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 5TH APRIL 2010 / 15TH CHAITHRA 1932 RCRev..No. 71 of 2010() ----------------------- RCA.40/2006 of ADDL. DISTRICT COURT, THALASSERY RCP.17/1991 of PRL.M.C.,KANNUR .................... REVN.PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------- K.P.SAFIYA, W/O. LATE KUNHIKOYA, AGED 60 YEARS, NO OCCUPATION, RESIDING AT M.K.564, KANNAPURATH VALAPPILAPURA, NEAR ARATTAKKA PALLI, KANNUR AMSOM, KANNUR-3. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S): RESPONDENTS/PETITIONERS -------------------------------------- 1. P.M.ABDUL RASHEED, S/O. MUHAMMED, AGED 53 YEARS, P.M.HOUSE, KANNUR-3. 2. P.M.ABDUL SATHAR, S/O. MUHAMMED, AGED 50 YEARS, EMPLOYEE, P.M.HOUSE, NEAR CITY HIGH SCHOOL, KANNUR-3. 3. P.M.SAFIYABI, W/O. MAHAMOOD, AGED 50 YEARS, P.M.HOUSE, NEAR CITY HIGH SCHOOL, KANNUR-3. 4. P.M.FATHIMA, W/O. HASHIM, AGED 56 YEARS, DARUL PHALAH, AZAD ROAD, KANNUR-3. ADV. SRI.A.MOHAMED MUSTAQUE FOR R1TO 4 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.548/2010 IN RCR.71/2010 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 5.4.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.71 of 2010 ---------------------------------- Dated this the 5th day of April, 2010 O R D E R ---------------- Pius C.Kuriakose,J. The tenant is in revision and she challenges the order of eviction passed against her on the ground under sub-section (3) of Section 11. The need projected by the landlord was that the building, which is a residential building, is needed bonafide for the occupation by the landlord's nephew one Sri. Abdul Sathar. The bonafides of the need was disputed. It was contended that Mr. Sathar is actually occupying an 'Ara' in his wife's house. The Rent Control Court on evaluating the evidence came to the conclusion that the need was bonafide and accordingly ordered eviction. The Appellate Authority interfered with that order and remanded the Rent Control Petition to the Rent Control Court which concluded that the need is not bonafide and accordingly dismissed the Rent Control Petition. Against that order, the landlords preferred appeal. The Appellate Authority set aside the order of Rent Control RCR.71/2010 2 Court and remanded the matter to the Rent Control Court for deciding the question as to whether the Ara, in which Mr. Sathar is presently staying, is sufficient enough for his residential purposes. Against the remand judgment passed by the Appellate Authority the landlords preferred CRP.No.272/93 before this court. This court noticed that during the pendency of the revision, the original landlord had passed away and Sri.Sathar and his brother were impleaded as legal representatives of the original landlord. According to this court the question whether the tharavad building in which the original landlord was residing can be occupied by Mr. Sathar for his own residence since he has become a co-owner in his right, should be considered. Thus, while confirming the order of remand this court changed the purpose of remand. This court directed that the question whether the tharavad building can be used for the purpose for which the eviction of the petition schedule building was sought for, should be considered by the Rent Control Court. Accordingly the matter was remanded to the Rent Control Court giving permission to both sides to adduce evidence. The parties entered appearance before the Rent Control RCR.71/2010 3 Court pursuant to the order of remand passed by this court. Nobody adduced further evidence. The Rent Control Court, however, decided the issue in favour of the landlord on the basis of evidence which was already on record. Against the order of eviction passed by the Rent Control Court, the tenant preferred an appeal to the Appellate Authority. The Appellate Authority considered the appeal and concurred with the decision taken by the Rent Control Court. 2. In this revision under Section 20 various grounds have been raised by the petitioner and Sri.V.Ramkumar Nambiar, learned counsel for revision petitioner addressed arguments before us based on all those grounds. All the submissions of Mr.Ramkumar Nambiar were stiffly resisted by Mr.A.Mohamed Mustaque, learned counsel for the respondents. Drawing our attention to the judgment of this court in CRP.No.272/93 Mr. Ramkumar Nambiar submitted that the purpose of the remand order passed by this court was to decide whether the tharavad building in which the original landlord was residing presently inherited by Mr. Sathar can be used for the purpose for which eviction was ordered. According to him, though parties were permitted to RCR.71/2010 4 adduce evidence, no further evidence whatsoever was adduced by the landlord. That being so, the Rent Control Court should have dismissed the Rent Control Petition since this court had found while passing the remand order that on the basis of evidence already available, it was not possible to decide the issue. According to Mr.Ramkumar Nambiar, yet another subsequent development has been taken place. The finding of the Rent Control Court and the Appellate Authority is to the effect that three ladies are residing in the tharavad building namely, two sisters of the original landlord and a maid servant. The two sisters passed away and maid servant is sent away. Thus the entire tharavad building is presently available to be occupied by Mr.Abdul Sathar. Mr.Sathar, according to the learned counsel, is actually residing in the tharavad building. This subsequent event should have been noticed by the authorities below. In not doing so, the impugned order and judgment have become vitiated. 3. Resisting the submissions of Mr.Ramkumar Nambiar, Mr. Mohamed Mustaq, counsel for respondents submitted before us that it was never urged before the Rent Control Court or the Appellate Authority that the three ladies RCR.71/2010 5 who were made mention in the impugned judgment are no longer residing in the said building. According to the learned counsel the revision petitioner should not be permitted to urge the said ground before this court. Mr.Mustaque also reminded us of the attenuated nature of the revisional jurisdiction under Section 20. According to him, there is no illegality, irregularity or impropriety about the judgment of the Appellate Authority. 4. We have very anxiously considered the rival submissions addressed before us. As rightly argued by Mr. Mohamed Mustaque, in this revisional jurisdiction under Section 20 this court is not expected to substitute conclusions of fact arrived at by the final fact finding authority namely, the Appellate Authority, especially when they are founded on evidence. It is true that under the order in CRP.No.272/93 this court allowed both sides to adduce further evidence. But in that situation where the parties do not adduce further evidence the Rent Control Court and the Appellate Authority had no option other than to issue remand on the basis of evidence on record. That is what was done by the Rent Control Court and the Appellate Authority. Before RCR.71/2010 6 the Appellate Authority, it was the availability of the Ara in the wife's house that was highlighted. The Appellate Authority repelled that argument giving excellent reasons. The argument highlighted before us that the two sisters passed away and the maid servant has been sent away was never addressed before the Appellate Authority. We notice that apart from Mr.Abdul Sathar there are other co-owners to the tharavad building who are likely to think in terms of coming and staying in the tharavad building occasionally. Therefore we do not think that the area available in the tharavad building will be more than sufficient for Mr.Sathar's requirement as the learned counsel for the revision petitioner attempts to argue. We have scanned the impugned judgment of the Appellate Authority and we do not find any illegality, irregularity or impropriety as envisaged by Section 20. 5. As a last plea, Mr.Ramkumar Nambiar sought for one year's time to vacate the premises. Even though this request was very stiffly opposed by Mr.Mohamed Mustaque, we feel that there is justification on the totality of the attending circumstances, to grant time. Hence even as to RCR.71/2010 7 confirm the judgment and dismiss the RCR there will be a direction to the execution court not to deliver the petition schedule building to the respondents till 31.3.2011 subject to the following conditions: (i). Revision petitioner and her daughter, who is staying with her, will file an affidavit before the execution court on or before 20.5.2010 undertaking to give peaceful surrender of the petition schedule building to the respondents on or before 31.3.2011. (ii). Through the same affidavit it will also be undertaken that she will discharge arrears of rent if any payable within one month and will pay occupational charges at the current rent rate till she gives actual surrender. We make it clear that the revision petitioner will get benefit of the time granted only if affidavits are filed on time. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb