IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 168 of 2010()
1. RAJU,S/O.JANARDHANAN, AGED 46 YEARS,
... Petitioner
Vs
1. INDIRADEVI D/O.KUTTI AMMA,SREEBHAVAN,
... Respondent
For Petitioner :SRI.K.S.MANU (PUNUKKONNOOR)
For Respondent :SRI.B.SURESH KUMAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :06/12/2010
O R D E R
PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ.
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R.C.R. NO. 168 OF 2010
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DATED THIS, THE 6TH DECEMBER, 2010.
O R D E R
Pius C. Kuriakose, J.
Under challenge in this revision under Section 20 of the Kerala
(Buildings (Lease & Rent Control) Act 1965 (Act 2 of 65), is the judgment
of the Rent Control Appellate Authority, ordering eviction against the
revision petitioner for the first time under sub-section 3 of Section 11 of
the Act. The landlady had invoked the ground of arrears of rent also for
evicting the revision petitioner. Both the authorities have concurrently
declined eviction under that ground. In the absence of any revision by the
landlady, in this revision we need be concerned only with the legality,
regularity and propriety of the eviction order passed by the Appellate
Authority on the ground under sub-section 3 of Section 11.
2. The need projected by the landlady was that her daughter Jolly
(PW.2) is to be accommodated in this building so that PW.2 who is an
Engineering Graduate, can use the building for conduct of tuition classes
for Engineering students. It was averred that PW.2 is a graduate in
Engineering and that she genuinely intends to set up tuition classes for
engineering students in the building. The bona fides of the need was very
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seriously disputed. It was pointed out that PW.2 is put up at Baroda in
Gujarat along with her husband, who is a manager in a company, there. It
was also contended that PW.2 is permanently put up at Baroda. It was
pointed out that even for her confinement and delivery she did not come
over to Kavanad – her native place; but only her mother went to Baroda to
attend on her. The tenant also claimed protection of the second proviso to
sub-section 3 of Section 11. In the enquiry conducted by the Rent Control
Court, the evidence consisted of Exts.A1 to A6, B1 and the oral evidence of
PWs 1 and 2 and CPW.1. PW.1 was the landlady and CPW.1 was the
tenant. On evaluating the evidence, the learned Rent Control Court noticed
that Pw.2 came to Kollam for giving evidence in the case only on the day
she was examined by the court. The Rent Control Court also noticed that
delivery of both the children of PW.2 took place at Baroda and not in her
home village. The court also noticed that no documentary evidence was
adduced by the landlady to show that her daughter was experienced in
teaching. On these reasons, it was held that the need is not bona fide.
However, regarding the tenant’s eligibility for protection under the second
proviso to Section 11(3), it was held that it is for the tenant to prove that he
has satisfied the two ingredients. It was held that the tenant did not
succeed in doing so. However, eviction under Section 11(3) was declined.
RCR 168/2010 3
3. The learned Appellate Authority considered the appeal preferred
by the landlady and reappraised the evidence. The learned Appellate
Authority would reverse the finding of the Rent Control Court regarding the
bona fides of the need and ordered eviction after approving the finding
rendered by the Rent Control Court regarding the tenant’s eligibility for the
protection under the second proviso to Section 11(3). The learned
Appellate Authority was very much impressed by the oral evidence given by
PWs 1 and 2. On the basis of the documents such as ration card, electoral
card etc., the learned Authority came to the conclusion that the permanent
residence of PW.2 was at Kavanad, her home village and not in Baroda. In
this context, the learned Appellate Authority noticed that the tenant’s
version that PW.2 seldom comes over to Kavanad is not correct. Another
circumstance which weighed with the Rent Control Court to find that the
need is not bona fide, is that one vacant room was available with the
landlady. But according to the Appellate Authority, that room was too
small to accommodate students and the furniture, which are very much
necessary for the conduct of tuition centre. On an overall appreciation of
the evidence adduced on the side of the landlady, the Rent Control
Appellate Authority came to the conclusion that the need is bona fide. The
Appellate Authority, therefore, interfered with the negative order passed by
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the Rent Control Court and ordered eviction under Section 11(3) of the Act.
4. In this revision under Section 20 of the Act, the tenant has raised
various grounds assailing the judgment of the Appellate Authority. Learned
counsel for the revision petitioner addressed strenuous arguments before us
on the basis of those grounds. Drawing our attention to the evidence in the
case, the learned counsel submitted that the conclusions of fact arrived at
by the Appellate Authority are not supported by materials. It was
highlighted that the husband of PW.2 is an employee in a managerial
position in a reputed company in Baroda and that PW.2 has been happily
residing with the husband and her two children at Baroda. According to the
learned counsel, it is highly improbable that PW.2 will come over to
Kavanad and reside along with her mother for the purpose of conducting
tuition classes. There is no documentary evidence on the basis of which,
it can be held that PW.2 is experienced in taking tuition classes. The
judgment of the Appellate Authority, according to the learned counsel, is
illegal, irregular and improper as the same is contrary to the evidence in the
case.
5. All the submissions of the learned counsel for the revision
petitioner were opposed by the learned counsel for the respondent/landlady.
We have very anxiously considered the rival submissions. We have also
RCR 168/2010 5
gone through the judgment of the Appellate Authority and the Rent Control
Court. The question that arises for our decision is whether the judgment of
the learned Appellate Authority warrants any interference under Section 20
of the Act. The answer for that question necessarily has to be in the
negative. We have made a re-appraisal of the evidence in the case. The
entire testimony of PW.2, the defacto claimant was read over to us. We
find that nothing has been brought out in cross examination to shake her
credit and credibility. True, there is some evidence to hold that the landlady
is in possession of a vacant building. But there is further evidence which
shows that the above vacant room is too small to accommodate the students
attending the tuition classes and the necessary furniture. We enquired of the
learned counsel for the revision petitioner as to whether the revision
petitioner is willing to shift his business to that building. The answer was in
the negative. If that room is not suitable for the use of the revision
petitioner, he will not be justified in insisting that the said room is suitable
for PW.2’s purpose. There may not be any direct evidence regarding the
bona fide need except the oral version of the person who harbours the need.
This is a case where both the landlady and her dependant daughter for
whom the building is sought to be evicted have given evidence . On a re-
appreciation of the evidence, we are convinced that the view taken by the
RCR 168/2010 6
learned Appellate Authority that the above evidence is inspiring, is not
illegal, irregular or improper.
6. As regards the protection of the second proviso to Section 11(3),
we notice that the findings are concurrent and based on evidence.
Therefore, we find no ground for interference with the judgment of the
Appellate Authority. The revision petition is without merit and it is
accordingly dismissed.
7. Learned counsel for the revision petitioner made a last appeal for
grant of at least 18 months time for surrendering vacant possession of the
building. We do not think that we will be justified in granting such a long
period. However, we think, in the totality of the circumstances, that there
is justification in granting time till 15.12.2011 subject to certain conditions.
8. The result of this Rent Control Revision Petition is as follows:
The Rent Control Revision Petition is dismissed. The eviction order
is confirmed and the execution is kept in abeyance till 15.11.2011 on the
following conditions:
(i) The revision petitioner shall file an affidavit within three weeks
from today, undertaking as follows:
(a) that he shall surrender vacant possession of the building to the
respondent herein on or before 15.11.2011, (b) that he shall discharge
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arrears of rent if any, within two months from today and (c) he shall pay at
the rate of Rs. 1,000/- per month towards occupational charges of the
building with effect from 1.12.2010 without any default. In the event of
filing the affidavit as above and honouring the undertaking, the trial
court/execution court shall keep the order of eviction in abeyance till
15.11.2011. On proof of breach of any of the above conditions, the
respondents are at liberty to get the order of eviction executed at once.
PIUS C KURIAKOSE,
(JUDGE)
P.S. GOPINATHAN,
(JUDGE)
knc/-