IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 RCRev..No. 295 of 2010() ------------------------ RCA.136/2008 of RENT CONTROL APPELLATE AUTHROITY , KOZHIKODE RCP.2/2007 of RENT CONTROL COURT, KOZHIKODE. .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ KRISHNAMMAM, AGED 72, D/O.THEKKEPARAMBIL KRISHNAN NAIKKAR, CHERODATHIL PARAMBA, ARAKKINAR, KOZHIKODE. BY ADV. SRI.MOHAMMED NIAS RESPONDENT(S)/RESPONDENTS/ PETITIONERS -------------------------- 1. K.P.PATHUMABI, AGED 59, D/O.MOIDEENKOYA, KUNHIKOTTU PARAMBIL, PANIYANKARA AMSOM DESOM, KOZHIKODE. 2. K.P.RAMLATH, AGED 41, KUNIKKOTTU PARAMBIL, PANIYANKARA AMSOM DESOM, KOZHIKODE. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 295 OF 2010 ------------------------ Dated this the 4th day of October, 2010 O R D ER Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground under section 11(3). In fact, the Rent Control Court and the Appellate Authority ordered eviction on other grounds also. But, it is submitted that in this revision we need have to be concerned only with the order passed under sub section (3) of Section 11. 2. The need projected by the landlady in the RCP was that the building, which is said to be a part of the line building, is needed bona fide by the daughter of the first respondent/landlady, who was examined before the Rent Control Court as PW2, for the purpose of residence. It was urged that PW2 and her family is presently put up along with the landlady in the landlady's residential house. The bona fides of the need was disputed. It was contended that, having regard to the social RCR.No.295/2010 2 and financial status of the landlady and also the space available in the house presently occupied by the landlady, it is improbable that PW2, the landlady's daughter, will come and start residence in the petition schedule building, which is only a small portion of a line building. It was also contended that apart from residing in the petition schedule building, the revision petitioner is making sweets therein for sale and hence she is entitled for protection of the second proviso to sub section (3) of Section 11. Before the Rent Control Court, the landlady was examined as PW1 and the needy daughter of the landlady, as already stated, was examined as PW2. Documentary evidence on the side of the landlady consisted of Exts.A1 to A5. After evidence of PW2 was recorded, PW2 deposed before the Rent Control Court that her husband is a cooli. After PW2 was examined, the revision petitioner filed an application for issuance of a commission for showing that unlike the petition schedule building, the building in which PW2 is presently living and the building which is being constructed by PW2's brother are palatial ones. The learned Rent Control Court dismissed the commission application taking the view that it is as highly belated one and has been filed only RCR.No.295/2010 3 after the landlady's evidence was recorded fully. On the side of the tenant, RW1, the tenant, and RW2, who was interestingly PW2's brother, was examined. Documentary evidence on the side of the tenant, consisted of Exts.B1 to B4. The Rent Control Court on appreciating the evidence would come to the conclusion that the need projected was bona fide. As regards the claim of protection of the second proviso to sub section (3) of Section 11, it was held that going by Ext.A1 the lease was one for residential purpose and as the tenant is admittedly residing in the building, he cannot be given protection of the second proviso to sub section (3) of Section 11. Accordingly, order of eviction was passed under sub section (3) of Section 11. 3. The Appellate Authority reappraised the evidence and concurred with all the findings of the Rent Control Court and accordingly, the appeal was dismissed. 4. In this revision, the tenant has raised various grounds assailing the judgment of the Appellate Authority. Sri.Mohammed Nias, learned counsel for the revision petitioner, addressed persuasive arguments before us on the basis of those grounds. The learned counsel submitted that the authorities RCR.No.295/2010 4 below went wrong in not allowing the application for issuance of commission. During her evidence PW2 stated, without any basis in the pleadings, that her husband is a cooli. It was also to prove that the above version was a crass lie, that the commission application was made, so that a report will come regarding the size and nature of the building presently occupied by her and is put up by her brother. The learned counsel submitted that, having regard to the social and financial status of the landlady, it is highly unlikely that the PW2 will come and occupy the petition schedule building which is a small portion of the larger building extents to just 400 sq. feet. Mr.Nias would also assail the finding of the statutory authorities that the tenant is not entitled for protection of the second proviso to sub section (3) of Section. 5. Evidence in the case, according to the learned counsel, will show that sweets are being made in the petition schedule building and the tenant's son is selling them in the open market and the evidence is to the effect that the tenant has no source of income for sustenance other than the above one. 6. We have very anxiously considered the submissions. We RCR.No.295/2010 5 have scanned the judgment of the Appellate Authority as well as the order of the Rent Control Court. The question to be decided by us is whether the judgment of the Appellate Authority suffers from any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965. It appears to us also that the building, in which the landlady and her daughter are presently put up and the building which the landlady's son is presently putting up, are in comparison to the petition schedule building much bigger buildings. But, the need projected by the landlady is to provide a separate residence for PW2 and her family. PW2 and PW1 both gave inspiring oral evidence before the Rent Control Court regarding that need. Despite cross examination, the credit of PW1 and PW2 in the above context was not shaken. The tenant also, as RW1, practically conceded that presently PW2 is put up with her husband and children in the house of the landlady, PW2's mother. If that be so, the circumstance that the petition schedule building is relatively small building cannot have much effect on the bona fides of the need projected, as it is admitted that the landlady do not have other buildings which can be provided for accommodating PW2. RCR.No.295/2010 6 7. Coming to the question whether the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11, we find that the lease is admittedly governed by Ext.A1. Going by Ext.A1, the lease is for residential purpose. If the tenant has started making sweets in the petition schedule building, the same is an event subsequent to the commencement of the lease. The tenant continues to reside in the petition schedule building. We are in agreement with the statutory authorities that such a tenant cannot be entitled for the benefit of the second proviso. In short, we do not find any irregularity, illegality or impropriety warranting interference under Section 20 with the judgment of the Appellate Authority. 8. Mr.Mohammed Nias submitted before us that it is the smallness of the rent, which is the main reason for the landlady's thinking in terms of evicting the tenant. The learned counsel submitted that the tenant is prepared to pay the fair rent in accordance with the prevailing rent rates in the locality. The learned counsel also submitted that, at any rate, the tenant should be given at least one year's time to vacate the premises. Considering the last submission of Mr.Nias, we are inclined to RCR.No.295/2010 7 issue notice to the landlady for deciding on the duration of time to be granted to the revision petitioner for surrendering the premises. The result is that RCR stand dismissed in limine. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk