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 22ND MAY 2009 / 1ST JYAISHTA 1931 RCRev..No. 94 of 2009() ----------------------- RCA.94/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.65/2006 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------------ ABDUL RAZAK,S/O.CHEKKUTTY,PROPRIETOR, AR MOTORS,CC 58/188,COCHIN-35. BY ADV. SRI.MANOJ P.KUNJACHAN RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ A.A.MUHAMMED YUSUF,S/O.ABDUL KHADER, ALUNKA PARAMBIL,FLOWER JUNCTION,ERNAKULAM. SRI.P.A. ABDUL JABBAR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ. ------------------------ R.C.R.No.94 OF 2009 ------------------------ Dated this the 22nd day of May, 2009 ORDER Pius C.Kuriakose, J. The tenant, who suffered order of eviction under Section 11(3) of the Act concurrently in the hands of the Rent Control Court and the Appellate Authority, is the petitioner in this revision under Section 20 of the Kerala Buildings (Lease & Rent Control) of 1965 (Act 2 of 1965). The petition schedule building (hereinafter referred to as the building) is one room in a larger building having 10 rooms. The need projected by the respondent/landlord is that he needs the building for occupation by his dependent daughter Sabeena. The bona fides of the need was attacked by the revision petitioner mainly on the ground that immediately prior to the issuance of lawyer notice demanding possession, the landlord had let out one room in the building to one Francis for conducting a Gents Beauty Parlour and therefore the petition was liable to fail in view of the first proviso to Section 11(3). The tenant also claimed protection of the second proviso to Section 11(3). R.C.R..No.94/2009 2 2. The evidence in the enquiry before the Rent Control Court consisted of Exts.A1 to A3 and the oral testimonies of PW1 to PW3. Ext.A1 was the report submitted by the commissioner, who was examined as PW-3. The counter evidence consisted of Ext.B1 possession certificate issued by the Cochin Corporation to the effect that the landlord is having ownership of 10 rooms and the testimony of the tenant himself as RW1. The Rent Control Court, on evaluating the evidence, would hold that the claim and the need is bona fide. As regards the contention that one room had been let out by the landlord to Mr.Francis, it was found that there was no evidence to accept the above contention. It was also found in the context of the second proviso to Section 11 (3) that the tenant has not discharged his burden to show that both the ingredients of the said proviso are satisfied in his favour. The Appellate Authority would re appreciate the entire evidence and concur with the findings of the Rent Control Court. 3. We have heard the submissions of Sri. Manoj P.Kunjachan, learned counsel for the revision petitioner and those of Sri.P.A.Abdul Jabbar, who has taken notice on behalf of the respondent landlord. Mr. Manoj Kunjachan would read over R.C.R..No.94/2009 3 to us portions of the testimonies of PW-1 and RW-1 and he would draw our attention to Ext.A2 lawyer notice and A3 reply. He submitted that there was practically no cross examination on the statement of RW-1 that the room presently occupied by Sri.Francis was let out by the landlord after he had issued Ext.A3 reply notice. He also highlighted the evidence of PW-1 that his daughter Sabeena informed him about her need to do her own business only two weeks prior to filing of the case. All the submissions of Sri.Manoj P.Kunjachan were resisted by Sri.P.A.Abdul Jabbar. Under the statutory scheme, the appellate authority is the final court on facts and under this jurisdiction, the enquiry of this court is only to find out whether the finding entered by the appellate authority is vitiated by any illegality, irregularity or impropriety warranting correction under Section 20, which is a revisional jurisdiction. Ordinarily this court is not expected to re appreciate the evidence. 4. Having considered the submissions and having considered those aspects of the evidence, which were highlighted before us by the learned counsel for the petitioner, we are of the view that there is absolutely no warrant in this case for R.C.R..No.94/2009 4 invocation of the revisional jurisdiction. It has become evident that neither Sabeena nor her husband are having any business of their own or any other source of income for their subsistence. Sabeena is a daughter of the landlord and despite her marriage she continues to be a dependent on her father for the purpose of accommodation. The smallness of the room is an aspect highlighted by Sri.Manoj during his submissions. According to him, room is too small to accommodate business in hardware. But it is clear that all the 10 rooms in this larger building have equal dimensions and Sabeena's brother- son of the landlord is carrying on the same business in the adjacent room. When the father landlord says that he wants to accommodate his daughter, who is without any source of income, for the purpose of carrying business same as the business carried on by his son in the adjacent room, it can be presumed that the need of the father is a genuine need. In the absence of any oblique motive, the need can be accepted also. No oblique motive is attributed, instead what is highlighted is the circumstance of the landlord having let out another room to Sri.Francis after the reply notice was issued. Regarding the point R.C.R..No.94/2009 5 of time when the room was let out to Francis also no evidence was adduced by the tenant. Significantly the tenant did not even feel like examining Francis. We are of the view that the findings entered by the Rent Control Court, which have been confirmed by the Appellate Authority are founded on evidence. 5. Result is that the revision petition will stand dismissed. As his last submission, Sri.Manoj requested for grant of 9 months time. Sri.Abdul Jabbar would submit that there is no justification for granting anything more than three months. Having considered the rival submissions and the circumstances of this case, even as we dismiss the rent control revision confirming the eviction order passed by the authorities below, there will be a direction to the Execution Court to put off delivery proceedings to 22/11/2009 subject to the following conditions; i). The revision petitioner files an undertaking in the form of an affidavit before the Execution Court stating that he will peacefully and unconditionally surrender the petition schedule premises on or before 22/11/2009 to the landlord R.C.R..No.94/2009 6 and stating further that he will discharge arrears of rent, if any within one month and will continue to pay the rent which falls due till the date of surrender without fail. ii). Once the Execution Court notices the affidavit to be filed by the revision petitioner, that court will adjourn the execution petition to 24/11/2009. PIUS.C.KURIAKOSE,JUDGE P.Q.BARKATH ALI, JUDGE dpk