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 14TH AUGUST 2009 / 23RD SRAVANA 1931 RCRev..No.178 of 2009 (E) ------------------------ RCA.32/2008 of II ADDL.DISTRICT COURT,ERNAKULAM RCP.146/2006 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------ MRS. NEETHA GOGIA, W/O.GOGIA, AGED 56 YEARS, 35/1950, AUTO CENTRE, NEAR JANATHA BUST STOP, PALARIVATTAM, ERNAKULAM DIST. BY ADV. SRI.K.J.KURIACHAN RESPONDENT(S): --------------- MRS. UMAIBA BEEVI, W/O. LATE AMEER ALI, AGED 63 YEARS, PALLATHU ROAD, PALARIVATTAM, POONITHURA VILLAGE.. ADV. SRI.P.S.USUPH SRI.P.S.USUPH FOR RESPONDENT SRI.P.U.ZIYAD THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.178 of 2009 ------------------------------------------------ Dated this the 14th day of August, 2009 ORDER Pius C. Kuriakose, J The tenant who has suffered order of eviction concurrently at the hands of the Rent Control Court and the Appellate Authority on the ground of own occupation is the revision petitioner. The need projected by the landlady was that she needs the building occupied by the Revision Petitioner for accommodating her dependant son for the purpose of conducting business in accessories of rolling shutters. The tenant filed objections strongly disputing the bona fides of the need and the claim. Alternatively, the tenant/revision petitioner contended that he is entitled R. C. R. No.178 of 2009 -2- to the protection of the second proviso to sub Section 3 of Section 11. It was also contended that the RCP is liable to fail by virtue of the first proviso to sub Section 3 of Section 11. For this purpose it was contended that at the time when the lawyer notice was issued as a prelude for the petition of eviction, the tenant sent reply pointing out that two rooms in the first floor are remaining vacant and the tenant is ready and willing to take those rooms on lease on reasonable rent. 2. The Rent Control Court, however, on evaluating the evidence adduced by the parties which consisted of Ext.C1 Commission Report also, held that the need is bona fide. It was also held that the RCP is not liable to fail by virtue of the first proviso or under the second proviso to sub Section 3 of Section 11. The R. C. R. No.178 of 2009 -3- Appellate Authority on re-appraising the evidence would concur with all the conclusions of the Rent Control Court and confirm the order of eviction. In this revision petition, the tenant impugns the eviction orders on various grounds. 3. We have heard the submissions of Mr.K.J.Kuriachan, the learned counsel for the revision petitioner and those of Mr.P.U.Ziyad who was taken notice on behalf of the respondent/landlady. Though Mr.Kuriachan drew our attention to all the grounds mentioned in the memorandum of appeal, the point which he stressed was that the Rent Control Petition is liable to fail on account of the first proviso to sub Section 3 of Section 11. The learned Counsel submitted that it is after receiving the reply notice in which the tenant had pointed out the availability of the R. C. R. No.178 of 2009 -4- two rooms in the first floor that the daughter of the landlady was inducted in the first floor. The business which is seen reported by the Advocate Commissioner in Ext.C1, as being conducted by the daughter is only an eye wash for the purpose of defeating the contention taken by the revision petitioner in the context of first proviso to sub Section 3 of Section 11. Once the revision petitioner is evicted, the landlady will let out the first floor rooms to somebody else on higher rent. 4. All the submissions of Mr.Kuriachan were stiffly resisted by Mr.Ziyad. Mr.Ziyad submitted that Ext.C1 report is submitted by the Commissioner on the basis of the inspection conducted in the presence of the tenant also. Landlady's daughter is conducting business in Churidar and ready made garments in the R. C. R. No.178 of 2009 -5- first floor. Since the daughter is in occupation of the first floor, the landlady is unable to let out the first floor to the revision petitioner. Responding to a query by us, Mr.Ziyad submitted that the landlady will be ready to suffer an order of injunction restraining her from letting out or selling the first floor portion of the building for a period of two years from now. 5. We have anxiously considered the rival submissions addressed at the Bar. We have carefully gone through the order of the Rent Control Court and the judgment of the Appellate Authority. Under the statutory scheme, the Appellate Authority is the final authority on facts. On going through the judgment of the Appellate Authority, we find that the finding of that Authority is founded on evidence which is actually available on record. Ext.C1 report submitted on the R. C. R. No.178 of 2009 -6- basis of inspection conducted with notice to the tenant inspired the Rent Control Court as well as the Appellate Authority, the two fact finding authorities. We are not persuaded to hold that Ext.C1 is a piece of artificial evidence. We record the submission made by Mr.Ziyad on behalf of the landlady that the first floor portion of the building seen reportedly occupied by the daughter of the landlady will not be let out or sold off by the landlady for a period of two years from now. The above submission of Mr.Ziyad itself sufficiently demonstrates that the portion is in the occupation of the landlady's daughter. 6. As his last submission, Mr.Kuriachan sought for one year's time to vacate the premises. This request is opposed by Mr.Ziyad. But, however, having taken into the circumstances attending on this case, R. C. R. No.178 of 2009 -7- we feel that there is justification for granting time till 31/03/2010. Therefore, though we confirm the impugned judgment and order and dismiss the RCR, there will be a direction to the execution court not to order and effect delivery of the petition schedule building in favour of the landlady till 31/03/2010 subject to the following conditions:- 1) 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 discharge the arrears of rent, if any, within one month and to pay occupational charges at the current rent rates promptly and regularly till 31/03/2010. It shall also be undertaken through the affidavit that the revision petitioner shall put the landlady in peaceful possession of the petition R. C. R. No.178 of 2009 -8- schedule building on or before 31/03/2010. It is made clear that the revision petitioner will get the benefit of time granted under this order only if the affidavit as directed above is filed on time. Since it is not in dispute that a sum of Rs.20,000/- is under deposit with the landlady by way of security, the tenant should be permitted to adjust that amount against the rent or occupational charges which falls due in respect of the building. 7. The RCR is disposed of with the above directions. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-