IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 101 of 2010()
1. GOPALAKRISHNAN NAIR,AGED 80,
... Petitioner
Vs
1. NABEESA,W/O.LATE ETTIYATTUKARA MUHAMMED,
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.K.S.BHARATHAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :17/06/2010
O R D E R
PIUS C. KURIAKOSE &
C. K. ABDUL REHIM, JJ.
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R. C. R. No.101 of 2010
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Dated this the 17th day of June, 2010
ORDER
Pius C. Kuriakose, J
Under challenge in this revision filed under
Section 20 is the judgment of the Rent Control
Appellate Authority confirming the order of
eviction passed against the revision petitioner by
the Rent Control Court on the ground under sub
Section 3 of Section 11. The need projected by
the respondent/landlady was that she needs the
petition schedule building which consists of a hall
and a storeroom presently under the occupation of
the revision petitioner for conducting hotel
business for the purpose of doing the very same
R. C. R. No.101 of 2010 -2-
business. The bona fides of the need was stiffly
disputed. It was pointed out that the landlady is a
Muslim lady who cannot normally be expected to
conduct business. It was pointed out further that
she had two daughters and a son, all of whom are
already married and settled down in life. All the
children including the son, it was pointed out are
almost permanently settled down in a Gulf
country. The benefit of the first and second
provisos to sub Section 3 of Section 11 was also
claimed by the revision petitioner. Benefit of the
first proviso was claimed on the basis of a room
situated on the southern side of the petition
schedule building which was previously being used
for the conduct of Valiakath Footwears.
2. Before the Rent Control Court, the
R. C. R. No.101 of 2010 -3-
landlady herself gave evidence as PW1 in support
of her claim. Her evidence inspired the Rent
Control Court which held that the need is bona
fide. Apart from the oral evidence of PW1 before
the Rent Control Court, Exts.A1 to A7, B1 and B2,
C1 and C1(a) and the oral evidence of RW1 and
RW2 came on record. The landlady’s explanation
regarding the room where Valiakath Footwear was
being conducted previously was that the room no
longer belongs to her but was gifted to by her in
1998 as per Ext.A2 gift deed to her son. The Rent
Control Court relied on Ext.A2 and took the view
that since the landlady is not the owner of the
building covered by Ext.A2, the first proviso to sub
Section 3 of Section 11 cannot have any
application. That court also found that the tenant
R. C. R. No.101 of 2010 -4-
was unable to prove that he satisfies both the
ingredients of the second proviso to sub Section 3
of Section 11. That court rather accepted the case
of the landlady that the income derived from the
business carried on by the tenant in the petition
schedule premises was not the only source of the
tenant’s livelihood. That court was also not
impressed much by Ext.C1 report which was to
the effect that buildings are not available in the
locality on lease and it was available only by sale
or mortgage. The Rent Control Court accordingly
ordered eviction under sub Section 3 of Section
11.
3. Considering the appeal preferred by the
revision petitioner, the Appellate Authority re-
appraised the evidence. The Appellate Authority
R. C. R. No.101 of 2010 -5-
also did not find any reason to disbelieve the
version of PW1 that she wants to occupy the
petition schedule premises for the purpose of
conducting hotel business as the tenant is doing
presently. The Appellate Authority not only
endorsed the reasoning of the Rent Control Court
in the context of the first proviso to sub Section 3
of Section 11, but also found that even if the room
where Valiakath Footwears was being conducted is
under the vacant possession of the landlady, then
also there was special reason for ordering eviction
of the petition schedule building since Valiakath
Footwear room was not large enough to
accommodate the landlady’s proposed hotel
business. The Appellate Authority would concur
with the conclusions of the Rent Control Court in
R. C. R. No.101 of 2010 -6-
the context of the second proviso to sub Section 3
of Section 11 and accordingly, would dismiss the
RCA filed by the revision petitioner.
4. In this revision filed under Section 20,
various grounds have been raised challenging the
judgment of the Appellate Authority and the order
of the Rent Control Court. Sri.G.Sreekumar
Chelur, the learned counsel for the revision
petitioner addressed arguments before us on the
basis of grounds raised in the memorandum of
revision. The submissions of Sri.Sreekumar were
opposed by Sri.K.S.Bharathan, the learned
counsel for the respondent. Sri.Sreekumar drew
our attention to the oral evidence given by PW1
and would highlight the last five lines in the
deposition of PW1 which we extract below:-
R. C. R. No.101 of 2010 -7-
“]+nIapdnbpsS sXm+v Ingt!apdn
Hgn*pIn+n ]q+n!nS!pIbmWv. l@Pn
]+nI apdnbpsS ASp/pE ]q+n!nS!ps
apdnbnp tlm+p _nkn\Jv XpS’mw.
]q+n!nS!ps apdn aI\v Zm\w sImSp/p.”
5. According to Mr.Sreekumar Ext.A2 gift
deed executed by PW1 in favour of her son has
never come into effect. The Donee/son has not
visited his home village during the past ten years.
It was none other than PW1 who took possession
of Valiakath Footwear room back from the tenant
then in occupation of that room. That room
continues to be under the lock and key of the
mother. Sri.Sreekumar argued that when PW1 has
conceded in her evidence that she can conduct the
proposed hotel business in that room and
R. C. R. No.101 of 2010 -8-
concedes in evidence that she has not taken even
the preliminary steps for conducting the proposed
hotel business in that room despite that room
being in her possession all along, the finding
concurrent though it may be, entered by the
authorities below that PW1 needs possession of
the petition schedule premises bona fide cannot
be correct. According to Mr.Sreekumar, even if the
first proviso under sub Section 3 of Section 11
does not operate in view of Ext.A2, then also the
circumstance that PW1 has not utilised the
Valiakath Footwear room for conducting the
proposed hotel business at least in a small way
will very strongly indicate that the need is not
bona fide. According to him, first proviso to sub
Section 3 does operate since it is crystal clear that
R. C. R. No.101 of 2010 -9-
Ext.A2 gift deed has never been acted upon by the
parties to the same. Sri.Sreekumar would
challenge the findings entered by the courts below
regarding the tenant’s eligibility for protection of
the second proviso. In this context he would read
over to us Ext.C1 commission report which is to
the effect that other buildings are not available in
the locality on lease, but at the most, buildings
are available by sale. Availability of suitable
buildings as contemplated by the second proviso
to sub Section 3 is availability of suitable buildings
on lease and not availability of buildings on sale,
so argued the learned counsel for the revision
petitioner. Sri.Sreekumar also submitted in the
same context that the landlord was unable to
adduce any documentary evidence to support the
R. C. R. No.101 of 2010 -10-
landlord’s contention that the tenant was
possessed of immovable properties. In the
absence of documentary evidence, the authorities
should have found that the only source of income
which the tenant has is the business of Geetha
Hotel presently being conducted in the scheduled
premises.
6. As a last plea Sri.Sreekumar submitted
that the landlady should be directed to let out
Valiakath Footwear room to the revision petitioner
on condition that an attractive rent is paid to the
landlady and that the scheduled premises are
surrendered immediately.
7. Sri.K.S.Bharathan, the learned counsel for
the respondent would remind us of the attenuated
nature of the present jurisdiction under Section
R. C. R. No.101 of 2010 -11-
20. According to him, there is no illegality,
irregularity or impropriety about the judgment of
the Rent Control Appellate Authority which is in
confirmation of the order of the Rent Control
Court finding that the need projected by the
landlady is bona fide and that the RCP is not liable
to fail by virtue of either the first or second
proviso to sub Section 3 of Section 11. Valiakath
Footwear room ceased to be under the ownership
of landlady seven years prior to the
commencement of RCP. First proviso to sub
Section 3 can operate only when the landlady has
under her possession her own building. Since
ownership of that room is not with the landlady,
the proviso cannot apply. According to
Sri.Bharathan, landlady has not made any
R. C. R. No.101 of 2010 -12-
admission in her evidence that she can conduct
hotel business in Valiakath Footwear room.
According to him, it is in evidence that the
relationship between the landlady and her son has
become strained after the son got married. This,
according to him, is the reason why the son is not
even visiting his mother. If the mother were to
conduct Hotel business in son’s room, son’s
permission will be required. Counsel submitted
that at any rate there is no comparison between
the Valiakath Footwear room and the petition
schedule premises which consisted of a large
room and a storeroom.
8. We have very anxiously considered the
rival submissions addressed at the Bar. In fact, in
deference to the seriousness with which the
R. C. R. No.101 of 2010 -13-
learned counsel for the revision petitioner
highlighted what he described as the admissions
made by PW1 in her evidence regarding the
availability of Valiakath Footwear room for conduct
of hotel business by her, we have reappraised the
entire evidence given by PW1. On a re-
appreciation of PW1’s testimony we do not find
any admission made by PW1 to the effect that
Valiakath Footwear room is under her vacant
possession and that she can conduct hotel
business therein. True in the last but one sentence
of her deposition, she has stated that hotel
business can be conducted in the said room. But
in the very next line which significantly is the last
line in the evidence what she says is that the said
room is handed over to the son thereby indicating
R. C. R. No.101 of 2010 -14-
sufficiently that she is not in a position to conduct
business in that room. Evidence of PW1 has to be
appreciated as a whole. When it is so done, it will
be seen that the landlady’s evidence is to the
effect that she no longer maintains very cordial
relationship with her son, it may not be easy for
her to obtain permission of her son for conducting
a hotel business even in a small way in Valiakath
Footwear. We have scanned the judgment of the
Appellate Authority which under the Statutory
scheme is the final court on facts. The appellate
authority has found assuming that Valiakath
Footwear room is available with the landlady for
conducting business that there is no comparison
between that room and the petition schedule
premises. Going by the sketch prepared by the
R. C. R. No.101 of 2010 -15-
Commissioner, a copy of which is supplied to us
by Sri.Sreekumar himself, we are inclined to
agree with the Appellate Authority and find that
while the petition scheduled rooms are ideally
suited for conducting a hotel business Valiakath
Footwear room is not so suited.
9. In this jurisdiction under Section 20, this
Court is not expected to substitute the factual
conclusions arrived at by the final fact finding
authority especially when the same is founded on
evidence. We find that the finding entered by the
Rent Control Appellate Authority in this case is on
the basis of evidence, whether it be regarding the
bona fides of the need or regarding the operation
of the first proviso or regarding the eligibility of
the tenant to the benefit of the second proviso to
R. C. R. No.101 of 2010 -16-
sub Section 3.
10. As desired by Sri.G.Sreekumar we
explored the possibilities of Valiakath Footwear
building being let out to the revision petitioner on
attractive terms as to rent, but our endeavour was
unsuccessful.
11. The result of the above discussion is that
the RCR fails. However, we feel that this is a case
where there is justification for granting to the
revision petitioner an unusually long period for
surrendering the premises. Hence, even as we
confirm the order of eviction and dismiss the RCR,
we direct the Execution Court not to order and
effect delivery of the petition schedule building till
30th June 2011 subject to the following conditions:
12. The revision petitioner will file an
affidavit before the Execution Court or the Rent
R. C. R. No.101 of 2010 -17-
Control Court, as the case may be, undertaking to
give peaceful surrender of the building to the
respondent on or before 30th June, 2011. It shall
be undertaken further through the same affidavit
that arrears of rent if any will be discharged within
one month and occupational charges at the
current rent rate will also be paid as and when the
same falls due. We make it clear that the revision
petitioner will be entitled for the benefit of time
granted as above only if the affidavit as ordered
above is filed on time.
PIUS C. KURIAKOSE
JUDGE
C. K. ABDUL REHIM
JUDGE
kns/-