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 28TH JULY 2010 / 6TH SRAVANA 1932 RCRev..No. 69 of 2005(E) ----------------------- RCA.108/2002 of ADDL.DISTRICT COURT, THRISSUR RCOP.100/1999 of PRL.MUNSIFF COURT,THRISSUR .................... REVISION PETITIONER/RESPONDENT/RESPONDENT-TENANT. --------------------------------------------------------------------- C.J.BABY @ C.M.BABY, S/O. JOSEPH, C.M.JOSEPH & SONS, DOOR NO. X/1836, HIGH ROAD, THRISSUR. BY ADV. SRI.JIJO PAUL SMT.SINDHU MURALEEDHARAN RESPONDENT(S): APPELLANT/PETITIONER-LANDLORD. --------------------------------------------- K.R.SURENDRAN, S/O. KOCHATH RAMANKUTTY, ANTHICAD, PADIYAM VILLAGE, THRISSUR TALUK. ADV. SRI.VAKKOM N.VIJAYAN SRI.R.SURESH SMT.VINITHA PRASANNAN SRI.P.ANIYAN SMT.REENA.C.STEPHENSON SRI.A.S.SACHIN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.537/2005 IN RCR.69/2005 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 28.7.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.69 of 2005 ---------------------------------- Dated this the 28th day of July, 2010 O R D E R ---------------- Pius C.Kuriakose,J. The tenant is in revision. He is challenging the order of eviction passed against him by the Rent Control Appellate Authority for the first time on the ground under Section 11(3). In fact the respondent landlord sought to evict him on the ground of arrears of rent, subletting and also on the ground under Section 11(3). The Rent Control Court allowed the petition on the ground of arrears of rent and subletting. The Appellate Authority by the impugned judgment vacated the order of eviction which had been passed on the ground of arrears of rent and subletting and passed order of eviction only under Section 11(3). It is not disputed before us that the order declining eviction on the ground of arrears of rent and subletting has become final. Thus the only issue which survives is the correctness of judgment of the Appellate Authority ordering eviction on the ground of bonafide need for own occupation. The need projected by the landlord in the Rent Control Petition was that he, who is acquainted with transport RCR.69/05 2 industry, needs possession of the building so that he can conduct a business in automobile spare parts. According to the landlord, the schedule building situated on Highroad in Trichur, which is commercially very important area, is quite suitable for conduct of the proposed business. The bonafides of the need was disputed by the tenant who also claimed that he is entitled to protection of second proviso. The Rent Control Court on evaluating the evidence which consisted of Exts.A1 to A3, B1 and oral testimonies of PWs 1 to 3 and RW1, would conclude regarding the claim under Section 11(3) that the need is not bonafide and declined eviction on that ground. Appellate Authority however made a thorough reappraisal of the evidence. The Appellate Authority did not find anything to doubt the credibility of the PW1 landlord who had given convincing oral evidence that he needs the building so that he can conduct the automobile spare parts business. The Appellate Authority considered the question whether the tenant is entitled to protection of the second proviso in the light of the evidence which were available on record. That authority concluded that the tenant was unsuccessful in proving that he satisfies the two ingredients of the second proviso and accordingly ordered eviction. 2. In this revision under Section 20 various grounds are RCR.69/05 3 raised challenging the judgment of the Appellate Authority and Sri.Jijo Paul, learned counsel for the revision petitioner addressed strenuous arguments before us on the basis of all those grounds. According to him, the Appellate Authority's judgment is vitiated by illegality, irregularity and impropriety as the findings entered by that authority are contrary to the evidence actually on record. 3. All the submissions of Mr.Jijo Paul were opposed by Sri.Vakkom N.Vijayan, learned counsel for respondent. We have anxiously considered the submissions addressed at the bar. We have scanned the order of the Rent Control Court and the judgment of the Appellate Authority. Under the statutory scheme the Rent Control Appellate Authority is the final court on facts. On going through the Appellate Authority's judgment we find that the finding entered therein that landlord is in need of building for conducting the automobile spare parts business is founded on the basis of oral evidence adduced by PW1. The Appellate Authority rightly found that despite cross-examination the credit of PW1 was not shaken. We are of the view that appreciation of evidence of PW1 by the Appellate Authority was proper. The same is the position regarding the finding of the Appellate Authority regarding the tenant's eligibility for protection of second proviso. According to us, having regard to RCR.69/05 4 the position of law as settled by various judgments of this court including Francis Vs. Sreedevi Varassiar (2003 (2) KLT 230 (F.B)) there is no warrant for interfering with the finding of the Appellate Authority that the tenant was unsuccessful in establishing that he is eligible for protection of second proviso. 4. As a last plea Sri.Jijo Paul requested for grant of 1½ years time for surrender of premises. The request is strongly opposed by the learned counsel for respondent. However, we feel having regard to the totality of the circumstances attendant in this case that there is justification for granting time till 31.7.2011 to the respondent to surrender the premises only on condition. We notice that for the petition schedule building having a carpet area of 200 Sq.Ft. situated on commercially a most vantage locality in Trichur Muncipal Corporation, he has been paying Rs.120/- only towards rent. The above rent in our opinion is very low. So we are inclined to re-fix the rent at Rs.1000/- per mensem prospectively with effect from 1.9.2010. Result of the above discussion is as follows: Judgment of the Appellate Authority is confirmed and the RCR is dismissed. The execution court is directed not to order delivery of the petition schedule building to the respondent till 1.8.2011 subject to the following conditions. The respondent shall file an affidavit before the execution RCR.69/05 5 court or the Rent Control Court as the case may be within three weeks from today undertaking the conditions as follows: (i) He shall give peaceful surrender of the building to the respondent on or before 31.7.2011. (ii) He shall pay rent to the respondent at the rate of Rs.1000/- per mensem with effect from 1.8.2010 till he surrenders the building. (iii) He shall discharge the entire arrears of rent calculated at the rate of Rs.120/- per mensem due for the period till 31.7.2010. It is made clear that the respondent will get the benefit of time granted by virtue of this order only if he files affidavit on time. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb