IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 RCRev..No. 68 of 2010(V) ----------------------------- RCA.24/2007 of II ADDL.DISTRICT COURT & RCAA,ERNAKULAM RCP.39/2005 of ADDL.MUNSIFF & RENT CONTROL COURT,KOCHI .................... REVISION PETITIONER (APPELLANT IN THE APPELLATE COURT AND RESPONDENT IN TRIAL COURT. ---------------------------------------------------------------------------- ABDUL RAZAK, S/O.A.R.SHAIK USMAN, C.C.X/298C, AMARAVATHY, KOCHI-1. BY ADV. SRI.S.VINOD BHAT RESPONDENT(S)(RESPONDENTS IN THE APPELLATE COURT AND PETITIONERS IN THE TRIAL COURT): ---------------------------------------------------------------------- 1. JAGAJEEVAN RAO, S/O.SHYAMAL RAO, RESIDING AT C.C.10/296, FORT KOCHI, AT PRESENT RESIDING IN C.C.6/149/6, CHOWKI, MANGALORE-6. 2. AMRIT LAL RAO, S/O.SHYAMAL RAO, RESIDING AT C.C.10/296, FORT KOCHI, AT PRESENT RESIDING AT C.C.6/149/6, CHOWKI, MANGALORE-6. CAVEATOR SRI.BABU KARUKAPADATH THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- RCR.NO. 68 of 2010 --------------------------------- Dated this the 2nd day of March, 2010 JUDGMENT Pius C.Kuriakose,J. The tenant challenges in this revision under section 20 the orders of eviction concurrently passed against him by the Rent Control Court and the appellate authority on the ground of bonafide need for own occupation. Parties will be referred to as the tenant and the landlord. The landlord sought to evict the tenant on the ground of bonafide need for own occupation under section 11(3), need for additional occupation under section 11(8) and on the ground that the tenant has acquired possession of another building for the tenant's requirement in the same city under section 11(4)(iii). It is the pleaded case of the landlord that together with building Nos.298A and 298B the petition schedule building having door No.298 C forms a larger building and that the landlords are owners of the building having door No.298A to C. The landlords instituted RCP.39/2005 to evict the tenant and they instituted RCP.40/2005 to evict the tenant in RCR.68/2010 2 occupation of building having door No.298A. The Rent Control Court tried RCP 39/2005 and RCP 40/2005 jointly and ordered eviction only on the ground under section 11(3). We are informed that the tenant in RCP 40/2005 did not challenge the eviction order passed against him and was evicted from the building having Door No.298A. It is conceded by both sides that the only ground of eviction surviving to be examined is the ground presently accepted under section 11(3). The tenant disputed the bonafides of the claim of the landlord both under section 11(3) and 11(8). As regards the ground under section 11(8) the tenant contended inter alia that the landlord is not in occupation of any portion of the larger building and also that the advantage which the landlord may gain will not outweigh the hardship sustained by the tenant if an order of eviction is passed. The bonafides of the need for additional accommodation was disputed. Coming to section 11(3) the tenant disputed the claim. The tenant contended that the RCP is liable to fail by virtue of first proviso to section 11(3). It was also contended that the tenant is entitled to protection of the second proviso to section 11(3). At trial evidence consisted of Ext.A1 to A7, Exts.B1, RCR.68/2010 3 Ext.C1 to C1(a), Ext.X1 to X1(b) and oral evidence of PWs.1 and 2 on the side of the landlord and RWs.1 and 2 on the side of the tenant. On appreciating the evidence the rent control court came to the conclusion that the landlord was successful in establishing eviction under section 11(3). The appellate authority reappraised the evidence considering the appeal preferred by the tenant and concurred with all the conclusions of rent control court. Accordingly the appeal was dismissed. In this revision under section 20 various grounds have been raised assailing the judgment of the appellate authority. Sri.Vinod Bhat addressed elaborate submissions. All the submissions were resisted by Mr.Babu Karukapadath, learned counsel for the landlord. 2. Sri.Vinod Bhat drew our attention to section 11(8) of Act 2 of 1965 as well as section 11(3) . He drew our attention to the judicial precedents which lay down the distinction between these two eviction grounds and submitted that these two grounds are distinct grounds and these grounds are mutually exclusive. Counsel submitted that as matters obtained now and as obtained at the time of hearing of the RCP, the landlord was in possession of a portion of a larger building another portion of which is the RCR.68/2010 4 petition schedule building. The landlord by specifically invoking sub section 11(8) in the RCP said that the landlord was having not only juristical possession but also actual possession of occupation of a portion of the larger building. Mr.Vinod submitted that though Rent Control petition does not contain any averment to the effect that the landlord is in actual possession and occupation of any portion of the larger building, in chief examination PW1 has stated that he has not only possession but also actual occupation of the building having door No.298B. The landlord never gave up his claim for eviction under section 11(8) before the Rent Control Court. He adduced evidence before that court to show that he is entitled for an order of eviction under section 11(8). Serious arguments were addressed by the landlord in the context of the ground under section 11(8). But the claim of the landlord under section 11(8) was repelled by the Rent Control Court which turned down all the arguments of the landlord. The order declining eviction under section 11(8) has attained finality. Hence, the landlord is not entitled to support an order of eviction which is allowed under section 11(3). According to the learned counsel once it is seen that the order of eviction RCR.68/2010 5 under section 11(8) cannot be passed in favour of the landlord, then it has to be seen that the eviction under section 11(3) also cannot be passed in his favour especially. In the facts and circumstances of this case where the case projected by the landlord in the RCP is one for eviction under section 11(8). 3. Mr.Babu supported the judgment of the rent control appellate authority on the various reasons stated therein. According to Mr.Babu the correctness of the order of the rent control court declining eviction under section 11(8) is not an issue in the present revision. The only issue in the present revision is whether the eviction order passed concurrently under section 11(3) by the authorities under the statute is illegal or irregular or improper as envisaged by section 20. Mr. Babu submitted that there is no warrant at all for invocation of the jurisdiction at all. 4. We have scanned the judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court. We find considerable force in the submission of Sri.Babu Karukapadath that in this revision we are concerned only the legality, regularity or propriety of the order passed in RCR.68/2010 6 favour of the landlord under section 11(3). At the same time, in deference to the seriousness with which the learned counsel for the revision petitioner addressed arguments, we will proceed to consider those arguments. 5. It is trite by the decisions of this Court and the Supreme Court that the eviction ground under sub section 3 of section 11 and sub section 8 of section 11 are mutually exclusive. A scrutiny of the relevant statutory provisions will show that the prerequisites for existence of these two eviction grounds as well as the considerations for passing order of eviction after the Rent Control Court enters finding regarding the existence of the bona fide need for own occupation under sub section 3 of section 11 and need for additional accommodation for personal use under sub section 8 of section 11 are different. For example, while sub section 3 of section 11 is subject to the first and second provisos of the above sub section, sub section 8 of section 11 is not so subject. Sub section 8 of section 11 is qualified by the first proviso to sub section 10 of section 11 wherein the relevant considerations are the comparison of the advantages the landlord gains and the hardships the tenant suffers. Most importantly, RCR.68/2010 7 unlike in a case under sub section 3 of section 11, it is necessary that the landlord should be in actual occupation of a portion of the larger building consisting of the subject building also. That being the position, the combined petition filed under sub section 3 and sub section 8 of section 11 was clearly not maintainable in law. Though there is nothing to indicate that the claim under sub section 8 of section 11 was not pursued by the landlord, the fact remains that in law and in view of the facts existing in this case the landlord's claim could have been entertained only under sub section 3 of section 11 and not under both the sub sections. We are therefore of the considered opinion that the finality attained by the order of the authorities below declining eviction under sub section 8 of section 11 will not be of any consequence on the question of the landlord's eligibility for eviction under sub section 3 of section 11. 6. As rightly argued by Sri.Babu Karukappadath, the jurisdiction of this Court under section 20 of Act 2 of 1965 is an attenuated one. This Court is not expected ordinarily to reappraise the evidence and substitute conclusions of fact already arrived at by the fact finding authorities i.e. the Rent Control RCR.68/2010 8 Court and the Appellate Authority especially when such conclusions are founded on evidence. We notice that the finding that the landlord is entitled for order of eviction under sub section 3 of section 11 and that the tenant is not entitled for the protection of the second proviso to sub section 3 of section 11 and also the finding that the RCP is not liable to fail by virtue of the first proviso to sub section 3 of section 11 are findings entered on the basis of evidence - oral, documentary and circumstantial. We do not find any illegality, irregularity or impropriety about those findings. The revision, necessarily, has to fail and will stand dismissed. 7. However, considering the last plea of Sri.S.Vinod Bhat that a reasonable long period of time be granted to the tenant for surrendering the premises, we are inclined to grant time till 31/10/10 subject to the following conditions:- 8. The revision petitioner shall file an affidavit before the execution court within six weeks from today undertaking to give peaceful possession of the petition schedule building to the respondents on or before 31/10/10 and undertaking further that arrears of rent will be discharged within RCR.68/2010 9 one month and that occupational charges at the current rent rate will also be paid to the respondents on the first of every succeeding month till the building is surrendered. We make it clear that the revision petitioner will be entitled for the benefit of time granted as above only if he files the affidavit on time. PIUS C. KURIAKOSE ,JUDGE C.K.ABDUL REHIM,JUDGE pmn & kns/ RCR.68/2010 10