IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 RCRev..No. 116 of 2010() ------------------------ RCA.166/2005 of RENT CONTROL APPELLATE AUTHOIRTY, THALASSERY RCP NO.97/2003 OF THE RENT CONTROL COURT, KANNUR) .................... REVISION PETITIONERS(LEGAL REPRESENTATIVES OF DECEASED P.A. ABDUL MAJEED)/ APPELLANTS/RESPONDENTS: ------------------------------------------- 1. P.K.ASIYA, W/O.LATE ABDUL MAJEED, AGED 49 YEARS, RESIDING AT MULLA MANZIL, NEAR NEERCHAL SCHOOL, KANNUR-3. 2. P.MUHAMMED ASHRAF, S/O.LATE P.ANDI, MAJEED, AGED 48 YEARS, RESIDING AT MULLA MANZIL, KANNUR-3. 3. P.FAROOQUE, S/O.P.ABDUL MAJEED, AGED 44, -DO-. 4. P.ABDUL SHUKKOOR, S/O.P.ABDUL MAJEED, AGED 40, -D0-. 5. P.MULLABI, D/O.P.ABDUL MAJEED, AGED 37, -DO-. 6. P.EBRAHIM KUNHI, D/O.P.ABDUL MAJEED, AGED 32, -DO-. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA SRI.ANEESH JOSEPH SMT.C.J.AJITHA RESPONDENT(S): RESPONDENTS/PETITIONERS: --------------------------------------- 1. IRENE RODRIGUES, AGED 79 YEARS, D/O.URBAN GOVEAS, NO OCCUPATION RESIDING AT 'WILLS WILL', POST OFFICE ROAD, THILLERY, KANNUR-1. 2. NORA, D/O.IRENE RODRIGUES, AGED 49 YEARS NO OCCUPATION, RESIDING AT 'MELDOWS APARTMENT', BENDUR, MANGALORE. 3. DORA, D/O.IRENE RODRIGUES, AGED 47 YEARS NO OCCUPATION, RESIDING AT 'WILLS WILL', POST OFFICE ROAD, THILLERI, KANNUR (MENTALLY UNSOUND REPRESENTED BY NEXT FRIEND AND MOTHER 1ST RESPONDENT IRENE RODRIGUES). 4. LORA, D/O.IRENE RODRIGUES, AGED 45 YEARS TEACHER, RESIDING AT -DO-. 5. VIRA, D/O.IRENE RODRIGUES, AGED 42 YEARS NO OCCUPATION, RESIDING AT -DO-. 6. JOY JOHN, S/O.IRENE RODRIGUES, AGED 40 YEARS, DOCUMENT CONTROLLER, NATIONAL PETROLEUM CONSTRUCTION CO., ABU DHABI (REPRESENTED BY P.A.HOLDER AND MOTHER 1ST RESPONDENT IRENE ROADRIGUES). 7. JOSEPH, S/O.IRENE RODRIGUES, AGED 38 YEARS, NO OCCUPATION, RESIDING AT 'WILLS WILL' POST OFFICE ROAD, THILLERI, KANNUR. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No.116 OF 2010 ------------------------ Dated this the 31st day of May, 2010 O R D E R Pius C.Kuriakose, J. The tenants are in revision. They have been ordered to be evicted by the Rent Control Court and the Appellate Authority concurrently on the ground of bona fide need for own occupation (under Section 11(3)) and the ground that they have other buildings in their possession reasonably sufficient for their requirements in the same city, town or village (under section 11 (4)(iii). The need projected by the landlords in the context of the ground under Section 11(3) was that the only vacant building in their possession is the first floor portion of the petition schedule building. But, since the first petitioner in the RCP is a septuagenarian and two of the petitioners in the RCP who are residing along with her are mentally unsound persons, it is extremely difficult for these three petitioners to climb up the up stair portion and, therefore, they need the ground floor i.e. the petition schedule building for their residential occupation. RCR.No.116/2010 2 2. The tenant disputed the bona fides of the need by highlighting three aspects. The first aspect was that the up stair portion can be made suitable for residential occupation by constructing latrine and bath room. The second was that the petition schedule building, the down stair portion, is presently used as a godown and the landlords will have to expend at least 1,50,000/- for converting the same as a residential building. The third aspect highlighted was that on a previous occasion RCP No.53/1986 was successfully filed by the landlords for evicting one of their other tenants, but that building was subsequently sold off by the landlords. The tenants also contended that they are entitled to the protection of the second proviso to sub section (3) of Section 11 of the Act. 3. Eviction was sought on the ground under Section 11(4) (iii) on the allegation that the tenants are having other building in their possession. Reliance was placed on Exts.A9 to A11 to establish the above allegation. The defence of the tenants was that the building was in possession of his son in law who was examined as RW2 before the Rent Control Court. On the side of the landlords, the evidence consisted of Exts.A1 to A12(b), PWs 1 RCR.No.116/2010 3 and 2. On the side of the tenants, the same consisted of Exts.B1 and B2, witnesses RWs 1 and 2. Exts.C1 to C3, the commission report and plans were also marked in evidence. PW1 was none other than the 75 year old mother of the other petitioners. Her evidence inspired the Rent Control Court. Accepting the above evidence the Rent Control Court found that the need projected is a genuine one. That Court also accepted the explanation offered by her regarding the circumstances, under which the building which was subject matter of the previous RCP, was sold off for meeting their urgent financial requirements. The Court also found that the tenants were unsuccessful in proving that they are entitled to the protection of the second proviso to sub section 3 of section 11. 4. Coming to the ground under Section 11(4)(iii), the Rent Control Court noticed that the documents produced by the landlords will show that the tenants are in possession of the buildings mentioned therein. The Court also noticed that RW2, son in law of the tenants, despite his statement that there are documents, did not produce any documents for proving his version that he was in possession of the above rooms. The RCR.No.116/2010 4 Court, therefore, found that the documents produced by the landlords proved that the tenants are in possession of the building. Accordingly, eviction order was passed under Section 11(3) as well as under Section 11 (4)(iii). 5. The Rent Control Appellate Authority considering the appeal preferred by the tenants made a thorough reappraisal of the evidence. That Authority concurred with all the conclusions of the Rent Control Court and confirmed the order of eviction. 6. In this revision under Section 20 several grounds have been raised assailing the eviction order. Smt.K.A.Sanjeetha, learned counsel for the revision petitioner, addressed us very seriously on the basis of all those grounds. She submitted that presently all the landlords are residing in a building belonging to the 6th petitioner in the RCP, the son of PW1. The 6th petitioner in the RCP was employed in Abu Dhabi. There is no evidence to show that the 6th petitioner in the RCP was having any objection in his mother and siblings continuing to reside in that building. Smt.Sanjeetha also submitted that it is admitted that the first floor portion is presently under the vacant possession of the respondents/landlords. That being so, the first proviso to sub RCR.No.116/2010 5 section (3) of Section 11 will apply and operation of that proviso has not been considered by the authorities below. She also highlighted the previous conduct of the landlords with the building which was subject matter of RCP No.53/1996 to support her arguments that the need is not bona fide. Coming to the ground under Section 11(4)(iii), it is submitted that adequate opportunity was not given by the Courts below for producing documents which will show that the building mentioned in the documents produced by the landlords was possessed actually by RW2. She requested that this Court may remand the matter at least to the Appellate authority, so that that authority can reconsider the issue after giving opportunity to the revision petitioners to adduce evidence. Smt.Sanjeetha submitted that the real design of the respondents is either to sell off the building or to let out the same once eviction is ordered. We do not find any material on the basis of which we can say that the apprehension is well founded. In view of the apprehension, we are issuing certain directions against the landlords. As a last plea, Smt.Sanjeetha requested that in case the Court is not inclined to entertain this revision, at least one year's time be RCR.No.116/2010 6 granted to the revision petitioners for taking another building for shifting the godown which is presently conducted in the building. 7. Persuasiveness of Smt.Sanjeetha notwithstanding, we do not find any way to interfere with the judgment of the Rent Control Appellate Authority, which under the statutory scheme is the final Court on facts. The jurisdiction of this court under Section 20 is revisional in nature and when findings of facts are entered by the Appellate authority on the basis of evidence available in the case, unless there is illegality, irregularity or impropriety as envisaged by Section 20, this Court will be slow in interfering with the findings of the Appellate authority. The points, which were highlighted before us by Smt.Sanjeetha against the passage of eviction order, were in fact considered by the Rent Control Appellate Authority and in our opinion correctly. We do not find any ground for interference. We are also not persuaded to accept the plea for remand especially since we find that Exts.A9 to A11 show that the revision petitioners are possessed of other buildings and are liable to be evicted under Section 11 (4)(iii). According to us, a tenant who is liable to be evicted under Section 11(4)(iii) is landlord like and he RCR.No.116/2010 7 cannot legitimately aspire for any indulgence at the hands of the revisional court under the statutory scheme. The revision necessarily has to fail confirming the order of eviction passed. At the same time, the submissions of Smt.Sanjeetha that time should be granted for surrendering the building has some appeal to us. Hence, even as we dismiss the RCR confirming the order of eviction , we direct the Execution Court not to order and effect delivery of the building till 31/12/2010 subject to the following conditions; i). The first revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court as the case may be undertaking to give peaceful surrender of the building in question to the first respondent on or before 31/12/2010. It will also be undertaken through the same affidavit that arrears of rent, if any will be discharged and occupational charges at the current RCR.No.116/2010 8 rent rate will also be paid without fail as and when the same falls due till the building is surrendered. The respondents are restrained from selling any portion of the petition schedule building for a period of one year from today. They are also restrained from letting out any portion of the petition schedule building for a period of two years from today. The revision petitioners shall get the benefit of time granted as above, only if the affidavit as directed above is filed on time. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk