IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 128 of 2009()
1. PRABHAKARAN, S/O. NANU,
... Petitioner
Vs
1. RAMAKRISHNA PILLAI, S/O. MATHEVAN PILLAI
... Respondent
For Petitioner :SRI.D.SAJEEV
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :24/06/2009
O R D E R
PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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R.C.R.No.128 OF 2009
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Dated this the 24th day of June, 2009
O R D E R
Pius C.Kuriakose, J.
The tenant, who lost concurrently before the rent control
court as well as the appellate authority, is the revision petitioner.
Eviction was sought by the landlord on the grounds of arrears of
rent Section 11(2)(b), reconstruction Section 11(4)(iv) and bona
fide own occupation Section 11(3) of the Kerala Buildings
(Lease and Rent Control) Act 1965. The need projected in the
rent control petition was that the existing building is to be pulled
down and a new building is to be constructed in its place for use
as a lodging house. The bona fides of the need and the claim
was denied and the tenant claimed protection of the second
proviso to sub section (3) of Section 11. The rent control
petition was enquired into and on appreciating the evidence
before the rent control court, it was submitted on behalf of the
respondent landlord that eviction order need not be passed
under Section 11(4) (iv) and it will suffice if order of eviction is
RCR.No.128/2008 2
passed under sub section (3) of Section 11 and sub section (2) of
that Section. The rent control court would appreciate the
evidence and conclude that the landlord’s need under Section 11
(3) was a bona fide one. It was also found in the context of
second proviso to sub section (3) of Section 11 that even though
the tenant was successful in establishing that he satisfied the first
limb of the second proviso to sub Section (3), in view of his
failure to establish that he satisfies the second limb of the
second proviso to sub section 3 of Section 11, he was not eligible
for the benefit of the second proviso at all. As for the ground for
arrears of rent, it was found that rent was in arrears.
Accordingly, order of eviction was passed against the revision
petitioner both on the ground of arrears of rent as well as bona
fide own occupation.
2. The appellate authority also, after reappraisal of the
entire evidence, concurred with all the conclusion of the rent
control court and confirmed the order of eviction.
3. The learned counsel for the revision petitioner
Sri.D.Sajeev, has addressed us very strenuously and
persuasively. He submitted that the need projected in the rent
RCR.No.128/2008 3
control petition was to construct a new building and to occupy
that building for the purpose of conducting a lodging business.
The need to construct a new building was given up by the
respondent in the rent control court itself. According to the
learned counsel, since the projected need of putting up a new
building in the place of an existing old building has been given
up, the need projected under Section 11 (3) cannot survive any
longer.
4. As directed by us, learned counsel placed before us
copies of the rent control petition as well as the memorandum
of rent control appeal. We have anxiously considered the
submissions of Sri.Sajeev, learned counsel for the petitioner.
We have gone through the papers placed by him before us as
well as the order of the rent control court and the judgment of
the rent control appellate authority. Having gone through the
rent control petition, it is clear to our mind that though the
ground of eviction under Section 11 4(iv) was also specifically
invoked in the pleadings as a ground for own occupation after
reconstruction, the ground which seriously arose was only the
ground of own occupation. The learned counsel for the
RCR.No.128/2008 4
respondent was perfectly justified in submitting before the rent
control court that order of eviction is not necessary under
Section 11 (4)(iv) in view of the need projected under Section 11
(3), since an order of eviction under Section 11 (4) (iv) will be
subject to proviso to that sub section including the 3rd proviso,
which obliges the landlord to re induct the tenant to any portion
of the newly constructed building.
5. The only question, therefore, which arises for
consideration before us in this revision under Section 20 is
whether the findings concurrently entered by the rent control
court and the appellate authority that the respondent landlord
needs to occupy the new building put up by him in the place of an
existing old building for use as lodging house is a bona fide one
warrants interference and whether the tenant is entitled to the
protection of the second proviso to sub Section (3). On going
through the order of the rent control court and the judgment of
the appellate authority, we find that the findings entered therein
in favour of the respondent landlord in the context of sub
Section (3) of Section 11 are founded on evidence and are
reasonable findings. Same is the position with the finding under
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second proviso to sub section 3 of Section 11. Of course, the
first ingredient of the second proviso has been found in favour of
the tenant. But, both the ingredients are in the conjunctive and
the same will not of much avail to the tenant. we, in this
jurisdiction under Section 20 of the Act, are not expected to re
appreciate the entire evidence and substitute our conclusions on
facts for the conclusions entered by the facts finding authority.
Under the statutory scheme, the appellate authority is the final
court on facts. Our enquiry is only to consider whether the
finding on facts entered by the facts finding authority is vitiated
by any illegality, irregularity or impropriety warranting correction
under Section 20. Having gauged the order of the rent control
court as well as the judgment of the appellate authority by those
para metres, we are of the view that there is absolutely no
warrant for invocation of the revisional jurisdiction of this court
under Section 20 of the Act. Same is the position as regards
the order of eviction passed under section 11 (2) (b). Of course,
Sri.Sajeev, learned counsel for the revision petitioner submits
that the entire arrears of rent is under deposit. If it is so, nothing
prevents the revision petitioner to apply under Section 11 (2)(c)
RCR.No.128/2008 6
and get the order of eviction formally vacated. The revision
petitioner will be entitled for 30 days time more from today for
filing application under Section 11(2)(c). Considering the
apprehension of the petitioner voiced by the learned counsel
Sri.Sajeev that the respondent landlord will not put up new
building or conduct lodging house business, we will only
observe that under such an eventuality sub section (2) of section
11 will come to the rescue of the revision petitioner.
6. Result of the above discussion is that the revision
petition fails and the same will stand dismissed.
7. As his last request, Sri.Sajeev sought for one year’s
time. But we do not think we will be justified in granting so
much of time. However, on considerations of indulgence, we
direct the Execution Court to defer the execution till 1st January
2010 subject to the following conditions;
i). The revision petitioner shall file
an affidavit before the Execution court
undertaking to peaceful surrender the
petition schedule building to the
respondent on or before 31/12/2009
RCR.No.128/2008 7
and also discharge the arrears of rent
found by the rent control court under
Section 11 (2)(b) within one month and
continue to pay occupational charges at
the current rent rate till he makes
actual surrender.
ii). It is clarified 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
P.Q.BARKATH ALI, JUDGE
dpk