IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 RCRev..No. 3 of 2009() ---------------------- RCA.85/2002 of RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT COURT), THALASSERY RCP.241/2000 of RENT CONTROL COURT (PRL.MUNSIFF COURT),KANNUR .................... PETITIONER/APPELLANT/RESPONDENT(TENANT): ------------------------------------------------------ K.V.GOPINATHAN, S/O P.K.GOPALAN NAMBIAR, AGED 39, TV:XXVII 207, V.K.COMPLEX, FORT ROAD, KANNUR. BY ADV. SRI.SHYAM PADMAN SRI.A.RANJITH NARAYANAN RESPONDENT/RESPONDENT/PETITIONER(LANDLORD): ----------------------------------------------------------- DAYAROTH VELLUVA VEETTIL RABIYA HAJJUMMA, D/O MUHAMMED HAJI, AGED 36, VALIYANNUR AMSOM, VARAM DESOM, KANNUR TALUK AND DISTRICT. BY ADV.SHRI K.M.MOHAMMED KUNHI THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & M.C.HARI RANI, JJ. -------------------------------------------------- R.C.Rev.No.3 OF 2009 ----------------------------------------------------- DATED THIS THE 8th DAY OF JANUARY, 2009 O R D E R PIUS C.KURIAKOSE, J. The tenant is the revision petitioner. Order of eviction has been concurrently passed against him on the ground mentioned under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965). The case of the respondent/landlady was that the schedule building is needed bonafide by her for occupation by her dependent son Arif (PW2), so that he can carry on his computer training centre and run an internet cafe. The application was resisted by the revision petitioner contending that the claim is only a ruse. It was pointed out that the respondent had in 1996, issued notice to the petitioner stating that the building is required for occupation by the respondent's brother Sadique. The real purpose behind issuing such notice was to compel the revision petitioner to pay enhanced rent. After notice was issued, the matter was talked over between the parties and the issue was settled by getting the R.C.Rev.No.3/09 -2- rent enhanced by Rs.200/- per month. It was contended that the respondent has failed to note the objective of extracting the enhanced rent from the petitioner. It was pointed out that the respondent and her husband have two buildings, each having three rooms. The petition schedule building itself is part of a three room building and it is contended that if the claims were bonafide, the need could have been accomplished by accommodating son Arif “in the building recently let out by the petitioner and her husband”. The revision petitioner also contended that he is entitled to the protection of the second proviso to Section 11(3). 2. At trial, the respondent got herself examined as PW1 and her son Arif as PW2. On the side of the revision petitioner, he had given his own oral testimony as RW1. Documentary evidence was also adduced by the parties. The Rent Control Court on an evaluation of the evidence came to the conclusion that the need projected by the respondent stood proved as a bonafide one by the testimonies of PW1 and PW2. The circumstances, which were brought in evidence by the revision R.C.Rev.No.3/09 -3- petitioner, suggesting the absence of bonafides, were found to be of not much consequence. As regards the question of protection of the second proviso to Section 11(3), it was found that the revision petitioner/tenant had failed to establish either of the ingredients of the second proviso. Accordingly, eviction order was passed. The appellate authority, on a reappraisal of the evidence, concurred with all the conclusions of the Rent Control Court and dismissed the appeal. 3. We have heard the submissions of Mr.Ranjit Narayanan, learned counsel for the revision petitioner and also Mr.V.V.Asokan, who had lodged a Caveat on behalf of the respondent/landlady. Mr.Ranjith Narayanan submitted that the petition schedule building is a larger building having three identical rooms. Two of the rooms in the larger building had fallen vacant immediately prior to the institution of the rent control petition and those two rooms were let out by the landlady to new tenants on monthly rent of Rs.1,650/-. The learned counsel argued that if there was a claim of bonafide need putforward by the landlady, she could have accomplished the R.C.Rev.No.3/09 -4- need by accommodating her son in either of those two rooms. This vital aspect of the matter did not receive the attention of the Rent Control Court or the Rent Control Appellate Authority, submitted the learned counsel. The learned counsel would assail the finding of the court below on the question of eligibility of the protection of the second proviso to Section 11(3). The counsel submitted that positive evidence had been adduced by the revision petitioner to show that the income derived by him from the petition schedule building is his main source of livelihood and that other suitable buildings are not available in the locality. 4. The counsel for the respondent Mr.V.V.Asokan resisted all the submissions of the learned counsel for the revision petitioner and submitted that there is absolutely no warrant for interfering with the orders, having regard to the limits of this Court's jurisdiction under Section 20. 5. We have anxiously considered the rival submissions. The jurisdiction of this Court under Section 20 is revisional jurisdiction and this Court does not normally reappraise the evidence adduced before the Rent Control Court. Enquiry of this R.C.Rev.No.3/09 -5- Court should be confined to the question whether the findings entered by the authorities below is vitiated by any illegality, irregularity or impropriety. We have gone through the orders passed by the authorities below and have appreciated the arguments raised at the Bar by the learned counsel for the revision petitioner, in the light of the items of evidence which were highlighted before us by the learned counsel. We are of the view that there is no warrant for interfering with the those conclusions of the court below. As for the main point which was argued by the learned counsel, we find that it is not specifically contended before the Rent Control Court that the two rooms in the larger building of which the petition schedule building is a part, fell vacant immediately prior to the filing of the RCP and those buildings were let out by the landlady. But, of course, at the time of evidence, an endeavour is seen to have been made to show that the landlady had let out the two rooms to other tenants after receiving higher rent. The point of time, when the other two rooms allegedly fell vacant and were relet by the landlady, is of relevance and significance. The landlady would R.C.Rev.No.3/09 -6- state as PW1 that those two rooms fell vacant 3 ½ years prior to the date of her examination. She was examined in December, 2001 and the R.C.P. was instituted in December, 2000. Importantly, when the defacto claimant PW2 was examined, not even a single question is put to him in cross-examination regarding this aspect. Better evidence on this aspect, perhaps, could have been adduced by the revision petitioner by examining the newly inducted tenant. That is not done. The revision petitioner relies on the entries in the D&O licence register maintained by the local authority. Such registers, unlike the property tax assessment registers, do not enjoy the presumptions regarding their correctness under Section 27. It is highly probable that without noticing the change of identity of the tenant, the local authority issued licence as if the original tenant. In the absence of best evidence on the above point which could have been adduced by the revision petitioner, the court below cannot be blamed for having accepted the version of PW1. 6. The burden to show that the tenant satisfies both the ingredients of the second proviso to Section 11(3) is on the R.C.Rev.No.3/09 -7- tenant himself. The courts below having appreciated the evidence have concurrently come to the conclusion that the said burden has not been discharged. Within the contours of our jurisdiction under Section 20, we do not find any reason to interfere with those findings. As a last submission, the learned counsel requested for 10 months' time to vacate the premises. According to him considerable credit has been given out and almost so much of time will be required for realisation of the amounts from the customers. Mr.V.V.Asokan resisted the prayer for grant of 10 months' time. According to him, the tenant had been enjoying the building since 1991 and it is high time that the landlady gets back the building so that her long cherished need of accommodating her son is accomplished. Having considered the rival submissions on this aspect, we feel that there is a justification for grant of six months' time, imposing certain conditions on the petitioner. Accordingly, the revision petition is dismissed, subjected to what is stated below. 7. If execution petition is already filed, the execution court will not order delivery of the schedule building before 15th R.C.Rev.No.3/09 -8- July, 2009, however on condition that the revision petitioner gives an undertaking before the Rent Control Court, Kannur in the form of an affidavit stating unconditionally that he will give peaceful surrender of the petition schedule building to the respondent/landlady on or before 15.7.2009 and undertaking further that he will discharge the entire arrears which have already fallen due to the respondent either directly or through the respondent's counsel in the court below within one month. The petitioner will be bound to pay the rent which falls subsequently due also without fail. If such an affidavit is filed, the respondent will not file the execution petition till 16.7.2009. PIUS C.KURIAKOSE, JUDGE. M.C.HARI RANI, JUDGE. dsn