IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 268 of 2009()
1. A.VARGHESE, S/O.ACHUTHAN, AGED 43,
... Petitioner
Vs
1. NAZEEMA AYOOB KHAN, AGED 40,
... Respondent
For Petitioner :SRI.M.RAMASWAMY PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :16/11/2009
O R D E R
PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ.
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R.C.R.No. 268 OF 2009
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Dated this the 16th day of November, 2009
O R D E R
Pius C.Kuriakose, J.
The tenant is in revision and he impugns order of eviction
concurrently passed against him on the ground of bona fide own
occupation. The revision petitioner is carrying on business in the
petition schedule building apart from residing therein. The case
of the landlady was that she is presently residing in a rented
building and that the said building does not have proper road
access. The landlady’s daughter is suffering from serious
epilepsy and landlady’s husband is a chronic diabetic and he
has got diabetics related other ailments also. Hence, the need
projected was that the landlady and her family wants to come
over to the petition schedule building for setting up residence.
The bona fides of the need and the claim of the
respondent/landlady were stiffly resisted by the revision
petitioner. According to the revision petitioner, the need
projected is only a ruse to evict the revision petitioner. The
RCR.No.268/2009 2
petitioner claimed protection of the second proviso to sub section
(3) of Section 11. The Rent Control Court conducted a very
detailed enquiry into the RCP and the evidence consisted of
Exts.A1 to A12 and the oral evidence of PW1 on the side of the
landlady. On the side of the revision petitioner the same
consisted of Ext.B1 to B3, Ext.X1 and the oral evidence of CPW1
(revision petitioner himself) and CPW2(an official of the
Accommodation Controller ‘s office). The Rent Control Court on
evaluating the evidence, concluded that the need projected by
the landlady was bona fide. It was also concluded that the
tenant is not entitled to the protection of the second proviso to
sub section (3) of Section 11. In fact, it became evident that the
tenant is having another building of his own.
2. The Appellate Authority reappraised the evidence,
however, concurred with all the conclusions of the Rent Control
Court. In this revision under Section 20 various grounds are
raised assailing the judgment of the Appellate Authority and the
order of the Rent Control Court. Sri.M.Ramaswamy Pillai,
learned counsel for the revision petitioner, addressed us
elaborately on all those grounds. Sri.Ramaswamy Pillai
RCR.No.268/2009 3
submitted that the respondent is not going to set up residence in
the petition schedule building. The intention of the respondent
is only to let out the building on a higher rent after evicting the
revision petitioner. As regards the other building found to be
owned by the revision petitioner, the learned counsel submitted
that the said building was not suitable for residence as well as for
conducting the business as the petition schedule building. As
his last plea, he requested atleast one year’s time be granted to
the revision petitioner, so that alternate accommodation can be
identified.
3. All the submissions of Sri.Ramaswamy Pillai were
resisted by Sri.R.S.Kalkura, who had lodged caveat on behalf of
the respondent/landlady. Sri.Kalkura Submitted before us that
the respondent has no intention whatsoever to let out the
building and that the submission of the learned counsel can
be recorded by us as an undertaking given on behalf of the
respondent. Sri.Kalkura very stiffly opposed the request for
grant of time. The condition of daughter is so precarious that
unless the landlady is permitted to shift the residence to the
petition schedule building immediately, the daughter’s life is in
RCR.No.268/2009 4
peril.
4. We have considered the rival submissions addressed at
the Bar. We have scanned the order of the Rent Control Court
and the Judgment of the Appellate Authority. Having guaged the
decision of the Appellate Authority by the para meters which are
applicable to exercise of the revisional jurisdiction under Section
20, we are of the view that the judgment of the Appellate
Authority, which is the final court on facts under the Statutory
scheme, does not suffer from any irregularity, illegality or
impropriety warranting invocation of the revisional jurisdiction
under Section 20. All the findings entered by the Authorities
below are founded on the evidence which are available on
record. Necessarily the RCR has to fail. However, considering
the request of the learned counsel for the revision petitioner, we
are inclined to grant time to the revision petitioner till 31/5/2010
for surrendering the premises subject to certain conditions.
5. The result of the above discussion is as follows;
The RCR is dismissed and the Execution Court is directed
not to order and effect the delivery of the petition schedule
building till 31/5/2010 subject to the following conditions;
RCR.No.268/2009 5
The revision petitioner shall file an
affidavit within three weeks from today
before the Rent Control Court undertaking
to surrender possession of the petition
schedule building peacefully to the
respondent on or before 31/5/2010. It will
be undertaken through the same affidavit
that arrears of rent, if any will be
discharged within one month and that
occupational charges at the current rent
rate will be paid as and when the same
falls due till actual surrender of the building
is made.
It is made clear that the revision petitioner will get the
benefit of time granted under this judgment only if the affidavit
is filed on time.
PIUS C.KURIAKOSE,JUDGE
K.SURENDRA MOHAN, JUDGE
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