IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 RCRev..No. 262 of 2011() ------------------------ RCA.62/2009 of RENT CONTROL APPELLATE AUTHORITY , KOZHIKODE RCP.27/2008 of RENT CONTROL COURT COURT, VADAKARA .................... PETITIONER/APPELLANT/RESPONDENT (S): -------------------- KUNHIKANARN, S/O. KANNAN, COPRA MERCHANT, CHERIYA KIZHAKKAYIL METHEL HOUSE, RAM NIVAS, ADAKATHERU VATAKARA. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S)/RESPONDENTS/PETITIONERS: --------------- 1. LOHITHAKSHAN, S/O. KRISHNAN, PARAMBATH HOUSE, VATAKARA AMSOM DESOM, VATAKARA TALUK 673 101. 2. MANOHARAN PARAMBATH, AGED 52 YEARS PARAMBATH HOUSE, RAM NIVAS, ADKATHERU, VATAKARA TALUK 673 101 3. REVEENDRAN PARAMBATH, AGED 57 YEARS, PARAMBATH HOUSE, RAM NIVAS, ADKATHERU, VATAKARA TALUK 673 101. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.BHAVADASAN, JJ. ------------------------ R.C.R.No. 262 OF 2011 ------------------------ Dated this the 5th day of July, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed on the ground under sub section (3) of Section 11. The need projected by the respondents/landlords, three in number, was that the first respondent one Lohithakshan who is a Gulf returnee needs to occupy the building for the conduct of business in copra in the petition schedule building. 2. The bona fides of the need was disputed. It was contended that the rent control petition was liable to fail by virtue of the first proviso to sub section (3) of Section 11. It was further contended that, at any rate, the tenant is entitled to the protection of the second proviso to sub section(3) of Section 11. The Rent Control Court conducted enquiry and the evidence consisted of Exhibits A1 to A12, B1 to B9, Exts.C1 and C2, PWs RCR.No.262/2011 2 1 and 2 and RW1. On appreciating the evidence, the Rent Control Court, came to the conclusion that the need is bona fide. It was also concluded that the Rent Control Petition was not liable to fail by virtue of the first proviso. It was further concluded that the tenant was unsuccessful in showing that he satisfied either of the two ingredients of the second proviso to sub section (3) of Section 11. The Rent Control Court found that the tenant was able to show that he is depending for his livelihood mainly on the income derived from the business conducted in the petition schedule building. However, as it was found that he was unable to show that other suitable buildings are not available in the locality, the court declined the benefits of the second proviso. Accordingly, the rent control petition was allowed ordering eviction . 3. The learned Appellate Authority considering the appeal preferred by the tenant, made a reappraisal of the evidence and concurred with all the conclusions of the Rent Control Court. Accordingly, the appeal was dismissed. 4. In this revision under section 20, various grounds are raised assailing the judgment of the Appellate Authority. RCR.No.262/2011 3 Sri.R.K.Muralidharan, learned counsel for the revision petitioner addressed very extensive submissions before us based on all those grounds. The learned counsel submitted that concurrent though the same may be, the fact that the need is bona fide is contrary to the evidence actually on record. The learned counsel submitted that it has come out in evidence that some two years prior to the filing of the rent control petition, two rooms has fallen vacant to the landlords. If there was an element of bona fides, the landlords could have accomplished the need by occupying one of those rooms. Mr.Muralidharan submitted that at any rate the finding in the context of the first proviso to section 11 (3) is wrong. The Appellate Authority has proceeded as though the landlords are having only 8 rooms. Really it has come out in evidence that the landlords are having 9 rooms and one room was available in the vacant possession of the landlords at the time of institution of the RCP. The learned counsel drew our attention to the evidence given by the first landlord, as PW1, on re-examination. The learned counsel submitted that the explanation given by the landlord (PW1) in re-examination does not find any place in the landlords' RCR.No.262/2011 4 pleadings. The landlords were bound to offer special reasons in their pleadings when they have another building in their possession at the time of commencement of the rent control petition. Mr.Muralidharan also assailed the finding regarding the tenant's eligibility for protection under the second proviso to sub section (3) of section 11. In this context, the learned counsel drew our attention to the oral evidence adduced by the PWs1 and 2. As regards the evidence of PW2, who claimed to be the tenant of one room which according to the tenant was vacant, Mr.Muralidharan submitted that the alleged lease in favour of PW2 was only oral. PW2 had not produced any document which will show that he was a tenant of that room. The commissioner's report in this regard was not at all convincing. 5. We have very anxiously considered the submissions of Mr.Muralidharan. We have scanned the judgment of the Appellate Authority and gone through the order of the Rent Control Court. The question, which arises for consideration, is whether there is any warrant for invocation of revisional jurisdiction under Section 20 to interfere with the judgment of the Appellate Authority. Under the scheme of the Rent Control RCR.No.262/2011 5 Act, the Appellate Authority is the final court on facts. The Appellate Authority enters the findings on fact based on evidence adduced by the parties. This court should be very slow in upsetting those findings by venturing upon a reappraisal of evidence. Having gone through the judgment of the Appellate Authority, we are convinced that the findings entered therein regarding the bona fides of the need, regarding the operation of the first proviso to sub section (3) of Section 11 and also the tenant's eligibility for the protection of the second proviso are all findings entered on the basis of evidence available on record. In his submissions, Mr.Muralidharan gave more thrust to the argument founded on the first proviso to sub section (3) of Section 11. One of the arguments of Mr.Muraidharan was that despite the claim of PW2 that he was the tenant in possession of one of the rooms belonging to the landlords, no document was forthcoming to show that the above claim is correct. It is a matter of common knowledge that many lease arrangements are oral. PW2 stated in his chief examination that he is paying rent and instead of receipts, the landlords are making entries in a book kept by them for the purpose of recording the payment of RCR.No.262/2011 6 rent. We notice that in cross examination there was no challenge on the above version of the PW2. Another point which was highlighted by Mr.Muralidharan was regarding the 9th room stated to be under the ownership and possession of the landlords at the time of commencement of the rent control petition. It is true that the landlord (PW1) had admitted that he had 9th room in his vacant possession at the time when the rent control petition was instituted. In re-examination the landlord stated that the said room was a small room and it was not suitable to be used as a shop room. He stated that the said room could be used only as a godown. The need is one for conduct of sale in copra. According to us, it has come out in evidence that the landlords have special reasons for insisting on getting possession of the petition schedule premises. Regarding the pleadings in the context of the first proviso, we are sure that the landlords cannot be blamed for not having pleaded about the availability of that room with them because the question is whether the landlords were in possession of a suitable room for accomplishing the need. Since the landlords' definite position is that 9th room was not fit enough to be used as a shop room, RCR.No.262/2011 7 the landlords cannot be blamed as, at any rate, it has become evident that the said room was not suitable. In short, we do not find any warrant for interfering with the judgment of the Appellate Authority. The revision necessarily has to fail and will stand dismissed. PIUS C.KURIAKOSE,JUDGE P.BHAVADASAN, JUDGE dpk