IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 RCRev..No. 11 of 2010() ----------------------- RCA.109/2007 of RENT CONTROL APPELLATE AUTHORITY , ERNAKULAM RCP.221/2004 of RENT CONTROL COURT, ERNAKULAM. .................... REVISION PETITIONER S)/APPELLANT/RESPONDENT: -------------------- C.M.BEENA, AGED 41 YEARS, D/O.C.P.MAMMU UMMER MEMORIAL PRESS ERNAKULAM, REPRESENTED BY HER MOTHER AND POWER OF ATTORNEY HOLDER MRS.SAINABA MAMMU, RESIDING AT ANJU MAHAL, MARKET ROAD, ERNAKULAM. BY ADV. SRI.P.S.USUPH SRI.P.U.ZIYAD RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- 1. M/S.NEW WOODLANDS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER. 2. P.N.RAMANCHANDRA RAO, AGED 84 YEARS, PARTNER, WOODLANDS HOTEL, NEW WOODLANDS, M.G.ROAD, ERNAKULAM (DIED). 3. P.R.GIRISAN, AGED 31 YEARS, S/O.P.N.RAMACHANDRA RAO, PARTNER, WOODLANDS HOTEL, NEW WOODLANDS, M.G.ROAD, ERNAKULAM, REP. BY THE POWER OF ATTORNEY HOLDER SRI.P.N.RAMACHANDRA RAO. 4. P.R.VENKITESAN, AGED 41 YEARS, S/O.P.N.RAMACHANDRA RAO, PARTNER, WOODLANDS HOTEL, NEW WOODLANDS, M.G.ROAD, ERNAKULAM. 5. P.R.MURALI, AGED 31 YEARS, S/O.P.N.RAMACHANDRA RAO, PARTNER, WOODLANDS HOTEL, NEW WOODLANDS, M.G.ROAD, ERNAKULAM. 6. P.R.DINESAN, AGED 32 YEARS, S/O.P.N.RAMACHANDRA RAO, PARTNER, WOODLANDS HOTEL, NEW WOODLANDS, M.G.ROAD, ERNAKULAM. 7. ADDL.R7:MRS.SEETHA RAMACHANDRA RAO, AGED 74 YEARS,RESIDING AT XXXIX/2348,WARRIAM ROAD, KARITHALA DESOM. 8. ADDL.R8: SMT.JAYA, D/O.P.N.RAMACHANDRA RAO, RESIDING AT XXXIX/2348,WARRIAM ROAD, KARITHALA DESOM. 9. ADDL.R9: SMT.MALA, D/O.P.N.RAMACHANDRA RAO, RESIDING AT XXXIX/2348,WARRIAM ROAD, KARITHALA DESOM. 10. SMT.PRIYA, D/O.P.N.RAMACHANDRA RAO, RESIDING AT XXXIX/2348,WARRIAM ROAD, KARITHALA DESOM. BY ADV. SRI.K.P.SREEKUMAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 11 OF 2010 ------------------------ Dated this the 8 th day of January, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed under Section 20 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 revision petitioner/tenant is conducting business in stationery and textile in the petition schedule building, which is in the ground floor of a larger building belonging to the respondents. The need projected in the Rent Control Petition originally was that the petition schedule building is required bona fide to be used as a parking space. Later, through the replication statement filed on receiving the statement of objection filed by the tenant, the landlord pleaded that wall of the building is to be demolished so that a passage can be provided to a plot having an extent of 2 cents situated to the back of the building can be used as parking area. The maintainability of the RCP was challenged and it was RCR.No.11/2010 2 contended that there is no landlord-tenant relationship between the parties. The bona fides of the need was disputed and it was also 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 enquired into the Rent Control Petition and at trial the evidence consisted of Exts.A1 to A15, Exts.B1 to B28, Commission reports Exts.C1 and C2 and witnesses PWs 1 to 3 and RWs 1 to 5. The Rent Control Court on appreciating the evidence would hold that the Rent Control Petition was maintainable since there is landlord-tenant relationship between the parties. It was found that the need projected in the RCP and the need projected in the replication statement filed by the landlord was bona fide and that the tenant was unsuccessful in proving that she satisfies either of the ingredients of the second proviso to sub section(3) of Section 11. Accordingly, order of eviction was passed under sub section (3) of Section 11. 2. The tenant preferred an appeal and the Rent Control Appellate Authority reappraised the evidence throughly and concurred with all the conclusions of the Rent Control Court and accordingly confirmed the order of eviction. RCR.No.11/2010 3 3. Through Adv.K.P.Sreekumar, the first respondent had lodged a caveat and on this revision petition coming up for admission, we have heard the submissions of Sri. P.U.Ziyad, learned counsel for the revision petitioner/tenant and also those of Sri.K.P.Sreekumar, learned counsel for the respondents/landlords. 4. Sri.P.U.Ziyad would submit that the need projected in the Rent Control Petition is not the need which was ultimately pursued by the landlords. The learned counsel submitted that the need which is pursued is the need which is raised for the first time in the replication statement. According to him, the tenant did not get sufficient opportunity for filing objections to the replication statement. This has resulted in serious prejudice to the tenant. The learned counsel further submitted that findings of the Rent Control Court and the Appellate Authority are illegal, irregular and improper and, according to him, those findings are to be vacated by this court. The learned counsel addressed arguments on all the grounds raised in the memorandum of revision. 5. All the submissions of Sri.Ziyad were resisted by RCR.No.11/2010 4 Sri.K.P.Sreekumar. In reply, Sri.Ziyad would submit that in case this court is not inclined to interfere with the findings of the authorities below, the tenant be given at least one year's time to surrender the premises, so that the shop presently available can be sold of. The above request for grant of one year's time was opposed tooth and nail by Sri.K.P.Sreekumar. Drawing our attention to the various factual aspects of the case, the learned counsel submitted that on the facts of this case the maximum time that can be granted is three months. 6. We have considered the rival submissions addressed at the Bar. We have scanned the order of the Rent Control Court and the Judgment of the Appellate Authority. The jurisdiction of this court under section 20 is revisional in nature and this court is not ordinarily expected to substitute conclusions of fact entered by this court for the conclusions arrived at by the fact finding authorities particularly, the Rent Control Appellate Authority, which under the statutory scheme is the final court on facts especially when those findings are founded on evidence. Having scanned the judgment of the Rent Control Appellate Authority, we find that the finding entered therein that, the need RCR.No.11/2010 5 projected by the landlords through the replication statement is a bona fide one, is a finding which is entered on the basis of the legal evidence which is available on record. We also find that the issue as to whether there is landlord-tenant relationship between the parties has also been correctly answered by the authorities below concurrently on the basis of the evidence including the circumstantial evidence. Equally so, the finding concurrently entered by the authorities below regarding the tenant's eligibility for protection of the second proviso to sub section (3) of Section 11 is unassailable within the contours of Section 20 of Act 2 of 1965. We are not impressed by the submissions of Sri.P.U.Ziyad that the legal prejudice has been occasioned to the tenant due to the landlords raising different need through the replication statement and that the tenant did not get opportunity to file objections to the replication statement. As a matter of fact, the replication statement was filed by the landlords as soon as the tenant had filed her statement of objection to the RCP. If the tenants wanted to raise additional pleadings, the tenants could have done so. Having not done so and having participated in the trial on the basis of the pleadings RCR.No.11/2010 6 as raised through the replication statement, it is too late in the day for the tenant to contend that the tenant has been prejudiced due to the different need projected through the replication statement in the RCR. We do not find any illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction for interfering with the judgment of the Rent Control Appellate Authority and that of the order of the Rent Control Court, which was confirmed by that judgment. The learned counsel for the revision petitioner submitted that if this court is inclined to grant at least one year's time, as requested by him, the tenant will be prepared to withdraw from all the contentions raised in the RCP. However, in view of the stiff opposition raised in the matter by Sri.Sreekumar, we are not inclined to grant so much of time. We feel that on the facts and circumstances, which attend on this case, there is justification for granting time till 31/8/2010. Accordingly, the result of the revision petition will be as follows; i). The RCR fails and will stand dismissed. The order of eviction will stand confirmed. ii). The Execution Court is directed not to order and effect delivery of the petition schedule building in favour of the RCR.No.11/2010 7 respondents/landlords before 31/8/2010 subject to the following conditions; The revision petitioner or anybody, who is competent to represent her, will file an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the building in question to the respondents/landlords on or before 31/8/2010. Through the affidavit, it will also be undertaken that arrears of rent, if any, will be discharged and occupational charges at the current rent rate will also be paid till the date of surrender. It is made clear that the revision petitioner will get the benefit of time granted under this judgment only if the affidavit is filed on time. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk