IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 94 of 2009()
1. ABDUL RAZAK,S/O.CHEKKUTTY,PROPRIETOR,
... Petitioner
Vs
1. A.A.MUHAMMED YUSUF,S/O.ABDUL KHADER,
... Respondent
For Petitioner :SRI.MANOJ P.KUNJACHAN
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :22/05/2009
O R D E R
PIUS.C.KURIAKOSE & P.Q.BARKATH ALI, JJ.
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R.C.R.No.94 OF 2009
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Dated this the 22nd day of May, 2009
ORDER
Pius C.Kuriakose, J.
The tenant, who suffered order of eviction under Section
11(3) of the Act concurrently in the hands of the Rent Control
Court and the Appellate Authority, is the petitioner in this
revision under Section 20 of the Kerala Buildings (Lease & Rent
Control) of 1965 (Act 2 of 1965). The petition schedule building
(hereinafter referred to as the building) is one room in a larger
building having 10 rooms. The need projected by the
respondent/landlord is that he needs the building for occupation
by his dependent daughter Sabeena. The bona fides of the
need was attacked by the revision petitioner mainly on the
ground that immediately prior to the issuance of lawyer notice
demanding possession, the landlord had let out one room in the
building to one Francis for conducting a Gents Beauty Parlour and
therefore the petition was liable to fail in view of the first proviso
to Section 11(3). The tenant also claimed protection of the
second proviso to Section 11(3).
R.C.R..No.94/2009 2
2. The evidence in the enquiry before the Rent Control
Court consisted of Exts.A1 to A3 and the oral testimonies of PW1
to PW3. Ext.A1 was the report submitted by the commissioner,
who was examined as PW-3. The counter evidence consisted of
Ext.B1 possession certificate issued by the Cochin Corporation to
the effect that the landlord is having ownership of 10 rooms and
the testimony of the tenant himself as RW1. The Rent Control
Court, on evaluating the evidence, would hold that the claim and
the need is bona fide. As regards the contention that one room
had been let out by the landlord to Mr.Francis, it was found that
there was no evidence to accept the above contention. It was
also found in the context of the second proviso to Section 11 (3)
that the tenant has not discharged his burden to show that both
the ingredients of the said proviso are satisfied in his favour.
The Appellate Authority would re appreciate the entire evidence
and concur with the findings of the Rent Control Court.
3. We have heard the submissions of Sri. Manoj
P.Kunjachan, learned counsel for the revision petitioner and
those of Sri.P.A.Abdul Jabbar, who has taken notice on behalf of
the respondent landlord. Mr. Manoj Kunjachan would read over
R.C.R..No.94/2009 3
to us portions of the testimonies of PW-1 and RW-1 and he
would draw our attention to Ext.A2 lawyer notice and A3 reply.
He submitted that there was practically no cross examination on
the statement of RW-1 that the room presently occupied by
Sri.Francis was let out by the landlord after he had issued Ext.A3
reply notice. He also highlighted the evidence of PW-1 that his
daughter Sabeena informed him about her need to do her own
business only two weeks prior to filing of the case. All the
submissions of Sri.Manoj P.Kunjachan were resisted by
Sri.P.A.Abdul Jabbar. Under the statutory scheme, the appellate
authority is the final court on facts and under this jurisdiction, the
enquiry of this court is only to find out whether the finding
entered by the appellate authority is vitiated by any illegality,
irregularity or impropriety warranting correction under Section
20, which is a revisional jurisdiction. Ordinarily this court is not
expected to re appreciate the evidence.
4. Having considered the submissions and having
considered those aspects of the evidence, which were highlighted
before us by the learned counsel for the petitioner, we are of the
view that there is absolutely no warrant in this case for
R.C.R..No.94/2009 4
invocation of the revisional jurisdiction. It has become evident
that neither Sabeena nor her husband are having any business
of their own or any other source of income for their
subsistence. Sabeena is a daughter of the landlord and despite
her marriage she continues to be a dependent on her father for
the purpose of accommodation. The smallness of the room is
an aspect highlighted by Sri.Manoj during his submissions.
According to him, room is too small to accommodate business in
hardware. But it is clear that all the 10 rooms in this larger
building have equal dimensions and Sabeena’s brother- son of
the landlord is carrying on the same business in the adjacent
room. When the father landlord says that he wants to
accommodate his daughter, who is without any source of income,
for the purpose of carrying business same as the business carried
on by his son in the adjacent room, it can be presumed that the
need of the father is a genuine need. In the absence of any
oblique motive, the need can be accepted also. No oblique
motive is attributed, instead what is highlighted is the
circumstance of the landlord having let out another room to
Sri.Francis after the reply notice was issued. Regarding the point
R.C.R..No.94/2009 5
of time when the room was let out to Francis also no evidence
was adduced by the tenant. Significantly the tenant did not
even feel like examining Francis. We are of the view that the
findings entered by the Rent Control Court, which have been
confirmed by the Appellate Authority are founded on evidence.
5. Result is that the revision petition will stand dismissed.
As his last submission, Sri.Manoj requested for grant of 9 months
time. Sri.Abdul Jabbar would submit that there is no justification
for granting anything more than three months. Having
considered the rival submissions and the circumstances of this
case, even as we dismiss the rent control revision confirming the
eviction order passed by the authorities below, there will be a
direction to the Execution Court to put off delivery proceedings to
22/11/2009 subject to the following conditions;
i). The revision petitioner files an
undertaking in the form of an affidavit
before the Execution Court stating that he
will peacefully and unconditionally
surrender the petition schedule premises
on or before 22/11/2009 to the landlord
R.C.R..No.94/2009 6
and stating further that he will discharge
arrears of rent, if any within one month
and will continue to pay the rent which
falls due till the date of surrender without
fail.
ii). Once the Execution Court notices
the affidavit to be filed by the revision
petitioner, that court will adjourn the
execution petition to 24/11/2009.
PIUS.C.KURIAKOSE,JUDGE
P.Q.BARKATH ALI, JUDGE
dpk