IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 RCRev..No. 413 of 2004() ------------------------ RCA.253/1996 of DISTRICT COURT, THALASSERY RCP.11/1996 of PRL.M.C.,KANNUR .................... REVISION PETITIONER/ APPELLANT/RESPONDENT-TENANT ----------------------------------------------- VENGA SADANANDAN, S/O.GOVINDAN, AGED 55 YERS, BUSINESS, RESIDING AT EDAKKAD AMSOM, KUTTIKKAKAM DESOM, KANNUR DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY SMT.S.LAKSHMY RESPONDENT(S): RESPONDENT/PETITIONER-LANDLORD --------------------------------------------- THEKKIL CHEMMINIYAN SURESH, S/O.RAMOTTY, AGED 50 YEARS, BUSINESS, RESIDING AT "JYOTHIS" KANNUR II AMSOM, KANNOTHUMCHAL WARD, KANNUR TALUK, KANNUR DISTRICT. ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/03/2009 ALONG WITH RCR NO. 416 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.NOs. 413 & 416 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of March, 2009 ORDER Pius.C.Kuriakose, J. Tenants against whom order of eviction has been passed concurrently by the rent control court and the appellate authority are the revision petitioners. In fact, the landlord had invoked the ground under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act 1965 also. But the tenant could avert passage of order under Section 11(2)(b) by deposit of entire arrears before the rent control petition went for trial. 2. The need projected in the rent control petition by the landlord is that the entire building which is subject matter of the two rent control petitions, a two storied building, is required for the commencement and conduct of business in textiles. The bonafides of need and the claim was stiffly disputed by the respondents. The rent control court after trial on evaluating the evidence which came on record concluded that the need projected by the landlord was a R.C.R.NOs. 413 & 416 of 2004 2 bonafide one and that the tenant had not succeeded in establishing that he is entitled to the protection of the second proviso to Section 11(3). The appellate authority despite re-appreciation of the evidence concurred with all the conclusions of the rent control court and accordingly, confirmed the order of eviction. 3. We have heard the submissions of Sri.B.Krishnan, learned counsel for the revision petitioner and Sri.V.R.Venkatakrishan, learned senior counsel for the respondent/landlord. Learned counsel for the revision petitioner would submit that the landlord did not have a consistent case at all. He would highlight before us what according to him was the original of Ext.A3 notice received by the petitioner in R.C.R.No.413/04 and submit that the need projected in the rent control petition was that the building was required bonafide for shifting the business which was then being conducted by the landlord. The reference according to the learned counsel was obviously to the vegetable business since it was admitted by the landlord that he was actively involved in the vegetable business which the landlord stated in evidence belonged to the landlord's father-in-law. Learned counsel R.C.R.NOs. 413 & 416 of 2004 3 submitted that it was an entirely different need that was pleaded in the rent control petition. Learned counsel would then highlight that in the rent control petition, the landlord has described himself to be a business man in the cause title portion. In the body of the rent control petition the landlord would claim that he has no job or avocation. Learned counsel submitted that at the stage of evidence, the landlord would state a still different case, that he is employed under his father-in-law. Learned counsel submitted that at the stage of appeal, Ext.B16, the registration particulars relating to a goods vehicle, was produced. This vehicle as admittedly being used in connection with the vegetable business in which the landlord claimed he was employed. The circumstance that the vehicle belongs absolutely to the landlord is a circumstance which strongly indicates that the landlord himself has got a proprietary interest in the vegetable business also. Learned counsel pointed out that prior to his marriage, the landlord was an employee of his father-in-law in the vegetable business and the probabilities were more that atleast after the marriage the son-in-law has been accepted atleast as a partner in the business. R.C.R.NOs. 413 & 416 of 2004 4 4. Sri.V.R.Venkatakrishnan, learned senior counsel could met all the submissions of the learned counsel for the petitioners. He submitted that what was read over to us is not a true copy of Ext.A3. Ext.A3 only says that the premises are required for the business which is intended to be commenced, though the nature of the business is not mentioned therein. He referred to Ext.A5 notice which was sent to the petitioner in R.C.R.No.416/04. He pointed out that both Ext.A3 and A5 had been sent more or less the same time and the difference between the two was only that in Ext.A5, it has been clearly mentioned that the premises are required for the commencement of textile business, while in Ext.A3 the nature of the business proposed was not mentioned. Learned senior counsel reminded us of the contours of our attenuated jurisdiction under Section 20, where we are not expected to substitute our own findings for the findings of fact entered by the fact finding authorities under the statute namely the rent control court and the appellate authority. Learned senior counsel submitted that we are not supposed even to re-appreciate the evidence. Our enquiry should be confined to determining whether the findings are illegal, irregular or R.C.R.NOs. 413 & 416 of 2004 5 improper. The so called variations and contradictions highlighted by the learned counsel were not of much consequence, so submitted the learned senior counsel. 5. We have considered the rival submissions. It is true that in the rent control petition in the cause title portion where the name and address of the landlord is given his calling is mentioned as trade ( ). But the cause title portion of the rent control petition is not expected to be read in isolation. It has been clearly pleaded elsewhere in the rent control petition that the petitioner does not have any trade or avocation of his own. According to us, the circumstance that the landlord had described his calling in life as trade in the cause title portion of the rent control petition cannot be of much consequence. Admittedly, he is assisting his father-in-law in his vegetable business which is being conducted in a large scale. It is only natural that in the cause title of the rent control petition, the petitioner described his calling as trade, obviously referring to the trade which belonged to the father-in-law. The learned counsel for the petitioner is certainly right when he submits that going by the original lawyer notice which was R.C.R.NOs. 413 & 416 of 2004 6 received by his client prior to the rent control petition, the landlord is already conducting a business elsewhere. But then Ext.A3 which was produced and proved before the court below as the notice which was sent to the tenant prior to the rent control petition is not a copy of the notice which was actually received by the party. The marking of Ext.A3 as the true copy of the notice which was sent by the landlord prior to the rent control petition was not objected to, during trial by the landlord. It is seen that the argument seriously addressed before us on the basis of the original of Ext.A3 received by the tenant was not raised either before the rent control court or the appellate authority. It appears to us that the sender of the original of Ext.A3 committed the mistake of not carrying out the corrections which had been made in his office copy and the additional copy which was produced before the rent control court. We are not much impressed by the argument raised by the learned counsel for the petitioner on the basis of the goods vehicle covered by Ext.B16. Ext.B16 will certainly show that the vehicle stands in the name of the landlord. Even if it is true that the said vehicle is being used for for the vegetable business which going by all R.C.R.NOs. 413 & 416 of 2004 7 records stand in the name of the father-in-law, the same cannot be accepted as a circumstance indicative of his proprietary interest in the vegetable business. 6. On scanning the orders passed by the rent control court and appellate authority, we find that the findings therein are founded on evidence oral, documentary and circumstantial. At any rate, we do not find any warrant for invocation of the revisional jurisdiction under Section 20. The revision petition will stand dismissed. However, in deference to the fervent appeal of the learned counsel for the petitioner for grant of time which is strongly opposed by the learned senior counsel, we are inclined to grant five month's time from today to the petitioners to vacate the premises provided the following conditions are complied with by them. Both the petitioners will file affidavits before the rent control court or the execution court undertaking to peacefully surrender the premises in their possession on or before 05/08/2009. Through the affidavit, they will further undertake that they will clear off arrears of rent if any, and will continue to pay the rent which falls due R.C.R.NOs. 413 & 416 of 2004 8 subsequently promptly and regularly. Such affidavits will be filed by both the revision petitioners within two weeks from today. If any execution petition is filed by the landlord, the execution court will adjourn the execution petition to 06/08/2009 if as a matter of fact affidavits as directed above is filed by the petitioners. It is needless to mention that if no affidavit as directed above is filed, the execution court will be justified in ordering delivery forthwith. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. R.C.R.NOs. 413 & 416 of 2004 9