IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 RCRev..No. 190 of 2007() ------------------------ RCA.143/2002 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.52/2000 of ADDL.MUNSIFF COURT, KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT:- ------------------------------------------------------------------------ CHEEPPILAT PUTHAMPURAYIL BALAN, S/O. KUNHIRAMAN, CHIRAKKAL AMSOM, PUZHATHI DESOM, PADINHARE MOTTA, PANANKAVU, P.O. CHIRAKKAL. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE MATHEWS RESPONDENTS: RESPONDENTS/PETITIONERS:- -------------------------------------------------------------------- 1. PALLIPRATH PUNNAKKAL ABOOBACKER S/. ALI, CHIRAKKAL AMSOM, PUZHATHI DESOM, KANNUR DISTRICT. 2. MURINGERI MARIYAM, D/O. ABOOBACKER, CHIRAKKAL AMSOM, PUZHATHI DESOM, KANNUR TALUK. ADV. SRI.P.U.SHAILAJAN FOR R1 & 2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. = = = = = = = = = = = R.C.R.No.190 of 2007. = = = = = = = = = = = Dated this the 17th day of September, 2010. O R D E R Pius C.Kuriakose, J. The tenant, who has been ordered to be evicted concurrently by the Rent Control Court and the Appellate Authority on the ground under Section 11(3), is the revision petitioner. The need projected by the 2nd petitioner landlady was that she is presently put up in a house in the name of her father's brother, along with her grownup daughter, who is 18 years of age and that the present building is very inconvenient as in that house there are several other occupants. The petition schedule building which is a portion of a line building belonging to the landlady was sought to be evicted. The tenant filed statement of objections contending that he has kudikidappu right over the building; that at the time of entrustment the RCR.No.190 of 2007. -: 2 :- then landlord executed an agreement under which the then landlord agreed to receive Rs.1,000/- from the tenant and allowed the tenant to continue on condition that the interest on the sum of Rs.1,000/- will be appropriated towards the rent payable. The bonafide of the need was disputed. It was also contended that having regard to the social status of the parties, the need of the landlady to occupy the petition schedule building which is only a small portion of a line building cannot be a bonafide one. When the RCP came up for trial, the evidence consisted of Exts.A1 to A5, B1 to B4, Pw1 and Rws.1 and 2. The commissioner's report C1 was also marked. Even though a request was made for a reference regarding the claim of kudikidappu right over the building before the Rent Control Court that court didn't accept that request as admittedly the building was only a part of a larger building. The court didn't become inclined to accept the case that there was an agreement to allow the tenant to continue in the building indefinitely in view of the deposit of Rs.1,000/- paid at the time RCR.No.190 of 2007. -: 3 :- of entrustment. The court noticed that on a previous occasion another Rent Control Petition was instituted by the landlady against the tenant and in that petition existence of landlord- tenant relationship was not disputed and no contention was raised therein that the RCP was not maintainable. After holding that the RCP is maintainable, it was found that the oral evidence of Pw1, the landlady had not been shaken in cross examination. A finding in favour was entered into on the need projected by the landlady. Incidentally it was noticed that no evidence was even attempted to be brought out regarding the high social status of the landlady. On the basis of the finding that the need is bonafide, order of eviction was passed under Sec.11(3). The Appellate Authority on considering the appeal and on a reappraisal of the evidence affirmed the order of eviction. 2. In this revision under Sec.20, the judgment of the Appellate Authority is assailed by the revision petitioner/the tenant on various grounds. Sri.Grashious Kuriakose, the RCR.No.190 of 2007. -: 4 :- learned counsel for the revision petitioner addressed very strenuous and persuasive submissions addressed before us. At the outset Sri.Grashious Kuriakose highlighted that subsequent to the filing of the Rent Control Appeal the landlady had instituted an application for fixation of fair rent in which the landlady had conceded that the rental arrangement between the parties was to allow the tenant to continue the possession in view of the deposit already made. According to Mr.Grashious Kuriakose, from the averments in the above application and considering the status of the revision petitioner which is that of a mortgagee, he is not liable to be evicted. Mr.Grashious Kuriakose would assail the finding of the Appellate Authority that the RCP is maintainable and the further finding that the need is bonafide. 3. All the submissions of Mr.Grashious Kuriakose were resisted by Sri.P.U.Shailajan, the learned counsel for the respondents. Mr.Shailajan argued that it is not open to the revision petitioner to contend now that his status is that of a RCR.No.190 of 2007. -: 5 :- mortgagee. According to him, in the previous Rent Control Petition such a contention was not raised and hence the revision petitioner is estopped from raising such a contention now. 4. We have very anxiously considered the rival submissions made at the bar. It will be extremely difficult to accept the submission of Mr.Grashious Kuriakose that by the pleadings in the Rent Control Petition subsequently filed under Sec.5, the landlady admits the relationship between the parties as mortgagor and mortgagee. First of all, the above pleadings are applicable only in the context of the prayer therein which is for fixation of fair rent. Secondly, the contention that the status is that of a mortgagee is not raised in the statement of objections in the present RCP. Even otherwise mortgage as presently claimed cannot be created orally. We, therefore, repel the contention that the status of the revision petitioner is that of a mortgagee. 5. The question that remains is whether the judgment of RCR.No.190 of 2007. -: 6 :- the Appellate Authority is vitiated by any illegality, irregularity or impropriety as envisaged by Sec.20. That question, in our view, can be answered in the negative only. The landlady herself gave evidence as Pw1. Her evidence entered by the Rent Control Court as well as the Rent Control Appeal Authority. It became evident in the case that the landlady didn’t have any building of her own and she is put up with her daughter a building belonging to her father's brother. It also became evident that the landlady has a daughter who is 18 years old. We cannot blame the statutory authorities for accepting the landlady's evidence that she and her daughter need to have independent residence in their own building though the same is not a big one. As rightly noticed by the Appellate Authority, the contention that the social status of the landlady want permit her to occupy the premises, which is very small is not substantiated, we do not find any illegality, irregularity or impropriety in the above findings. Necessarily, the Rent Control Revision has to fail. RCR.No.190 of 2007. -: 7 :- 6. As a last plea, Mr.Grashious Kuriakose submitted that the revision petitioner is prepared to offer an attractive rent provided he is allowed to continue in possession. The response of Mr.Shailajan was that his client is not prepared for any settlement as the need projected is a bonafide one. Mr.Grashious Kuriakose then sought for one year's time to surrender the premises. Mr.Shailajan objects to granting so much of time we, however, feel that reasonable time can be granted imposing terms. In the above circumstances, the result of the Revision Petition is that the Rent Control Revision stands dismissed. The judgment of the Rent Control Appellate Authority is confirmed. The execution court is directed not to order delivery of the petition schedule building till 31.3.2011 subject to the following conditions. The petitioner shall file an affidavit within three weeks from today undertaking to give peaceful surrender of the petition schedule building on or before 31.3.2011 and undertaking further that for every month commencing from the RCR.No.190 of 2007. -: 8 :- first of October, 2010 till the building is surrendered, he will pay occupational charges at the rate of Rs.1,000/- per mensum to the 2nd respondent. We make it clear that the revision petitioner will get the benefit of time as granted above only if he files the affidavit in time. PIUS C.KURIAKOSE, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-