IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 RCRev..No. 414 of 2005() ------------------------ RCA.1/2002 of ADDL.DISTRICT COURT (ADCHOC)-II, PATHANAMTHITTA RCP.8/1995 of MUSNIFF COURT,ADOOR .................... REVISION PETITIONER/RESPONDENT/PETITIONER: -------------------------------------------------------------- T.P. VARGHESE, THADATHIL PUTHEN VEEDU, KARUVATTA MURI, PERINGANADU VILLAGE, ADOOR TALUK. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.K.HARILAL SMT.BINDU SREEKUMAR RESPONDENT(S): APPELLANT/RESPONDENT: ------------------------------------ SUDARSANAN, S/O. NARAYANAN KUTTY, SUDARSANA HOTEL, HOLY CROSS JUNCTION, ADOOR FROM SOBHANA MANDIRAM, KARUVATTA MURI, PERINGANADAU VILLAGE. ADV. SRI.KURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25.11.2009 , THE COURT ON 25/11/2009 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 414 of 2005 C ``````````````````````````````````````````````````````` Dated this the 25th day of November, 2009 O R D E R Pius C. Kuriakose, J. The landlord is in revision. He sought to evict the tenant on the ground of bonafide own occupation and also on the ground that the tenant has acquired possession of another building reasonably sufficient for the tenant's requirements in the same city, town or village. 2. The bonafides of the need and the claim raised by the landlord was very stiffly disputed by the respondent. The respondent also claimed the protection of the second proviso to sub-section 3 of Section 11. As regards the ground under Section 11(4)(iii), it was contended that though the building pointed out by the landlord was purchased by the tenant and his wife for the purpose of conducting a tea shop, on account of the blocking of the drainage facility, which passes through the property of another person by that person, the situation resulted that the tenant and his wife found it impossible to conduct the tea shop. Thus, the RCR.414/05 : 2 : building was found to be not suitable for conduct of tea shop business. The rent control court on evaluating the evidence adduced by the parties, which consisted of Exts.A1 to A4, Exts.B1 to B22 and the oral testimonies of PW1 and PW2, CPW1 to CPW5 and Exts.C1 and C2 commission reports, would conclude that the need projected by the landlord was bonafide and also that the tenant was unsuccessful in proving that he is entitled for the protection of second proviso to sub-section 3 of Section 11. The rent control court found that the tenant was not successful in establishing that either of the ingredients of the second proviso were satisfied. Accordingly, an order of eviction was passed under Section 11(3). Considering the ground for eviction under Section 11(4)(iii), the rent control court did not pass any order of eviction. The tenant filed RCA.1/2002 before the rent control appellate authority. The appellant authority made a reappraisal of the evidence. The appellate authority concurred with the finding of the rent control court that the need projected by the landlord was bonafide. However, it was held that the tenant was entitled to the protection of the second proviso to sub-section 3 of Section 11. RCR.414/05 : 3 : The appellate authority considered the question whether the tenant is liable to be evicted under Clause (iii) of sub-section (4) of Section 11. That authority found that on account of the blocking of the drainage facility, which was otherwise available in the building purchased by the tenant and his wife that building became unsuitable for tea shop business carried on by the tenant. Taking that view of matter, the appellate authority held that the landlord is not entitled for an order of eviction under Section 11(4)(iii). In the result, the appellate authority allowed the appeal and dismissed the RCP. It is challenging the decision of the appellate authority that the instant revision is filed by the landlord. 3. We have heard the submissions of Sri.V.N.Achutha Kurup, learned senior counsel for the revision petitioner and those of Sri.Kurian George Kannanthanam, learned counsel for the respondent tenant. Since the findings entered by the courts below are divergent, we have made a reappraisal of the evidence and the decision of the rent control court. Sri.V.N.Achutha Kurup submitted that in Ext.B6 document itself, there is a recital to the effect that the property covered by that document had right RCR.414/05 : 4 : through the property belonging to CPW5 for draining out the waste water. According to Mr.Kurup, the tenant withdrew from the suit, which he had filed against CPW5 and CPW5 gave evidence on behalf of the tenant. All those circumstances, according to the learned senior counsel, strongly indicate that the suit, which the tenant filed against CPW5, was a collusive affair between CPW5 and the tenant. We do not find any merit at all in the submission of Mr.Kurup that there was some collusion between CPW5 and the tenant. But, on going through the deposition of CPW5, we do not find any suggestion to him that he is colluding with the tenant so that the tenant can avoid an order under Section 11(4)(iii). It is a fact that the tenant became compelled to dispose of the building covered by Ext.B6. The appellate authority, which under the statutory scheme, is the final court on facts, appreciating the evidence including Ext.B6 and came to the conclusion that Ext.B6 records a transaction in due course. We cannot say that the finding of the appellate authority entered in the context of Section 11(4)(iii) is vitiated to the extent of warranting interference by us in the jurisdiction under Section 20 which is a revisional one. RCR.414/05 : 5 : 4. It has been found by the rent control court and the appellate authority on the basis of the evidence adduced by the landlord that the need projected by the landlord is a bonafide one. In fact, a reading of the judgment of the appellate authority will also indicate that the parties before that court were in serious dispute regarding the eligibility of the tenant to the protection under the second proviso to sub-section (3) of Section 11 only. Here again, the rent control court itself had found that the tenant satisfies the first ingredient of the second proviso to sub-section (3). Thus, the question which came up for decision before the appellate authority was only whether the finding of the rent control court that the tenant had not established the second ingredient of the second proviso to sub-section (3) of Section 11 was proper. It is trite by the decision of this Court in Francis Vs. Sreedevi Varassiar [2003 (2) KLT 230 (FB)] that since the proviso carves from the exception from the main ground, the burden is that of the tenant to establish that he satisfies the ingredients of the proviso. 5. Having scanned the evidence on record, we are unable to approve the finding of the appellate authority that other suitable RCR.414/05 : 6 : buildings are not available in the locality for the tenant to shift his business to. Admittedly, the tenant's wife had a building very near to the building in question and it is in that building that hotel business was being conducted by the tenant for sometime. The contention of the tenant was that it is not possible to drain out water from that building as the three sides of the compound of the building in which it is situated were at higher level and on one side the compound was at the lower level and the landlord of the adjoining property was objecting to flow of water. It is in evidence that the tenant had filed a suit against the adjoining owner and that the said suit was not prosecuted further. Interestingly that person came forward as CPW5 to support the tenant's defence. It is for the tenant to prove by adducing cogent evidence that the said building over which the tenant's wife herself was having ownership was not suitable for shifting the business conducted in the petition schedule premises. The above burden has not been discharged by the tenant. According to us, the finding entered by the Rent Control Court in the context of the second ingredient of the second proviso to sub-section (3) of Section 11 was quite proper and there RCR.414/05 : 7 : was no warrant at all for interference by the appellate authority. A reading of the evidence of the tenant would show that he was insisting on an exactly identical building in close proximity to the petition schedule building ie, in exactly the same locality. To insist on getting an exactly identical building in exactly the same locality will be to insist for the impossible. As a tenant, he should have been prepared to shift to another building reasonably suitable for his purposes in the locality. Locality does not mean the immediate vicinity of the petition schedule building. We set aside the finding of the appellate authority that the tenant has satisfied both the ingredients of the second proviso to sub-section (3) of Section 11 and restore the finding entered in that regard by the Rent Control Court. 6. The result is that the rent control revision is allowed. The order of eviction passed against the respondent under Section 11(3) is set aside. The tenant is granted time till 30-06- 2010 to surrender the premises subject to the following conditions:- The respondent shall file an affidavit before the execution RCR.414/05 : 8 : court or the rent control court, as the case may be, undertaking to give peaceful surrender of the petition schedule building to the revision petitioner on or before 30-06-2010. Through the very same affidavit, it should be undertaken by him 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 respondent will be entitled for the benefit of time only if the affidavit is filed on time. Sd/- (PIUS C. KURIAKOSE, JUDGE) Sd/- (K.SURENDRA MOHAN, JUDGE) aks // True Copy // P.A. To Judge