IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 RCRev..No. 431 of 2011 --------------------------- RCA.32/2009 of III ADDL. DISTRICT COURT/RCAA, KOZHIKODE. RCP.18/2008 of ADDL.M.C.-I,KOZHIKODE. .................... REVISION PETITIONER/APPELLANT/1ST RESPONDENT ----------------------------------------------------------- P.T.SADIQU JILLA, AGED 40 YEARS, S/O ABDURAHIMANKUTTY HAJI, “GLASSAGE”, JOSEPH ROAD, KOZHIKODE - 32 BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S)/RESPONDENTS/PETITIONERS & 2ND RESPONDENT: ----------------------------------------------------------------------------- 1. AMEER AHAMMED KANHIRANDI, S/O AHAMMED ISMAIL, AGED NOT KNOWN. 2. CHERIYAPARAMBATH KOLLANTAVIDA THANSIM, W/O AMEER AHAMMED, AGE NOT KNOWN. RESPONDENTS 1 AND 2 RESIDING AT 'RINAS', THAVAKARA, KANNUR DISTRICT, KANNUR-2, REPRESENTED AND ACTING THROUGH POWER OF ATTORNEY HOLDER, K.P.SUBAIR HAJI, S/O KUNHALI, AGE NOT KNOWN, “REENAS”, THAVAKARA, KANNUR-2. 3. P. MUHAMMED ILLYAS, AGED 39 YEARS, S/O P. KADIRI, POOLAKKAL HOUSE, P.O. PARAMBIL, KOZHIKODE - 12. ADV. SRI.M.RAMESHCHANDER - RESPONDENT, CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 15/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ R. C. R. No.431 of 2011 ------------------------------------------------ Dated this the 15th day of November, 2011 ORDER Pius C. Kuriakose, J Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground under sub Section 3 of Section 11. The landlords had invoked the ground under Section 11(4)(iii) also. But in this revision we are not concerned with the above ground. The need projected by the landlords, two in number, in the Rent Control Petition filed by them through their duly constituted Power of Attorney Holder one Sri.K.P.Subair Haji was that the building is required for conduct of business in plywood by the father of the 1st petitioner in the RCP by name Sri.Ahammad Ismail and also one by Sri.Nazeer Ahammed the brother of the 1st petitioner in the RCP. It was stated in the RCP (as amended R. C. R. No.431 of 2011 -2- subsequently) that the father Ahammed Ismail and brother Nazeer Ahammed of the 1st petitioner in the RCP for whom the building was sought for and for that matter the petitioners in the RCP did not have suitable buildings for conducting the proposed business. It was also averred in the RCP (going by the amended pleadings) that father and brother, the needy persons were dependent on the petitioners in the RCP for a building to conduct business. The revision petitioner through the statement of objections filed in the Rent Control Petition disputed the bona fide need. It was contended that the petitioners in the RCP are having several other buildings being part of the very same larger building and this entails rejection of the RCP in terms of the first proviso to sub section 3 of Section 11. It was further contended that the revision petitioner is entitled to the protection of the second proviso to sub section 3 of section 11. The evidence in the enquiry conducted by the Rent Control Court consisted of the oral evidence of PWs.1 and 2 and that of RW1, the revision petitioner. The documentary R. C. R. No.431 of 2011 -3- evidence consisted of Exts.A1 to A2 series, Exts.B1 to B5, the Commission Report and plan were marked as Exts.C1 and C2. The Rent Control Court on evaluating the evidence came to the conclusion that the need projected in the RCP was bona fide. It was concluded that though it had come out in evidence that the landlords had one or two rooms in the first and second floors of the very same larger building, there was special reason for them to insist on getting possession of the said room itself. Enquiring into the tenant's eligibility for protection of the second proviso it was concluded that the tenant was unsuccessful in saying that he satisfies either of the two ingredients of the second proviso. Accordingly, order of eviction was passed under Section 11(3). Even though the tenant carried the matter in appeal to the Rent Control Appellate Authority and the learned Appellate Authority made a re-appraisal of the evidence, the appeal was dismissed confirming all the findings entered by the Appellate Authority in the context of ground under Section 11(3). R. C. R. No.431 of 2011 -4- 2. In this revision filed under Section 20 various grounds are raised by the tenant assailing the judgment of the Appellate Authority to the extent the same pertains to the ground under Section 11(3). Very persuasive submissions were addressed before us by Sri.C.P.Mohammed Nias, the learned counsel for the revision petitioner. At the very outset, Sri.Nias submitted that of the two needy persons for whom eviction of the building in question was sought for under Section 11(3), PW2 the father alone gave evidence. PW2 is no more. The situation which emerges is that no living person has given cogent evidence as to the truth or otherwise of the need projected in the Rent Control Petition to the extent the same pertains to the need of Nazeer Ahammed. Nazeer Ahammed, going by the contentions raised by the revision petitioner, is gainfully doing export business in Mumbai. There is absolutely no likelihood of Sri.Nazeer Ahammed coming down and conduct business in the petition schedule building. 3. Sri.Nias submitted that the non-disclosure of the R. C. R. No.431 of 2011 -5- availability of rooms in the very same larger building was a circumstance which dis-entitles the petitioners in the RCP to relief at the hands of the statutory authorities under the Rent Control Act which are expected to take decisions in accordance with the principles of equity, justice and good conscience. The special reason is a matter to be pleaded and proved by the landlord. In the instant case, at best it can be submitted that there is proof. But any proof without proper foundation in pleading is no proof. Hence, the Rent Control Petition continues to be liable to be rejected in terms of the first proviso to sub Section 3 of Section 11. Sri.Nias would assail the finding entered by the two statutory authorities under the second proviso to sub Section 3 of Section 11. The learned counsel submitted that it was freely admitted that the only place where the revision petitioner is conducting sale of glass is the petition schedule building. The other place on the basis of which the ground under Section 11(4)(iii) was invoked against the revision petitioner was not a place of business. It is only a storage place. Entire R. C. R. No.431 of 2011 -6- income is generated in the petition schedule building only. Sri.Nias also submitted that the suitability of a building for the purpose of the second proviso is an aspect to be considered on the basis of the nature of business which is being conducted by the tenant in the said building. It is a fairly large scale glass business which is being conducted. Revision petitioner needs a fairly large building and that too in an area having commercial importance which is comparable to that of the petition schedule building. The evidence will show that such a building is not available in such a locality to the tenant. Both the ingredients should have been decided against the landlord. The learned counsel submitted that if for any reason this Court is not inclined to interfere with the eviction order then at least one year's time should be granted to the revision petitioner for surrendering the premises. 4. All the submissions of Sri.Nias were opposed very stiffly by Sri.M.Ramesh Chander who had lodged a caveat for the landlord in anticipation of the current revision. He would R. C. R. No.431 of 2011 -7- reminded us of the contours of this Court's jurisdiction under Section 20 and submits that in this jurisdiction this Court is not expected to make a re-appraisal of the evidence for the purpose of substituting factual conclusions arrived at by the learned Appellate Authority which is the final court on facts. Sri.Ramesh Chander submitted that PW2 was not just one among the two needy persons for whose purpose the building was sought to be evicted. He was the father of the other needy person namely Sri.Nazeer Ahammed as well. He was quite competent to speak about the bona fide need of his son, Nazeer Ahammed also. Sri.Ramesh Chander took exception with the submission of Sri.Nias that Sri.Nazeer Ahammed is engaged in export business in Mumbai. He submitted that though it is true that for some time Nazeer Ahammed was conducting export business in Mumbai all such business has been closed down and Nazeer Ahammed has now come back to his home town and is now anxiously waiting for getting surrender of the building so that he can start business. Sri.Ramesh submitted that the landlord is not R. C. R. No.431 of 2011 -8- guilty of suppression of any material fact in the context of the first proviso to sub Section 3 of Section 11. It was very clearly stated in the RCP that buildings suitable for conducting the proposed business are not available in the vacant possession of the landlord. The buildings which have become available through the evidence adduced in this case are rooms in the first floor and the second floor. Rooms in the first and second floors will not be suitable for conducting retail as well as wholesale business in plywood. There is no warrant for interference with the statutory authority's findings in this context. The learned counsel submitted that there is no warrant for interference with the finding in the context of the second proviso to sub section 3 of Section 11 either. He referred to the judgment of the Full Bench of this Court in Francis v. Sreedevi Varassiar (2003(2) KLT 230) and that of the Supreme Court in Kunhamma v. Akkali Purushothaman (2007(3) KLT 99) and submitted that the burden of proof of being what it is that the finding that the tenant is unsuccessful in proving the two ingredients of the R. C. R. No.431 of 2011 -9- second proviso does not suffer from any infirmity. It has come out in evidence that the tenant is constructing a double storied building, the ground floor of which is to be utilised for the tenant's business purposes. There is no justification for granting any long duration of time to the tenant for surrendering the premises, so submitted Sri.Ramesh Chander. 5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have gone through the judgment of the Appellate Authority as well as the order of the Rent Control Court. The only question which falls for decision is whether within the well delineated jurisdiction of this Court under Section 20, there is justification for interference. We have no difficulty to answer that question in the negative. We do not find any illegality, irregularity or impropriety about the judgment of the Appellate Authority warranting invocation of the revisional jurisdiction under Section 20. The findings entered by the Appellate Authority in confirmation of similar findings entered by the Rent R. C. R. No.431 of 2011 -10- Control Court are all findings founded on evidence. They are reasonable findings. We do not find any warrant for interference. Revision fails and will stand dismissed. 6. The submission of Sri.Nias that there is justification for granting one year's time has some appeal to us. Despite opposition of Sri.Ramesh Chander, we are inclined to direct the execution court to keep proceedings for delivery in abeyance subject to the following conditions:- 7. The revision petitioner shall discharge arrears of rent, if any as on date within a period of one month and will continue to pay occupational charges at the existing rent rate before every month till he surrenders the building. Affidavit shall be filed by the petitioner before the execution court within three weeks from today undertaking to give peaceful surrender of the building on or before 30/09/12 undertaking that arrears of rent and occupational charges will be paid without fail. We make it clear that the revision petitioner will get the benefit of time as allowed above only if he files the affidavit on time and honours the undertakings R. C. R. No.431 of 2011 -11- contained therein. There will be a further condition that before ordering delivery Sri.Nazeer Ahammed for whom the building is ordered to be evicted will appear before the execution court and file an affidavit, wherein he will state that he himself will personally conduct the proposed business in the petition schedule building upon getting possession of the building. We make it clear that if it is noticed that Sri.Nazeer Ahammed has violated the undertakings in the above affidavit, it will be open to the petitioner to invoke the provisions of sub Section 12 of Section 11. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns/- //True Copy// P.A. To Judge R. C. R. No.431 of 2011 -12- P. A. To Judge