IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 CRP.No. 1905 of 2002(E) ----------------------- RCA.10/2000 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.14/1998 OF RENT CONTROL COURT, KOZHIKODE-I .................... REVN. PETITIONER(S): APPELLANT IN RCA/RESPONDENT IN RCP: -------------------------------------------------------- PULLIATH RAVEENDRAN, S/O. CHATHU, RESIDING AT KURUVATTOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): RESPONDENTS IN RCA/PETITIONERS IN RCP: ----------------------------------------------------- 1. KALLUVETTUKUZHIYIL ABOOBACKER, S/O. PATINHJARE KOYAKOLLI KASIM, RESIDING AT KURUVATTUR AMSOM DESOM, KOZHIKODE TALUK. 2. PATINJHARE KAYAKOLLI UMMER, S/O. KASIM, RESIDING AT KURUVATTUR AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.C.P.MOHAMMED NIAS FOR R1&2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CMP. NO. 4641 0F 2002 DISMISSED SD/- PIUS C.KURIAKOSE, JUDGE. 6-8-09 SD/- P.Q.BARKATH ALI, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ----------------------------------------------- CRP. No. 1905 of 2002 ----------------------------------------------- Dated this the 6th day of August, 2009 O R D E R Pius C.Kuriakose, J. The tenant is in revision against the orders of eviction passed concurrently against him by the Rent Control Court and the Appellate Authority on the ground of arrears of rent and bona fide own occupation. Even though other grounds were also invoked in this revision, we are not concerned with those grounds since they do not survive for consideration. 2. We have heard the submissions of Mr. P.A. Harish, learned counsel for the revision petitioner and those of Mr. C.P. Mohammed Nias, learned counsel for the landlord. Eventhough attractive grounds have been raised in the memorandum of revision and Mr. Harish addressed arguments on all those grounds, only one of his submissions appeal to us. That submission was based on the first CRP. N0. 1905/02 -2- proviso to subsection (3) of Section 11. Mr. Harish submitted that even if this court finds it difficult to upset the concurrent findings of the authorities below that the need projected by the landlord for conducting hardware business in the petition schedule buildings bona fide, then also the rent control petition should fail since the landlord is possessed of another building of his own and he has not shown any special reason entitling him to obtain an order of eviction despite such possession. 3. We will refer to the above building as the eastern room. The case of the landlord is that in the eastern room the second petitioner is conducting jewellery business. Ext.C1 is the commissioner's report. C1 is relied on by the revision petitioner to argue that no jewellery business is being conducted therein. Curiously, C1 itself is relied on by the landlord to support his case that a jewellery business is being conducted in the eastern room. Having gone through CRP. N0. 1905/02 -3- the commissioner's report we are of the view that at best the report shows that all arrangements for conducting jewellery business have been made by the landlord in the eastern room. The argument of Mr.Mohammed Nias was that jewellery is not sold in the eastern room. What is done is that works are solicited in this room and got done elswhere. This is only a small time business, according to Mr. Nias and that explains why the landlord is not able to produce any records relating to the business. Ext.A7 is the one document which has been relied on by the authorities below and highlighted before us by Mr.Nias to support his argument that a jewellery business is being carried on in the eastern room. Ext.A7 is dated 28-10-1998 which is some nine months after the rent control petition was instituted. Ext.A7 is a declaration-cum-certificate issued by the Inspector of Weights and Measures (Legal Metrology Department) against his having inspected and ensured that CRP. N0. 1905/02 -4- the weights and measures kept in the eastern room are all in order. True, Ext.A7 is issued some nine months after the RCP was instituted. But it appears to us that A7 declaration-cum-certificate is issued on the basis of a routine inspection conducted by the Legal Metrology Inspector in PW-2's shop. Inspections are not ordinarily conducted on the day of inauguration. Periodical inspections are conducted as the business goes on. Though C1 shows that certain articles which have nothing to do with jewellery business are also kept in the eastern room, it cannot be gainsaid that a good number of the articles noticed by the Commissioner at the time of his inspection are articles used exclusively in jewellery shops. Whatever that be, the fact finding authorities and particularly the Appellate Authority which is the final court on facts have concluded giving reasons that in the eastern room the jewellery shop is being conducted. If that be so, the availability of the eastern CRP. N0. 1905/02 -5- room with the landlord cannot be a reason for non-suiting the landlord in terms of first proviso to subsection (3) of Section 11. 4. As for the other findings, including the finding that the tenant is not entitled to the benefit of second proviso to subsection (3) of Section 11 we find that those findings are entered on the basis of evidence and particularly, the evidence by mouth of the tenant himself. We do not find any illegality, irregularity or impropriety in those findings. The above discussions will lead this revision to the result of dismissal. However, we feel that this is a case where we are justified in granting a reasonably long period to the tenant to surrender the premises. Even as we confirm the orders of eviction concurrently passed by the Rent Control Court and the Appellate Authority and dismiss the CRP we direct the execution court not to order and effect delivery of the petition schedule building in favour of the landlord till CRP. N0. 1905/02 -6- 31-3-2010 subject to the following conditions: The tenant revision petitioner files an affidavit within one month from today before the Rent Control Court or the execution court as the case may be, undertaking peaceful surrender of the petition schedule building to the respondent landlord on or before 30-3-2010 and undertaking further to discharge arrears of rent if any and to pay occupational charges at the current rent rate promptly and regularly till such time as he makes actual surrender. CRP is dismissed, but in the circumstances without any order as to costs. (PIUS C.KURIAKOSE, JUDGE) (P.Q.BARKATH ALI, JUDGE) ksv/- CRP. N0. 1905/02 -7- PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. CRP. No. 1905 OF 2002 O R D E R 6th August, 2009