IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 RCRev..No.50 of 2009(B) ------------------------------ RCA.17/2007 of DISTRICT COURT, ALAPPUZHA RCP.70/2004 of RENT CONTROLLER,ALAPPUZHA .................... PETITIONERS/APPELLANTS/RESPONDENTS 1 TO 3 ------------------------------------------------------------ 1. VALSAMMA, W/O. LATE V.K. JOB @ PAPPACHAN, AGED 68 YEARS, RESIDING AT VADAKKETHALAKKAL, PEEDIKKECKAL PARAMBIL HOUSE, M.O. WARD, ALAPPUZHA. 2. REJI JOB, S/O. LATE V.K. JOB, AGED 45 YEARS, -DO- 3. GEORSENT JOB @ JOHNSON, S/O. LATE V.K. JOB, AGED 42 YEARS, -DO- BY ADV. SRI.T. KRISHNANUNNI SRI.VINOD RAVINDRANATH RESPONDENT(S)/RESPONDENTS/PETITIONER/4TH CR. PETITIONER: --------------------------------------------------------------------------------- 1. G.S.N. RAJ, S/O. GOPALAKRISHNA CHETTIYAR RESIDING AT GOKULAM, MULLAKKAL, ALAPPUZHA. 2. GLADIS @ SHEEBA, D/O.V.K. JOB, C/O. THOMAS VARGHESE, P.B. NO. 7426, DAMAM - 31462. ADV. SRI.P.R.VENKETESH FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ R. C. R. No.50 of 2009 ------------------------------------------------ Dated this the 16th day of June, 2009 ORDER Pius C. Kuriakose, J On considering the submissions of Sri.K.Anand, the learned counsel for the petitioners in extenso, we found that there is no warrant for interfering with the orders of eviction concurrently passed by the Rent Control Court and the Appellate Authority and in deference to the learned counsel for the petitioner's request that time be granted to vacate at least till 31/12/09, we issued notice to the respondents vide our order dt.04/03/09 which reads as follows:- “Heard Sri.K.Anand, learned counsel for the petitioners in extenso. We are not satisfied that any ground is made out under the attenuated jurisdiction of this Court under Section 20 for interfering with R. C. R. No.50 of 2009 -2- the orders of eviction concurrently passed by the Rent Control Court and the Appellate Authority. However, in deference to the learned counsel's request that time be granted to vacate at least till 31/12/2009, we are inclined to issue notice to the respondent to decide the question of granting time. Issue notice on admission by speed post to decide the question of time to be granted to the petitioner for surrendering the premises. Post on 16/03/09. Interim stay, as prayed for, till then.” 2. In response to the notice issued, the respondents entered appearance through Advocate Sri.P.C.Chacko. Sri.T.Krishnanunni, Senior Counsel who was engaged to argue the revision petition on behalf of the petitioners after getting permission addressed us on the merits of the various grounds raised in the memorandum of revision and submitted that the revision be allowed notwithstanding our order dt.04/03/09. Drawing our attention to certain observations of the Rent Control Appellate Authority in R. C. R. No.50 of 2009 -3- para 10 of its judgment, Sri.Krishnanunni submitted that the respondent is presently gainfully employed as a Development Officer with the LIC of India and therefore, the need projected by him under sub Section 3 of Section 11 is no longer in existence. According to the Senior Counsel, since the need has been completely obliterated, the order of eviction under Section 11(3) passed, concurrently though it be, is to be vacated since the law is that the need should continue at least till the final authority under the statutory scheme i.e. this Court the revisional authority under Section 20 passes orders. When the attention of Sri.P.C.Chacko was drawn to this aspect of the matter, Sri.P.C.Chacko, learned counsel for the respondent fairly conceded before us that the respondent is presently working as a Development R. C. R. No.50 of 2009 -4- Officer with the LIC of India. He submitted that a detailed affidavit has been filed by the respondent on 26/05/09. Paragraphs 3 and 4 of the said affidavit are relevant and hence, we quote those paragraphs asunder:- “I respectfully submit that the main contention of the revision petitioner is that 'now I have got an employment and the need is not subsisting'. The above contention is not correct and denied. I respectfully submit that the revision petitioner is taking different contentions with regard to my employment throughout the various stages of these proceedings. When the counter was filed in the RCP on 16/05/2005, the main contention of the respondent was that 'at that time I was engaged in gulf countries and when DW1 was examined he was deposed that I was working in the press, which is conducted by my father. On 08/08/2007, when the RCA was filed, the main ground taken by the respondent was that I had got government job and when the RCA was taken up for hearing, the main grounds urged by the tenant as reflected in the judgment of the court below is that I have got employment in LIC and finally on 26/02/09 when the RCR is filed, the main contention taken by R. C. R. No.50 of 2009 -5- the tenant is that I am employed in the Indus Ind Bank, Thiruvalla. So these contentions are not genuine and true. They are inconsistent. I respectfully submit that I am an MBA graduate and I am temporarily employed and I want to resign from the job as soon as the petition schedule building involved in the RCR is obtained vacant possession of. The need is still subsisting. I bona fide intend to start business as alleged in the RCP. That apart, my wife and two of my younger brothers though reasonably educated are unemployed and are ready and willing to assist me in the conduct of business.” 3. According to Sri.P.C.Chacko, the moment the respondent obtains possession of the petition schedule building, he will submit his resignation to the LIC so that he can occupy the building and carry on the projected business therein. 4. Sri.Krishnanunni, the learned counsel for the petitioners would assail the findings of the authorities below in the context of the second proviso to Sub Section 3 of Section 11. He submitted that as far as R. C. R. No.50 of 2009 -6- the first limb of second proviso is concerned, the findings have been entered concurrently in favour of the tenant and in the absence of any challenge by the landlord, the finding in the context of that limb is to be accepted by this Court. According to him, the finding on the second limb of second proviso though concurrently entered by the authorities in favour of the landlords, is contrary to the evidence actually available on record. He submitted that the landlord had taken out a commission to report that certain buildings mentioned by him are lying vacant in the locality. The Commissioner filed report and he was examined also on the side of the landlord. The report of the Advocate Commissioner is actually in favour of the tenant. Instead of relying on that evidence which was brought on record by the landlord, what the authorities below R. C. R. No.50 of 2009 -7- have done is to decide on the basis of what is described as certain admissions in the evidence of the tenant that other buildings are available in the locality. The learned senior counsel was permitted to read over to us the evidence rendered by the tenant in the context of the second limb of the second proviso. He submitted that the said evidence will not go to show that other suitable buildings are presently available in the locality. 5. The submissions of the learned senior counsel were resisted by Sri.P.C.Chacko. Sri.Chacko submitted that the landlord is an MBA degree holder and he cannot be expected to be idle during the pendency of the eviction proceedings. He is engaging himself presently as a Development Officer with the LIC of India. According to Sri.Chacko, once the delivery of R. C. R. No.50 of 2009 -8- the petition schedule building is obtained, the revision petitioner will quit the job and occupy the building for carrying on business. The learned counsel relied on the judgments of the Supreme Court in Pratap Rai Tanwani v. Uttam Chand (2004(8) SCC 490), Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal (2005(8) SCC 252), Ramkubai v. Hajarimal Dhokalchand Chandak (1999(6) SCC 540), Kamleshwar Prasad v. Pradumanju Agarwal (1997(4) SCC 413) to substantiate his contentions. With regard to sub Section 12 of Section 11, counsel submitted that the statute gives adequate protection to a tenant who has been evicted on ground of own occupation unnecessarily. 6. Coming to Sri.T.Krishnanunni's arguments in the context of second proviso to sub Section 3 of R. C. R. No.50 of 2009 -9- Section 11, Sri.P.C.Chacko would remind us of the contours of this Court's jurisdiction under Section 20. According to him, the appellate authority has made a thorough re-appraisal of the evidence and concluded on the basis of such re-appreciation that the tenant has not discharged his burden to show that he satisfies the second limb of the second proviso to sub Section 3. The finding in favour of the tenant in the context of the first limb will not be of much consequence since both the limbs are in the conjunctive. 7. We have anxiously considered the rival submissions addressed at the Bar. We do find force with the submission of the learned Senior counsel that so long as the respondent is employed with the LIC, he will not be able to accomplish his projected need of carrying on business in the petition schedule building. R. C. R. No.50 of 2009 -10- But then, the landlord has filed an affidavit before this Court which prima facie appears to be convincing. According to us, the apprehension voiced by the learned senior counsel for the petitioner can be taken care of by insisting that the respondent resigns his job with the LIC before revision petitioner is dispossessed of the petition schedule building. Appropriate directions in this regard are being incorporated in this judgment. 8. It is trite that both the limbs of the second proviso to Sub Section 3 are to be taken in the conjunctive and that the burden is that of the tenant to establish that he satisfies both the limbs. In order that he is given the protection of the second proviso to sub Section 3 at the instance of the landlord, a Commissioner was appointed and the Commissioner R. C. R. No.50 of 2009 -11- filed a report and gave evidence which was not very favourable to the landlord regarding the second limb of second proviso to Sub Section 3. But then the burden as settled by judicial precedent continues with the tenant. 9. The tenant examined a few witnesses who according to the landlord were owners of other buildings which are remaining vacant in the locality. The learned Appellate Authority has made a thorough re-appraisal of the evidence given by these witnesses. It was found by the appellate authority that the tenant has made a fatal admission while giving evidence as PW1 that Mullackal is an area where buildings are falling vacant and are let and re-let. May be the above admission is a too general one to form basis of a finding that the tenant is not entitled to a protection of R. C. R. No.50 of 2009 -12- the second limb of the second proviso to sub section 3. But as we have indicated the burden was that on the tenant and we find from the testimony of RW1 itself that the tenant has not made any serious enquiry on the question of availability of the vacant buildings. Locality for the purpose of the second proviso to sub Section 3 is not the immediate vicinity of the petition schedule building alone. It is a fairly larger area and the tenant was expected to have enquiries in other areas of Alappuzha. Under the statutory scheme, the final court on facts is the appellate authority. That authority concurring with the Rent Control Court has found that the tenant has failed in establishing that he satisfies the second proviso to sub Section 3. It is not possible for us to say that those findings are so wholly unreasonable as R. C. R. No.50 of 2009 -13- to warrant correction under the revisional jurisdiction of Section 20. 10. The result is that impugned orders will stand confirmed and the RCR will stand dismissed. 11. As his last request, the learned Senior counsel for the petitioner sought for one year's time to surrender the premises peacefully. Sri.P.C.Chacko, the learned counsel for the respondent stiffly opposed this request. We are not inclined to grant so much of time. However, we feel that in the circumstances of the case and by way of indulgence time can be granted till, 21st December, 2009 subject to the following conditions:- 12. Revision petitioner shall file an affidavit within three weeks from today stating that he will peacefully surrender the petition schedule building to the respondent on or before 31/12/09 and that he will R. C. R. No.50 of 2009 -14- discharge arrears of rent, if any, and will continue to pay occupational charges at the present rent of Rs.115/- per mensm till he surrenders. It is made clear that the revision petitioner will get the benefit of time granted by this order only if he files an affidavit within the time frame. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-