High Court Kerala High Court

Prabhakaran vs Ramakrishna Pillai on 24 June, 2009

Kerala High Court
Prabhakaran vs Ramakrishna Pillai on 24 June, 2009
       

  

  

 
 
  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.
                      ------------------------
                     R.C.R.No.128 OF 2009
                      ------------------------

             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

RCR.No.128/2008 5

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
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