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 14TH JUNE 2010 / 24TH JYAISTHA 1932 RCRev..No. 152 of 2010() ------------------------ RCP.77/2007 of RENT CONTROL COURT, VADAKARA RCA.53/2008 of RENT CONTROL APPELLATE AUTHORITY, VADAKARA .................... REVISION PETITIONER/APPELLANT/RESPONDENT IN R.C.P. ---------------------------------------------------------------------- P.K.PAVITHRAN, S/O.CHATHU, AGED 43 YEARS, PARORKANDIYIL HOUSE, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.JOHNSON P.JOHN SRI.BABY MATHEW RESPONDENT(S): RESPONDENT/PETITIONER IN R.C.P. ---------------------------------------------- SHOUKKATH.M.M, S/O.MAMMU, AGED 34 YEARS, M.M.HOUSE, VILLIAPPALLY AMSOM, MAYYANNUR DESOM OF VADAKARA TALUK, KOZHIKODE DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 152 OF 2010 ------------------------ Dated this the 14th day of June, 2010 O R D E R Pius C.Kuriakose, J. The tenant, a goldsmith is in revision. He challenges the order of eviction concurrently passed against him by the Rent Control Court as well as the Rent Control Appellate Authority. The need, which was projected by the landlord who is presently employed in a Gulf Country, was two fold. Firstly, the landlord wants to discontinue his employment in Gulf and come back to his home town and conduct business in the petition schedule building. Secondly, the landlord's father, who is a fish vendor, has stopped fish vending and the landlord wants to accommodate his father in the building, so that the father can start business in stationery in the building. When the Rent Control Petition went for trial, the first claim was given up and the claim that was pursued was the claim to accommodate the father for conducting stationery business. Before the Rent Control Court, the father RCR.No.152/2010 2 was examined as PW1. He gave evidence to the effect that though he is 64 years old, he is healthy enough to conduct stationery business in the said building. His evidence that, the building is required for conducting stationery business and that he depends on his son the landlord for a building for conducting business, inspired the Rent Control Court. The Court found that the need projected in the RCP is a bona fide one. The tenant in his statement of objections had claimed the protection of the second proviso to sub section (3) of Section 11 also. The Court did accept the tenant's case that he was depending mainly on the income that he derives from the goldsmithy works conducted by him in the petition schedule building for his livelihood. Thus, the first limb of the second proviso was found by the Rent Control Court in favour of the tenant. However, coming to the second limb, the Court noticed that the tenant was insisting on getting a building very near to Edodi junction, which was only 20 metres away from the petition schedule building. According to the Court, 'locality', as envisaged by the second proviso to sub section (3) of Section 11, is a fairly large local area than the immediate vicinity of the building. According to the Court, the RCR.No.152/2010 3 tenant had not conducted enquiries regarding the availability of other suitable buildings in such a fairly large local area. The Court also found that no cogent evidence had been adduced by the tenant to prove that other suitable buildings are not available in the locality. Ext.B3 produced by the tenant was found to be just a copy of the application sent by the tenant to the local Tahsildar to inform the tenant regarding the availability of vacant buildings. According to the Court, it was quite possible that an unfavorable reply was received by the tenant, which was being suppressed by the tenant from the Court. The Court, therefore, found that the tenant was unsuccessful in showing that the second ingredient of the second proviso to sub section (3) of Section was in his favour. Since both the ingredients were in the conjunctive, the Court found that the tenant is not entitled for protection of the second proviso to sub section (3) of Section 11. Accordingly, the order of eviction was passed under Sub Section (3) of Section 11. 2. The tenant preferred appeal to the Rent Control Appellate Authority. The Appellate Authority reappraised the evidence and concurred with all the conclusions of the Rent Control Court. RCR.No.152/2010 4 3. In this revision under Section 20 various grounds have been raised by the tenant assailing the findings of the Rent Control Court. Sri.Johnson P.John, learned counsel for the revision petitioner addressed us very strenuously and persuasively on the basis of those grounds. Drawing our attention to the judgments of this court in Puthanpurayil Rajan and Another v. Kotheri Dileep Kumar and Others (2010 (2) KHC 464) and in Ikkorakutty v. Hariharan (1973 KLT 986), the learned counsel argued that the Court below has not considered the question whether the tenant is entitled to the protection of the second proviso through the correct perspectives. According to the learned counsel, the question of comparative hardship also has not been considered by the Court below. The learned counsel argued that while RW1 was being cross examined, no specific suggestion was made to him pointing out any particular vacant building in the locality. In the absence of such specific suggestion, the version of the tenant that other buildings are not available in the locality ought to have been accepted and it should have been found that the tenant is entitled to the protection of the second proviso to sub Section (3) of Section 11. RCR.No.152/2010 5 4. We have very anxiously considered the submissions addressed before us by Sri.Jonson P.John. Reminding ourselves of the contours of the revisional jurisdiction, we realise that we are not expected to upset the findings of fact entered by the statutory authorities unless they are perverse in the sense that they are not supported by evidence on record. What we find in the instant case is that PW1, the father of the landlord, for whom the building was sought for, gave inspiring evidence before the Rent Control Court. The argument of Sri.Johnson P.John before us was that in the previous litigation, it has been found that the father of the landlord was 72 years old. If that be so, the father (PW1) should be at least 75 years old now and such an old person cannot be expected ordinarily to do business. We are not impressed by the above argument. We find from the evidence that it is suggested to PW1 that he can continue to do fish vending business. It is not even suggested to PW1 that his health condition will not permit to conduct a relatively quiet business of stationery in the petition schedule building. obviously PW1 is a healthy and able bodied person. When such a person deposed before the Court that he wants to conduct RCR.No.152/2010 6 stationery business in his son's building ,and when that version is not questioned in cross examination, we are not in a position to blame the authorities below for having accepted the claim that the need is bona fide. The findings according to us are unimpeachable. In fact, before us more thrust was given by the learned counsel for the revision petitioner to the revision petitioner's claim for protection of the second proviso to sub section (3) of Section. What was noticed by us is that it has been concurrently found by the authorities below that the revision petitioner has satisfied the first ingredient of the second proviso to sub section (3) of Section 11. We also agree with such findings. But, then both the ingredients of the second proviso are in the conjunctive and unless both the ingredients are satisfied, no tenant will be entitled for the protection of the second proviso to sub section (3) of Section 11. It is trite by the judgment of a Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230) that the burden to show that the revision petitioner satisfies the both the ingredients of the second proviso to sub section (3)of Section 11 also is on the tenant. It is seen from the evidence that the enquiry conducted by the revision RCR.No.152/2010 7 petitioner regarding the availability of alternative building was confined to a small area in the immediate vicinity of the petition schedule building. Locality, as contemplated by the second proviso to sub section (3) of Section 11, is an area larger than the immediate precincts of the petition schedule building. Vadakara, we notice, is a flourishing municipality having several junctions and commercial area. It was for the tenant to have made enquiries in the other areas of the Municipality. We find that one item of evidence relied on by the tenant in the context of the second ingredient of the second proviso was Ext.B3. Ext.B3 at best would show that the tenant had submitted application to the Accommodation Controller to convey information regarding the availability of other buildings. As right noticed by the authorities below, no cogent evidence is adduced as to what was the result of the above application. It is suggested to RW1 in cross examination that other buildings are remaining vacant in the locality. Of course, the suggestion is denied. When such a suggestion is made by the landlord, it was up to the tenant to have adduced more convincing evidence and proved before the Court below that the suggestion was without RCR.No.152/2010 8 basis. The impression that we gather from the evidence is that the revision petitioner is not conducting any trade as such in the petition schedule building. He seems to be a traditional goldsmith. It is in evidence that he has been successful so far on account of his honesty and ability in executing the orders given to him by the customers. If that be so, we feel that it may be possible for the revision petitioner to continue to pursue his smithy work if it becomes absolutely necessary from his residential premises also. 5. At any rate, we do not find any irregularity, illegality or impropriety tainting the findings concurrently entered by the authorities below regarding the tenant's inability to prove the second ingredient of the second proviso to sub section (3) of Section 11. The revision petition necessarily has to fail confirming the order of eviction passed. However, we feel that on the totality of the facts and circumstances which attend on this case, there is justification for granting to the revision petitioner a initial long period of time to surrender the premises. 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 RCR.No.152/2010 9 petition schedule building in favour of the respondent till 15/2/2011 subject to the following conditions ; The revision petitioner will submit an affidavit before the Execution Court or the Rent Control Court as the case may be undertaking to give peaceful surrender of the building to the respondent/landlord or his father (PW1) on or before 15/2/2011. It will also be undertaken by the revision petitioner through the same affidavit that he will discharge arrears of rent, if any, within one month and will continue to pay occupational charges at the current rent rate promptly and regularly till he makes such surrender. The revision petitioner will get 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