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 13TH JANUARY 2011 / 23RD POUSHA 1932 RCRev..No. 128 of 2008() --------------------------------- RCA No.27/2006 OF DISTRICT JUDGE/RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP No.170/2003 OF RENT CONTROL/PRINCIPAL MUNSIFF-1, KOZHIKODE -------------------- REVISION PETITIONER/RESPONDENT/RESPONDENT :- ----------------------------------------------------------------------------- SUNDARAN @ P.SUNDAR RAJ, AGED 54 YEARS, PAKSONS STUDIO, SHOP NO.6/391, BANK ROAD, KALATHINKUNNU AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S)/RESPONDENT/APPELLANT/PETITIONER :- ------------------------------------------------------------------------------------ ROSAJAM RAJAN, AGED 55 YEARS, W/O.RAJAN, MUNDAMUKAM AMSOM, NEDUNGOTTUR DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.M.H.HANIL KUMAR FOR CAVEATOR SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE FOR R1 SRI.M.H.HANIL KUMAR FOR R1 SRI.MILLU DANDAPANI FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt RCRev..No. 128 of 2008 ORDER IN I.A.No.1235/2008 IN RCR No.128/2008 Dismissed. Sd/- PIUS C. KURIAKOSE, JUDGE. Sd/- N.K.BALAKRISHNAN, JUDGE. 13.1.2011. //True Copy// P.A. to Judge PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.128 of 2008 ------------------------------ Dated this the 13th day of January 2011 O R D E R Pius C. Kuriakose, J. The tenant is the revision petitioner. He challenges the order of eviction passed by the Rent Control Appellate Authority on the ground under Sub section (3) of Section 11 in reversal of a negative order passed by the Rent Control Court dismissing the rent control petition. The landlady invoked the ground of arrears of rent and the ground under Sub section (3) of Section 11. The ground of arrears of rent does not survive for consideration before us. The need projected by the landlady under Sub section (3) of Section 11 was that the building is required bonafide for her daughter Anila, who was dependent on her to conduct a computer centre. The bonafides of the need was disputed. R.C.R. No.128 of 2008 -: 2 :- The tenant claimed protection under the Second proviso to Sub section (3) of Section 11. In the enquiry conducted by the Rent Control Court, the landlady and her daughter gave evidence as Pws.1 and 2 respectively. Counter evidence was given by the tenant. The tenant had also denied the title of the landlady. It was contended that a suit for partition was pending before the local civil court and hence the landlady's title was yet to be established. The Rent Control Court on evaluating the evidence would practically accept the denial made by the tenant about the landlady's title. According to that court, as the suit for partition was yet to be decided, it cannot be said that the landlady has title over the building. Coming to the bonafides of the need, the Rent Control Court noticed that, PW2 was unemployed and there was no serious objection to her claim that she was trained in computer and was experienced also in the line of computer. But according to that Court since PW2 was married to a person belonging to Kodungallur and her R.C.R. No.128 of 2008 -: 3 :- husband belonged to an affluent family, it was very unlikely that she and her husband will settle down at Kozhikode for doing business in the petition schedule building. In that view, the Court held the need projected is not bonafide. The Court went on to consider the tenant's eligibility to get protection under the Second proviso to Sub section (3) of Section 11. According to the Rent Control Court, as the landlady has no case that the tenant had some other business, than is the business of photo studio conducted in the petition schedule building and it has to be held that the tenant depends upon the income derived from the photo studio business for his livelihood. The Rent Control Court had also held that there was no evidence to show that there is any other building is available in the locality. Therefore, according to that Court, both the limbs of Second proviso to Sub section (3) of Section 11 were satisfied in the case of the tenant and tenant is entitled to protection of the Second proviso to Sub section (3) of Section 11. Accordingly the R.C.R. No.128 of 2008 -: 4 :- rent control petition was dismissed by the Rent Control Court. 2. The learned Rent Control Appellate Authority in the impugned judgment has made a thorough reappraisal of the entire evidence and come to the conclusion that the need is bonafide. It is also concluded that the tenant was unsuccessful in establishing that he is entitled to the protection of Second proviso to Sub section (3) of Section 11. The Appellate Authority has also held that the need projected by the landlady is bonafide. In the above view of the matter, the learned Appellate Authority interfered with the order of the Rent Control Court and passed order of eviction under Sub section (3) of Section 11. 3. In this revision, under Section 20 of Act 2 of 1965, various grounds are raised assailing the judgment of the Appellate Authority. Smt.Prabha R. Menon, the learned counsel for the revision petitioner addressed very strenuous arguments on the basis of all those grounds. According to R.C.R. No.128 of 2008 -: 5 :- Smt.Prabha, the evidence adduced by PW1 is not sufficient to establish any such bonafide need. PW2 is married to a member of very rich family in Kodungallur. Though, she stated that she and her husband are residing at Shornoor along with her mother and agreed to produce documents, not even a scrap of paper was produced to support that statement. The finding that the tenant is not entitled to Second proviso is also unsustainable. She would further submit that interference by the Appellate Authority on the finding of the Rent Control Court is not justified. The case involves bonafide denial of title. 4. Smt.Sumathy Dhandapani, the learned senior counsel appearing for the respondent would oppose all the submissions of Smt.Prabha. She would remind us of the limits of our jurisdiction under Section 20 of Act 2 of 1965 and submit that as there is no illegality, irregularity or impropriety about the findings entered by the learned Appellate Authority, there is no need for upsetting the R.C.R. No.128 of 2008 -: 6 :- present jurisdiction. In reply Smt.Prabha submitted that atleast one year's time be granted to the revision petitioner to surrender the premises. 5. We have very anxiously considered the submissions addressed at the Bar. We have gone through the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority. Under the scheme of the Rent Control Act, the Rent Control Appellate Authority is the final court on facts. As we go through the judgment of the Appellate Authority, we find that the finding entered by the Appellate Authority that the need projected by the landlady is bonafide one is a reasonable finding based on the evidence of Pws.1 and 2 actually available on record. Smt.Prabha read over to us the full text of deposition of PW2. We do not find any serious dent made on the credibility of PW2 in cross examination. Evidently, PW2 is an unemployed educated young woman. Admittedly she is trained in computer and got some experience also in R.C.R. No.128 of 2008 -: 7 :- computer. She belongs to Calicut and now residing at Kodungallur with her husband. Her brother is settled at USA. Her father is also in USA and working as a consultant. The mother and the daughter came and swore that daughter and her husband are actually put up with the mother at Calicut or Shornur, the place where their mother is mostly residing. After considering all these aspects, the learned Appellate Authority entered the finding that the need projected by the landlady is bonafide one. We, in this jurisdiction, will not be justified in taking a different view. We concur with the finding entered by the Appellate Authority that the need projected by the landlady is bonafide one. As for the finding entered against the tenant regarding Second proviso to Sub section (3) of Section 11, it is very clear to us that the above finding is rendered keeping in mind the binding judicial precedents governing identical situations like Francis v. Sreedevi Varassiar [2003(2) KLT 230 (F.B.)]. R.C.R. No.128 of 2008 -: 8 :- 6. Now coming to the decision taken by the Rent Control Appellate Authority on the question whether the denial of title is bonafide or not. We will only observe that the Rent Control Court’s finding in that regard was absolutely erroneous and the Appellate Authority has very correctly interfered with that finding. Title as envisaged by the First proviso to Sub section (3) of Section 11 is not proprietary title. Revision necessarily has to fail and will stand dismissed. But we are inclined to grant time to the tenant till 15.01.2012 to surrender the premises subject to the following conditions :- 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 peaceful surrender of the building on or before 15.1.2012 and undertaking further that the arrears of rent if any will be discharged within one month and shall pay occupational charges at the current rent rate promptly and regularly till R.C.R. No.128 of 2008 -: 9 :- actual surrender. We make it clear that the revision petitioner will get the benefit of time granted above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt