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 13TH JANUARY 2010 / 23TH POUSHA 1931 RCRev..No. 244 of 2006() ------------------------ RCA.52/2005 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.64/2000 of RENT CONTROL COURT.,THRISSUR .................... REVISION PETITIONER/APPELLANT/PETITIONER. ------------------------------------------------------------- MATHAI, S/O.POKKAL VARKEY, THONIPPARA DESOM, KAINOOR VILLAGE, THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): RESPONDENT/RESPONDENT. -------------------------- DEVAKY, W/O.KUTTIKATTPARAMBIL RAMAKRISHNAN, MOORKKANIKKARA DESOM, KOZHUKKULLY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE FOR R1 SRI.NIREESH MATHEW FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:S666 PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 244 OF 2006 ------------------------ Dated this the 13 th day of January, 2010 O R D E R Pius C.Kuriakose, J. The landlord, who was unsuccessful before the Rent Control Court and the Appellate Authority is in revision. The landlord sought to evict the respondent/tenant on the grounds of bona fide for own occupation and arrears of rent. The landlord's allegations in the context of ground of arrears of rent were that the tenancy is governed by Ext.A1 deed of rent -cum- licence; that monthly rent payable by the tenant is Rs.750/- and that the rent is in arrears from 19/8/1999 and also that despite statutory notice, the tenant has not chosen to discharge the arrears of rent. The tenant's defence was that Ext.A1 is a concocted document and that the contract rent is only Rs.75/- per month and that the rent at that rate is being paid promptly. The need projected by the landlord was that the building in question is needed by him for own occupation for the purpose of conducting business in grocery. The bona fides of the need was strongly disputed by the tenant, who also claimed that she is entitled to RCR.No.244/2006 2 the protection of the second proviso to sub section (3) of Section 11. It was also contended that the landlord was in possession of another building which could be utilized for accomplishing the projected need if the same is bona fide. 2. The Rent Control Court enquired into the matter and at trial the evidence consisted of Exts.A1 to A6 and the oral testimonies of PWs 1 and 2 on the side of the landlord. On the side of the tenant, the same consisted of oral evidence of RW1, the tenant herself. On evaluating the evidence, the Rent Control Court came to the conclusion that execution of Ext.A1 document of lease-cum-licence was not proved by the landlord. On that basis, the Rent Control Court accepted the tenant's case that the monthly rent was only Rs.75/-. It was found that the rent at that rate was discharged and hence the rent is not in arrears at all. Accordingly, eviction was declined on the grounds of arrears of rent. Coming to the ground under sub section (3) of Section 11, the Rent Control Court found that the evidence of PW1 was to the effect that the very purchase of the building by him was for accomplishing the bona fide need. Noticing on the day next to the date of purchase, the building was let out, the Rent Control RCR.No.244/2006 3 Court concluded that the need cannot be bona fide. The Rent Control Court went on to find that the tenant is entitled for the protection of the second proviso to sub section (3) of Section 11. However, the Rent Control Court did not become inclined to accept the contention of the tenant that the RCP is liable to fail by virtue of first proviso to sub section (3) of Section. 3. The Appellate Authority reappraised the evidence and agreed practically with all the conclusions of the Rent Control Court and dismissed the appeal. 4. In this revision under Section 20, the landlord has raised several grounds assailing the judgment of the Appellate Authority and Sri.T.K.Chinnan, learned counsel for the revision petitioner addressed us on the basis of all those grounds. The learned counsel submitted, drawing our attention to Ext.A1, that the tenant does not have a case that the signatures appearing on Ext.A1 were not put by her. The defence was only that these signatures were obtained by the landlord on blank papers. The learned counsel highlighted that the third sheet of Ext.A1 was not a blank paper; it contains printed matters. The learned counsel referred to the statement of objections filed by the tenant and RCR.No.244/2006 4 submitted that this is a case where the landlord-tenant relationship between the parties is admitted. The dispute is only regarding the rate of rent. Since it is the definite contention of the tenant that the contract rent is only Rs.75/-, it is for the tenant to adduce cogent evidence and prove the same. The tenant, having failed to establish her case regarding the contract rent, the Authorities below should have accepted the landlord's case. Coming to the finding of the Authorities below regarding the bona fides of the need, the learned counsel submitted that relevant point of time, with reference to which bona fides of the need is to be examined, is the time of institution of the RCP and not the time when let out the building. PW1 was examined and his evidence that he needs the building for conducting grocery shop has not been shaken in cross examination. The Authorities below, according to the learned counsel for the landlord, were not justified in holding that the need is bona fide. The learned counsel would assail the finding of the authorities below that the tenant is entitled to the second proviso to sub section (3) of Section 11. The learned counsel submitted that the Authorities below did not have due regard to the judgment of a Division RCR.No.244/2006 5 Bench of this court, which lays down that the burden to establish the fact that the tenant satisfies both the ingredients of the second proviso to sub section (3) of Section 11 is on the tenant. 5. All the submissions of Sri.Chinnan, were very forcefully resisted by Sri.Kartikeyan, learned counsel for the respondent. The learned counsel supported the impugned judgment on the basis of the reasons stated therein. He reminded us of the contours of our jurisdiction under Section 20 and submitted that there is no warrant for invocation of such jurisdiction. 6. We have very anxiously considered the rival submission. We have also considered those items of evidence and pleading to which our attention was drawn by the learned counsel. As rightly submitted by the learned counsel for the respondent, the jurisdiction of this court under Section 20 is revisional in nature. This court is not expected ordinarily to substitute our conclusions for conclusions of fact arrived at by the final fact finding Authority, the Rent Control Appellate Authority . On scanning the judgment of the Appellate Authority and the order of the Rent Control Court, we find that the finding regarding the RCR.No.244/2006 6 contract rent as well as the finding regarding the bona fides of the need have been entered on the basis of the evidence available on record including the oral evidence adduced by PW1. That being so, we do not find any illegality, irregularity or impropriety about the findings entered by the Authorities below regarding the contract rent and also regarding the absence of bona fides and the claim under Section 11 (3). At the same time, we find force in the submission of the learned counsel for the revision petitioner that the Authorities below cast the burden of proof wrongly on the landlord in the context of the second proviso to sub section (3). We, therefore, vacate the finding of the Authority below that the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. Nevertheless since we are confirming the finding in the impugned judgment regarding the bona fides of the need and also regarding the contract rent, the decision declining eviction on both the grounds of arrears of rent and bona fide own occupation has to be confirmed. Not withstanding our conclusion as above, we notice that the monthly rent of Rs.75/-, presently found by the Authorities below as payable by the respondent, is far below the RCR.No.244/2006 7 rent which the building may fetch if let out today. The building is situated at Nadathara very near to the Thrissur City Corporation. The respondent has been profitably conducting tea shop in the building. We are of the view that if the building is let out today, the same will fetch more than Rs.750/- per month. Therefore, we tentatively refix the monthly rent payable by the respondent for the building at Rs.750/- per month with effect from 1-2-2010. It is made clear that the above refixation is tentative and will be be subject to the right of either of the parties to move the Rent Control Court for regular fixation of fair rent. We also make it clear that this judgment confirming the judgment of the Appellate Authority will not stand in the way of the landlord filing fresh petition for evicting the tenant on all grounds presently available to him. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk