ABOOBACKER S/O. KUTTIPARAMBIL KUNHEEN v. CHERACHAM VEETTIL MALIYEKKAL JAMEELA (Revision Petition under Kerala Buildings (Lease and Rent Control) Act)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 RCRev..No. 69 of 2011() ----------------------RCA.13/2010 of RENT CONTROL APPELLATE AUTHORITY, MANJERI RCP.17/2006 of MUNSIFF COURT, TIRUR .................... REVISION PETITIONER/APPELLANT/DEFENDANT(S): -------------------- ABOOBACKER S/O. KUTTIPARAMBIL KUNHEEN, AGED 51 YEARS, THIRUNAVAYA AMSAM, EDAKULAM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.K.AJITHKUMAR (VALATH) RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- CHERACHAM VEETTIL MALIYEKKAL JAMEELA, D/O. KUNHAN, AGED 40YEARS, MALIYEKKAL HOUSE, TRIPANGODE AMSOM DESOM, TIRUR TALUK 676 101 ADV. SRI.C.M.MOHAMMED IQUABAL THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. -----------------------R.C.R.No. 69 OF 2011 ------------------------** Dated this the 10[th] day of February, 2011 ## **O R D E R** Pius C.Kuriakose, J. The tenant is in revision challenging an order of eviction concurrently passed against him by the statutory authorities under sub section (3) of Section 11 of Act 2 of 1965. The need is for bona fide own occupation for a dependent family member. In fact, the grounds of arrears of rent and sub letting were also invoked by the landlady. But, as those grounds do not survive in this revision, we are not referring to those grounds at all. 2. The need projected by the landlady was that the building is required bona fide for the conduct of cafeteria and bakery for her husband Abdul Rasheed, who has returned recently from Qatar. The landlady's case was that her husband is without any avocation of his own and that he has come back from Qatar for good. 3. The bona fides of the need was disputed by the revision petitioner/tenant. One of the contentions seriously raised by the RCR.No.69/2011 2 revision petitioner was that the landlady was all along taking up a stand that the status of the revision petitioner was that of a licencee. Having taken up the stand that the revision petitioner is a licencee, the landlady is not entitled to invoke the provisions of the Kerala Buildings (Lease and Rent Control) Act for evicting the tenant. The revision petitioner also claimed the protection of the second proviso to sub section (3) of Section 11. The Rent Control Court enquired into the matter and in the enquiry the evidence consisted of Exts.A1 to A9, Exts.B1 series and B2 apart from the oral evidence of PW1 the landlord 's husband and RW1, the tenant. The Rent Control Court on evaluating the evidence came to the conclusion that the need projected by the landlady was a bona fide one. It was also found that the tenant himself was working in a Gulf country and hence he is not entitled for the protection of the second proviso to sub section (3) of Section 11. 4. The tenant preferred an appeal to the Rent Control Appellate Authority. The learned Appellate Authority reappraised the evidence and concurred with all the findings entered by the Rent Control Court. Accordingly, the appeal was dismissed. RCR.No.69/2011 3 5. In this revision various grounds are raised and Sri.T.K.Ajithkumar, learned counsel for the revision petitioner, addressed strenuous arguments before us on the basis of all those grounds. All the arguments of Mr.Ajithkumar were opposed by Sri.C.M.Mohammed Iquabal, learned counsel for the respondent who had lodged a caveat in anticipation of revision. 6. We have anxiously considered the rival submissions addressed at the Bar. We have carefully gone through the order of the Rent Control Court and the judgment of the Appellate Authority. The question which arises for decision in this revision is the judgment of the Appellate Authority, which under the statutory scheme is the final court on facts, suffers from any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965. We have no hesitation in answering the question in favour of the respondent/landlady. That PW1, the husband of the landlady, has come back for good from Quatar where he was working is not seriously disputed. It was he who gave oral evidence for manifesting the genuineness of the need projected by his wife. The Rent Control Court was inspired by the evidence given by PW1. It is appreciating his evidence that RCR.No.69/2011 4 the court below found that the need projected by the landlady is a bona fide one. In order that a tenant becomes entitled for the protection of the second proviso to sub section (3) of Section 11, it is necessary that he should establish that he is depending mainly on the income that he derives from the business carried on by him in the petition schedule building and further that other suitable buildings are not available in the locality for him to shift his business. In the instant case, the tenant is employed in a Gulf Country. Such a tenant can never claim that he is depending for his livelihood mainly on the income that he derives from the petition schedule building. At any rate, the evidence pertaining to the income actually derived from the business carried on in the building in question is not brought on record. The tenant has failed to discharge the burden. As the two ingredients of the second proviso are in the conjunctive, when the tenant becomes unsuccessful in showing that he satisfies the first ingredient, he is dis- entitled to the protection of the second proviso to sub section (3) of Section. We are convinced that it is keeping in mind binding judicial precedents such as decisions in Francis v. Sreedevi Varassiar (2003 (2) KLT RCR.No.69/2011 5 230) and Kunhamma v. Akkali Purushothaman (2007 (3) KLT 599 (SC) that the learned Rent Control Court answered the question whether the tenant is entitled to the protection of the second proviso to sub section (3) of Section 11. On going through the Appellate Authority's judgment, we find that the Appellate Authority has made a thorough reappraisal of the evidence and has concurred with all the conclusions of the Rent Control Court. 7. We shall now deal with the argument raised before us by Sri.Ajithkumar that the landlady is not entitled to invoke the provisions of the Kerala Buildings (Lease and Rent Control) Act as she has not admitted the status of the revision petitioner to be that of a tenant. It is true that the stand initially taken by the landlady was that the status of the revision petitioner is that of a licencee only and not that of a tenant. It was taking such a stand that the lawyer notice was issued to the tenant for evicting him. In the rent control petition also, the landlady referred to her earlier stand regarding the status of the revision petitioner and it would appear as if that it is hesitatingly that the landlady concedes the status of the revision petitioner be that of a RCR.No.69/2011 6 tenant. But then, the very fact, that the landlady invoked the provisions of the Buildings ( Lease an Rent Control) Act for evicting the tenant, shows that the landlady has conceded the status of the revision petitioner to be that of a tenant. It was the consistent stand of the revision petitioner that his status is that of a tenant. We fail to understand how the revision petitioner complain when the landlady moved the rent control court rather than moving the regular civil court. In fact no prejudice has been caused to the revision petitioner by the landlady moving the rent control court. It was to his advantage that the landlady moved the Rent Control Court, as the scope of contest before the Regular civil Court in a suit for mandatory injunction would have been narrower. According to us, the status of the revision petitioner is that of a tenant and it is not open to the landlady any longer to contend that the status is that of a licencee. 8. The question arising for consideration is as to whether there is any warrant for interference with the impugned judgment within the contours of Section 20. The above question can be answered only in the negative. We find that the 7 RCR.No.69/2011 authorities below entered the findings regarding the bona fides of the need and the tenant's eligibility for protection against the second proviso to sub section (3) of Section 11 on the basis of the evidence actually available on record. We are not inclined to interfere with the conclusions concurrently arrived at by the statutory authorities on the basis of the evidence adduced by the parties. It is not open to this court to sit in revision to upset those findings which are reasonable. The revision petition fails and will stand dismissed. ## **PIUS C.KURIAKOSE,JUDGE** **N.K.BALAKRISHNAN, JUDGE** dpk