IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 RCRev..No. 190 of 2009() ------------------------ RCA.24/2002 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.25/1999 OF RENT CONTROL COURT, PAYYANNUR .................... APPELLANT/RESPONDENT: ----------------------------------------- K.A.IBRAHIMKUTTY, S/O.ABDULLA, AGED 64 YEARS, MALABAR WATCH WORKS, PERUMBA, RESIDING AT KOROM ROAD, PERUMBA, PAYYANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR SRI.C.X.ANTONY BENEDICT RESPONDENT(S): RESPONDENTS/PETITIONERS: --------------------------------------- 1. MADAMBILLATH SUBAIDA, W/O.N.A.AZEEZ, AGED 38 YEARS, NO OCCUPATION, SUFAIRA MANZIL, THAYATH VAYAL, PERUMBA, PAYYANNUR. 2. S.P.MUHAMMADALI, S/O.KUNHAYISSUMMA, AGED 58 YEARS, BUSINESS, THAYATH VAYAL, PERUMBA, PAYYANNUR. 3. S.P.UMMERKUTTY HAJI, S/O.KUNHAYISSUMMA, AGED 56 YEARS, BUSINESS, THAYATH VAYAL, PERUMBA, PAYYANNUR. 4. S.P.BEEPATHUMMA, D/O.KUNHAYISSUMMA, AGED 53 YEARS, NO OCCUPATION, THAYATH VAYAL, PERUMBA, PAYYANNUR. 5. S.P.KHADEEJA, D/O.KUNHAYISSUMMA, AGED 50 YEARS, NO OCCUPATION, THAYATH VAYAL, PERUMBA, PAYYANNUR. 6. S.P.ASSAINARKUTTY HAJI, S/O.KUNHAYISSUMMA, AGED 48 YEARS, BUSINESS, THAYATH VAYAL, PERUMBA, PAYYANNUR. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------ RCR. No. 190 of 2009 ------------------------------------------- Dated this the 5th day of November, 2009 O R D E R Pius C. Kuriakose, J. The tenant is the revision petitioner. Eviction was sought against him by the respondent landlady invoking grounds under sub-section (3) of Section 11, clause (ii) of sub-section (4) of Section 11 and clause (v) of sub-section (4) of Section 11. The Rent Control Court disallowed the prayer for eviction on the ground under clause (ii) of sub- section (4) of Section 11. That decision has become final. The Rent Control Court as well as the Appellate Authority concurrently ordered eviction under sub-section (3) and clause (v) of sub-section (4) of Section 11. The need projected by the landlady in the context of the ground under sub-section (3) of Section 11 was that the building is needed bona fide for the occupation of her dependent brother for the purpose of conducting an Audio Video RCR. 190 of 2009 - 2 - Library. The bona fides of the need was disputed by the revision petitioner. He claimed the protection of the second proviso to sub-section (3). It was averred by the landlady in the context of the ground under clause (v) of sub-section (4) of Section 11 that the tenant has ceased to occupy the building continuously for more than six months prior to the institution of the RCP. This was also disputed by the revision petitioner who got the very same commissioner who had on enquiry reported that the building is not occupied, deputed for getting a second report. The second report is to the effect that at the time of second inspection the revision petitioner is doing business. The evidence before the Rent Control Court consisted of Exts.A1 to A9, B1, B2, oral evidence of the de facto claimant, the landlady's dependent brother as PW1 and that of the tenant as RW1, apart from Commissioner's reports C1 and C2 and the evidence of the commissioner as CW-1. The Rent RCR. 190 of 2009 - 3 - Control Court on appreciating the evidence would find that the need under sub-section (3) of Section 11 is bona fide and that the tenant was unsuccessful in establishing that he satisfies either of the ingredients of second proviso to sub- section (3). Accordingly, order of eviction was passed under sub-section (3) of Section 11. It was also found relying mainly on C1, C2, CW1 and also the circumstance that the tenant had not produced documentary evidence to show that during the period of alleged cessation of occupation he was carrying on business. Accordingly, order of eviction was passed under sub-section (4) of Section 11. The Appellate Authority reappraised the evidence thoroughly, and concurred with all the conclusions of the Rent Control Court and confirmed the order of eviction. 2. Even though Sri.V.Ramkumar Nambiar, learned counsel for the revision petitioner addressed us very strenuously on the basis of the various grounds raised in the RCR. 190 of 2009 - 4 - memorandum of revision petition, having gone through the impugned order of the Rent Control Court and the judgment of the Appellate Authority, we are of the view that the findings entered therein by those fact finding authorities are founded on evidence and there is no warrant for invocation of the revisional jurisdiction under Section 20. Mr.Ramkumar Nambiar pointed out that Ext.B1 document will show that the landlady at the time of the RCP was actually having only a fractional right, she having assigned the remainder fractions in favour of third party. We are not impressed by this argument. This argument is not seriously taken before the Rent Control Court. Even otherwise, the legal position is fairly trite that even a co-owner may be able to maintain a petition for eviction bona fide on the ground of bona fide need for own occupation also. More so, in this case where no endeavour was made by the tenant to contend that the other co-owner under Ext.B1 is opposed to RCR. 190 of 2009 - 5 - the tie of PW1 occupying the building at the behest of the respondent landlady. 3. The result of the discussion is that the revision fails and will stand dismissed. However, in deference to the last plea of Mr.Ramkumar Nambiar that a reasonably long duration of time should be granted to the revision petitioner for surrendering the premises we are inclined to order that the execution court will not order and effect delivery of the petition schedule building till 30-04-2010 subject to the following conditions: The revision petitioner shall file an affidavit before the execution court within three weeks from today undertaking to give peaceful surrender of the building to the respondent landlady on or before 30-04-2010 and undertaking further that arrears of rent if any will be discharged within one month and that occupational charges at the rate of Rs.100/- with effect from 15-11-2009 will be paid as and when the RCR. 190 of 2009 - 6 - same falls due till such time as the revision petitioner surrenders the premises. It is made clear that the revision petitioner will be entitled for the benefit of time granted under this order only if the affidavit is filed on time. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE ksv/-