IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 64 of 2010()
1. T.K.MUHAMMED IQUBAL,
... Petitioner
2. T.K.KUNHAYIN, S/O.SAODITTU,
Vs
1. MELEKUNNUMMAL ISMAIL,
... Respondent
For Petitioner :SRI.E.NARAYANAN
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :01/03/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
------------------------
R.C.R.No.64 OF 2010
------------------------
Dated this the 1st day of March, 2010
O R D E R
Pius C.Kuriakose, J.
The tenant and the alleged sub tenant are the revision
petitioners. They challenge in this revision under Section 20 the
order of eviction concurrently passed against them by the Rent
Control Court and the Appellate Authority on the grounds of bona
fide need for own occupation and sub letting. The landlord’s
case in the context of claim under sub section (3) of Section 11
was that the landlord has no independent job or avocation and
that he is presently working under his brother Mr. Ali and that the
remuneration that he draws from that employment is only
Rs.2000/- which is quite inadequate for sustenance of the
landlord and his family. The tenants disputed this claim and
contended that the landlord is doing real estate business as well
as business in vegetables. The tenant also claimed protection of
the second proviso to sub section(3) of Section 11.
2. The allegation of the landlord in the context of ground
RCR.No.64/2010 2
under section 11(4)(i) was that the tenant has parted with
possession of the portion of the building in favour of the alleged
sub tenant. The tenant’s defence to this allegation was that the
jural relationship between the tenant and the alleged sub tenant
was not that of tenant and sub tenant but that of tenant and
assistant. Before the Rent Control Court the evidence consisted
of Exts.A1 to A3 on the side of the landlord apart from the oral
evidence of the landlord as PW1. The solitary item of evidence
on the side of the tenant consisted of the tenant’s oral evidence
as RW1. Significantly the alleged sub tenant did not mount the
box for proving the jural relationship between him and RW1.
The Rent Control Court on evaluating the evidence came to the
conclusion that the need projected by the landlord was a bona
fide one and that the tenant is not entitled for the protection of
the second proviso to sub section (3) of Section 11. Similarly, it
was concluded by that court that the tenant was unsuccessful in
proving that the jural relationship between him and the sub
tenant was that of employer and employee. It was also found
that the tenant is not entitled for the protection of the second
proviso to sub section (3) of Section 11. On the basis of these
RCR.No.64/2010 3
conclusions, the order of eviction was passed against the tenant
on the ground of sub section (3) of Section and clause (i) of sub
section (4) of section 11 of the Act.
3. The tenant and the alleged sub tenant filed appeal to the
Rent Control Appellate Authority. That authority reappraised
the evidence throughly and concurred with all the conclusions of
the Rent Control Court. Accordingly, the appeal was dismissed.
4. In this revision under Section 20, various grounds have
been raised challenging the findings of the Rent Control Court as
well as the Appellate Authority. Sri.E.Narayanan, learned
counsel for the revision petitioners addressed us on the basis of
those grounds. The learned counsel took us through the order of
the Rent Control Court and the Judgment of the Appellate
Authority. According to him, the evidence adduced by the
landlord was not sufficient to prove the bona fides of the need
projected. He argued that in a case where the landlord alleges
that he is working under his brother in a hotel and that
allegation is disputed by the tenant, it is obligatory on the part
of the landlord to have examined the brother who is the owner
of the hotel. That was not done. Hence adverse inferences
RCR.No.64/2010 4
should have been drawn against the landlord. He submitted that
the findings of the authorities regarding the existence of
eviction grounds are contrary to the evidence available on record.
As his last plea, the learned counsel requested that at least one
year’s time be granted to the petitioners to surrender the
premises.
5. We have very anxiously considered the submissions
addressed before us by the learned counsel for the revision
petitioners. We have scanned the judgment of the Rent Control
Appellate Authority and the order of the Rent Control Court.
Under the statutory scheme, the Rent Control Appellate Authority
is the final court on facts. We notice that the findings entered by
that authority confirming the similar findings entered by the Rent
Control Court are all founded on evidence. We do not find any
irregularity, irregularity or impropriety with those findings as
envisaged by Section 20 of Act 2 of 1965. The revision
necessarily has to fail. However, considering the last request of
the learned counsel Sri.E.Narayaan, we are inclined to grant to
the revision petitioners time till 31/10/2010 subject to certain
conditions.
RCR.No.64/2010 5
5. The result of the above discussion is as follows;
i). The RCR is dismissed.
ii) The Execution Court is directed not to order and effect
delivery of the petition schedule building in favour of the
respondent till 31/10/2010 subject to the following conditions;
Both the revision petitioners
shall file affidavits before the
Execution Court within 10 days
from today undertaking to give
peaceful surrender of the building
in question to the respondent on or
before 31/10/2010. It will also be
undertaken 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 to
the respondent as and when the
same falls due till such time as the
building is surrendered.
RCR.No.64/2010 6
We make it clear that the revision petitioners will get the
benefit of time granted under this judgment only if the affidavit
as directed above is filed on time.
PIUS C.KURIAKOSE,JUDGE
C.K.ABDUL REHIM , JUDGE
dpk