IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RCRev..No. 128 of 2009() ------------------------ RCA.31/2004 of D.C & SESSIONS COURT,TRIVANDRUM OPRC.9/2002 of MUNSIFF COURT,ATTINGAL .................... REVISION PETITIONER/APPELLANT/CR.PETITIONER ------------------------------------------------- PRABHAKARAN, S/O. NANU, RESIDING AT PADINJATTUVILA VEEDU, FROM MULLASSERY VEEDU, PATTILA,MAVARKAL DESOM, ALAMCODE VILLAGE, CHIRAYINKIZHY TALUK, TRIVANDRUM DIST. BY ADV. SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- RAMAKRISHNA PILLAI, S/O. MATHEVAN PILLAI KUNNATHU VEEDU, CHITTATTINKARA DESOM, ATTINGAL.P.O., AVANAVANCHERY VILLAGE, CHIRAYINKEEZH TALUK, TRIVANDRUM. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ R.C.R.No.128 OF 2009 ------------------------ Dated this the 24th day of June, 2009 O R D E R Pius C.Kuriakose, J. The tenant, who lost concurrently before the rent control court as well as the appellate authority, is the revision petitioner. Eviction was sought by the landlord on the grounds of arrears of rent Section 11(2)(b), reconstruction Section 11(4)(iv) and bona fide own occupation Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act 1965. The need projected in the rent control petition was that the existing building is to be pulled down and a new building is to be constructed in its place for use as a lodging house. The bona fides of the need and the claim was denied and the tenant claimed protection of the second proviso to sub section (3) of Section 11. The rent control petition was enquired into and on appreciating the evidence before the rent control court, it was submitted on behalf of the respondent landlord that eviction order need not be passed under Section 11(4) (iv) and it will suffice if order of eviction is RCR.No.128/2008 2 passed under sub section (3) of Section 11 and sub section (2) of that Section. The rent control court would appreciate the evidence and conclude that the landlord's need under Section 11 (3) was a bona fide one. It was also found in the context of second proviso to sub section (3) of Section 11 that even though the tenant was successful in establishing that he satisfied the first limb of the second proviso to sub Section (3), in view of his failure to establish that he satisfies the second limb of the second proviso to sub section 3 of Section 11, he was not eligible for the benefit of the second proviso at all. As for the ground for arrears of rent, it was found that rent was in arrears. Accordingly, order of eviction was passed against the revision petitioner both on the ground of arrears of rent as well as bona fide own occupation. 2. The appellate authority also, after reappraisal of the entire evidence, concurred with all the conclusion of the rent control court and confirmed the order of eviction. 3. The learned counsel for the revision petitioner Sri.D.Sajeev, has addressed us very strenuously and persuasively. He submitted that the need projected in the rent RCR.No.128/2008 3 control petition was to construct a new building and to occupy that building for the purpose of conducting a lodging business. The need to construct a new building was given up by the respondent in the rent control court itself. According to the learned counsel, since the projected need of putting up a new building in the place of an existing old building has been given up, the need projected under Section 11 (3) cannot survive any longer. 4. As directed by us, learned counsel placed before us copies of the rent control petition as well as the memorandum of rent control appeal. We have anxiously considered the submissions of Sri.Sajeev, learned counsel for the petitioner. We have gone through the papers placed by him before us as well as the order of the rent control court and the judgment of the rent control appellate authority. Having gone through the rent control petition, it is clear to our mind that though the ground of eviction under Section 11 4(iv) was also specifically invoked in the pleadings as a ground for own occupation after reconstruction, the ground which seriously arose was only the ground of own occupation. The learned counsel for the RCR.No.128/2008 4 respondent was perfectly justified in submitting before the rent control court that order of eviction is not necessary under Section 11 (4)(iv) in view of the need projected under Section 11 (3), since an order of eviction under Section 11 (4) (iv) will be subject to proviso to that sub section including the 3rd proviso, which obliges the landlord to re induct the tenant to any portion of the newly constructed building. 5. The only question, therefore, which arises for consideration before us in this revision under Section 20 is whether the findings concurrently entered by the rent control court and the appellate authority that the respondent landlord needs to occupy the new building put up by him in the place of an existing old building for use as lodging house is a bona fide one warrants interference and whether the tenant is entitled to the protection of the second proviso to sub Section (3). On going through the order of the rent control court and the judgment of the appellate authority, we find that the findings entered therein in favour of the respondent landlord in the context of sub Section (3) of Section 11 are founded on evidence and are reasonable findings. Same is the position with the finding under RCR.No.128/2008 5 second proviso to sub section 3 of Section 11. Of course, the first ingredient of the second proviso has been found in favour of the tenant. But, both the ingredients are in the conjunctive and the same will not of much avail to the tenant. we, in this jurisdiction under Section 20 of the Act, are not expected to re appreciate the entire evidence and substitute our conclusions on facts for the conclusions entered by the facts finding authority. Under the statutory scheme, the appellate authority is the final court on facts. Our enquiry is only to consider whether the finding on facts entered by the facts finding authority is vitiated by any illegality, irregularity or impropriety warranting correction under Section 20. Having gauged the order of the rent control court as well as the judgment of the appellate authority by those para metres, we are of the view that there is absolutely no warrant for invocation of the revisional jurisdiction of this court under Section 20 of the Act. Same is the position as regards the order of eviction passed under section 11 (2) (b). Of course, Sri.Sajeev, learned counsel for the revision petitioner submits that the entire arrears of rent is under deposit. If it is so, nothing prevents the revision petitioner to apply under Section 11 (2)(c) RCR.No.128/2008 6 and get the order of eviction formally vacated. The revision petitioner will be entitled for 30 days time more from today for filing application under Section 11(2)(c). Considering the apprehension of the petitioner voiced by the learned counsel Sri.Sajeev that the respondent landlord will not put up new building or conduct lodging house business, we will only observe that under such an eventuality sub section (2) of section 11 will come to the rescue of the revision petitioner. 6. Result of the above discussion is that the revision petition fails and the same will stand dismissed. 7. As his last request, Sri.Sajeev sought for one year's time. But we do not think we will be justified in granting so much of time. However, on considerations of indulgence, we direct the Execution Court to defer the execution till 1st January 2010 subject to the following conditions; i). The revision petitioner shall file an affidavit before the Execution court undertaking to peaceful surrender the petition schedule building to the respondent on or before 31/12/2009 RCR.No.128/2008 7 and also discharge the arrears of rent found by the rent control court under Section 11 (2)(b) within one month and continue to pay occupational charges at the current rent rate till he makes actual surrender. ii). It is clarified that the revision petitioner will get the benefit of time granted under this judgment only if the affidavit is filed on time. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk