IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 124 of 2005()
1. PUTHENPURAYIL KALLIANI,
... Petitioner
2. P.P. SARADA, D/O. KALLIANI, TEACHER
3. P.P. SATHYAN, S/O. KALLIANI,
4. P.P. ARAVINDAN, S/O. KALLIANI,
5. P.P. SUMA, D/O. KALLIANI,
6. P.P. SURESH BABU, S/O. KALLIANI,
7. PUTHANPURAYIL SAJEEVAN,
8. SMITHA, W/O RAHAN, JANAKIPURAM,
9. DAUGHTER RAMITHA,
10. SISTER RINEETHA RAJAN,
11. SISTER RESMITHA, AGED 17, DO. DO.
Vs
1. KORATT CHOMBALAN PATHOOTTY,
... Respondent
2. YOUNGER BROTHER ABU,
3. BROTHER AHAMMED, LABOURER,
4. K.C. KUNHIMOOSA, S/O. KATHEESUMMA,
5. YOUNGER SISTER AYISHA, DO. DO.
6. YOUNGER BROTHER USMAN, DO. DO.
For Petitioner :SRI.KKM.SHERIF
For Respondent :SRI.C.KHALID
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :04/01/2010
O R D E R
PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.
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R.C.Rev. No. 124 of 2005
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Dated this the 4th day of January, 2010
O R D E R
Abdul Rehim, J.
The Tenants/Respondents in R.C.P.No.75/1995 on the
file of the Rent Control Court, Thalassery is in revision against the
divergent finding entered by the Rent Control Appellate Authority,
Thalassery in R.C.A.No.212/1996. Revision petitioners/tenants
are the legal heirs of the original tenant, Shri.Govindan. The
Respondents herein are the legal heirs of the original landlady.
The R.C.P. was filed seeking eviction under the grounds of 11(2)
(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act,
1965(‘the Act’ for short). Eventhough eviction was ordered under
Section 11(2)(b), rent arrears was settled and the question
regarding eviction under that ground was not raised before the
Appellate Authority. Therefore, we need consider only the eviction
order issued under Section 11(3) by the Rent Control Appellate
Authority.
2. The need projected before the Rent Control Court is
that respondents 2, 4 and 6 were employed in gulf countries and
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they have now came back and they wanted to start a joint
business dealing in Grocery and Stationery in the petition
schedule room. They bonafide need the petition schedule room
for own occupation for the said purpose. The Rent Control Court
found that, only the 4th respondent was examined as PW1, inspite
the fact that the need urged is a joint need for respondents 2, 4
and 6. But, it has come out in evidence that respondents 2 and 6
were also present before the court during the time of trial. On a
perusal of evidence of PW1, it is revealed that specific deposition
is to the effect that he is giving evidence on behalf of other
respondents also. The Rent Control Court found that there is a
contention raised on behalf of the tenants that the second
respondent is still employed in gulf and that the 6th respondent is a
person having mental incapacity. It is also noticed the contention
that the 4th respondent (PW1) is settled in Bombay having
business in textile therein. On the basis of the above contentions,
the Rent Control Court found that non-examination of respondents
2 and 6 is fatal with respect to proof regarding bonafide need
under Section 11(3).
3. The Rent Control Appellate Authority, while evaluating
the evidence, clearly found that there is ample evidence produced
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to prove that the need urged is genuine and bonafide. It is
specifically noted that the revision petitioners, inspite of detailed
cross-examination, could not able to shake credibility of the
evidence of PW1 in any respect to any extent of discrediting the
joint need projected by respondents 2, 4 and 6. The Appellate
Authority specifically found that eventhough contention was raised
to the effect that the second respondent is still employed in gulf
and that the 6th respondent is suffering from mental incapacity, the
tenants have miserably failed to produce any evidence to
substantiate such contentions. Eventhough a feeble attempt is
made to rely upon an admitted statement of PW1, which alleged to
have been given at a court at Mahe, the tenants could not
successfully establish through any supporting evidence that the 4th
respondent was permanently settled in Bombay and was doing
any business therein. Therefore, while reversing findings of the
Rent Control Court, the Appellate Authority found that non
examination of respondents 2 and 6 has not in any manner
affected credibility of the version put forth through the 4th
respondent, in order to prove genuine need of respondents 2, 4
and 6 for requirement of the scheduled building for starting
Grocery and Stationery business.
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4. With respect to contention regarding possession of a
room at the back side of the schedule premises, the Appellate
Authority found that, from the endorsement made on the back side
of Ext.A13 it is clear and evident that the room in question was
surrendered only during the year 1996. It was further corraborated
from Ext.B1 extract produced regarding that room. There is no
conclusive proof that the said room was in vacant possession of
the landlords during the time when the R.C.P. was filed or at the
time when the evidence was adduced, is the findings of the
Appellate Authority.
5. The Appellate Authority had gone deep into the
question regarding eligibility for the benefit of the second proviso
to Section 11(3), and it is found that the landlord could
successfully establish availability of other premises in the locality.
Further, it is found that, the revision petitioners/tenants could not
adduce any convincing evidence to establish both the limbs under
the second proviso to Section 11(3).
6. Heard, counsel appearing for both sides. The Rent
Control Appellate Authority, having considered the evidence on
record in a meticulous manner, found that the landlords were
successful in establishing the need projected for own occupation
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of the schedule room for conduct of business jointly by
respondents 2, 4 and 6. Regarding the evidence adduced on
behalf of the respondents, we find that the conclusions arrived at
by the Appellate Authority is properly reasoned. We don’t find any
convincing evidence adduced from the side of the tenants to
shake credibility of the genuine need. We are convinced that the
revision petitioners/tenants are not successful in establishing that
the landlords are in vacant possession of any other suitable
buildings. So also, they could not establish in any convincing
manner that they are entitled to the benefit of the second proviso
to Section 11(3). The Appellate Authority, being the final fact
finding authority, we do not find any convincing reason to interfere
with its conclusions. Accordingly, the Rent Control Revision
deserves no merit and the same is liable to be dismissed.
7. Lastly, Mr.Lal K.Joseph, learned counsel appearing for
the revision petitioners, sought indulgence of this Court in granting
time for a period of one year for vacating the schedule premises,
which is vehemently opposed by Sri.T.P.Sajid, learned counsel
appearing for the respondents. Having considered facts and
circumstances of the case, we are inclined to grant time till 31-07-
2010 for the revision petitioners to vacate the premises, provided
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rent at the rate of Rs.500/- is paid from 1st February, 2010
onwards.
Accordingly, the Execution Court is directed to defer ordering
delivery of possession of the schedule premises till 01-08-2010, on
condition of the revision petitioners/tenants filing affidavit before
that court undertaking to handover peaceful and vacant
possession of the schedule room to the landlords on or before 31-
07-2010 and on making payment of rent along with arrears of rent,
if any due, at the existing rate till January 2010, within one month
from today and continues to pay rent from 01-02-2010 onwards at
the above said rate of Rs.500/- till the scheduled premises is
vacated. The affidavit as stated above shall be filed within a
period of three weeks from today.
Sd/-
(PIUS C. KURIAKOSE, JUDGE)
Sd/-
(C.K.ABDUL REHIM, JUDGE)
aks
// True Copy //
P.A. To Judge