IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RCRev..No. 139 of 2009() ------------------------ RCA.40/2008 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.7/2007 of ADDL.MUNSIFF COURT,KOCHI .................... PETITIONER/APPELLANT ---------------------------------------- ROY PALAKKAL, S/O. LATE P.F.REUBEN CC 1/1619, FORT COCHI. BY ADV. SRI.JOSEPH FRANKLIN RESPONDENT(S): ----------------------- A.AZEEZ,S/O. ABDUL KADER, CC 7/997 CHAKIETHPARAMBA KAPPALANDIMUKKU, COCHIN-2. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------- RCR No.139 of 2009 ------------------------------------------- Dated this the 24th day of November, 2009 ORDER Pius C.Kuriakose,J. The landlord is in revision. He challenges the order concurrently passed by the Rent Control Court and the Appellate Authority declining eviction on the ground of bonafide need for own occupation. The petition schedule building is one room in the ground floor of a three storeyed building situated very close to Kokers Cinema Theatre in Division No.1 (at Amaravathi) of Cochin Corporation. The need projected is that the landlord, who has all along been employed in Doha, has decided to come back to India and he is intends to start various kinds of business in paints, hardwares, sanitary wares, photostat, refrigeration repair, electrical works etc. in the petition schedule premises. It was conceded in the rent control petition itself that the rooms situated on either sides of the petition schedule buildings are under vacant possession of the landlord, but it was explained that the landlord RCR No.139/2009 2 requires all the three rooms for conducting the proposed business. It became evident in the case that apart from the two rooms conceded by the landlord to be in his possession, in the ground floor itself the landlord is having possession of another room and that the entire first floor portion extending to 3,000 sq.ft. which was previously under the possession of the Catholic Syrian Bank had also fallen vacant and is presently available with the landlord. In other words, the evidence was that apart from the two rooms conceded by the landlord to be in his possession, the landlord was having a total carpet area of 3220 sq.ft. under his vacant possession. It was rightly noticed by the Rent Control Court and the Appellate Authority that the landlord was obliged to disclose the availability of those portions and offer special reasons as to why in spite of those portions, the landlord is entitled for order of eviction under Sub Section 3 of Section 11. 2. The need, according to PW1 the landlord, was conceived by him during the end of 1996 and was intimated to the tenant by Ext.A1 lawyer notice dated 10.1.1997. The Rent Control Petition was instituted seven RCR No.139/2009 3 years thereafter only in 2004. 3. Having regard to the principles laid down by the Honourable Supreme Court in Mattulal v Radhe Lal (1974 SC 1596), when there is inordinate delay in the landlord approaching the Rent Control Court after the need was conceived in his mind, the landlord is expected to offer an explanation. No such explanation is seen offered by the landlord in the present case. 4. Apart from the points noticed by the Rent Control Court and the Appellate Authority, we further notice that in the rent control petition, the landlord has developed his case for own occupation further and claims that he needs to occupy the building not only for the various business mentioned in Ext.A1 notice, but also for carrying on refrigeration works and electrical works. In fact on a reading of the Rent Control Petition, it would appear as though the proposed need is for carrying on refrigeration works and electrical works. But it should be noticed that he has not given details of the sophisticated machinery and equipments brought down by him from abroad. The Rent Control Court and the Appellate Authority, on RCR No.139/2009 4 appreciating the evidence which was adduced by PW1 came to the conclusion that the need projected by the landlord is not bonafide. 5. In this jurisdiction under Section 20, this Court is not expected to re-appreciate the evidence and substitute factual conclusions arrived at by the fact finding authorities, viz. the Rent Control Court and the Appellate Authority, especially when such findings are founded on evidence. Having scanned the Rent Control Court's order and the Appellate Authority's judgment, we find that the finding of those authorities that the need is not bonafide is based on evidence including circumstantial evidence. The view of the courts below that the RCP is liable to fail by virtue of the first proviso to sub section 3 of section 11 is also correct and at any rate not vitiated by any illegality, irregularity or impropriety as envisaged by Section 20 of Act 20 of 1964. The revision necessarily has to fail. But, we notice that the rent of Rs.1100/- per mensum presently being paid by the respondent for the building which is situated on a commercially very important area of Fort Cochin is very low. We tentatively re-fix the rent payable RCR No.139/2009 5 by the respondent with effect from Ist December 2009 at Rs.2,200/- subject to the right of either of the parties to move the Rent Control Court under Section 5 of fixation of fair rent. The Rent Control Court and the Appellate Authority have concurrently found that the tenant is entitled for the protection of the second proviso to Section 11(3). We are of the view that the above finding is rendered by the authorities below without regard to the judgments of Full Benches of this Court, taking the view that on the question of tenants' eligibility for protection of the 2nd proviso, the burden to prove that the tenant is eligible for the protection of the second proviso is on the tenant himself. Therefore, even as we dismiss the RCR we vacate the finding rendered by the authorities below that the tenant is entitled for the protection of the second proviso to Sub Section 3 of Section 11. 6. The result of the above discussion is therefore, as follows: i) RCR is dismissed, without any order as to costs. RCR No.139/2009 6 ii) The rent payable for the building is fixed with effect from Ist December 2009 at Rs.2200/- per mensum. This fixation is tentative and subject to the right of either of the parties to move for fixation of fair rent. The finding of the authorities below that the tenant is entitled for the protection of the second proviso to sub section 3 of Section 11 is vacated. It is made clear that this judgment will not stand in the way of the revision petitioner filing fresh rent control petition to evict the respondents on all grounds legally and factually available. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE css/