IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 RCRev..No. 35 of 2010() ----------------------- RCA.38/2006 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.246/2004 OF RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER/APPELLANT/RSPONDENT ----------------------------------------------------------- T.PADAMANABHAN,S/O. KUNHIRAMAN, BUSINESS, RESHMA NIVAS, P.O.KEERIYAD, CHIRAKKAL, KANNUR DISTRICT. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S)/RRESPONDENT/ PETITIONER ------------------------- P.M.ABDUL AZEEZ, S/O.KUNHI MOIDEEN HAJI, RUKHIYA MANZIL, P.O.KATTMPALLY, KANNUR DISTRICT. BY ADV. A.MOHAMED MUSTAQUE (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 35 OF 2010 ------------------------ Dated this the 1st day of February, 2010 O R D E R C.K.Abdul Rehim, J. The tenant is in revision against the concurrent findings of eviction ordered under Section 11 (3) of the Kerala Buildings (Lease & Rent Control) Act (the 'Act' for short). The parties are referred hereunder as 'landlord' and 'tenant' in the order in which they are referred to by the Rent Control Court. 2. The landlord is employed in Gulf countries and the need projected is that he is intending to come down to his native place to start business in Automobile spare parts. According to the landlord, the proposed business can be managed properly by his brother Shri. Ibrahimkutty, who is a person having experience and qualification in Automobile mechanism. The dependent brother has no building of his own and the landlord has no other building of his own in his vacant possession. Hence, eviction was sought for based on the need of own occupation of the RCR.No.35/2010 2 landlord and his brother for starting business in Automobile spare parts in the petition schedule building. 3. The tenant resisted the Rent Control Petition disputing the need urged as not genuine. It is contended that the landlord is employed in Gulf countries and he is well settled therein. The tenant also pleaded protection under the second proviso to Section 11 (3) on the ground that the income derived from the business conducted in the petition schedule building is his sole means of livelihood and that there is no other suitable vacant building available in the locality. It was also contended that the landlord is in possession of other shop rooms suitable for the business intended to be started. 4. The evidence before the trial court consisted of oral testimony of PW1, who is brother and power of attorney of the landlord and PW2, who is another brother for whom the need of starting the business is projected. Exts.A1 to A6 were marked on the side of the landlord. RW1 is the tenant and documentary evidence of Exts.B1 to B7 were adduced on his behalf. 5. After evaluating the entire evidence on record, the Rent Control Court found that the need projected by the landlord is RCR.No.35/2010 3 genuine and bona fide. It is also found that inspite of specific pleadings, the tenant has not adduced any evidence to prove that the landlord is having any other building in his possession suitable for accomplishing the need projected. It is also found that the tenant has not produced any satisfactory evidence to prove that he is entitled to protection of second proviso to Section 11 (3) of the Act. The Trial court found that both limbs of the second proviso has not been proved through any satisfactory evidence. Therefore, eviction under Section 11 (3) was ordered. 6. The Appellate Authority, after elaborate re-appraisal of the evidence on record concurred with the findings arrived by the Rent Control Court. We do not find any ground to interfere with the findings on facts concurrently arrived by the courts below, especially because the Appellate Authority is the final fact finding authority. 7. Learned counsel for the revision petitioner Sri.P.U.Shailajan had advanced argument before us that, non examination of the landlord is fatal with respect to proof regarding genuineness of the need. It is contended that the RCR.No.35/2010 4 bona fides of the need projected being at status of the mind of the landlord alone, for whom the need is projected, the landlord would have been the best person to manifest such need in evidence. Hence, it is contended that non examination of the landlord is highly fatal and it need be considered that there is total lack of corroborative evidence regarding genuineness of the need projected. 8. We had occasion to go through pleadings of the landlord in the Rent Control Petition. The need projected is specific to the extent that the landlord expressed apprehension regarding lack of job security for continued employment in Gulf Countries. Therefore, he is intending to establish business at the native place. At the same time, there is specific pleading that his brother, who is well worsed in Automobile mechanism, is depending on him for the plaint schedule building for the purpose of starting business dealing in Automobile spare parts. Since the brother, with respect to whom the need projected is examined as PW2, and since oral evidence of that witness had satisfactorily and convincingly proved genuineness of the need projected, we are not in agreement with arguments of the RCR.No.35/2010 5 learned counsel appearing for the tenant that, non examination of the landlord is fatal to the prosecution of the Rent Control Petition. 9. Lastly, learned counsel for the petitioner sought indulgence of this court in permitting one year time for surrendering vacant possession of the petition schedule building. Sri.A.Mohammed Mustaquie, learned counsel who entered appearance on behalf of the landlord, based on a caveat petition lodged, had vehemently opposed the said prayer. But, having considered facts and circumstances of the case, we are inclined to grant 8 (eight) months time for the tenant to surrender vacant possession of the building on specific conditions. 10. Under the above circumstances, the revision petition is disposed of on the following terms; i). The Revision Petitioner/tenant is granted time till 30/9/2010 for handing over vacant and peaceful possession of the petition schedule building to the respondent/landlord, on condition of his filing an affidavit before the Execution Court or the Rent Control Court, as the case may be, undertaking to handover vacant possession of the building on or before RCR.No.35/2010 6 30/9/2010 and on paying arrears of rent if any due within a period of one from today, and on continuing payment of occupational charges at the rate of the agreed rent, till surrender of the petition schedule building. ii). The affidavit as directed above shall be filed within a period of three weeks from today. iii). The Execution Court is directed to put off delivery of the petition schedule premises till 1/10/2010, once filing of the affidavit as directed above and payment of arrears of rent if any due and continued payment of occupational charges within the times stipulated as above is noticed. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk