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 4TH JANUARY 2010 / 14TH POUSHA 1931 RCRev..No. 124 of 2005() ------------------------ RCA.212/1996 of DISTRICT COURT, THALASSERY RCP.75/1995 of MUNSIFF COURT, THALASSERY .................... REVISION PETITIONERS: ----------------------------------------- 1. PUTHENPURAYIL KALLIANI, D/O. KANNAN, PUTHENPURAYIL HOUSE, PANNIANNORE AMSOM, CHAMPAD DESOM, P.O. CHAMBAD, (VIA) PANOOR. 2. P.P. SARADA, D/O. KALLIANI, TEACHER "KAILAS", KOTTAYAM POYIL, P.O. KOTTAYAM POYIL, KOTTAYAM MALABAR, KOOTHUPARAMBA. 3. P.P. SATHYAN, S/O. KALLIANI, "SREEVALSAM", P.O. MOKERI, VALLANGAD, MOKERI AMSOM. 4. P.P. ARAVINDAN, S/O. KALLIANI, PUTHANPURAYIL HOUSE, PANNIANNORE AMSOM, CHAMPAD DESOM, P.O. CHAMBAD, (VIA) PANOOR. 5. P.P. SUMA, D/O. KALLIANI, "AWAGHA", NEAR COMPOUNDER PEEDIAK, P.O. PINARAYI, KOOTHUPARAMBA. 6. P.P. SURESH BABU, S/O. KALLIANI, BUSINESS, PUTHANPURAYIL HOUSE, PANNIANNORE AMSOM, CHAMPAD DESOM, P.O. CHAMBAD. 7. PUTHANPURAYIL SAJEEVAN, S/O. KALLIANI, DO. DO. 8. SMITHA, W/O RAHAN, JANAKIPURAM, P.O. PANDAKKAL, MAHE. RCR..124/2005 2 9. DAUGHTER RAMITHA, AGED 20, DO. DO. 10. SISTER RINEETHA RAJAN, AGED 13, DO. DO. 11. SISTER RESMITHA, AGED 17, DO. DO. (PETITIONERS NOS.10 AND 11 MINORS THROUGH GUARDIAN, PETITIONER NO.8 SMITHA). BY ADV. SRI.KKM.SHERIF SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.P.MURALEEDHARAN (THURAVOOR) SRI.V.R.REKESH RESPONDENT(S): APPELLANTS: -------------------------- 1. KORATT CHOMBALAN PATHOOTTY, D/O. KATHEESSA, RESIDING AT PAVOOR AMSOM DESOM, THALASSERY TALUK. 2. YOUNGER BROTHER ABU, RESIDING AT DO. DO. * 3. BROTHER AHAMMED, LABOURER, (DIED) P.B. NO.75015, DOHA, QUTAR A.G. THROUGH POWER OF ATTORNEY HOLDER K.C. KUNHIMOOSA, S/O. KATHEESUMMA, RESIDING AT DO. DO. 4. K.C. KUNHIMOOSA, S/O. KATHEESUMMA, DO. DO. 5. YOUNGER SISTER AYISHA, DO. DO. 6. YOUNGER BROTHER USMAN, DO. DO. * ADDL. R7. OTHAYOTH KATTIL NAFEESA, AGED ABOUT 52 YEARS W/O.LATE K.C.AHAMMAD, C.P. ROAD, CHOCKLI P.O. * ADDL.R8. RIAX, AGED ABOUT 33, BUSINESS, “OTHAYOTH KATTIL”, C.P. ROAD, CHOCKLI P.O. * ADDL.R9. MUHAMMED ALI, AGED ABOUT 31 YEARS BUSINESS, “OTHAYOTH KATTIL”, C.P. ROAD, CHOCKLI P.O. * ADDL.R10. SAKKIR, AGED ABOUT 28 YEARS, BUSINESS, “OTHAYOTH KATTIL”, C.P. ROAD, CHOCKLI P.O. RCR.124/2005 3 * ADDL.R11. SHAHIDA, AGED ABOUT 26 YEARS, “OTHAYOTH KATTIL”, C.P. ROAD, CHOCKLI P.O. * ADDL.R12. SAMEERA, AGED ABOUT 24 YEARS, - DO - - DO - - DO - (IMPLEADED AS ADDITIONAL RESPONDENTS 7 TO 12 AS PER ORDER DT. 04-01-2010 ADV. SRI.C.KHALID FOR R1 TO 6 SRI.N.GOPINATHA PANICKER FOR R1 TO R6 SRI.R.O.MUHAMED SHEMEEM FOR R1 TO R6 SRI.T.P.SAJID FOR R1 TO R6 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.1033/2005 IN R.C.R.NO.124/2005 DISMISSED. 04-01-2010. SD/- PIUS C.KURIAKOSE, JUDGE SD/- C.K.ABDUL REHIM, JUDGE // True Copy // P.A. To Judge PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 124 of 2005 ``````````````````````````````````````````````````````` Dated this the 4th day of January, 2010 O R D E R Abdul Rehim, J. The Tenants/Respondents in R.C.P.No.75/1995 on the file of the Rent Control Court, Thalassery is in revision against the divergent finding entered by the Rent Control Appellate Authority, Thalassery in R.C.A.No.212/1996. Revision petitioners/tenants are the legal heirs of the original tenant, Shri.Govindan. The Respondents herein are the legal heirs of the original landlady. The R.C.P. was filed seeking eviction under the grounds of 11(2) (b) and 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965('the Act' for short). Eventhough eviction was ordered under Section 11(2)(b), rent arrears was settled and the question regarding eviction under that ground was not raised before the Appellate Authority. Therefore, we need consider only the eviction order issued under Section 11(3) by the Rent Control Appellate Authority. 2. The need projected before the Rent Control Court is that respondents 2, 4 and 6 were employed in gulf countries and RCR.124/05 : 2 : they have now came back and they wanted to start a joint business dealing in Grocery and Stationery in the petition schedule room. They bonafide need the petition schedule room for own occupation for the said purpose. The Rent Control Court found that, only the 4th respondent was examined as PW1, inspite the fact that the need urged is a joint need for respondents 2, 4 and 6. But, it has come out in evidence that respondents 2 and 6 were also present before the court during the time of trial. On a perusal of evidence of PW1, it is revealed that specific deposition is to the effect that he is giving evidence on behalf of other respondents also. The Rent Control Court found that there is a contention raised on behalf of the tenants that the second respondent is still employed in gulf and that the 6th respondent is a person having mental incapacity. It is also noticed the contention that the 4th respondent (PW1) is settled in Bombay having business in textile therein. On the basis of the above contentions, the Rent Control Court found that non-examination of respondents 2 and 6 is fatal with respect to proof regarding bonafide need under Section 11(3). 3. The Rent Control Appellate Authority, while evaluating the evidence, clearly found that there is ample evidence produced RCR.124/05 : 3 : to prove that the need urged is genuine and bonafide. It is specifically noted that the revision petitioners, inspite of detailed cross-examination, could not able to shake credibility of the evidence of PW1 in any respect to any extent of discrediting the joint need projected by respondents 2, 4 and 6. The Appellate Authority specifically found that eventhough contention was raised to the effect that the second respondent is still employed in gulf and that the 6th respondent is suffering from mental incapacity, the tenants have miserably failed to produce any evidence to substantiate such contentions. Eventhough a feeble attempt is made to rely upon an admitted statement of PW1, which alleged to have been given at a court at Mahe, the tenants could not successfully establish through any supporting evidence that the 4th respondent was permanently settled in Bombay and was doing any business therein. Therefore, while reversing findings of the Rent Control Court, the Appellate Authority found that non examination of respondents 2 and 6 has not in any manner affected credibility of the version put forth through the 4th respondent, in order to prove genuine need of respondents 2, 4 and 6 for requirement of the scheduled building for starting Grocery and Stationery business. RCR.124/05 : 4 : 4. With respect to contention regarding possession of a room at the back side of the schedule premises, the Appellate Authority found that, from the endorsement made on the back side of Ext.A13 it is clear and evident that the room in question was surrendered only during the year 1996. It was further corraborated from Ext.B1 extract produced regarding that room. There is no conclusive proof that the said room was in vacant possession of the landlords during the time when the R.C.P. was filed or at the time when the evidence was adduced, is the findings of the Appellate Authority. 5. The Appellate Authority had gone deep into the question regarding eligibility for the benefit of the second proviso to Section 11(3), and it is found that the landlord could successfully establish availability of other premises in the locality. Further, it is found that, the revision petitioners/tenants could not adduce any convincing evidence to establish both the limbs under the second proviso to Section 11(3). 6. Heard, counsel appearing for both sides. The Rent Control Appellate Authority, having considered the evidence on record in a meticulous manner, found that the landlords were successful in establishing the need projected for own occupation RCR.124/05 : 5 : of the schedule room for conduct of business jointly by respondents 2, 4 and 6. Regarding the evidence adduced on behalf of the respondents, we find that the conclusions arrived at by the Appellate Authority is properly reasoned. We don't find any convincing evidence adduced from the side of the tenants to shake credibility of the genuine need. We are convinced that the revision petitioners/tenants are not successful in establishing that the landlords are in vacant possession of any other suitable buildings. So also, they could not establish in any convincing manner that they are entitled to the benefit of the second proviso to Section 11(3). The Appellate Authority, being the final fact finding authority, we do not find any convincing reason to interfere with its conclusions. Accordingly, the Rent Control Revision deserves no merit and the same is liable to be dismissed. 7. Lastly, Mr.Lal K.Joseph, learned counsel appearing for the revision petitioners, sought indulgence of this Court in granting time for a period of one year for vacating the schedule premises, which is vehemently opposed by Sri.T.P.Sajid, learned counsel appearing for the respondents. Having considered facts and circumstances of the case, we are inclined to grant time till 31-07- 2010 for the revision petitioners to vacate the premises, provided RCR.124/05 : 6 : rent at the rate of Rs.500/- is paid from 1st February, 2010 onwards. Accordingly, the Execution Court is directed to defer ordering delivery of possession of the schedule premises till 01-08-2010, on condition of the revision petitioners/tenants filing affidavit before that court undertaking to handover peaceful and vacant possession of the schedule room to the landlords on or before 31- 07-2010 and on making payment of rent along with arrears of rent, if any due, at the existing rate till January 2010, within one month from today and continues to pay rent from 01-02-2010 onwards at the above said rate of Rs.500/- till the scheduled premises is vacated. The affidavit as stated above shall be filed within a period of three weeks from today. Sd/- (PIUS C. KURIAKOSE, JUDGE) Sd/- (C.K.ABDUL REHIM, JUDGE) aks // True Copy // P.A. To Judge