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 17TH JUNE 2010 / 27TH JYAISTHA 1932 RCRev..No. 101 of 2010 (D) ------------------------------- RCA.50/2005 of ADDITIONAL DISTRICT COURT (RENT CONTROL), IRINJALAKUDA RCP.10/2004 of RENT CONTROLLER, IRINJALAKUDA .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------ GOPALAKRISHNAN NAIR,AGED 80, S/O.KUCHIKKATTUVEETTIL KUNJIAMMA,THEKKUMURI, VILLAGE,MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): RESPONDENT/PETITIONER -------------------------------------------------- NABEESA,W/O.LATE ETTIYATTUKARA MUHAMMED, ANNAMANNADA DESOM, KALLUR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.K.S.BHARATHAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.101 of 2010 ------------------------------------------------ Dated this the 17th day of June, 2010 ORDER Pius C. Kuriakose, J Under challenge in this revision filed under Section 20 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against the revision petitioner by the Rent Control Court on the ground under sub Section 3 of Section 11. The need projected by the respondent/landlady was that she needs the petition schedule building which consists of a hall and a storeroom presently under the occupation of the revision petitioner for conducting hotel business for the purpose of doing the very same R. C. R. No.101 of 2010 -2- business. The bona fides of the need was stiffly disputed. It was pointed out that the landlady is a Muslim lady who cannot normally be expected to conduct business. It was pointed out further that she had two daughters and a son, all of whom are already married and settled down in life. All the children including the son, it was pointed out are almost permanently settled down in a Gulf country. The benefit of the first and second provisos to sub Section 3 of Section 11 was also claimed by the revision petitioner. Benefit of the first proviso was claimed on the basis of a room situated on the southern side of the petition schedule building which was previously being used for the conduct of Valiakath Footwears. 2. Before the Rent Control Court, the R. C. R. No.101 of 2010 -3- landlady herself gave evidence as PW1 in support of her claim. Her evidence inspired the Rent Control Court which held that the need is bona fide. Apart from the oral evidence of PW1 before the Rent Control Court, Exts.A1 to A7, B1 and B2, C1 and C1(a) and the oral evidence of RW1 and RW2 came on record. The landlady's explanation regarding the room where Valiakath Footwear was being conducted previously was that the room no longer belongs to her but was gifted to by her in 1998 as per Ext.A2 gift deed to her son. The Rent Control Court relied on Ext.A2 and took the view that since the landlady is not the owner of the building covered by Ext.A2, the first proviso to sub Section 3 of Section 11 cannot have any application. That court also found that the tenant R. C. R. No.101 of 2010 -4- was unable to prove that he satisfies both the ingredients of the second proviso to sub Section 3 of Section 11. That court rather accepted the case of the landlady that the income derived from the business carried on by the tenant in the petition schedule premises was not the only source of the tenant's livelihood. That court was also not impressed much by Ext.C1 report which was to the effect that buildings are not available in the locality on lease and it was available only by sale or mortgage. The Rent Control Court accordingly ordered eviction under sub Section 3 of Section 11. 3. Considering the appeal preferred by the revision petitioner, the Appellate Authority re- appraised the evidence. The Appellate Authority R. C. R. No.101 of 2010 -5- also did not find any reason to disbelieve the version of PW1 that she wants to occupy the petition schedule premises for the purpose of conducting hotel business as the tenant is doing presently. The Appellate Authority not only endorsed the reasoning of the Rent Control Court in the context of the first proviso to sub Section 3 of Section 11, but also found that even if the room where Valiakath Footwears was being conducted is under the vacant possession of the landlady, then also there was special reason for ordering eviction of the petition schedule building since Valiakath Footwear room was not large enough to accommodate the landlady's proposed hotel business. The Appellate Authority would concur with the conclusions of the Rent Control Court in R. C. R. No.101 of 2010 -6- the context of the second proviso to sub Section 3 of Section 11 and accordingly, would dismiss the RCA filed by the revision petitioner. 4. In this revision filed under Section 20, various grounds have been raised challenging the judgment of the Appellate Authority and the order of the Rent Control Court. Sri.G.Sreekumar Chelur, the learned counsel for the revision petitioner addressed arguments before us on the basis of grounds raised in the memorandum of revision. The submissions of Sri.Sreekumar were opposed by Sri.K.S.Bharathan, the learned counsel for the respondent. Sri.Sreekumar drew our attention to the oral evidence given by PW1 and would highlight the last five lines in the deposition of PW1 which we extract below:- R. C. R. No.101 of 2010 -7- “]«nIapdnbpsS sXm«v Ingt¡apdn HgnªpIn«n ]q«n¡nS¡pIbmWv. lÀPn ]«nI apdnbpsS ASp¯pÅ ]q«n¡nS¡pó apdnbnð tlm«ð _nkn\Êv XpS§mw. ]q«n¡nS¡pó apdn aI\v Zm\w sImSp¯p.” 5. According to Mr.Sreekumar Ext.A2 gift deed executed by PW1 in favour of her son has never come into effect. The Donee/son has not visited his home village during the past ten years. It was none other than PW1 who took possession of Valiakath Footwear room back from the tenant then in occupation of that room. That room continues to be under the lock and key of the mother. Sri.Sreekumar argued that when PW1 has conceded in her evidence that she can conduct the proposed hotel business in that room and R. C. R. No.101 of 2010 -8- concedes in evidence that she has not taken even the preliminary steps for conducting the proposed hotel business in that room despite that room being in her possession all along, the finding concurrent though it may be, entered by the authorities below that PW1 needs possession of the petition schedule premises bona fide cannot be correct. According to Mr.Sreekumar, even if the first proviso under sub Section 3 of Section 11 does not operate in view of Ext.A2, then also the circumstance that PW1 has not utilised the Valiakath Footwear room for conducting the proposed hotel business at least in a small way will very strongly indicate that the need is not bona fide. According to him, first proviso to sub Section 3 does operate since it is crystal clear that R. C. R. No.101 of 2010 -9- Ext.A2 gift deed has never been acted upon by the parties to the same. Sri.Sreekumar would challenge the findings entered by the courts below regarding the tenant's eligibility for protection of the second proviso. In this context he would read over to us Ext.C1 commission report which is to the effect that other buildings are not available in the locality on lease, but at the most, buildings are available by sale. Availability of suitable buildings as contemplated by the second proviso to sub Section 3 is availability of suitable buildings on lease and not availability of buildings on sale, so argued the learned counsel for the revision petitioner. Sri.Sreekumar also submitted in the same context that the landlord was unable to adduce any documentary evidence to support the R. C. R. No.101 of 2010 -10- landlord's contention that the tenant was possessed of immovable properties. In the absence of documentary evidence, the authorities should have found that the only source of income which the tenant has is the business of Geetha Hotel presently being conducted in the scheduled premises. 6. As a last plea Sri.Sreekumar submitted that the landlady should be directed to let out Valiakath Footwear room to the revision petitioner on condition that an attractive rent is paid to the landlady and that the scheduled premises are surrendered immediately. 7. Sri.K.S.Bharathan, the learned counsel for the respondent would remind us of the attenuated nature of the present jurisdiction under Section R. C. R. No.101 of 2010 -11- 20. According to him, there is no illegality, irregularity or impropriety about the judgment of the Rent Control Appellate Authority which is in confirmation of the order of the Rent Control Court finding that the need projected by the landlady is bona fide and that the RCP is not liable to fail by virtue of either the first or second proviso to sub Section 3 of Section 11. Valiakath Footwear room ceased to be under the ownership of landlady seven years prior to the commencement of RCP. First proviso to sub Section 3 can operate only when the landlady has under her possession her own building. Since ownership of that room is not with the landlady, the proviso cannot apply. According to Sri.Bharathan, landlady has not made any R. C. R. No.101 of 2010 -12- admission in her evidence that she can conduct hotel business in Valiakath Footwear room. According to him, it is in evidence that the relationship between the landlady and her son has become strained after the son got married. This, according to him, is the reason why the son is not even visiting his mother. If the mother were to conduct Hotel business in son's room, son's permission will be required. Counsel submitted that at any rate there is no comparison between the Valiakath Footwear room and the petition schedule premises which consisted of a large room and a storeroom. 8. We have very anxiously considered the rival submissions addressed at the Bar. In fact, in deference to the seriousness with which the R. C. R. No.101 of 2010 -13- learned counsel for the revision petitioner highlighted what he described as the admissions made by PW1 in her evidence regarding the availability of Valiakath Footwear room for conduct of hotel business by her, we have reappraised the entire evidence given by PW1. On a re- appreciation of PW1's testimony we do not find any admission made by PW1 to the effect that Valiakath Footwear room is under her vacant possession and that she can conduct hotel business therein. True in the last but one sentence of her deposition, she has stated that hotel business can be conducted in the said room. But in the very next line which significantly is the last line in the evidence what she says is that the said room is handed over to the son thereby indicating R. C. R. No.101 of 2010 -14- sufficiently that she is not in a position to conduct business in that room. Evidence of PW1 has to be appreciated as a whole. When it is so done, it will be seen that the landlady's evidence is to the effect that she no longer maintains very cordial relationship with her son, it may not be easy for her to obtain permission of her son for conducting a hotel business even in a small way in Valiakath Footwear. We have scanned the judgment of the Appellate Authority which under the Statutory scheme is the final court on facts. The appellate authority has found assuming that Valiakath Footwear room is available with the landlady for conducting business that there is no comparison between that room and the petition schedule premises. Going by the sketch prepared by the R. C. R. No.101 of 2010 -15- Commissioner, a copy of which is supplied to us by Sri.Sreekumar himself, we are inclined to agree with the Appellate Authority and find that while the petition scheduled rooms are ideally suited for conducting a hotel business Valiakath Footwear room is not so suited. 9. In this jurisdiction under Section 20, this Court is not expected to substitute the factual conclusions arrived at by the final fact finding authority especially when the same is founded on evidence. We find that the finding entered by the Rent Control Appellate Authority in this case is on the basis of evidence, whether it be regarding the bona fides of the need or regarding the operation of the first proviso or regarding the eligibility of the tenant to the benefit of the second proviso to R. C. R. No.101 of 2010 -16- sub Section 3. 10. As desired by Sri.G.Sreekumar we explored the possibilities of Valiakath Footwear building being let out to the revision petitioner on attractive terms as to rent, but our endeavour was unsuccessful. 11. The result of the above discussion is that the RCR fails. However, we feel that this is a case where there is justification for granting to the revision petitioner an unusually long period for surrendering the premises. Hence, even as we confirm the order of eviction and dismiss the RCR, we direct the Execution Court not to order and effect delivery of the petition schedule building till 30th June 2011 subject to the following conditions: 12. The revision petitioner will file an affidavit before the Execution Court or the Rent R. C. R. No.101 of 2010 -17- Control Court, as the case may be, undertaking to give peaceful surrender of the building to the respondent on or before 30th June, 2011. It shall be undertaken further through the same affidavit that arrears of rent if any will be discharged within one month and occupational charges at the current rent rate will also be paid as and when the same falls due. We make it clear that the revision petitioner will be entitled for the benefit of time granted as above only if the affidavit as ordered above is filed on time. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-