IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 RCRev..No. 78 of 2011(A) ----------------------------- RCA.52/2008 of ADDL. DISTRICT COURT, THALASSERY RCP.3/2007 of RENT CONTROL COURT/PRL.M.C.,KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT -------------------------------------------------------- P.P. MOHANAN, AGED 58 YEARS, S/O. GOVINDAN, PRASAD TRANSPORT, NEAR TRAINING SCHOOL, KANNUR, RESIDING AT NIVEDYAM, ELAYAVOOR AMSOM, MUNDAYAD DESOM, P.O. CHOVVA. BY ADV. SRI.A.K.SRINIVASAN SRI.A.S.BENOY RESPONDENT(S)/RESPONDENT/PETITIONER: -------------------------------------------------- SABEENA SUBASH, AGED 40 YEARS, ANUJAYA, SOUTH BAZAR, P.O. KANNUR -67002. ADV. SRI.P.U.SHAILAJAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.78 of 2011 ------------------------------------------------ Dated this the 18th day of March, 2011 ORDER Pius C. Kuriakose, J The tenant challenges in this revision filed under Section 20 the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against him by the Rent Control Court under sub Section 3 of Section 11 of Act 2 of 1965. The need projected by the landlady in the RCP was that she is presently unemployed and that she wants to start a readymade garments manufacturing business and a sales outlet in the petition schedule building. The bona fides of the need was disputed by the tenant raising various contentions. It was pointed out that the landlady had in 1997 instituted RCP No.272/97 projecting the need of her husband to start an office for R. C. R. No.78 of 2011 -2- M/s Oceanic Cargo Services of which he was the Managing Director at the relevant time. The Rent Control Court after conducting enquiry dismissed that RCP holding that the need projected therein is not bona fide. Against that, the landlady preferred an appeal to the Rent Control Appellate Authority. During the pendency of the appeal the landlady filed a petition for fixation of fair rent which was later compromised between the parties at the stage of appeal. The landlady did not pursue the proceedings for eviction initiated earlier. It was accordingly contended that the present proceedings initiated ten years after the institution of the earlier RCP is bereft of any bona fides and is only a machination on the part of the landlady to evict the tenant by hook or by crook. Alternatively the tenant contended that he is entitled to the protection of the second proviso to sub Section 3 of Section 11. 2. In the enquiry conducted by the Rent Control Court, R. C. R. No.78 of 2011 -3- the evidence consisted of Exts.A1 to A4 and the oral evidence of PW1/the landlady on the side of the landlady. On the side of the tenant, the solitary item of evidence was tenant's oral evidence as RW1. The Rent Control Court on evaluating the evidence came to the conclusion that the need is bona fide. It was also found that the tenant was unsuccessful in proving that he satisfies the two ingredients of the second proviso. Accordingly, eviction order was passed under sub Section 3 of Section 11. The tenant preferred appeal to the Rent Control Appellate Authority. The learned Appellate Authority dismissed the appeal under the judgment which is impugned in this revision after making a re-appraisal of the evidence and concurring with all the conclusions of the Rent Control Court. 3. In this revision various grounds are raised challenging the judgment of the Appellate Authority. Apart from that I.A.413/11 is filed by the revision petitioner R. C. R. No.78 of 2011 -4- seeking issuance of a commission for getting a report on the basis of a local inspection as to what is the plinth area of the petition schedule building. Apart from that I.A.414/11 is also filed by the tenant seeking reception of documents Annexures-2 to 4 as evidenced in the proceedings. 4. Sri.A.K.Srinivasan, the learned counsel for the revision petitioner would address very strenuous and persuasive arguments before us on the basis of the various grounds raised in this revision. Drawing our attention to the factual background against which the present RCP is instituted Sri.Srinivasan submitted that there is no element of genuineness in the need projected by the landlady, who belongs to a rich and aristocratic family and whose husband is financially well placed in life. According to Sri.Srinivasan, the idea of the landlady who is presently put up at Cochin along with her children who are pursuing their education at Cochin coming over to Kannur and settling down at Kannur R. C. R. No.78 of 2011 -5- for the purpose of conducting the proposed business is inherently improbable and untrue. Sri.Srinivasan then submitted that the landlady sated in her evidence that she needs at least 600 sq. ft. of area for the purpose of accomplishing her need which is to have a manufacturing unit as well as a sales unit. According Sri.Srinivasan the area available in the petition schedule building is hardly 450 sq. ft. He would very fervently request that we appoint a commission to have a local inspection so that a report as to the area available in the petition schedule building can be obtained. Sri.Srinivasan then submitted that due to various reasons the tenant was not able to pursue the strong defences he had taken in the RCP. Though several documents were available with the tenant including the documents produced before this Court which would establish the fact that the tenant is eking out his livelihood by conducting tyre business as well as the office of a small R. C. R. No.78 of 2011 -6- scale stage carriage business which the tenant is having, the documents could not be produced. Sri.Srinivasan requested that the RCP be remanded to the Rent Control Court so that the revision petitioner will get opportunity to produce all those documents and prove that he is entitled to the protection of the second proviso to sub Section 3 of Section 11. In this context Sri.Srinivasan submitted that PW1 the landlady cannot boast of much credibility as she has gone to the extent of denying the fact that she is presently put up at Cochin and the further fact that the tenant is actually conducting business in the petition schedule premises. Sri.Srinivasan requested that an order of remand will be passed even if it be on imposing very stringent conditions. 5. All the submissions of Sri.A.K.Srinivasan were resisted very forcefully by Sri.P.U.Shailajan, the learned counsel for the respondent/landlady. Sri.Shailajan reminded us of the contours of the revisional jurisdiction of this Court R. C. R. No.78 of 2011 -7- under Section 20 and submitted that in this jurisdiction we will not be justified in venturing upon a de novo reappraisal of the evidence for the purpose of substituting factual conclusions already arrived at by the two fact finding authorities. Sri.Shailajan submitted that PW1's evidence was not shaken in cross examination. According to him even if the need which was projected in the RCP of 1997 was not bona fide it cannot be found that the need which is projected in the present RCP instituted ten years thereafter is not bona fide. The statutory fact finding authorities have on a correct appreciation of the evidence, arrived at factual conclusions. There is no illegality, irregularity or impropriety as envisaged by Section 20 about the orders of the statutory authorities. 6. In reply Sri.Srinivasan would submit that as it is crystal clear that the area available in the petition schedule building is below 450 sq. ft. the situation resulting from the R. C. R. No.78 of 2011 -8- eviction order will be that the landlady will keep the building idle and the tenant will be in the streets. 7. We have very anxiously considered the submissions addressed at the Bar. As submitted by Sri.Shailajan the contours of the revisional jurisdiction under Section 20 may not enable us to venture upon a reappraisal of the evidence. Nevertheless in deference to the appealing submissions of Sri.Srinivasan we have made a re-appraisal of PW1's oral evidence. We do not find anything in the cross examination of PW1 which shakes or erodes her credibility. We find that on all material aspects PW1 stood firm. When the oral evidence given by PW1 inspired the two fact finding authorities under the statutory scheme, namely the Rent Control Court and the Appellate Authority it is not for us to say in the present jurisdiction that PW1's oral evidence should have been discarded. 8. It is true that PW1 stated in her evidence that she R. C. R. No.78 of 2011 -9- needs 600 sq. ft. area for accomplishing her need. In all probability the area available in the petition schedule building is only less than 450 sq. ft. as submitted by Sri.Srinivasan. According to us, the answer of Sri.Shailajan to the above argument - that the landlady was only giving a rough estimate and that at any rate the landlady has no choice as the petition schedule building is the only building belonging to the landlady - is convincing. Now coming to the apprehension of Sri.Srinivasan that the situation resulting from the eviction order will be that the landlady will have to keep the building idle after evicting the tenant, we are of the view that the above apprehension is not well founded. According to us sub Section 12 of Section 11 will come to the revision petitioner's rescue. Apart from the statutory safeguards under sub Section 12 of Section 11, we propose to ensure by issuing appropriate orders that the landlady occupies the petition schedule building for the need R. C. R. No.78 of 2011 -10- projected in the RCP and does not let out the same to others. 9. It is true that the tenant did not adduce evidence which he could have for substantiating his claim for protection under sub Section 3 of Section 11. We are sure that if the documents then available with the tenant had been produced, the contention of the landlady that the tenant is not conducting any business in the petition schedule building would have been proven to be incorrect. But the question that arises before us is whether there is warrant for interference with the finding that the tenant is not entitled for the protection of the second proviso to sub Section 3 of Section 11. We notice that the six documents which are produced by the tenant along with the revision pertain to the business which the tenant has been conducting in the petition schedule building. Even those documents do not give any indication as to what is the R. C. R. No.78 of 2011 -11- income which the tenant is deriving from that business. Admittedly the tenant is having a stage carriage business also. A tenant who is shown to be having more than one source of income is expected to produce documents showing the relevant income from the two sources and convince the Rent Control Court that the business which he is conducting in the petition schedule building accounts for the main source of income. This means that even if the documents presently sought to be produced are admitted, the tenant will not be able to prove that he satisfies the first limb of the second proviso. As for the second limb of the second proviso, we find a clear finding to the effect that at a distance of half kilometres from the petition schedule building a building is available for the tenant to shift to. The conclusions concurrently entered by the statutory authorities that the tenant does not satisfy the ingredients of the second proviso is unimpeachable. R. C. R. No.78 of 2011 -12- 10. The result of the above discussion is that we do not find any ground for invocation of the revisional jurisdiction. We do not find any illegality, irregularity or impropriety as envisaged by Section 20 about the judgment of the Appellate Authority. The revision will have to fail. At the same time, we feel that the revision petitioner can be given six months' time to vacate the premises subject to his filing an affidavit incorporating an undertaking that he will vacate the building within six months. Accordingly, the result of the above discussion is as follows:- 11. Eviction order under sub Section 3 is confirmed. The RCR is dismissed. The execution court is directed to keep in abeyance proceedings for delivery for a period of six months from today subject to the following conditions:- 1) The Revision Petitioner files an affidavit within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the respondent within six months from today and undertaking further that she will pay R. C. R. No.78 of 2011 -13- occupational charges at the existing rent rate without fail as and when the same falls due. There will be a further direction to the execution court (Principal Munsiff Court, Kannur) to explore the possibilities of a settlement of the issue between the parties before giving delivery warrant to the Amin. There will be a direction to the respondent/landlady to occupy and commence the proposed business within one month of the tenant being evicted. There will be an order injuncting the landlady for a period of three years from the day of getting possession from letting out the building to anybody else. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.78 of 2011 -14-