IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 RCRev..No. 400 of 2006 --------------------------------- RCA.NO.11/2002 OF IST ADDL. DISTRICT COURT, KOLLAM, RCP.NO.2/1999 OF THE RENT CONTROLLER (MUNSIFF COURT) PUNALUR. .................... REVISION PETITONER/APPELLANT/PETITIONER: ---------------------------------------------------------------------- ALEXANDER FRANCIS, VAYALUMKAL HARDWARES AND GENERAL STORES, NEAR RAILWAY STATION, PUNALUR. BY ADVS. MR. B. KRISHNA MANI, MR.V.PREMCHAND. RESPONDENT/RESPONDENT/COUNTER PETITIONER: ----------------------------------------------------------------------------- MASOOD @ M.MASOOD KHAN, MUKALUVILA PUTHEN VEEDU, KARYARA, PUNALUR, VILAKUDY VILLAGE, PATHANAPURAM. BY THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16/12/2009, ALONG WITH R.C.R.NO.401/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NOS: 400 & 401OF 2006 ----------------------------------------------------------------------------------- Dated this the 16th December, 2009. O R D E R PIUS C.KURIAKOSE, J. Both these revision petitions under Section 20 are filed by the landlord. The landlord sought to evict the tenant on the ground of arrears of rent under Section 11(2)(b), bonafide need for own occupation under Section 11(3), sub-letting under Section 11(4)(i), user in such a manner as to reduce value and utility under Section 11(4)(ii) and cessation of occupation under Section 11(4)(v). The Rent Control Court, after enquiry ordered eviction on the grounds of arrears of rent and bonafide need for own occupation. This was done after finding that the need projected by the landlord for occupation by the land landlord's son for conducting business in colour bands of Berger Paints was a bonafide one and that the tenant is not entitled to the protection of the second proviso to Sub Section 3. In fact the contention of the tenant in the context of second proviso to Sub Section (3) of Section 11 was only that he is depending mainly on the income that he derives from the business carried on in the petition schedule building for his livelihood. There RCR400 & 401/2006 2 was no contention by him that other suitable buildings are not available in the locality for shifting his business. Since the contention was only in the context of the first limb of the second proviso, the Rent Control Court confined its enquiry to the first limb of the second proviso. The Court ordered eviction under Sub Section (3) of Section 11 after holding that the tenant did not succeed in proving that he is depending mainly on the income from the business in the building. The tenant filed appeal against the order of eviction passed against him under Section 11(2)(b) and under Section 11(3). The landlord also preferred appeal declining eviction on the other grounds which are evoked in the RCP. During the pendency of the appeal preferred by the tenant he filed an application for amendment of the pleadings so as to incorporate the plea that he satisfies the second ingredient of the second proviso to Sub Section (3) of Section 11. His explanation for not raising this plea earlier was that his Advocate failed to incorporate such a plea. The learned Appellate Authority considered that interlocutory application and set aside the order of eviction passed under Section 11(3) and remanded the RCP to the Rent Control Court for deciding the only question whether the tenant satisfies RCR400 & 401/2006 3 the second ingredient of the second proviso to Sub Section (3) of Section 11. It is being aggrieved by that order of remand that RCR 400/2006 is preferred by the landlord. RCR 401/2006 relates to the judgment of the Appellate Authority confirming the decision of the Rent Control Court to dismiss the RCP on the other grounds invoked. 2. We have heard the submissions of Mr. V.Premchand, learned counsel for the revision petitioner-landlord and Mr. S.Sudheeshkar, learned counsel for the respondent-tenant. Mr. Premchand submitted that amendment application should not have been allowed by the Appellate Authority. According to him the explanation offered by the tenant for not raising a contention that he satisfies the second ingredient of the second proviso to Sub Section (3) of Section 11 was not at all convincing. Pleadings are raised by the parties and pleaders are expected only to attest the pleadings raised by the parties. So when the party places all the blame on the pleader for not having raised the pleading that he is entitled for the protection of the second ingredient of second proviso to Sub Section (3), the explanation should not have been accepted at all. Mr. Premchand also submitted that since it is trite RCR400 & 401/2006 4 that the two ingredients of the second proviso to Sub Section (3) are in the conjunctive, that the tenant does not satisfy one of the ingredients, then it has to be found that the tenant is not entitled for the protection of the second proviso to Sub Section 3 at all. 3. Resisting the submissions of Mr. Premchand it was submitted by Mr. Sudheeshkar that the mandate of the statute is that the Rent Control Court should consider both the ingredients of second proviso to Sub Section (3) simultaneously. In the instant case the Rent Control Court enquired into the first ingredient only since there was no plea regarding the second ingredient. Now that the Appellate Authority has permitted incorporation of plea regarding the second ingredient it is only appropriate that the Rent Control Court reconsiders both the ingredients simultaneously. Learned counsel submitted that it is only an order of remand which has been passed by the Appellate Authority and the petitioner cannot have any legitimate grievance. 4. We have considered the submissions addressed at the Bar. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority to the extent the same pertains to the finding regarding the question whether the tenant RCR400 & 401/2006 5 satisfies the first ingredient of the second proviso to Sub Section (3). We find that it has been clearly found on the basis of the evidence which came on record that the tenant was not successful in proving that he is depending mainly on the income that he derives from the business carried on by him in the premises. It is trite that both the ingredients of second proviso to Sub Section (3) of Section 11 are in the conjunctive When it is shown that the tenant does not satisfy the first ingredient, it will have to be found that he is not eligible for the protection of the proviso even if he is successful in proving that he satisfies the second ingredient. In that view of the matter we are of the view that the order of remand passed by the Appellate Authority was unnecessary. 5. We will in this context notice that the finding of the authorities below that the first ingredient of the second proviso is not satisfied in this case is a reasonable finding found on evidence. It is not liable to be interfered with under this revisional jurisdiction. We have examined the merits of RCR 401/2006 also. Having gauged the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts by the parameters applicable to exercise revisional jurisdiction under RCR400 & 401/2006 6 Section 20, we are of the view that the decision of the Rent Control Court and Appellate Authority to decline eviction on the ground of sub-letting, cessation of occupation and user of the building in such a manner as to reduce the value of the building permanently and materially is not vitiated by any infirmity warranting invocation of the revisional jurisdiction. Hence we are not inclined to allow RCR 400/2006. The upshot of the above discussion will be as follows: 6. RCR 401/2006 is allowed. The judgment of the Appellate Authority remanding RCP 2/99 on the grounds of arrears of rent and bonafide need for own occupation is restored. It is made clear that if the tenant so desires he can get the order of eviction passed under Section 11(2)(b) vacated. RCR 400/2006 is dismissed. 7. However, considering the last plea of the counsel for the tenant that reasonable time be granted for surrendering the premises, we are of the view that the Execution Court can be directed to defer execution till 30.6.2010, subject to the following conditions:- The tenant-respondent shall file an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the revision RCR400 & 401/2006 7 petitioner-landlord on or before 30.6.2010. It shall also be undertaken through the same affidavit that occupational charges at the current rent rate will be paid till 30.6.2010 as and when the same falls due. Parties are directed to suffer their costs. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: