IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 50 of 2009(B)
1. VALSAMMA, W/O. LATE V.K. JOB @
... Petitioner
2. REJI JOB, S/O. LATE V.K. JOB,
3. GEORSENT JOB @ JOHNSON,
Vs
1. G.S.N. RAJ, S/O. GOPALAKRISHNA CHETTIYAR
... Respondent
2. GLADIS @ SHEEBA,
For Petitioner :SRI.T. KRISHNANUNNI
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :16/06/2009
O R D E R
PIUS C. KURIAKOSE &
P. Q. BARKATH ALI, JJ.
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R. C. R. No.50 of 2009
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Dated this the 16th day of June, 2009
ORDER
Pius C. Kuriakose, J
On considering the submissions of Sri.K.Anand,
the learned counsel for the petitioners in extenso, we
found that there is no warrant for interfering with the
orders of eviction concurrently passed by the Rent
Control Court and the Appellate Authority and in
deference to the learned counsel for the petitioner’s
request that time be granted to vacate at least till
31/12/09, we issued notice to the respondents vide
our order dt.04/03/09 which reads as follows:-
“Heard Sri.K.Anand, learned counsel
for the petitioners in extenso. We are not
satisfied that any ground is made out
under the attenuated jurisdiction of this
Court under Section 20 for interfering withR. C. R. No.50 of 2009 -2-
the orders of eviction concurrently passed
by the Rent Control Court and the
Appellate Authority. However, in deference
to the learned counsel’s request that time
be granted to vacate at least till
31/12/2009, we are inclined to issue
notice to the respondent to decide the
question of granting time.Issue notice on admission by speed
post to decide the question of time to be
granted to the petitioner for surrendering
the premises. Post on 16/03/09. Interim
stay, as prayed for, till then.”2. In response to the notice issued, the
respondents entered appearance through Advocate
Sri.P.C.Chacko. Sri.T.Krishnanunni, Senior Counsel
who was engaged to argue the revision petition on
behalf of the petitioners after getting permission
addressed us on the merits of the various grounds
raised in the memorandum of revision and submitted
that the revision be allowed notwithstanding our order
dt.04/03/09. Drawing our attention to certain
observations of the Rent Control Appellate Authority in
R. C. R. No.50 of 2009 -3-
para 10 of its judgment, Sri.Krishnanunni submitted
that the respondent is presently gainfully employed as
a Development Officer with the LIC of India and
therefore, the need projected by him under sub
Section 3 of Section 11 is no longer in existence.
According to the Senior Counsel, since the need has
been completely obliterated, the order of eviction
under Section 11(3) passed, concurrently though it be,
is to be vacated since the law is that the need should
continue at least till the final authority under the
statutory scheme i.e. this Court the revisional
authority under Section 20 passes orders. When the
attention of Sri.P.C.Chacko was drawn to this aspect of
the matter, Sri.P.C.Chacko, learned counsel for the
respondent fairly conceded before us that the
respondent is presently working as a Development
R. C. R. No.50 of 2009 -4-
Officer with the LIC of India. He submitted that a
detailed affidavit has been filed by the respondent on
26/05/09. Paragraphs 3 and 4 of the said affidavit are
relevant and hence, we quote those paragraphs
asunder:-
“I respectfully submit that the main
contention of the revision petitioner is that
‘now I have got an employment and the
need is not subsisting’. The above
contention is not correct and denied. I
respectfully submit that the revision
petitioner is taking different contentions
with regard to my employment throughout
the various stages of these proceedings.
When the counter was filed in the RCP on
16/05/2005, the main contention of the
respondent was that ‘at that time I was
engaged in gulf countries and when DW1
was examined he was deposed that I was
working in the press, which is conducted by
my father. On 08/08/2007, when the RCA
was filed, the main ground taken by the
respondent was that I had got government
job and when the RCA was taken up for
hearing, the main grounds urged by the
tenant as reflected in the judgment of the
court below is that I have got employment
in LIC and finally on 26/02/09 when the
RCR is filed, the main contention taken byR. C. R. No.50 of 2009 -5-
the tenant is that I am employed in the
Indus Ind Bank, Thiruvalla. So these
contentions are not genuine and true. They
are inconsistent.I respectfully submit that I am an
MBA graduate and I am temporarily
employed and I want to resign from the job
as soon as the petition schedule building
involved in the RCR is obtained vacant
possession of. The need is still subsisting. I
bona fide intend to start business as alleged
in the RCP. That apart, my wife and two of
my younger brothers though reasonably
educated are unemployed and are ready
and willing to assist me in the conduct of
business.”
3. According to Sri.P.C.Chacko, the moment the
respondent obtains possession of the petition schedule
building, he will submit his resignation to the LIC so
that he can occupy the building and carry on the
projected business therein.
4. Sri.Krishnanunni, the learned counsel for the
petitioners would assail the findings of the authorities
below in the context of the second proviso to Sub
Section 3 of Section 11. He submitted that as far as
R. C. R. No.50 of 2009 -6-
the first limb of second proviso is concerned, the
findings have been entered concurrently in favour of
the tenant and in the absence of any challenge by the
landlord, the finding in the context of that limb is to be
accepted by this Court. According to him, the finding
on the second limb of second proviso though
concurrently entered by the authorities in favour of the
landlords, is contrary to the evidence actually available
on record. He submitted that the landlord had taken
out a commission to report that certain buildings
mentioned by him are lying vacant in the locality. The
Commissioner filed report and he was examined also
on the side of the landlord. The report of the Advocate
Commissioner is actually in favour of the tenant.
Instead of relying on that evidence which was brought
on record by the landlord, what the authorities below
R. C. R. No.50 of 2009 -7-
have done is to decide on the basis of what is
described as certain admissions in the evidence of the
tenant that other buildings are available in the locality.
The learned senior counsel was permitted to read over
to us the evidence rendered by the tenant in the
context of the second limb of the second proviso. He
submitted that the said evidence will not go to show
that other suitable buildings are presently available in
the locality.
5. The submissions of the learned senior counsel
were resisted by Sri.P.C.Chacko. Sri.Chacko submitted
that the landlord is an MBA degree holder and he
cannot be expected to be idle during the pendency of
the eviction proceedings. He is engaging himself
presently as a Development Officer with the LIC of
India. According to Sri.Chacko, once the delivery of
R. C. R. No.50 of 2009 -8-
the petition schedule building is obtained, the revision
petitioner will quit the job and occupy the building for
carrying on business. The learned counsel relied on
the judgments of the Supreme Court in Pratap Rai
Tanwani v. Uttam Chand (2004(8) SCC 490), Sait
Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal
(2005(8) SCC 252), Ramkubai v. Hajarimal
Dhokalchand Chandak (1999(6) SCC 540),
Kamleshwar Prasad v. Pradumanju Agarwal (1997(4)
SCC 413) to substantiate his contentions. With regard
to sub Section 12 of Section 11, counsel submitted
that the statute gives adequate protection to a tenant
who has been evicted on ground of own occupation
unnecessarily.
6. Coming to Sri.T.Krishnanunni’s arguments in
the context of second proviso to sub Section 3 of
R. C. R. No.50 of 2009 -9-
Section 11, Sri.P.C.Chacko would remind us of the
contours of this Court’s jurisdiction under Section 20.
According to him, the appellate authority has made a
thorough re-appraisal of the evidence and concluded
on the basis of such re-appreciation that the tenant
has not discharged his burden to show that he satisfies
the second limb of the second proviso to sub Section
3. The finding in favour of the tenant in the context of
the first limb will not be of much consequence since
both the limbs are in the conjunctive.
7. We have anxiously considered the rival
submissions addressed at the Bar. We do find force
with the submission of the learned Senior counsel that
so long as the respondent is employed with the LIC,
he will not be able to accomplish his projected need of
carrying on business in the petition schedule building.
R. C. R. No.50 of 2009 -10-
But then, the landlord has filed an affidavit before this
Court which prima facie appears to be convincing.
According to us, the apprehension voiced by the
learned senior counsel for the petitioner can be taken
care of by insisting that the respondent resigns his job
with the LIC before revision petitioner is dispossessed
of the petition schedule building. Appropriate
directions in this regard are being incorporated in this
judgment.
8. It is trite that both the limbs of the second
proviso to Sub Section 3 are to be taken in the
conjunctive and that the burden is that of the tenant
to establish that he satisfies both the limbs. In order
that he is given the protection of the second proviso to
sub Section 3 at the instance of the landlord, a
Commissioner was appointed and the Commissioner
R. C. R. No.50 of 2009 -11-
filed a report and gave evidence which was not very
favourable to the landlord regarding the second limb
of second proviso to Sub Section 3. But then the
burden as settled by judicial precedent continues with
the tenant.
9. The tenant examined a few witnesses who
according to the landlord were owners of other
buildings which are remaining vacant in the locality.
The learned Appellate Authority has made a thorough
re-appraisal of the evidence given by these witnesses.
It was found by the appellate authority that the tenant
has made a fatal admission while giving evidence as
PW1 that Mullackal is an area where buildings are
falling vacant and are let and re-let. May be the above
admission is a too general one to form basis of a
finding that the tenant is not entitled to a protection of
R. C. R. No.50 of 2009 -12-
the second limb of the second proviso to sub section
3. But as we have indicated the burden was that on
the tenant and we find from the testimony of RW1
itself that the tenant has not made any serious
enquiry on the question of availability of the vacant
buildings. Locality for the purpose of the second
proviso to sub Section 3 is not the immediate vicinity
of the petition schedule building alone. It is a fairly
larger area and the tenant was expected to have
enquiries in other areas of Alappuzha. Under the
statutory scheme, the final court on facts is the
appellate authority. That authority concurring with the
Rent Control Court has found that the tenant has
failed in establishing that he satisfies the second
proviso to sub Section 3. It is not possible for us to
say that those findings are so wholly unreasonable as
R. C. R. No.50 of 2009 -13-
to warrant correction under the revisional jurisdiction
of Section 20.
10. The result is that impugned orders will stand
confirmed and the RCR will stand dismissed.
11. As his last request, the learned Senior
counsel for the petitioner sought for one year’s time to
surrender the premises peacefully. Sri.P.C.Chacko, the
learned counsel for the respondent stiffly opposed this
request. We are not inclined to grant so much of time.
However, we feel that in the circumstances of the case
and by way of indulgence time can be granted till, 21st
December, 2009 subject to the following conditions:-
12. Revision petitioner shall file an affidavit
within three weeks from today stating that he will
peacefully surrender the petition schedule building to
the respondent on or before 31/12/09 and that he will
R. C. R. No.50 of 2009 -14-
discharge arrears of rent, if any, and will continue to
pay occupational charges at the present rent of
Rs.115/- per mensm till he surrenders. It is made
clear that the revision petitioner will get the benefit of
time granted by this order only if he files an affidavit
within the time frame.
PIUS C. KURIAKOSE
JUDGEP. Q. BARKATH ALI
JUDGE
kns/-