IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 RCRev..No. 344 of 2005(G) ----------------------------------- RCA.152/2004 of IST ADDL.DISTRICT COURT, KOZHIKODE (RENT CONTROL APPELLATE AUTHORITY ) RCP.53/2001 of PRL.MUNSIFF COURT,KOZHIKODE-II .................... REVISION PETITIONER (S)/APPELLANT/RESPONDENT. --------------------------------------- PRABHAKARAN, S/O. KOLAKKATTIL PERAVAN, KOLAKKATTIL HOUSE, PERUMANNA AMSOM, PUTHUR DESOM, KOZHIKODE DISTRICT AND TALUK. BY ADVS.MR.P.VIJAYA BHANU MR.M.GEORGE THOMAS RESPONDENT(S): RESPONDENT/PETITIONER. ---------------------------- KUNIYIL THEKKETHODI HASSANKUTTY, S/O. KUNHALAVI HAJI, RESIDING AT KUNIYIL THEKKETHODI, VELIPRAM AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. R1 BY ADV. MR.R.RAMADAS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/08/2009,ALONG WITH RCR NO. 27 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= R.C.R.Nos.344/2005 & 27/2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17th day of August, 2009 O R D E R PIUS C.KURIAKOSE,J. Tenant has filed these revisions in respect of two adjacent rooms in a larger building belonging to brothers. Since the issues arising in these revisions are identical, we are of the view that both these revisions can be heard together and disposed of by a common judgment. 2. The respondents/landlords in both these revisions filed separate rent control petitions against the revision petitioner invoking the provisions under sub-sections 11(2)(b), 11 (3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as “the Act” for short. The landlords/respondents claimed that they need the petition schedule shop rooms for starting a grocery shop and a hardware business respectively. The tenant/revision petitioner denied the bona fides of the landlords. The rent control court, on the basis of the evidence, found that the need projected in the rent control petitions is bona fide. The tenant had claimed protection on the second proviso to sub-section (3) of section 11 of the Act. The tenant also claimed that the petition was liable to fail by virtue of first RCR 344/2005 and con. case. 2 proviso to sub section (3) of section 11 of the Act. Considering the tenants claim under the first proviso to section 11(3) of the Act, the Rent Control Court became inclined to accept the land lords explanation that he had special reasons for not occupying building pointed out by the tenant. Considering the tenant's eligibility to protection of the second proviso the court found that the tenant has failed to prove both the limbs of the second proviso to section 11(3) of the Act. R.C.A No.210/2004 was preferred against the order in R.C.P.No. 92/2002 and R.C.A.No. 152/2004 was preferred against the order in R.C.P.No. 53/2005. The appellate authority approved the finding of the Rent Control Court regarding bona fides of the claim under section 11(3). The Rent Control Appellate Authority dismissed both the appeals on the finding that the tenant had failed in establishing that he was depending mainly on the income derived from the business. The appellate authority also found that the tenant is not entitled to protection under second proviso to sub rule (3). In these revision petitions the tenant/revision petitioner challenges the findings of the rent control court and the appellant authority. 3. We have heard P.Vijaya Bhanu, learned counsel appearing for the revision petitioner and Sri.R.Ramdas, learned counsel appearing for the respondents. RCR 344/2005 and con. case. 3 4. Even though the learned counsel for the petitioner addressed arguments on all grounds more thrust was given to the argument that the appellate authority failed to consider the contention that the rent control petitions are liable to fail by virtue of first proviso to Sub section (3) of section 11 of the Act. It was submitted that the findings of the courts below regarding the eligibility of second proviso are not justifiable. The learned counsel for the respondents would submit that the tenant had virtually given up the contention that the rent control petitions are liable to fail by virtue of first proviso to section 11 (3) of the Act. 5. We have considered the revival contentions addressed at the bar. We have reminded ourselves our jurisdiction under section 20 of the Act. In revision under section 20 it is not for this Court to re-appreciate of the evidence and to substitute its conclusions arrived at by the fact finding authority, especially they are concurrent. It is true that there is some divergence in the findings of the authorities, as regards the protection of the second proviso claimed by the tenant in R.C.P.No.92/2002. However, since both the limbs of the second proviso are in the conjunctive, it is to be noticed that the decision that the tenant is not entitled to the second proviso is a decision concurrently taken. As for the argument of the learned counsel for the revision petitioner that the appellate authority did not consider the RCR 344/2005 and con. case. 4 question of the implications of the first proviso to sub section (3) of section 11, it is noticed by us that this point was seriously taken by the Rent Control Court. When it came to the appellate authority, this point was not seriously argued before that authority. Moreover, we find that the finding of the Rent Control Court is that the building, pointed out by the tenant, as being in the possession of the landlord is not sufficient to disentitle him to order of eviction . 6. Under these circumstances we are not impressed by the arguments of the learned counsel for the revision petitioner that the rent control petitions should fail by virtue of first proviso to section 11(3) of the Act. We find that the factual findings entered by the courts below are on evidence. The revisional jurisdiction under section 20 of the Act to interfere with those findings can be invoked only when there is illegality, impropriety or irregularity warranting interference under section 20 of the Act. The revisions are liable to be dismissed. 7. As a last submission, the learned counsel for the revision petitioner seeks one year's time to vacate the plaint schedule shop rooms. We find that the tenant is carrying on business in the petition schedule rooms. There is jurisdiction for granting reasonable period of time. Accordingly, even as we confirm the findings of both the courts below and RCR 344/2005 and con. case. 5 dismiss the revisions, there will be a direction not to order or effect delivery in favour of the landlords, subject to the following conditions:- 1) The revision petitioner/tenant will file an affidavit in both the cases before the Execution Court or before the Rent Control Court, as the case may be, stating that he will unconditionally surrender possession of the plaint schedule shop rooms to the respondents/landlords on or before 31-3-2010. It will also be stated there in that he will discharge arrears of rent, if any, respect of the plaint schedule shop rooms and continue to pay the rent till such time, as and when the same falls due. 2) It is made clear that the revision petitioner will not be entitled for the benefit of time granted under this order, unless affidavit as directed above is filed. 3) The affidavit, as directed above, shall be filed within three weeks from today. PIUS C.KURIAKOSE, JUDGE. K.SURENDRA MOHAN, JUDGE. mn.