IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 RCRev..No. 135 of 2010() ------------------------ RCA.56/2008 of RENT CONTROL APPELLATE AUTHROITY ,ERNAKULAM RCP.6/2007 of RENT CONTROL COURT, ERNAKULAM. .................... REVN.PETITIONER/APPELLANT/RESPONDENT -------------------------------------------------------- A.M.ASLAM, S/O. ABDUL MOHAMMED, TRIVANDRUM CHICKEN CORNER, 1ST FLOOR, EDASSERY BUILDING, BANERJEE ROAD, ERNAKULAM, RESIDING AT KURUMBELI HOUSE, POLAYATHODU P.O., KOLLAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A SRI.K.C.KIRAN SRI.T.H.ABDUL AZEEZ RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ KURIAN JOSE, S/O. LATE E.K.JOSE, EDASSERY BUILDING, BANERJI ROAD, ERNAKULAM, RESIDING AT EDASSERY HOUSE, JOSE VILLA, DIVINE NAGAR, SOUTH CHITTOOR, KOCHI-27. ADV. SRI.KURIAN ANTONY EDASSERY FOR R SMT.ANN EMIL JOSEPH FOR R SRI.BOSE K.THACHIL FOR R SRI.M.RETHEESH FOR R THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 135 OF 2010 ------------------------ Dated this the 10h day of June, 2010 O R D E R Pius C.Kuriakose, J. The tenant, who has been ordered to be evicted concurrently by the Rent Control Court and the Appellate Authority on the ground under sub section (3) of Section 11, is under revision. In fact, the landlord sought to evict him on the ground of arrears of rent also, but it is conceded at the Bar that the above ground no longer survives for consideration and in this revision we need be concerned only with the ground for eviction under sub section (3) of Section 11. 2. The need, which was projected by the landlord, was that the building which forms the first floor portion of a storied building situated on the side of Banerji Road and not far away from the High Court premises, is needed bona fide for occupation of his wife Beena, a dependent family member so that she can conduct garments business. The tenant, through the statement of objections, disputed the bona fides of the need. It was contended that, at any rate, the landlord has in his possession RCR.No.135/2010 2 other vacant buildings in the larger building of which the petition schedule building is a part. It was also contended that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. Before the Rent Control Court, the landlord was examined as PW1 and his wife Beena was examined as PW2. The documentary evidence on the side of the landlord consisted of Exts.A1 to A4 . On the side of the tenant, the solitary item of counter evidence was the oral evidence of the tenant as RW1. During the course of his evidence as PW1, it was admitted by the landlord that he is in vacant possession of the 4th floor portion of the larger building. This admission was highlighted by the tenant in support of his case that the RCP was liable to fail by virtue of the first proviso to sub section (3) of Section 11. The Rent Control Court was not impressed. But, the Court took the view that the explanation by the landlord that the 4th floor portion is not suitable for conduct of the proposed business by his wife is a convincing one. The oral evidence given by PW1 and particularly by PW2 inspired the Rent Control Court. It was noticed by that Court that despite searching cross examination, not much dent could be made on the version of RCR.No.135/2010 3 those witnesses that the building is needed bona fide for occupation by PW2 for conducting proposed readymade garments business. 3. Coming to the question of the tenant's eligibility for protection of of the second proviso to sub section (3) of Section 11, it was found on the basis of admission of RW1 himself that RW1 the tenant is conducting a similar business viz. 'Thiruvanthapuram Chicken Corner” on the opposite side of the Medical Trust Hospital at Pallimukku junction within the city. The Court found that when it becomes evident that the tenant is having more than one source of income, it is the tenant's obligation to produce evidence and convince the court that he is depending for his livelihood mainly on the income derived from the business carried on in the subject premises. It was also found that the tenant was unsuccessful in proving that other suitable buildings are not available in the locality. Thus on the basis of such findings the Rent Control Court ordered eviction under sub section (3) of Section 11. 4. The tenant preferred appeal R.C.A. No.56/2008. The learned Appellate Authority made a through de novo reappraisal RCR.No.135/2010 4 of the entire evidence and concurred with all the conclusions of the Rent Control Court regarding the bona fides of the need , the question whether the RCP will fail by virtue of the first proviso to sub section (3) of Section 11 and also on the eligibility of the tenant for protection of the second proviso to sub section (3) of Section 11. The Appellate Authority dismissed the RCA. 5. In this revision under Section 20, various grounds have been raised assailing the impugned judgment. Sri.T.Krishnan Unni, learned senior counsel for the revision petitioner addressed very strenuous arguments before us on the basis of those grounds. The learned counsel particularly highlighted before us the admissions made by PW1 , the landlord, in his evidence which is to the effect that the landlord is having vacant possession of about 600 sq. feet in the top floor of the building. The learned senior counsel would also highlight that during the pendency of the proceedings, the landlord had got vacant possession of the two rooms in the ground floor itself and the landlord could have accommodated his wife in the ground floor portion, which according to the learned senior counsel, is more ideal than the present premises which is in the first floor. The landlord did not RCR.No.135/2010 5 do this. This, according to the learned counsel, strongly indicates that the need projected is not a bona fide one. The learned counsel would assail the finding regarding the second proviso to section 11 (3) also. The learned counsel submitted that there was convincing oral evidence to the effect that it was from the business carried on in the schedule premises that the tenant was deriving much more income than what he was deriving from his business near Pallimukku Junction. Therefore, the first ingredient of the second proviso could have been answered in favour of the tenant. There is no cogent evidence to show that other suitable buildings are available in the locality. That being so, the second ingredient and the proviso itself have been answered in favour of the tenant. 6. All the submissions of Sri.Krishnan Unni were stiffly resisted by the learned counsel for the respondent Sri. Kurian Antony. As regards the admission of PW1 regarding the availability of the space on the top floor of the building, Sri.Kurian Antony submitted that space available in the top floor is not a regular building, it is only a temporary arrangement with tress works and is not at all suitable for the proposed RCR.No.135/2010 6 business of conducting readymade garments for ladies and kids. As regards the argument that during the pedency of the proceedings, rooms in the ground floor had fallen vacant, the learned counsel submitted that the landlord had obtained vacant possession of those rooms on the strength of eviction orders passed in his favour by the Rent Control Court accepting the landlord's need for own occupation. If the landlord does not occupy those buildings for the needs projected in those RCPs, he will become liable to restore possession of those rooms to the evicted tenants. Sri.Kurian Antony reminded us of the attenuated nature of the jurisdiction in which we are presently sitting. According to him, in the present case, where concurrent findings have been entered by the authorities below on the basis of the evidence, there is no warrant for interference. 7. We have anxiously considered the rival submissions addressed at the Bar. We have scanned the order of the Rent Control Court and the Judgment of the Rent Control Appellate Authority. We find that the findings entered by the appellate authority, which under the statutory scheme is the final fact finding court, that the need projected by the landlord is a bona RCR.No.135/2010 7 fide one, that the RCP is not liable to fail by virtue of the first proviso to sub section (3) of Section 11 and that the tenant was unsuccessful in proving that he satisfies either of the ingredients of the second proviso to sub section (3) of Section 11 are all findings founded on evidence available before the Court. These findings in our opinion are reasonable findings which are not liable to be interfered with under Section 20. The explanation offered by the landlord for not occupying the 4th floor premises and for not utilising the ground floor premises are all convincing and we accept those explanations. The RCR is liable to be dismissed. However, we are inclined to grant some time to the revision petitioner till 31/3/2011 for vacating the premises. 8. The result of the above discussion is as follows; i). The RCR is dismissed confirming the order of eviction. The Execution Court is directed not to order and effect delivery of the petition schedule building till 31/3/2011 subject to the following conditions; The Revision petitioner will file an affidavit before the Execution Court within three weeks from today undertaking to give RCR.No.135/2010 8 peaceful surrender of the petition schedule premises to the first respondent on or before 31/3/2011 and undertaking further through the same affidavit that arrears of rent if any will be discharged within one month and occupational charges at the current rent rate of Rs.4460/- will be paid regularly till 31/3/2011. ii). We make it clear 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 C.K.ABDUL REHIM , JUDGE dpk