IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 RCRev..No. 199 of 2009() ------------------------ RCA.4/2008 of DISTRICT COURT, PALAKKAD RCP.69/2006 of PRL.MUNSIFF COURT, PALAKKAD .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ BHAGYAVATHI, W/O.SHANMUGHAN, NEW SANTHOSH ELECTRICALS, 10/356, PRIYADARSINI ROAD, VETTILAKULAM, KOPPAM AMSOM, PALAKKAD TALUK AND DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/ RESPONDENT/ PETITIONER ------------------------- FATHIMA THASLIM, W/O.RASIYUDEEN, KARIKKARA STREET, VAKKARA AMSOM, PALAKKAD TALUK AND DISTRICT, NOW R/AT.402, SURYA GARDEN, SURYA APARTMENTS, PEELAMEDU, COIMBATORE. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No.199 OF 2009 ------------------------ Dated this the 28th day of August, 2009 ORDER Pius C.Kuriakose, J. The tenant, who suffered order of eviction on the ground under sub section (3) of Section 11 concurrently at the hands of the Rent Control Court and the Appellate Authority, is the revision petitioner. The case of the respondent/landlady was that she needs the petition schedule building for the occupation of her husband presently employed in Gulf, so that he can come back to Kerala and start business both wholesale and retail in steel, sanitaryware and paints. The rent control petition was resisted by the tenant on various grounds. It was contended that the father of the landlady had, in 1999, preferred another RCP on the same ground and that though the said RCP was allowed by the Rent Control Court, the appeal preferred by the tenant was allowed and the RCP was dismissed. Therefore, the present RCP is not maintainable. It is also contended that there is no bona fides in the need and the claim projected by the RCR .No.199/2009 2 landlady. It was alternatively contended that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. The Rent Control Court enquired into the matter and the evidence at trial consisted of the oral testimonies of the landlady as PW1 and that of her needy husband as PW2. The only documentary evidence was Ext.A1 settlement deed , under which the landlady obtained absolute title over the building. On the side of the tenant, her husband was examined as RW1 and another witness alleged to be a tenant of the landlady in another room was also examined. The Rent Control Court on appreciating the evidence held that the RCP is maintainable and that the need is bona fide and that the tenant is not entitled to the protection of the second proviso to sub section (3) of Section 11. In the appeal, the Appellate Authority also, after re appreciating the evidence, concurred with all the conclusions of the Rent Control Court and dismissed the appeal. 2. This revision under Section 20 is directed against the judgment of the Rent Control Appellate Authority and Sri.Sajan Varghese, learned counsel for the revision petitioner tenant addressed us very strenuously and persuasively on the various RCR .No.199/2009 3 grounds raised in the revision petition. The learned counsel submitted that the dismissal of the earlier RCP filed by the landlady's father raising very same claim, should entail rejection of the present RCP in view of Section 15 of the Rent Control Act. He submitted that at any rate execution of the settlement deed in favour of the landlady and the institution of the present RCP on the strength of that settlement deed are demonstrative of absence of bona fides. The learned counsel submitted that PW2, husband who is to do business, has stated in his evidence that total carpet area of the room is only 70 Sq.ft. It is inherently impossible to carry on wholesale and retail business in sanitary ware and paints in a room, which is only 70 sq.ft. PW2 is even now gainfully employed abroad and it is very unlikely that he will give up that job and come back to Palakkad, his wife's place. He belongs to Coimbatore and it is very unlikely that he will do business in Palakkad. PW2 has no experience whatsoever in the proposed business. The appreciation of the evidence by the authorities below has been perverse. Lastly the learned counsel sought for atleast one year's time to surrender the premises. RCR .No.199/2009 4 3. We have very anxiously considered all the submissions of Sri.Sajan Varghese. K. We have carefully gone through the order of the Rent Control Court and the Judgment of the Appellate Authority. We have also noticed those items of evidence to which our attention was drawn by the learned counsel. Under the statutory scheme, the final court on facts is the Rent Control Appellate Authority. This court, under section 20, is not ordinarily expected to reappraise the evidence and substitute our conclusions on facts for the conclusions arrived at by the Rent Control Court and the Appellate Authority. On going through the impugned order and judgment, we notice that the findings entered therein are founded on evidence which is available on record. We have no difficulty to approve the decision of the Rent Control Appellate Authority that the present RCP is maintainable in spite of the dismissal of the earlier RCP filed by the father of the landlady. As stated by the Appellate Authority, the revision petitioner did not choose to produce copy of the judgment in the earlier rent control appeal. It is noticed by the Appellate Authority that the earlier RCP was dismissed on the reason that the petitioner in the RCP ceased to have RCR .No.199/2009 5 interest in the subject building in view of the pendente lite transfer of the ownership over the building in favour of the daughter. As noticed by that court, the question of bona fides of the need projected by the father of the landlord was not examined by the appellate Authority at all. Even otherwise there has been change of circumstances. The landlord acquired ownership over the building and change of ownership over the building, according to us, is a change of circumstance, which will permit the landlady to file a fresh Rent Control Petition. It has become evident that the landlady's husband does not have any building of his own elsewhere. He has given evidence that the moment he gets possession of the subject matter of the building, he will come back to Palghat for starting business. This evidence inspires confidence in the minds of both the Rent Control Court and the Appellate Authority. If Pw2 does not come back for starting the business in the petition schedule building, it is open to the revision petitioner/tenant to move the Rent Control Court under sub section (12) of Section 11 for appropriate orders. That court, if it becomes necessary, will pass orders reinducting the tenant into the building. The RCR .No.199/2009 6 findings of the Appellate Authority in the contest of the second proviso again is founded on evidence. 4. The result is that we do not find any warrant for invocation of the revision jurisdiction under Section 20, since the judgment of the Appellate Authority cannot be tainted of any illegality, irregularity and impropriety. We do not think that we will be justified in granting one year's time as requested by the learned counsel for the revision petitioner. But, we feel that time can be allowed till 31/3/2010 subject to certain conditions. 6. Result of the above discussions is ; i). We dismiss the RCR confirming the eviction order passed by the authorities below. ii). The Execution Court is directed not to order or effect delivery of the petition schedule building in favour of the respondent landlady till 31/3/2010 subject to the following conditions: The revision petitioner shall file affidavit before the execution court or the rent Control Court, as the case may be, on or before 15/9/2009 stating that she will RCR .No.199/2009 7 unconditionally surrender possession of the petition schedule building to the respondent landlady or her husband on or before 31/3/2010. She shall also undertake through the same affidavit that she shall discharge arrears of rent, if any and shall also pay the rent at the current rent rate till she surrenders the building as and when the same falls due. It is made clear that the revision petitioner will get benefit of time granted under this judgment only if affidavit is filed on time. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk