High Court Kerala High Court

Balakrishnan Nair vs Smt. Shamna Saithulal on 12 November, 2010

Kerala High Court
Balakrishnan Nair vs Smt. Shamna Saithulal on 12 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 184 of 2009()


1. BALAKRISHNAN NAIR
                      ...  Petitioner

                        Vs



1. SMT. SHAMNA SAITHULAL, D/O.PATHUMMA @
                       ...       Respondent

2. SMT. PATHUMMA @  PATHUKUTTY,

                For Petitioner  :SRI.K.P.RAJEEVAN

                For Respondent  :SRI.PAUL K.VARGHESE

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :12/11/2010

 O R D E R
        PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ.
                     ------------------------------
                     R.C.R.No.184 OF 2009
                    -------------------------------
         Dated this the 12th day of November, 2010

                             O R D E R

~~~~~~~

Pius C. Kuriakose, J.

Under challenge in this revision filed by the tenant under

Section 20 of Act 2 of 1965 is the judgment of the Rent Control

Appellate Authority confirming the order of eviction passed by

the Rent Control Court against the revision petitioner under sub

section 3 of Section 11 of Act 2 of 1965. The parties are referred

to hereunder as the landlady and the tenant. The case of the 2nd

respondent herein (2nd petitioner in the RCP) was that she needs

the building for occupation by the 1st respondent/1st petitioner in

the RCP, her daughter, so that, she can conduct a beauty

parlour therein. Tenant also contended that he is entitled to

protection of 2nd proviso to sub section 3 of Section 11. The

bonafides of the needs was disputed and it was contended that

the claim is only a ruse to evict the tenant. The matter went for

trial and the evidence before the Rent Control Court consisted

of Exts.A1 to A5, oral evidence of PW1, B1 to B4 and the oral

R.C.R.No.184/2009 2

evidence of RWs1 to 4. PW1 was the daughter/1st petitioner in

the RCP. Eventhough the benefit of the 1st proviso to sub section

3 of Section 11 was not specifically raised, the tenant through

his evidence tried to bring home that one room in the first floor

of the larger building of which the petition schedule building is a

part that remaining vacant. The Rent Control Court on

evaluating the evidence held that the need projected in the RCP

is bonafide. It was also held that the tenant was unsuccessful in

proving that he satisfied either of the ingredients of the 2nd

proviso to sub section 3 of Section 11. The Court also found that

the petitioner was not liable to be rejected by virtue of the first

proviso. Accordingly, eviction order was passed under sub

section 3 of Section 11. The tenant preferred an appeal to the

Rent Control Appellate Authority. The appellate authority

reappraised the evidence and concurred with all the findings of

the Rent Control Court. Accordingly the appeal was dismissed.

2. In this revision, various grounds have been raised

assailing the judgment of the appellate authority.

Sri.K.P.Rajeevan, learned counsel for the revision petitioner and

R.C.R.No.184/2009 3

Sri.Paul K.Varghese, learned counsel for the respondents

addressed us extensively. In fact, after hearing both sides for

some time, this Court on 19.8.2009 directed the revision

petitioner to produce certified copy of the Property Tax

Assessment Register maintained by the Muvattupuzha

Municipality in respect of room having Door No.12/39 in the

upstair portion of the petition schedule building. A copy of this

direction was also issued to the Secretary of the Muvattupuzha

Municipality. The above order was passed in view of the

assertion of the learned counsel for the revision petitioner that

the above mentioned room is even now remaining vacant.

Pursuant to the above order, certified copy of the Assessment

Register was produced. Eventhough the same revealed that the

building is in the possession of a tenant by name Raman, it was

submitted by Sri.K.P.Rajeevan on the basis of the oral evidence

available in this case that Sri. Raman had vacated. Accordingly,

we directed the learned counsel for the respondents to produce

documents which would show that Raman continues to be in

possession. Today, as we took up the case for hearing, the

learned counsel for the respondents placed before us the rent

R.C.R.No.184/2009 4

chit executed by Raman, which prima facie shows that Raman

was put in possession way back on 31.12.1985. The assertion of

the learned counsel for the respondents was that Raman

continues to be in possession. Mr.Rajeevan would again assert

before us that as of now Raman is not in possession of the above

room. We enquired of Mr. Rajeevan as to whether his client is

prepared to take out a Commission for an immediate inspection

of the building. Time was given till 1.45 p.m. to Mr.Rajeevan for

consulting his client. Today, at 1.45 p.m when the case is taken

up, it was submitted by Mr.Rajeevan that his client is not able to

take out a Commission due to financial reasons.

3. The question that arises before us is whether the

judgment of the Appellate Authority suffers from any illegality,

irregularity and impropriety as envisaged under Section 20 of

Act 2 of 1965. In our considered the view, the above question

can be answered only in the negative. We have scanned the

judgment of the appellate authority as well as the order of the

rent control court. We find that the finding entered therein

concurrently are reasonable findings entered on the basis of

R.C.R.No.184/2009 5

evidence which is available on record. Admittedly, the room in

question is the only room in which the 1st respondent is having

any interest. It appears that there are three other rooms also.

But it is not disputed that she has other daughters also. Even if

the 2nd respondent mother is having a vacant room in the first

floor, both the respondents are having special reasons for

insisting on getting possession of petition schedule building for

accomplishing the need of the 1st respondent. As already

indicated, the petition schedule room is the only room which

belongs to 1st respondent by virtue of Ext.A1 settlement deed.

The submission of Mr.Rajeevan that PW1 is happily settled in a

gulf country does not appeal to us. PW1 herself gave inspiring

oral evidence before the Rent Control Court to the effect that

once she gets possession of the building, she will come down and

start the proposed beauty parlour in the petition schedule

building. In this context, we notice that sub section 12 of section

11 gives adequate protection to an evicted tenant, if it is noticed

that the building evicted on the ground under Section 11(3) is

not utilised for the purpose for which eviction was obtained.

The statutory appellate authority have on reappraisal of the

R.C.R.No.184/2009 6

evidence concluded that the need is bonafide. Then the question

is whether the 1st proviso will apply. As already indicated, 1st

proviso cannot apply in this case.

4. The last question is whether the 2nd proviso to sub

section 3 of Section 11 will apply. We don’t find any infirmity

with the finding concurrently entered by the two authorities

below that the tenant was unsuccessful to prove the he satisfies

either of the two ingredients. The revision necessarily has to

fail. Accordingly, we dismiss the revision.

5. Sri.K.P.Rajeevan, as a last plea, requested that atleast

one year’s time be granted to the revision petitioner for

surrendering the premises. This submission is opposed by

Mr.Paul. Yet we feel, on the totality of the circumstances

attending on this case, where the petitioner is conducting the

business in Khadi materials, for granting atleast so much of time

as requested by Mr.Rajeev. Hence, we direct the Execution

Court to keep in abeyance all proceedings for delivery till

31.11.2011 subject to the following conditions:

R.C.R.No.184/2009 7

The revision petition shall file an affidavit before the

Execution Court, within one month from today undertaking to

give peaceful surrender of the building to the respondents on or

before 31.12.2011 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.

6. We make it clear that the revision petitioner will get

benefit of time granted above only, if the affidavit is filed in time

and undertakings are honoured without fail.

(PIUS C.KURIAKOSE, JUDGE)

(P.S.GOPINATHAN, JUDGE)

ps