IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 RCRev..No. 178 of 2005(F) ------------------------ R.C.A. 18/2008 RENT CONTROL APPELLATE AUTHORITY ADDL DISTRICT COURT, KOZHIKODE PETITIONER/APPELLANT: ----------------------------------------- THAZHE PONAMPULICHALIL KUNHAMMED S/O. ABDULLA, AGED 51 YEARS, VADAKKUMBATT HOUSE, VILLILAPPALLY AMSOM, THIRUMANA DESOM, VADAKARA TALUK. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: --------------- 1. KUNHIAYISSA, W/O. LATE KUNHAMMED AGED 40 YEARS, HOUSEWIFE, KELOTH HOUSE VILLIAPPALLY AMSOM, THIRUMANA DESOM, VADAKARA TALUK. 2. KUNHIPATHU, D/O. LATE KUNHAMMED AGED 40 YEARS, HOUSEWIFE, KELOTH HOUSE, VILLIAPPALLY AMSOM, THIRUMANA DESOM, VADAKARA TALUK. 3. KUNHABDULLA, S/O. LATE KUNHAMMED, AGED 24 YEARS, KELOTH HOUSE, VILLIAPPALLY AMSOM, THIRUMANA DESOM, VADAKARA TALUK. BY ADV. SRI.B.KRISHNA MANI FOR R1 TO 3 SRI.V.K.KUNHI MOOSA FOR R1 TO R3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R NO REPRESENTATION ON EITHER SIDES TODAY ALSO. RCR IS DISMISSED FOR DEFAULT. SD/- PIUS C.KURIAKOSE (JUDGE) SD/-.K. SURENDRA MOHAN (JUDGE) ORDER ON I.A. NO. 1441/2005 IN RCR NO. 178/2005 DISMISSED. SD/- PIUS C.KURIAKOSE (JUDGE) SD/-.K. SURENDRA MOHAN (JUDGE) 17.12.2009 // TRUE COPY // dl/ PIUS C. KURIAKOSE & P.S.GOPINATHAN, J. ---------------------- R.C.R.No.178 OF 2005 --------------------------- Dated this the 18th day of October, 2010 O R D E R ~~~~~~~ Pius C.Kuriakose, J. Under challenge in this revision under Section 20 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against the revision petitioner/tenant under sub-section 3 of Section 11 of Act 2 of 1965. The need projected by the landlord was that the building is required bonafide for occupation by landlord No.3 (the 3rd respondent herein) one Kunjabdulla, so that, Sri.Kunjabdulla who is said to be without any job or occupation for life can start a stationery business. The bonafides of need was disputed. It was contended that the landlords are having vacant possession of other buildings in their possession and hence RCP is liable to fail by virtue of 1st proviso to sub-section 3 of Section 11. It was also contended that, at any rate, the tenant is entitled for the protection of the 2nd proviso. The Rent Control Court enquired into the RCP and at trial the evidence consisted of Exts.A1 to A3 and oral testimonies of PW1 and RW1s and 2. PW1 was none R.C.R. No.178/2005 2 other than Sri.Kunjabdulla. The evidence adduced by PW1 inspired the Rent Control Court. His evidence was infact not shaken in cross-examination. On the basis of his evidence, it was concluded by the Rent Control Court that the need projected is bonafide. The Rent Control Court also found that the tenant was unable to show that the landlords were in vacant possession of any building by utilising which the need projected under Section 11(3) could be accomplished. On the basis of the evidence which came on record it was also held that the tenant was unsuccessful in showing that he satisfies the two ingredients of the 2nd proviso. Accordingly, the order of eviction was passed under Section 11(3). Before the Rent Control Appellate Authority, the tenant produced additional documents. These additional documents were produced mainly in the context of the tenant's contention based on the first proviso to Section 11(3). The learned appellate authority appreciated the evidence already on record and some of the items of evidence which were produced before the appellate authority. The appellate authority would concur with all the conclusions of the Rent Control Court and confirmed the order of eviction. R.C.R. No.178/2005 3 2. In this revision under Section 20 various grounds are raised assailing the judgment of the appellate authority. On 2.8.2010, when this RCR was considered by this Court it was submitted by Sri.Ramesan Nambisan, learned counsel for the revision petitioner that Sri.Kunjabdulla PW1 has secured permanent employment at Doha with M/s Gulf Investment Group. He submitted that the above subsequent event is one of the fundamental impact on the respondent's right to evict the revision petitioner. Though we noticed that the revision petitioner was yet to bring the above so-called subsequent event to the notice of this Court by filing proper petition in view of the submission, we directed the respondents to answer the submission, if necessary, through an affidavit sworn to by either the 1st respondent or the 2nd respondent. Pursuant to that order, an affidavit has been filed. The affidavit is filed by the wife of PW1. The submission of the landlord's counsel that PW1 is in Doha is not seen disputed. In fact it is admitted that PW1 is presently living at Gulf. In paragraph 3 of the affidavit this is what is stated by the wife of PW1: R.C.R. No.178/2005 4 “It is respectfully submitted that my husband will come back to his native place and will start the proposed business in the plaint scheduled premises if vacant possession of the same is handed over to him. Thus he has no intention whatsoever to continue in the Gulf.” 3. We have heard Sri. Ramesan Nambisan, learned counsel for the revision petitioner and Smt. M.N.Sandhya, learned counsel for the respondent. Mr.Ramesan Nambisan submitted that it is clear from the affidavit filed by the wife of PW1 that PW1 is not in India and is actually in Khathar. According to Mr.Nambisan, PW1 has already secured a permanent employment in Khathar. He submitted that the subsequent event of PW1 securing permanent employment is an event of fundamental impact on the respondent's right to evict the revision petitioner on the ground under sub-section 3 of Section 11. The need of 11(3) stands completely eclipsed because of that subsequent event. The learned counsel submitted that there has been no proper appreciation of evidence either by the Rent Control Court or by the Appellate Authority. As a result of this, the order of the Rent Control R.C.R. No.178/2005 5 Court and the judgment of the Appellate Authority are vitiated. He submitted that the judgment of the Appellate Authority is illegal, irregular and improper and hence warrants interference under the revisional jurisdiction. 4. All the submissions of Mr.Nambisan were resisted by Smt. Sandhya. According to her, in this jurisdiction under Section 20, this Court will not be justified in making a reappraisal of the evidence and substituting conclusions of fact already arrived at by the fact finding authority, especially, when such conclusions are reasonable. According to the learned counsel, it is only a temporary employment, which PW1's husband, Sri.Kunjabdulla, has secured in Khathar. The moment the possession of the petition schedule building is obtained, PW1 will come back to Vadakara and start the proposed stationery business in the petition schedule building. She submitted sub-section 12 of Section 11 affords adequate protection to the revision petitioner in this regard. 5. We have very anxiously considered the rival submissions. We have scanned the judgment of the Appellate R.C.R. No.178/2005 6 Authority. We are unable to accept the argument of Mr.Ramesan Nambisan that the appreciation of the evidence in the case by the learned Appellate Authority is erroneous. We find that the entire evidence, which was on record before the Rent Control Court and also the evidence which was adduced before the Appellate Authority, has been thoroughly analysed by the learned Appellate Authority. In fact, all the arguments, which were addressed before the authorities, have been correctly considered by the Appellate Authority on the basis of the additional documents also. It is rightly found by the Appellate Authority that the version of PW1 that he is unemployed and that he needs to do his own stationery business for supporting himself and his family which consists of his recently married wife also was not shaken in cross-examination. The Appellate Authority also found on the basis of evidence that PW1 was not in possession of any vacant building in which the proposed business could be conducted. The Appellate Authority concurred with the findings of the Rent Control Court in the context of the 2nd proviso on re-appreciating the entire evidence on record. We don't find any infirmity with the decision taken by the Appellate Authority. R.C.R. No.178/2005 7 6. Coming to the so-called subsequent event of PW1 going over to Khathar, we will notice immediately that the affidavit sworn by PW1's wife is convincing to the extent it says that PW1 will come back to Vadakara on getting possession of the building in question. We rely on that affidavit. We remind the respondents, particularly R3, that if he doesn't occupy the building after evicting the revision petitioner, it will be open to the revision petitioner to invoke sub-section 12 of Section 11. The result of the above discussion is therefore as follows: The impugned judgment will stand confirmed and RCR will stand dismissed. The respondents are reminded of their liability under sub-section 12 of Section 11. The 3rd respondent is directed to occupy and start the proposed business in the petition schedule building within one month of getting possession. If the 3rd respondent does not do so, the petitioner will be at liberty to invoke sub-section 12 of Section 11 by filing appropriate application. If any such application comes to be filed by the revision petitioner, the learned Rent Control Court will take a decision on that application with utmost expedition in the light of what we have stated herein. R.C.R. No.178/2005 8 7. As a last plea, Mr.Nambisan requested that atleast one year's time be granted to surrender the building. This submission is opposed by Smt.Sandhya. Yet we give eight months time. The time will be granted upto 30.6.2011 subject to the following conditions: The revision petitioner shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within three weeks from today undertaking to give peaceful surrender of the building to the respondents on or before 30.6.2011 and undertaking further that arrears of rent, if any, will be discharged within one month and that occupational charges at the current rent rate will also be paid till surrender without fail. We make it clear that the revision petitioner will get benefit of time as granted above only, if the affidavit is filed in time and the undertakings are honoured without fail. (PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ps