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 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 RCRev..No. 432 of 2005() ------------------------ RCA.49/1998 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.54/1996 OF RENT CONTROL COURT, THALIPARAMBA .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------- PAROL MUHAMMADALI, S/O. ABDU, AGED 37 YEARS, TIMBER BUSINESS, RESIDING AT TALIPARAMBA AMSOM, DESOM, NEAR KAPPALAM, P.O. TALIPARAMBA, TALIPARAMBA TALUK. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID RESPONDENT(S): PETITIONER: -------------------------- PAROL SAKKEENA, W/O. MUSTHAFA, AGED 34 YEARS, NO OCCUPATION, RESIDING AT TALIPARAMBA AMSOM AND DESOM, TALIPARAMBA TALUK, P.O. TALIPARAMBA. ADV. SRI.A.SUDHI VASUDEVAN SMT.G.PRATHISHYA THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ----------------------------------------------------------- RCR. No. 432 of 2005 ------------------------------------------- Dated this the 23rd day of October, 2009 O R D E R Pius C. Kuriakose, J. Tenant is the revision petitioner and he impugns in this revision under Section 20, the order of eviction passed by the Rent Control Court and the Appellate Authority concurrently on the ground under sub-section (iii) of Section 11 – bona fide need for own occupation. The need projected by the respondent landlady was that the building is required for conduct of grocery business by her husband Sri.Musthafa. It was averred that Musthafa, husband of the landlady is unemployed and that neither the landlady nor Sri.Musthafa have any other vacant building for conduct of the proposed business. Denying the claim of the landlord the respondent contended that the petitioner landlady and her husband have a number of vacant buildings in their possession, that some buildings belonging to the father of RCR. 432/05 - 2 - the landlady are also vacant in the area and that the need projected in the RCP is not bona fide. The RCP was instituted only because the tenant was not prepared to oblige the landlady's husband who demanded enhancement of the monthly rent from Rs.200/- to Rs.500/-. The tenant also claimed protection of the second proviso to sub- section (3) of Section 11. 2. At trial before the Rent Control Court, the evidence consisted of Exts.A1 to A10, B1 to B2 series, C1 commission report and oral testimonies of PW1 (landlady's husband) and RW1 the tenant, apart from court witnesses Cws.1 and 2. The Rent Control Court on appreciating the evidence found that the defence of the tenant that the landlady's husband is managing his father-in-law's business is not correct and that the father-in-law's son (the landlady's brother) himself has joined his father's business and that there is nothing oblique about the landlady and her husband thinking in terms of RCR. 432/05 - 3 - landlady's husband doing his own business. The need was thus found to be bona fide. The defence of the tenant that the rent control petition is liable to fail since the building in Ext.B2(a) belonging to the landlady is remaining vacant was also repelled on the basis of evidence adduced by CW1, the official of the Municipality who supported the explanation of the landlady that the entry in Ext.B2(a) that the building therein is vacant is an incorrect one. The Rent Control Court also found that the tenant was unsuccessful in proving that he is depending mainly on the income derived from the petition schedule building for his livelihood and that other suitable buildings are not available in the locality. In fact the finding of the Rent Control Court in the context of the first limb of the proviso to sub-section (3) of Section 11 is that the tenant has attempted to suppress material evidence in that context from the Court. Similarly relying on Ext. C1 commission report and the evidence of the RCR. 432/05 - 4 - commissioner as CW2 the court below also held that the version of the tenant that other buildings are not available in the locality [in the context of the second limb of the second proviso to sub-section (3)] is also false. Accordingly, order of eviction was passed under sub-section (3). The Appellate Authority made a reappraisal of the evidence and concurred with all the conclusions of the Rent Control Court and confirmed the order of eviction passed under Section 11(3). 3. We have heard the submissions of Sri.C.Khalid, learned counsel for the revision petitioner and those of Sri.Sudhi Vasudevan, learned counsel for the respondent landlady. Even though Mr.Khalid addressed arguments on all the grounds raised in the memorandum of revision, thrust was given by him to the argument that the rent control petition was liable to fail in view of the first proviso to subsection (3) of Section 11 – the circumstance that the RCR. 432/05 - 5 - landlady was having vacant possession of the building disclosed by Ext.B2(a) property tax assessment register. Mr. Khalid gave some thrust also to the argument that the rent control petition was instituted only out of displeasure of the landlady due to the refusal of the tenant to accede to her husband's demand for higher rent. All the submissions of Mr.Khalid were forcefully resisted by Sri.Sudhi Vasudevan. 4. Noticing the argument of Mr.Khalid that the rent control petition arose out of the displeasure of the ladlady and her husband in the tenant not obliging to their demand for higher rent, we suggested to Mr.Sudhi Vasudevan that the monthly rent can be re-fixed at Rs.1000/- per mensem. Mr.Sudhi Vasudevan however, would after consulting his client, inform us that his client wants the building for occupation by her husband. Similarly, noticing the apparent seriousness with which Ext.B2(a) property tax assessment RCR. 432/05 - 6 - register was highlighted before us by Mr.C.Khalid we enquired of him whether his client is ready to take out a commission from this Court to have an immediate local inspection of the building disclosed by that document, so that a report can be filed before this court as to whether the said building is under the vacant possession of the landlady. This we did, because Mr.Sudhi Vasudevan was all along asserting that the said building is not vacant but is possessed by a tenant as spoken to by CW1 and PW1 in their evidence. Mr.Khalid would tell us after consulting his client that his client is unable to take out commission due to financial stringency. 5. This is a case where the landlord sought the building in question for occupation by her husband. The defence was that the landlady's husband is managing the business of the landlady's father. Admittedly, the business of the landlady's father does not belong to the landlady's husband. The RCR. 432/05 - 7 - landlady's husband, the de facto claimant was examined and his evidence inspired confidence in the mind of the Rent Control Court and the Appellate Authority, the two fact finding authorities under the scheme of the Rent Control Act. The finding that the need projected is bona fide is founded on evidence and we don't find any infirmity about the same. Equally so, the finding that the tenant is not entitled for the protection of the second proviso to sub- section (3) of Section 11. Ext.B2 (a) of course is a property tax assessment register enjoying presumption under Section 26 of Act 2 of 1965 as to the correctness of the facts recorded therein. B2 (a) will show that the building belonging to the landlady is vacant. Admittedly, the said building is in the first floor of a two storied building (the very upstair portion of the petition schedule building). Even if that building was remaining vacant, in our opinion, there are special reasons justifying eviction order passed in RCR. 432/05 - 8 - respect of the petition schedule building which is in the ground floor. In the nature of the business proposed by the landlady's husband, a ground floor room will be ideal. But the evidence as spoken to by CW1 Municipal official and also by PW1 is that B2(a) room is not vacant, but is in the possession of a tenant. Lukewarm response of the learned counsel for the revision petitioner to our suggestion that a commission can be issued from this court also vindicates the finding of the authorities below that the entry in Ext.B2(a) is not correct. 6. The result is that the revision fails and the same is dismissed. However, considering the last plea of the Mr.Khalid that at least one year's time be granted to the revision petitioner for surrendering the premises we are inclined to grant time till 30-6-2010 to the petitioner for surrendering the premises subject to the following conditions: RCR. 432/05 - 9 - The revision petitioner files an affidavit before the execution court within three weeks from today undertaking to discharge arrears of rent if any, within one month from today ad to pay rent which falls due subsequently till the date of surrender as and when the same falls due and also to give peaceful surrender of the petition schedule building to the revision petitioner or her husband on or before 30-6- 2010. If the execution court notices the affidavit as above, filed on time, the execution petition will be adjourned to 1- 7-2010. If affidavit is not filed the eviction order will become executable forthwith. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-