IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 RCRev..No. 245 of 2008() ------------------------ RCA.3/2004 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.95/2002 of RENT CONTROL COURT, THALASSERY .................... REVISION PETITIONERS/APPELLANT/RESPONDENT ------------------------------------------------------------- 1. NELLIKKAL CHAMBOLAN USHA, D/O.NANU, AGED 37 YEARS, BUSINESS BY PROFESSION, NISHA BHAVAN, P.O.PERUNTHATTIL, THALASSERY. 2. NELLICKAL CHAMBOLAN PRADEEP KUMAR, S/O.NANU, AGED 47 YEARS, BUSINESS, NISHA BHAVAN P.O. PERUNTHATTIL, THALASSERY. BY ADV. SRI.G.MOHAN RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ P.SUBAIDA, D/O.KUNHALI, AGED 50 YEARS, RESIDING AT PALLIKKALAKATH, THALASSERY AMSOM, VADIKKAKAM DESOM, THALASSERY. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.2238/2008 IN RCR NO.245/2008 DISMISSED 25/11/2009 SD/- PIUS C.KURIAKOSE, JUDGE. SD/-K.SURENDRA MOHAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 245 OF 2008 ------------------------ Dated this the 25th day of November, 2009 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 by the tenant is an order of eviction concurrently passed by the Rent Control Court and the Appellate Authority on the ground of bona fide need for own occupation. The need projected by the landlady in the Rent Control Petition was that she wants to do business in garments. Among other contentions, it was contended that the landlady had previously filed two Rent Control Petitions viz. RCP No.56/1998 and RCP No.113/98. In RCP No.113/1998, the need projected was need for occupation of her son for the purpose of doing business. In RCP No.56/98 the need projected was need for conducting Churidar shop. R.C.P.No.56/1998 was withdrawn as compromised. R.C.P. No.113/1998 was dismissed as not pressed. The authorities below found on the basis of the evidence that the RCP filed for own occupation of the son was withdrawn only because son had in the meanwhile secured an employment overseas. As regards RCR.No.245/2008 2 RCP No.56/1998, in her evidence the landlady stated that it is the need which she had projected in RCP No.56/1998 that is being pursued in the instant Rent Control Petition. Nevertheless the authorities below, referring to various decisions of this court, would hold that filing of the earlier rent control petition and compromising the same after receiving higher rent will not badly reflect on the bona fides of the need projected in the instant rent control petition and pass order of eviction against the revision petitioner on the ground under sub section (3) of Section 11 of the Act. 2. It was very extensive submissions which were addressed before us by Sri.G.Mohan, learned counsel for the revision petitioner. Sri.Mohan drew our attention to the evidence of the landlady as PW1, in which she had admitted that the need which was projected in RCP 56/1998 and the need which is projected in the instant Rent Control Petition is one and the same. That being so, the learned counsel argued, the conduct of the landlady in giving up RCP No.56/1998 will certainly indicate that the need projected in the present Rent Control Petition is not an honest one. RCR.No.245/2008 3 3. Sri.T.P.Sajid, learned counsel for the respondent would cite a catena of decisions before us to support the order of the Rent Control Court and the judgment of the Appellate Authority. The learned counsel reminded us of the contours of revisional jurisdiction under Section 20 and he submitted that there is no warrant for invocation of the above jurisdiction. When the attention of the learned counsel was specifically drawn by us to the statement of PW1 that the need which is projected in the instant Rent Control Petition is the same as the need which was projected in RCP No.56/1998, the learned counsel would draw our attention to another part of the evidence of PW1,wherein she has stated that she became compelled to compromise the earlier rent control petition because she failed in securing a loan which she had applied for in connection with the business which was proposed at that time. 4. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the testimony of PW1 in the entirety. It is true that PW1 did state that the need which is projected in the instant rent control petition as well as in the previous rent control petition (RCP No.56/1998) is one and RCR.No.245/2008 4 the same. However, we find that she had given a further reason for withdrawing from RCP No.56/1998, the said reason being her failure to obtain bank loan for conducting proposed business. We notice that PW1 has not been cross examined further on her version that it was due to the failure in securing bank loan that she gave up the earlier rent control petition. Even though there is some force in the submission of Sri.Mohan that the judicial precedents relied on by the learned Appellate Authority are not quite apposite, we are of the view that the decision of the authorities below can be justified in view of the explanation offered by PW1 that it was due to the reason of failure to obtain bank loan she has become compelled to compromise the rent control petition. 5. As his last request, Sri.Mohan sought for an year's time to vacate the premises. We feel that on the facts and circumstances which attend on this case, there is justification for granting an unusually long period to the petitioner to surrender the premises. Accordingly, even as we dismiss the rent Control Petition confirming the order of eviction, we direct the Execution Court not to order and effect delivery of the petition schedule RCR.No.245/2008 5 building to the respondent till 31/10/2010 subject to the following conditions; The Revision petitioner shall file an affidavit before the Execution Court or before the Rent Control Court, as the case may, within one month from today undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 31/10/2010. It will also be undertaken by the revision petitioner through the same affidavit that arrears of rent, if any, will be discharged within one month and that occupational charges at the current rent rate will be paid as and when the same falls due till such time actual surrender is made. It is made clear that the revision petitioner will get the RCR.No.245/2008 6 benefit of time granted under this judgment only if the affidavit is filed on time. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk