IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 RCRev..No. 84 of 2009() ----------------------- RCP.77/2001 of ADDL.MUNSIFF COURT, PALAKKAD RCA.13/2004 of DISTRICT COURT, PALAKKAD .................... REVISION PETITIONERS/APPELLANT/RESPONDENTS ---------------------------------------------------- 1. AMMUKUTTY,W/O.SUBRAMANIAN, RESIDING AT PANNIYAMPADAM, PUDUPPARIYARAM,PALAKKAD. 2. GOPALAKRISHNAN,S/O.AMMUKUTTY, RESIDING AT PANNIYAMPADAM, PUDUPPARIYARAM,PALAKKAD. 3. UDAYAPRAKASH,S/O.AMMUKUTTY, RESIDING AT PANNIYAMPADAM, PUDUPPARIYARAM,PALAKKAD. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA SMT.P.L.MARY TREASA RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ RUKIYA UMMA,W/O.LATE P.M.PAREETH, OPP.POOCHIRA MASJID,PUDUPARIYARAM, PALAKKAD. ADV. V.CHITAMBARESH, SENIOR ADVOCATE T.C.SURESHMENON THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.84 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of June, 2009 ORDER Pius.C.Kuriakose, J. Under challenge in this revision petition filed under Section 20 of Act 2 of 1965 is the order of eviction concurrently passed in favour of the respondent landlady under Sub Section 3 of Section 11. The petitioners are presently carrying on various types of business in the petition schedule building. The respondent landlady is a 70 year old widow and the need projected by her is that she wants to occupy the petition schedule building for her own residential occupation after converting the same as a residential building. 2. The bonafides of the need and the claim was stiffly resisted by the revision petitioner through their statement of objections. At trial, the landlady examined herself as PW1 and produced Exts.A1 to A9. The Advocate Commissioner deputed by the court submitted Exts.C1 and C2 reports and on the side of the respondent revision petitioners, the third respondent in the RCP was examined as RW1. The Rent Control Court on appreciating the evidence would find that RCR.No.84/2009 2 the need projected by the landlady is a bonafide one. It was also found that the tenants are not entitled to the protection of the second proviso to Sub Section 3 of Section 11. The appellate authority re-appreciated the evidence and concurred with all the conclusions of the Rent control Court. 3. We have heard Sri.D.Krishna Prasad, learned counsel for the petitioners and Sri.V.Chitambaresh, learned senior counsel for the respondent. Sri.Krishna Prasad submitted that the need and the claim projected by the landlady is implicitly without bonafides. He pointed out that it is highly improbable that a widowed lady who is past 70 and has reached the twilight period of her life will set up independent residence. She is presently very happily put up along with her daughter. He submitted that in 1998 there was an attempt to forcibly evict the revision petitioners and to prevent that, a suit - O.S.No.245/1998 was instituted by the revision petitioner. Though the suit was initially dismissed, in appeal preferred by the revision petitioners, the same was decreed . The decree passed in the suit antagonised the respondent very much and she would execute a RCR.No.84/2009 3 settlement deed Ext.A1 in favour of her daughter in respect of a pukka residential building which she was having at that time. Ext.A1 is a sham document which was brought into existence only for the purpose of getting over the first proviso to Sub Section 3 of Section 11. The contention that Ext.A1 is a sham document and that the landlady retains the ownership over that pukka residential building was not considered seriously by the authorities below. Learned counsel would reiterate that the respondent landlady is not going to convert the petition schedule building as a residential building nor she is going to occupy the same after such conversion. Learned counsel submitted that the findings of the authorities below on both the limbs of the second proviso are erroneous and contrary to the evidence on record. 3. Sri.V.Chitambaresh, learned senior counsel would resist all the submissions of Sri.D.Krishna Prasad. He invited our attention to Sub Section 12 of Section 11 and submitted that the apprehensions of the revision petitioner are without basis. 4. We have considered the rival submissions addressed at the Bar. We have gone through the orders passed by the Rent Control RCR.No.84/2009 4 Court and the judgment of the Rent Control Appellate Authority. We in this jurisdiction under Section 20 of Act 2 of 1965 are not expected ordinarily to reappraise the evidence and substitute our conclusions for the conclusions of fact entered by the statutory authorities -the Rent Control Court and the Appellate Authority especially when they are founded on evidence. On going through the judgment of the Rent Control Appellate Authority, we find that all the contentions raised by the revision petitioners have been considered by the appellate authority and according to us appreciation of evidence by the appellate authority is proper. We do not find any warrant for invocation of the revisional jurisdiction under Section 20 for interfering with the judgment of the Rent control Appellate Authority which is the final court on facts. Of course, it would appear that there is some strangeness about a landlady who is past 70 thinking in terms of setting up her own independent residence leaving her daughters with whom her relations are cordial. But PW1 herself testified as to the genuineness of her need and it was believed by the Rent Control Court which recorded her evidence. The Appellate Authority which re-appreciated her evidence also believed RCR.No.84/2009 5 her. This being the position, we cannot sitting in this jurisdiction say that she should not have been believed. As for the apprehension expressed by the revision petitioner through her counsel, we are of the view that Sub Section 12 of Section 11 will come to the petitioners' rescue, if ultimately the respondent landlord does not occupy the building for the need projected in the application. As for the finding of the authorities below, in the context of the second proviso to Sub Section 3 of Section 11, it should be noticed that it is trite that it is the tenant's burden to establish by adducing evidence that he satisfies both the ingredients of the second proviso to Sub Section 3 of Section 11. In the instant case, it has been found that the tenant has failed in establishing that he is depending on the income derived from the business carried on in the petition schedule building for his livelihood and also that no other suitable buildings are available in the locality for the tenant to shift his business. These findings also in our view are founded on evidence. We do not find any warrant for interference. 5. As his last submission, Sri.D.Krishna Prasad requested that this court grants atleast an year's time to the revision petitioner for RCR.No.84/2009 6 surrendering the premises. The above request was opposed very stiffly by Sri.V.Chitambaresh, learned senior counsel. However, we feel that in the facts and circumstances attending on this case, there is justification for granting time till 31/01/2010 subject to the following conditions ; The revision petitioners shall file an affidavit before the execution court within two weeks from today stating that they will unconditionally and peacefully surrender possession of the petition schedule building to the respondent on or before 30/01/2010. If the execution court notices such an affidavit filed on time, that court will adjourn the E.P. to 31/01/2010. It will also be undertaken through the affidavit that arrears of rent if any will be discharged immediately and that occupational charges at the present rent rates will also be paid till actual surrender is made. PIUS.C.KURIAKOSE, JUDGE P.Q.BARKATH ALI, JUDGE sv. RCR.No.84/2009 7