B. P. Anil Kumar v Ratnavally

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933** **RCRev..No. 17 of 2011(A)** **----------------------------------[R.C.A.NO.25/2009 OF RENT CONTROL APPELLATE AUTHORITY/ 1ST ADDITIONAL DISTRICT COURT, KOZHIKODE, R.C.P.NO.48/2008 RENT CONTROL COURT/ ADDITIONAL MUNSIFF-I, KOZHIKODE]** **....................** **PETITIONER:** **-------------------** **B.P. ANIL KUMAR, AGED 39 YEARS, S/O. VELAYUDHAN, NELLIKODE AMSOM AND DESOM, KOZHIKODE, PROPRIETOR, SARATHI AUTOMOBILES, KP 10/475, KAKKODIMUKKU, KOZHIKODE.** **BY ADVS. SRI.MANJERI SUNDERRAJ, SMT.K.K.PREETHA, SRI.MANJERI SUBIN SUNDER RAJ.** **RESPONDENT:** **----------------------** **RATNAVALLY, AGED 41 YEARS, D/O. APPUKUTTY NAIR, W/O. VIJAYAN, CHITTADIPOYIL HOUSE, ERAVANNOOR VILLAGE, KOZHIKODE THALUK.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 05/08/2011, ALONG WITH R.C.R. NOS.340 OF 2010 & 156 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **prv.** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI JJ. ------------------------** ## **R.C.R . NO. 17 OF 2011** **------------------------** Dated this the 24[th] day of July, 2012 ## **O R D E R** ## Pius C.Kuriakose,J The tenant is the revision petitioner. He challenged the revised judgment of the Rent Control appellate authority in RCA NO.25/2009 by which the appellate authority ordered eviction against him on the ground under sub section (3) of Section 11 after finding that the tenant is not entitled to the protection of the second proviso to sub section (3) of Section 11. In fact the finding that the need projected by the landlady is a bona fide one was entered by the rent control court and endorsed by the appellate authority in its previous judgment. The appellate authority did not order eviction on the ground under sub section (3) of Section 11 holding that the tenant is entitled to the RCR No. 92 /2012 2 protection of the second proviso to sub section (3) of section 11. This court allowed RCR No. 17/2010 filed by the landlady against the judgment of the rent control appellate authority and remanded the issue back to the rent control appellate authority directing the authority to take a fresh decision regarding the eligibility of the tenant for the protection of the second proviso to sub section (3) of Section 11. This court permitted the appellate authority to hold necessary enquiries in the context of such eligibility. While passing the order of remand in RCR NO.17/2010, this court would refix the rent payable by the tenant from Rs.5000 to Rs.7500 per mensem. After remand the appellate authority conducted further enquiry in which the appellate authority permitted the tenant to amend his counter statement so as to raise a specific contention that other suitable buildings are not available in the locality for him to shift his business and that he satisfied the second limb of the second proviso to sub section (3) of Section 11. The landlord denied the tenant's claim in the counter statement. An advocate commission was issued by the appellate authority on application by the landlord. The commissioner filed Ext.C1(a) report and C1 RCR No. 92 /2012 3 (b) plan on the basis of the inspection conducted. The commissioner was examined as CW1. PW1 was recalled and examined. RW1 was also recalled and examined. The rent control court on evaluating the evidence would hold that the tenant was unsuccessful in proving that he is entitled for the benefit of the protection of the second provisos. Accordingly, an order of eviction was passed under sub section (3) of Section 11 by the rent control appellate authority. It is that order which is under challenge. The grounds raised are mainly against the finding of the rent control appellate authority that the tenant is entitled to the protection of the second proviso. 2. We have heard the submissions of the learned counsel for the revision petitioner tenant and those of Sri.K.M.Sathyanatha Menon the learned counsel for the respondent landlady. The only question which arises for decision in this revision is whether the judgment of the appellate authority ordering eviction on the ground under sub section (3) of Section 11 against the revision petitioner on the basis of the finding that the tenant is not entitled for the protection of the second proviso warrants interference in revision. According to us, there is no RCR No. 92 /2012 4 infirmity about the finding of the rent control appellate authority that the tenant is not entitled for the protection of the second proviso to sub section (3) of Section 11. The issue, as to whether the tenant satisfies the first limb of the second proviso, was found in favour of the tenant already. But, as the two limbs are in the conjunctive, unless the tenant satisfies the second limb- the non availability of the suitable buildings in the locality, the tenant will not be entitled for the protection of the second proviso to sub section (3) of Section 11. Ext.C1 commission report and the oral evidence given by the commissioner as CW2 shows that other buildings are available in the locality. In fact one of the buildings reported by the advocate commissioner to be available belongs to one Prathap Sankar. The tenant had taken steps for examination of the above Prathap Sankar. However, after seeing Sri.Prathap Sankar coming to the court on summons, the tenant filed a statement to the effect that he does not propose to examine Prathap Sankar. This circumstances, itself will justify drawal of adverse inference against the tenant. 3. Having regard to the principles laid down by Full Bench of this court in Francis v. Sreedevi Warassiar (2003 (2) KLT 230) RCR No. 92 /2012 5 and by Supreme Court in Kunjamma v. Akkali Purushothaman 2007 (3) KLT 599 SC), it is very clear to us that the finding entered by the Rent Control Appellate Authority that the tenant has not been able to prove that other suitable buildings are not available in the locality is a correct finding. That finding is a reasonable finding entered by the appellate authority on the basis of evidence available on record. That being the position, it is not possible for us to say that there is illegality, irregularity or impropriety about that finding envisaged under Section 20 of Act 2 of 1965. 4. The result of the above discussion is as follows; The revision petition fails and will stand dismissed. However, the Execution Court is directed to keep in abeyance proceedings for delivery for a further period of six months from today subject to the following conditions; i). The revision petitioner shall file an affidavit before the Execution Court or the Rent Control Court within one month undertaking to give peaceful surrender of the building to the landlady within six months from today. It shall be undertaken through the same affidavit that arrears of rent, if any, due as on RCR No. 92 /2012 6 date will be discharged within one month from today and to pay charges for use and occupation at the existing rent rate (as revised by this court) without fail till actual surrender is given. We make it clear that the revision petitioner will get benefit of time as allowed only if he files the affidavit and honours the undertakings therein. Sd/- **PIUS C.KURIAKOSE, JUDGE** **Sd/-** **A.V.RAMAKRISHNA PILLAI, JUDGE.** dpk /True copy/ P.A to Judge. RCR No. 92 /2012 7