IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 RCRev..No. 232 of 2009() ------------------------ RCA.97/2004 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.6/2003 of RENT CONTROLLER/MUNSIFF COURT, THALASSERY .................... REVN.PETITIONERS/RESPONDENTS/RESPONDENTS :- ----------------------------------------------------------------------------- 1. CHANDRANKANDY ABOOBACKER, S/O.KADER, RESIDING AT THOUFEEQUE MANZIL, P.O.MAVILAI, KEEZHARA. 2. CHANDRANKANDY ABOOTTY,S/O.KADER, RESIDING AT THOUFEEQUE MANZIL, P.O.MAVILAI, KEEZHARA. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SRI.VINEETH KURIAKOSE SMT.N.MAHALAKSHMI RESPONDENT(S)/APPELLANT/PETITIONER :- --------------------------------------------------------------- THACHARAKKAL KUNNOTH AREEKASTHANATH PUTHIYA-MALIYAKKAL FATHIMA, D/O.NABEESA, 'NAAZ', S.S.ROAD, THALASSERY, KANNUR DISTRICT. ADV. SRI.P.M.PAREETH FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- R.C.R. No.232 of 2009 ------------------------------ Dated this the 13th day of December 2010 O R D E R Pius C. Kuriakose, J. The tenants are in revision challenging the order of eviction passed by the Rent Control Appellate Authority under Sub section (3) of Section 11 of Act 2 of 1965 reversing the order of the Rent Control Court dismissing the petition for eviction. In fact, the landlord had invoked the ground of sub-letting also to evict the tenant. But eviction order was passed by the Appellate Authority only on the ground of own occupation by the landlady. 2. In this revision filed by the tenant we have to be considered the correctness of the above orders passed by the Rent Control Court and the Appellate Authority under Section 11(3). The need projected by the landlady for own R.C.R. No.232 of 2009 -: 2 :- occupation by her daughter PW2 was that she wants to start an Engineering consultancy in the building. The bonafides of the need was disputed by the tenant who claimed that the RCP is liable to be rejected by virtue of the first proviso to Sub section (3) of Section 11. The tenant also contended that the tenant at any rate is entitled to the protection of 2nd Proviso to Sub section (3) of Section 11. 3. The Rent Control Court enquired into the matter and at the enquiry evidence consisted of Exts.A1 to A4, B1 to B7 and the oral evidence of PW1, PW2 and RW1. PW1 is the landlady herself and PW2 is her daughter. The Rent Control Court on appreciating the evidence came to the conclusion that the need projected by the landlady is bonafide one. Further it was also found that the RCP is not liable to be rejected by virtue of the first proviso to Sub section (3) of Section 11. However, that court would rely on oral evidence adduced by the tenant and conclude that the tenant was successful in establishing that he is entitled for R.C.R. No.232 of 2009 -: 3 :- the protection of 2nd Proviso to Sub section (3) of Section 11. 4. Considering RCA No.97/2004 filed by the landlady, the learned Rent Control Appellate Authority made a thorough reappraisal of the evidence. Reversing the finding of the Rent Control Court in the context of 2nd proviso to Sub section (3) of Section 11, the learned Appellate Authority noticed that the above finding was entered by the Rent Control Court without placing reliance on binding judicial precedents which are to the effect that it is the tenant's burden to show that he satisfied both the ingredients of the 2nd proviso to Sub section (3) of Section 11. The above burden was not discharged by the tenant. The learned Appellate Authority has passed the impugned order of eviction under Sub section (3) of Section 11. 5. In this revision petition under Section 20, the tenant has raised various grounds assailing the judgment of the Appellate Authority and Sri.K.V.Sohan, the learned R.C.R. No.232 of 2009 -: 4 :- counsel for the revision petitioner addressed strenuous arguments, on the basis of all those grounds. He submitted that the Appellate Authority is not at all justified in reversing the finding of the Rent Control Court that the tenant is entitled for the protection of 2nd Proviso to Sub section (3) of Section 11. He also argued that the finding entered by the two authorities that the need is bonafide is also wrong. According to him, RCP should have been completely dismissed by the learned Appellate Authority. The learned counsel for the respondent would support the impugned judgment on the reasons stated therein. 6. We have considered the rival submissions addressed at the bar. The question that arises for consideration is whether the decision of the Appellate Authority to order of eviction under Sub section (3) of Section 11 is revisable within the jurisdiction of this Court under Section 20. In order that eviction ground under Sub section (3) of Section 11 is established, it is necessary that R.C.R. No.232 of 2009 -: 5 :- the need should be found to be bonafide one. We notice that in this case the oral evidence was given not only by the landlady but also PW2, the defacto claimant. We do not find any infirmity about the above evidence. We are not inclined to accept the arguments of Mr.Sohan. According to us, the finding of the Appellate Authority does not call for any interference within the contours of Section 20. As stated already, it was on the basis of the finding that the tenant is entitled for the protection of 2nd Proviso to Sub section (3) of Section 11, that the learned Rent Control Court declined the eviction order under Sub section (3) of Section 11 in favour of the landlady. On a reading of the Rent Control Court's order, it is seen that the learned Rent Control Court has totally ignored the binding judicial precedents governing the issue. It is trite by various decisions of this Court, including the decision of a Full Bench of this Court reported in Francis v. Sreedevi Varassiar [2003(2) KLT 230] and the judgment of the Honourable Supreme Court in R.C.R. No.232 of 2009 -: 6 :- Kunhamma v. Akkali Purushothaman [2007(3) KLT 599 (SC)] that the burden to prove that the tenant satisfies both the ingredients of 2nd Proviso to Sub section (3) of Section 11, is on the tenant himself. It is seen that it was oral evidence alone that was adduced by the tenant to prove the two ingredients of 2nd Proviso to Sub section (3) of Section 11. There was counter evidence adduced by the landlady. On critically analysing the tenant's evidence, it is seen that no serious endeavour was made by the tenant to show that there is no shop available in the locality. The nature of the business that the tenant is conducting in the scheduled premises and as to what was the income that the tenant is deriving from such a business is an aspect capable of documentary evidence. We find that the tenant has not discharged the burden of showing that he satisfies both the ingredients of 2nd proviso to Sub section (3) of Section 11 by adducing good evidence. According to us, the learned Appellate Authority was right in taking its view that the R.C.R. No.232 of 2009 -: 7 :- tenant failed in establishing by adducing valid evidence that the tenant satisfies the ingredients of the provisos. The revision petition necessarily has to fail and will stand dismissed. However, considering the fervent appeal of Mr.Sohan that a considerably long period of time be granted for surrendering the premises, we are inclined to grant time to the tenant till 15.12.2011 to surrender the building. This will be on condition that the tenant shall file an affidavit before the Execution Court or the Rent Control Court, as the case may be, within one month from today undertaking as follows :- (i) that he will surrender the building peacefully to the landlady on or before 15.12.2011. (ii) that arrears of rent if any, shall be discharged within one month from today and that occupational charges at the current rent rate of Rs.400/- will be paid with effect from January 20, 2011 till he surrenders the building. R.C.R. No.232 of 2009 -: 8 :- We make it clear that the tenant will get benefit of time granted above only if he files the affidavit on time and honours all the undertakings in the affidavit. PIUS C. KURIAKOSE, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt