IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RCRev..No. 35 of 2009() ----------------------- RCA.26/2006 of ADDL.DISTRICT COURT,KOTTAYAM RCOP.13/2002 of PRL.M.C., KOTTAYAM .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER ------------------------------------------------- K.K.GOPINATHAN, S/O.KRISHNAN,AGED 72 YEARS, RESIDING AT KOCHUPARAMBIL HOUSE, VELLAPPALLY LANE,KOTTAYAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH RESPONDENT(S): RESPONDENTS/PETITIONER ------------------------------------- 1. BOBYCHAN NIDHIRY,S/O.MANI, AGED ABOUT 27 RESIDING AT NIDHIRIKKAL HOUSE,KOZHAKARA, KURAVILANGAD VILLAGE. 2. CHINNAMMA EMMANUEL, W/O.MANI, AGED 59 YEARS,RESIDING AT NIDHIRIKKAL HOUSE, KOZHAKARA, KURAVILANGAD VILLAGE. SRI.M.P.MADHAVANKUTTY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No. 35 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2009 ORDER Pius.C.Kuriakose, J. A tenant against whom order of eviction on the ground under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act 1965 has been concurrently passed by the rent control court and the appellate authority is the petitioner in this revision under Section 20. The respondent/landlord had invoked the ground under Clause 3 of Sub Section 4 of Section 11 also. But we are informed that eviction under that ground has been declined by the rent control court and the appellate authority. The need projected by the respondent in the context of Section 11(3) was that the first respondent who is the son of the second respondent requires the building in which the revision petitioner is conducting a century old bakery by name “Kadutha Bakery” for his own occupation for conducting Internet cafe, DTP centre and STD booth etc. etc. The bonafides of the claim and the need was very stoutly opposed by the revision petitioner who RCR.No.35/09 2 contended that the need had been projected only as a ruse for letting out the building to others on much higher rent. It was also contended that the respondents are possessed of extensive immovable property including buildings in their native place at Kuravilangadu and it was suggested that if the need is bonafide, the same could be accomplished carrying on the same business in one of their buildings at Kuravilangadu. The revision petitioner would alternatively contend that he is entitled to the protection of Second proviso to Section 11(3). 2. We have heard the submissions of Sri.K.Jaju Babu, learned counsel for the petitioner and also those of Sri.M.P.Madhavan Kutty, learned counsel who had lodged caveat on behalf of the respondent. Even though Sri.Jaju Babu would assail the findings of the rent control court and the appellate authority regarding the bonafides of the need and the claim projected by the landlord under Section 11(3), we in this attenuated jurisdiction under Section 20 are unable to say that those findings are vitiated to the extent of warranting interference under Section 20. Learned counsel Sri.Jaiju Babu would give more thrust to ground (f) raised in the memorandum of revision in his RCR.No.35/09 3 arguments . He argued that the findings entered by the rent control court and the appellate authority under both the ingredients of the second proviso to Section 11(3) are wrong and contrary to the evidence on record. Learned counsel would fervently appeal for a remand of the case back to the rent control court for reconsideration and fresh decision regarding the revision petitioner's eligibility to the second proviso to Section 11(3). 3. Sri.M.P.Madhavankutty, learned counsel for the respondent submitted that there is no warrant for interfering with any of the findings of the authorities below. According to him, revision petitioner is possessed of 9 Acres of rubber plantation near Peermedu and that the income from the rubber plantation will be more than that of the income from the bakery business. He further submitted that it was on the finding that the building pointed out by the landlord for the purpose of his case for eviction under Section 11(4)(iii) as possessed by the landlord belongs not to the landlord but belongs to the landlord's wife that eviction was declined under that ground. He submitted that revision petitioner's wife is living along with him and whatever income RCR.No.35/09 4 she may be getting is the family income of the revision petitioner and his wife and atleast to some extent, the revision petitioner should be depending for his livelihood on that income also. We have considered the rival submissions. We find that apart from the ipse dixit of the revision petitioner the only evidence on which the revision petitioner can rely on, to support his case that the income from the tenanted premises is the only income for his livelihood is Exts. B3 and B3(a) profession tax receipts. If as a matter of fact, the revision petitioner is drawing a monthly income of Rs. 9,000/- from his ancient bakery business, there should be some records to show the income. The non-production of any document leave alone proper accounts pertaining to the actual income derived by the petitioner from the bakery business is according to us a circumstance justifying drawal of adverse inferences against the revision petitioner. More over we find that there is admission from the mouth of the revision petitioner that in his rubber plantation there are atleast 300 rubber tress which are under tapping. It is very clear to our mind that the income from the rubber plantation also will be substantial. When it is shown that tenant RCR.No.35/09 5 is having more than one source of income, it is for the tenant to establish before the court that the main income is the income from the business carried on in the tenanted premises. In order that the tenant becomes entitled for the benefit of the second proviso, it is necessary that the tenant succeeds on both ingredients of the second proviso. Since we are of the view that the findings of the authorities below regarding the first ingredient of the second proviso are unassailable, we are not examining the correctness of the findings on the second ingredient. 4. The result is that the revision petition is dismissed. However, considering the fervent appeal of the learned counsel for the petitioner and taking into account the fact that the petitioner has reached the evening of his life, we feel that there is justification for granting time to the petitioner till 30/09/2009 for surrendering the premises. Accordingly, even as we dismiss the revision petition and confirm the findings of the authorities below, there will be a direction to the execution court, if any execution petition comes to be filed by the respondent, not to deliver the petition schedule building over to the RCR.No.35/09 6 respondent/landlord till 30/09/2009 provided the following conditions are satisfied by the revision petitioner: 1) The revision petitioner files an affidavit before the rent control court within three weeks from today. Through the affidavit, he will undertake that he will peacefully hand over possession of the petition schedule building to the respondents on or before 29/09/2009. Through the affidavit, he will also undertake that he will discharge the arrears of rent if any and will continue to pay the rent which falls due subsequently till the date of surrender without fail. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. RCR.No.35/09 7