IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 RCRev..No. 122 of 2009() ------------------------ RCA.104/2004 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.74/2002 of RENT CONTROLLER/MUNSIFF COURT, THALASSERY .................... REVISION PETITIONER/1ST RESPONDENT/1ST RESPONDENT :- ---------------------------------------------------------------------------------------- C.V.SIRAJ,AGED 44 YEARS, S/O.K.P.T. ABDUL KHADER, PLYWOOD SYNDICATE, PARIS LANE, THALASSERY-1. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.T.P.SAJID SMT.M.A.SULFIA SMT.NAMITHA JYOTHISH RESPONDENT(S)/APPELLANT, R 2 & 3/PETITIONER, R 2 & 3 :- -------------------------------------------------------------------------------------- 1. KOLATHAYI PUTHIYAPURAYIL AYISHA, AGED 49 YEARS,D/O.ABDUL KHADER, RESIDING AT THIRUVANGAD AMSOM, DESOM, THALASSERY TALUK. 2. C.V.SHUJAVUDDEEN,AGED 48 YEARS, S/O.T.P.C.ABDULLA, PLYWOOD SYNDICATE, PARIS LANE, THALASSERY. 3. T.P.MUHAMMED BASHEER, AGED 44 YEARS, S/O.P.P.HASSAN, PLYWOOD SYNDICATE, PARIS LANE, THALASSERY-1. ADV. SRI.K.M.FIROZ FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/12/2010 ALONG WITH RCR NO. 123 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. Nos.122 & 123 of 2009 ---------------------------------------- Dated this the 23rd day of December 2010 O R D E R N.K.Balakrishnan, J. Tenant is the revision petitioner. Smt.K.P.Ayisha, the landlady filed petition for eviction under Section 11(2)(b) and 11(3) of Act 2 of 1965. The petition was allowed by the Rent Control Court under Section 11(2)(b) of the Act, but the claim under Section 11(3) was disallowed by that Court. As against the order of eviction passed under Section 11(2) (b) the tenant filed appeal as RCA No.111/2004. As against the rejection of the claim under Section 11(3), the landlady filed RCA No.104/2004. The appeal filed by the tenant was dismissed while the appeal filed by the landlady was allowed. RCR.122/2009 is the revision petition filed against R.C.R. Nos.122 & 123 of 2009 -: 2 :- the judgment in RCA No.104/2004. RCR 123/2009 is the revision filed by the tenant against the dismissal of RCA.111/2004. 2. The case of the landlady is that the petition schedule building was let out to the revision petitioner as per rent deed dated 1.8.1989 on a monthly rent of Rs.1000/-. The rent was subsequently enhanced to Rs.1150/-. It is alleged that the revision petitioner/tenant paid the rent only up to March 2000 and willfully kept the subsequent rent in arrears. As regards the claim under Section 11(3), the landlady contended that her brother Sri.Sharafudheen is dependent on her and that he intends to start a business in hardware in the petition schedule building for meeting his livelihood. It is stated that Sharafudheen is a member of her family and neither Sharafudheen nor the landlady Ayisha has any other vacant building to start the proposed business. 3. The tenant contended that the monthly rent R.C.R. Nos.122 & 123 of 2009 -: 3 :- payable by the tenant in respect of the petition schedule building is Rs.300/-. The rent deed produced by the landlady was executed only as a sham document for the payment of municipal tax and that there is another rent bond executed on the same date which stipulates payment of rent only at Rs.300/-. The trial court did not favour with the tenant but accepted the case of the landlady that the tenant is liable to pay rent as stipulated in Ext.A1. Since it was found that the tenant kept the rent in arrears, order of eviction was passed under Section 11(2)(b). 4. Regarding the claim under Section 11(3) the Rent Controller found that the need alleged is bonafide, but found that the tenant is entitled to the benefit of Second proviso to Sub section (3) of Section 11 and thus, the claim for eviction under Section 11(3) was disallowed. 5. Sri.Sajid, the learned counsel appearing for the revision petitioner vehemently argued that Ext.A1 is only a sham document created to evade payment of tax and to R.C.R. Nos.122 & 123 of 2009 -: 4 :- defraud the Municipality. The very fact that the landlady did not mount to the witness box, according to the learned counsel would fortify his submission that she had something to hide or suppress and that was why she avoided the witness box. It was further argued by the learned counsel that it was the landlady who should have be mounted the witness box to deny. Exts.B1 to B3, if at all she wanted to deny and that her husband is not competent to deny the signatures found in those documents. The learned counsel has also taken us through the various grounds in the revision petitions. 6. The main thrust of the argument advanced by the learned counsel for the revision petitioner is that when Mr.Aziz, the husband of the landlady admitted that his signature is found in the last page of Ext.B1, it should have been found that Ext.B1 had actually come into existence. According to PW1 the signature which appears as photocopy was actually manipulated. Though the signature R.C.R. Nos.122 & 123 of 2009 -: 5 :- of the three persons and tenant are seen (in original) in all the pages, the original signature of PW1 and other witnesses are conspicuously absent. That itself creates suspicion regarding the genuineness of Ext.B1. There is no admission that a document as seen in Ext.B1 did come into existence. Similar is the case with regard to Ext.B2, where also only the photocopies of the signature of PW1 and another witness are seen, while the other three signatures of tenants are seen to be original. Therefore, the possibility of conviction and manipulation cannot be ruled out. The next document is Ext.B3, the rent receipt. It is seen that Ext.B3 was not actually confronted to PW1. It appears that another document marked as Ext.B5 was confronted. A mistake had crept in while recording the deposition. The number '815076' pertains to Ext.B5 and it does not relate to Ext.B3. The learned counsel for the landlady submits that he had produced counterfoils of the rent receipts which would clearly show that the rent receipts were issued by the R.C.R. Nos.122 & 123 of 2009 -: 6 :- landlady herself. All the counterfoils would show that the monthly rent paid by the tenant was only at the rate of Rs.1000/- and not Rs.300/- as contended by the revision petitioner. It is also pertinent to note if as a matter of fact another rent deed as shown in Ext.B5 did come into existence there was no reason why the signature of the landlady was not obtained indicating or acknowledging acceptance of rent deed or atleast evidencing receipt of copy of the same. When it is coupled with the relevant fact that it is not the original signature of PW1 that appears in Ext.B1 it demolishes the case of the tenant that the rent was not payable at the rate of Rs.1000/-. So considering all the aspects it is seen that the learned Appellate Authority ha come to a right conclusion that the monthly rent payable was at the rate of Rs.1000/- and that the tenant had kept the rent in arrears. We are reminded of the contours of our revisional jurisdiction under Section 20 of the Act. We do not find any illegality, irregularity or impropriety in the R.C.R. Nos.122 & 123 of 2009 -: 7 :- finding entered by the Appellate Authority. As such the order of eviction passed under Section 11(2)(b) is confirmed. 7. With regard to the claim under Section 11(3) of the Act, besides the landlady's husband examined as PW1, the person who needs the petition schedule building for conducting business was also examined as PW2. The main ground that has been put forward by the revision petitioner is that PW2 is residing and conducting a business in Calicut and so it is most unlikely that he would come to Thalassery to start business. There is no evidence to show that PW2 is permanently residing in Calicut or that he is conducting any business in Calicut. There is also no evidence to show that PW2 is having any other independent job or avocation to eke out his livelihood. There is a specific averment in the petition that PW2 Sharafudheen her brother is a member of her family and that he is dependent on her for the purpose of getting himself accommodated in the petition schedule R.C.R. Nos.122 & 123 of 2009 -: 8 :- building. The fact that PW2 is only the brother of the landlady is not a reason to say that her brother who is having no job or business should not depend on her for getting a building for starting a business. The word ‘dependent’ has to be understood in a wider sense. Dependency does not mean financial dependency but dependency for the purpose of getting the building for occupation. Since the word ‘dependent’ should not be given a narrow or truncated meaning, there can be no doubt that PW2, the brother of the landlady is a dependent on her. 8. It was stated by PW2 that he intends to start a business in hardware. The building is stated to be situated in Thalassery Town. It was also stated that PW2 had gained experience in that trade. After analysing the evidence in its correct perspective the learned Appellate Authority found that the need projected by the landlady is true. We find no reason to upset the finding so entered by the learned Appellate Authority. R.C.R. Nos.122 & 123 of 2009 -: 9 :- 9. Though the tenant contended that he is entitled to the benefit of the Second proviso to Sub section (3) of Section 11 he could not succeed in proving that there are no other vacant building available in the locality. He did not produce any acceptable evidence to show what actually is the income he is getting from the business conducted in the petition schedule building so as to conclude that he was mainly depending on the petition schedule building for eking out his livelihood. That apart the revision petitioner did not take out any commission nor did he adduce any acceptable evidence to show that there are no other vacant buildings available in the locality. It is trite law that the burden is on the tenant to prove both the limbs of the Second proviso. Therefore, the finding of the courts below that the tenant is not entitled to the benefit of the Second proviso is only to be confirmed. As such the order of eviction passed under Section 11(3) is also confirmed. 10. Mr.Sajid, the learned counsel for the revision R.C.R. Nos.122 & 123 of 2009 -: 10 :- petitioner submits that the tenant may be granted one year time to vacate the premises. Since the tenant is at present conducting business in plywood, we are inclined to grant time but on conditions. It is pointed out that the monthly rent now being paid is only Rs.1000/-. Since the building is situated in Thalassery town it is just and proper that the monthly rent is increased to Rs.1500/-. It should be paid with effect from 1.1.2011. In the result, both the revisions are dismissed confirming the order of eviction passed by the Appellate Authority. The tenant/revision petitioner is granted time till 31.12.2011 to vacate the petition schedule building on the following conditions:- The tenant shall file an affidavit within four weeks from today undertaking to give peaceful surrender of the building to the landlady on or before 31.12.2011 and undertaking further to discharge the arrears of rent within one month from today and to pay occupational charges at R.C.R. Nos.122 & 123 of 2009 -: 11 :- the rate of Rs.1500/- per month with effect from 1.1.2011 as and when the same falls due till the date of actual surrender. It is made clear that the tenant will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt