IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 RCRev..No.125 of 2009 (B) ------------------------------- RCP.72/03 OF ADDL. RENT CONTROL COURT (ADDL. MUNSIFF), KANNUR. RCA.106/04 OF ADDL. DISTRICT JUDGE, ADHOC-III, THALASSERY ---------------------- REVISION PETITIONER/APPELANT/1ST RESPONDENT --------------------------------------------------------------- P.ABDUL SALAM, AGED 44 YEARS, S/O.KHADER, BUTCHER, THAVAKKAL BEEF STALL, NEAR RAGAM THEATRE, BUILDING NO.MY 15/57, MARAKKARKANDY, KANNUR. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): RESPONDENTS/PETITIONERS & 2ND RESPONDENT --------------------------------------------------------------------------------- 1. V.SADIQUE, S/O.NOORJAHAN, SALESMAN. 2. V.AYISHA, D/O.KADEEJA, AGED 26 YEARS. 3. V.NAJMATH, D/O.KADEEJA, AGED 24 YEARS. 4. V.SHAHANA, D/O.KADEEJA, AGED 22 YEARS. 5. V.RUBEENA, D/O.KADEEJA, AGED 20 YEARS. 6. V.MASHOOM, S/O.KADEEJA, AGED 18 YEARS. 7. V.IBRAHIM, S/O.THAHIRA, AGED 15 YEARS (MINOR), MINOR NO.7 THROUGH HIS MOTHER AND NATURAL AND LEGAL GUARDIAN V.THAHIRA, D/O.NOORJAHAN. (ALL ARE RESIDING IN PARAPPURATH HOUSE, KAZANAKOTTA, KANNUR-12). 8. SAYYID, S/O.HAMEED, BEEF STALL, BEHIND MAKKANI CLUB, KANNUR CITY, KANNUR. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ R. C. R. No.125 of 2009 ------------------------------------------------ Dated this the 17th day of June, 2009 JUDGMENT Pius C. Kuriakose, J Under challenge in this revision under Section 20 is the order of eviction passed by the Rent Control Court and the Appellate Authority concurrently against the revision petitioner/tenant under Sub Section 3 of Section 11. The revision petitioner is conducting a beef stall in the petition schedule building. The need projected by the respondent/landlord was that the building is needed for the occupation of one Sharafudheen/PW2 who is the brother of the first respondent/first petitioner in the RCP for the purpose of conducting tailoring business. The bona fides of the need and the claim was denied and the issue was R. C. R. No.125 of 2009 -2- enquired into by the Rent Control Court. At the enquiry the evidence consisted inter alia of the oral evidence of PW1/the first respondent and PW2 Sri.Sharafudheen, the de facto claimant. The Reference Court on appreciating the evidence found that the need was bona fide. The case of the tenant that he is entitled to the protection of second proviso to sub Section 3 of Section 11 was also considered by the Rent Control Court and it was found that the tenant has failed to establish that he satisfies either of the limbs of the said proviso. The Appellate Authority on re-appreciating the evidence would concur with all the conclusions of the Rent Control Court and confirmed the order of eviction passed by the Rent Control Court. 2. We have heard the submissions of R. C. R. No.125 of 2009 -3- Sri.P.U.Shailajan, learned counsel for the petitioner. Sri.Shailajan submitted that there is considerable contradiction between the version of PW1 and PW2 before the Rent Control Court. According to him, while PW1 stated that his brother Sri.Sharaffudin knows tailoring and PW1 stated that Sharaffudin is engaged in tailoring business, PW2 stated that he is working as a contractor. This contradiction between depositions of PW1 and PW2 are fatal according to the learned counsel. The learned counsel would assail the finding of the authorities in the context of second proviso to Section 3 of Section 11. Appreciating of evidence by the authorities in this context was irregular. He submitted that even the landlord PW1 has conceded that the main business of the revision petitioner is the beef business which is being carried on in the petition R. C. R. No.125 of 2009 -4- schedule building. The buildings referred to by the Commissioner (the buildings situated near the Neerchal Masjid) are situated far away from the petition schedule building and hence, it cannot be stated that the buildings are available in the locality. 3. We have anxiously considered the submissions of the learned counsel and we have gone through the order of the Rent Control Court and the judgment of the Rent Control Appellate Authority. As far as this case is concerned, the defacto claimant was PW2. He was examined by the Rent Control Court and that court which had the advantage of seeing him was inspired by his testimony. The apparent contradiction between the version of PW1 and PW2 as to the activity presently carried on by PW2 according to us is not fatal to the need projected. In fact, PW2 testified that R. C. R. No.125 of 2009 -5- he knows tailoring and he intends to carry on tailoring business in the petition schedule building by engaging other tailors. Under the statutory scheme the final court on facts is the Rent Control Appellate Authority. 4. Having gone through the judgment of the appellate authority, we find that its finding that the need is bona fide is founded on evidence. We do not find any reason for interference within the contours of this Court's jurisdiction under Section 20. The same is the position as regards the finding on the second proviso to sub Section 3. Even if it is assumed that there has been some fatal admission on the part of the landlord that the income derived from the business carried on by the revision petitioner in the building accounts for the main source of his livelihood, then also since both the limbs are in the conjunctive, the R. C. R. No.125 of 2009 -6- revision petitioner will not be eligible for the benefit of the said proviso. We are not prepared to accept the submission of the learned counsel that buildings available within the vicinity of Neerchal Masjid are irrelevant when admittedly those buildings are also situated within the same local authority. Locality for the purpose of the second proviso to sub Section 3 does not the immediate vicinity of the petition schedule building. It is a fairly larger area and the tenant was expected to have enquiries with respect to availability of buildings in other areas of the town. It is sufficiently a large locality and if the buildings are available near the Neerchal Masjid, the tenant cannot claim to have established the second limb of second proviso to sub Section 3. 5. As his last request, learned counsel for the R. C. R. No.125 of 2009 -7- petitioner sought for one year's time to surrender the petition schedule building. We are not inclined to grant so much of time. However, by way of indulgence and taking into account the totality of the circumstances attending on this case, we feel that there is justification for granting time till 31/12/09. Accordingly, though we are confirming the impugned order of Rent Control Court and the judgment of the Rent Control Appellate Authority, there will be a direction to the execution court not to order and effect delivery of the petition schedule building till 31/12/09 on condition that the revision petitioner files an affidavit before the execution court (if E.P. is filed) within three weeks from today stating that he will peacefully surrender the petition schedule building to the first respondent on or before 31/12/09 and stating R. C. R. No.125 of 2009 -8- further that he will discharge arrears of rent if any within one month and he will pay occupational charges at the current rent rates till he actually surrenders, as and when the same falls due. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-