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.
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R.C.R.No.184 OF 2009
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Dated this the 12th day of November, 2010
O R D E R
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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