of the room more ideally suitably for commencing the proposed show room. Mr.Mohammed Al Rafi argued that the findings of the statutory authorities in the context of the second proviso to sub section (3) of Section 11 are erroneous and are the result of total erroneous appreciation of the evidence on record. Even though the Appellate Authority has observed that it has come out in evidence that the tenant is conducting some business elsewhere also, no document was produced by the landlord to prove that similar business conducted elsewhere belongs to the tenant. The learned counsel argued that the business referred to by the Appellate Authority and the Rent Control Court in its orders is RCR.No.376/2011 5 business conducted by the revision petitioner's brother. Mr.Mohammed Al Rafi also submitted that against the convincing evidence adduced by the tenant through the Accommodation Cotnroller who produced Ext.C1, there was only oral evidence of the landlord on the basis of which the authorities could have held that other buildings are available in the locality. The buildings similar to the petition schedule buildings are not available in the locality and the buildings, which were pointed out by the landlord in his evidence, were buildings to take which unaffordable rent have to be paid. Affordability of the rent is a matter to be considered while determining the suitability of the alternate accommodation. 7. As already indicated , Mr.Raja Vijayaraghavan resisted all the submissions of Mr. Mohammed Al Rafi. Mr.Raja Vijyaraghavan reminded us of the limits of our jurisdiction under Section 20 and submitted that within the contours of this jurisdiction there is no warrant for interference. 8. We have given our anxious consideration to the submissions addressed at the Bar. We have gone through the judgment of the Appellate Authority as well as the order of the RCR.No.376/2011 6 Rent Control Court. We have applied our mind to those items in the evidence to which our attention was drawn, particularly to the oral evidence adduced by PW2 in cross examination. 9. We should now remind ourselves of the limits of the jurisdiction in which we are presently sitting. In this jurisdiction, which is revisional in nature, this court is not expected to upset findings of fact concurrently entered by the statutory authorities by venturing upon a de nova reappraisal of the evidence especially when those findings are reasonable. Having gone through the order of the Rent Control Court and the Judgment of the Appellate Authority, we are of the view that the findings entered therein by the statutory authorities that the need is bona fide and that the rent control petition is not liable to fail by virtue of the first or the second provisos to sub section (3) of Section 11 are reasonable findings based on evidence. When reasonable findings based on evidence are entered by the statutory authorities, this court will not be justified in upsetting those findings. 10. The revision necessarily has to fail and will stand dismissed. RCR.No.376/2011 7 11. After our decision was made known to Mr.Mohammed Al Rafi, the learned counsel requested for grant of 18 months time to surrender the premises as according to the learned counsel bereft eviction will be very hard to the revision petitioner. This request was opposed very stiffly by Mr.Raja Vijayaraghavan. However, we feel, having regard to the totalities of the facts and circumstances attending on this case, that there is justification for granting to the revision petitioner time till 15/10/2012 to surrender the premises subject to the following conditions; The revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court as the case may be within three weeks from today undertaking to give peaceful surrender of the building to the respondent on or before 15/10/2012 and further undertaking to discharge arrears of rent if any within six weeks and to pay occupational charges at the existing rent rate without fail till actual surrender is made. If the landlord is agreeable for adjustment, the occupational charges can be adjusted against the security amount admittedly remaining with the landlord. RCR.No.376/2011 8 We make it clear that unless affidavit as directed above is filed on time and undertakings therein are honoured, the petitioner will not get benefit of time granted above. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE. dpk