IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 RCRev..No. 279 of 2009() ------------------------ RCA.113/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.120/2006 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVN.PETITIONERS/APPELLANTS/RESPONDENTS ----------------------------------------------------------- 1. DR.BINDU,W/O.LATE A.S.GANGASARAN, ARAKKAL HOUSE,INDIRA ROAD,PALARIVATTOM. 2. DHANYA (MINOR), AGED 16 YEARS,D/O.LATE A.S.GANGASARAN, ARAKKAL HOUSE,INDIRA ROAD,PALARIVATTOM, REP.BY HER MOTHER AND GUARDIAN THE IST PETITIONER. BY ADV. SRI.K.P.SREEKUMAR RESPONDENT(S): --------------- 1. K.A.SOJAN,S/O.LATE K.A.ANTONY, KATTUNILATHU HOUSE,PALARIVATTOM,COCHIN-25. 2. INDIRA DEVI @ JAYADEVI, D/O.LATE SHINE VYDIAN,RAMARATH,NO.CC VII/1841, KARUVELIPPADY,KOCHI-05. 3. ELSY ANTONY,W/O.LATE K.A.ANTONY, KALLUNILATH HOUSE,CHANKUNGAL ROAD, CR.A.NO.23,PALARIVATTOM-682 025. 4. ANNIE ANGEL,D/O.LATE K.A.ANTONY, KALLOOR HOUSE,KOONAMMAVU P.O.,CHEMMAYAM. 5. MARY XAVIER,D/O.LATE K.A.ANTONY, LANTHAKADAVIL HOUSE,NEAR KAUSALYA NAGAR, ELAMAKKARA P.O.,KOCHI. RCR.279/09 2 6. K.A.VARGHESE,S/O.LATE K.A.ANTONY, KALLUNILATH HOUSE,VYLOPPILLY ROAD, PALLINADA,PALARIVATTOM P.O.,KOCHI-25. 7. SHEELA BABU,D/O.LATE K.A.ANTONY, METTEKKATTU HOUSE,MAHAVI BHARATHIYAR ROAD, KOCHI-36. 8. K.A.BENNY,S/O.LATE K.A.ANTONY, KALLUNILATH HOUSE,PALLICHABAYIL ROAD, PIPE LINE,PALARIVATTOM P.O.,KOCHI-25. 9. K.A.SOJAN,S/O.LATE K.A.ANTONY, KALLUNILATH HOUSE,CHAKKUNGAL ROAD, CRA NO.23,PIPE LINE,PALARIVATTOM P.O., KOCHI-25. 10. K.A.ANSON,S/O.LATE K.A.ANTONY, -DO- CHAKKUNGAL ROAD,PIPE LINE,PALARIVATTOM P.O., KOCHI-25. 11. LISHA AHANAD,D/O.LATE K.A.ANTONY, POLLAYIL HOUSE,VYLASSERY ROAD, PALARIVATTOM P.O.,KOCHI-25. 12. NEEMA XAVIER,D/O.LATE K.A.ANTONY, PULIKKAL HOUSE,HOUSE NO:11/947 D, VELI,KOCHIN-01. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 279 of 2009 C ``````````````````````````````````````````````````````` Dated this the 23rd day of November, 2009 O R D E R Pius C. Kuriakose, J. The tenant is in revision. Under challenge is order of eviction concurrently passed on the ground of bonafide own occupation under sub-section 3 of Section 11 of the Rent Control Act. The petition schedule building is one of the three rooms in the building. Door number of the petition schedule building is 35/671. The other two rooms are numbered respectively as 35/669 and 35/670. In building No.35/669, PW1, the landlord's son, is carrying on a hair cutting shop. In building No.35/670, the landlord is carrying on a tailoring shop. In the petition schedule building, the revision petitioners are carrying on a vaidyasala. The need projected by the landlord was that the hair cutting shop and tailoring business carrying on by his son in building No.35/669 and 35/670 are running at a loss. Hence, it has been decided that the walls, which separate the three rooms, will be removed and that thereafter in the entire premises presently consisting of areas of RCR.279/09 : 2 : 35/669 and 35/670 and the petition schedule building, PW1 will conduct a gents beauty parlour. 2. The bonafides of the need and the claim were resisted by the revision petitioners. It was contended that the landlord had a few years earlier instituted R.C.P.No.14/2001 on the ground that the building is required for conduct of business by another son of the landlord. That RCP was dismissed. The order in that RCP operates as a bar to the present RCP by virtue of sub-section 15 of Act 2/1965. Yet another contention, which was seriously raised, was that it is not technically feasible to remove the dividing walls and that if the walls are removed, the very existence of the building will be in danger. Thirdly it was contended that the tenants are entitled to the protection of the second proviso to sub- section 3 of Section 11. The evidence at trial by rent control court consisted of Exts.A1 and A2, Exts.B1 to B3 and the oral testimonies of PW1, the son of whose need the building was sought and RW1, the guardian of the legal heirs of the deceased tenant. The rent control court, on appreciating the evidence, came to the conclusion that the need was bonafide. It was also RCR.279/09 : 3 : concluded that the tenant was not successful in proving that either of the ingredients of the second proviso were satisfied. Accordingly, an order of eviction was passed under Section 11(3). The rent control appellate authority, on reappraising the evidence, concurred with all the conclusions of the rent control court and confirmed the order. 3. In this revision under Section 20 of the Kerala Buildings(Lease and Rent Control) Act, Sri.K.P.Sreekumar, learned counsel for the revision petitioners, addressed us extensively on the various grounds raised in the RCR assailing the judgment of the appellate authority as well as the rent control court. Sri.Sreekumar submitted that the authorities below were not correct in holding that the present RCP is not barred by virtue of Section 15. The learned counsel submitted that the evidence of PW1 regarding the technical feasibility and possibility of removal of the partitioning walls without endangering the building was only that one Engineer Laiju, one of the customers of the hair cutting saloon had told him that the walls can be removed without endangering the building. This Engineer was never examined. RCR.279/09 : 4 : The learned counsel submitted that the finding current though it be, that the tenant is not entitled to the second proviso is not correct. As a last plea, Mr.Sreekumar requested that in case this Court is not inclined to interfere with the findings, at least an year's time be granted to the revision petitioners so that the vaidyasala, which was being conducted for several decades, need not be stopped abruptly resulting in difficulties to the patients. 4. We have very anxiously considered the submissions of the learned counsel. We have scanned the order of the rent control court and judgment of the appellate authority. Under the statutory scheme, the fact finding authorities are the rent control court and the appellate authority only. Having scanned the order of the rent control court and appellate authority, we notice that the findings entered by them that the need projected is bonafide and that the tenant is not entitled to invocation of proviso to sub- section 3 are findings founded on evidence. In the revisional jurisdiction of Section 20, this Court is not expected to re- appreciate the evidence for substituting this court's findings of fact for the findings entered by the fact finding authorities, especially RCR.279/09 : 5 : when those findings are based on evidence. Having regard to the parameters for exercise of revisional jurisdiction under Section 20, we are of the view that there is no warrant for invocation of the revisional jurisdiction under Section 20. Appreciation of the evidence by the authorities below cannot be said to be illegal or improper. We also notice that the area, where the petition schedule building is situated during the past 10-15 years, developed considerably so that the view of the authorities below that it may be possible for PW1 to gain profits by conducting a gents beauty parlour after closing down his barber shop and tailoring shop cannot be said to be erroneous. 5. The RCR has to fail. However, considering the request of Mr.Sreekumar, learned counsel, that a reasonably long period be given to the revision petitioners so that Kandan Vaidyan Pharmacy, a famous vaidyasala of that area will not have to be stopped abruptly, we are inclined to grant time till 30-06-2010 subject to conditions. The result, therefore, is as follows: The RCR is dismissed. The execution court is directed not to order vacation of the petition schedule building till 30-06-2010 RCR.279/09 : 6 : provided the following conditions; (i) The first revision petitioner representing herself and the second revision petitioner will file an affidavit before the execution court within three weeks from today, undertaking to give peaceful surrender of the petition schedule building to the respondent on or before 30-06-2010. Through the very same affidavit, it should be undertaken by her that arrears of rent, if any, will be paid within one month and the occupational charges at the same rate will also be paid as and when the same falls due. It is made clear that the revision petitioners will be entitled for the benefit of time only if the affidavit is filed on time. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks