George Jhone Kuruvila and Others v. P. M. Abdul Rasheed and P. M. Abdul Sathar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 RCRev..No. 379 of 2004() -----------------------RCA.136/1996 of DISTRICT COURT, THALASSERY RCP.283/1994 of PRL.M.C.,KANNUR .................... ## REVISION PETITIONER/RESPONDENT/RESPONDENT: --------------------------------------------------------- 1. GEORGE JHONE KURUVILA S/O. GEORGE KURUVILA AGED 61, BUSINESS, S.M.ROAD, KANNUR.(DIED). ## *ADDL.REVN.PETITIONERS 2 & 3:- 2. SHOBHA KURUVILA W/O. LATE GEORGE JHONE KURUVILA, AGED 55, S.M. ROAD, KANNUR. 3. MEGHA KURUVILA, D/O.LATE GEORGE JHONE KURUVILA, AGED 25, S.M. ROAD, KANNUR. - (* IMPLEADED AS LEGAL HEIRS OF THE DECEASED REVISION PETITIONERS AS PER ORDER DT. 31.5.05 IN I.A.1429/05) BY ADV. SRI.S.SREEKUMAR ## RESPONDENT(S): APPELLANTS/PETITIONERS: -------------------------------------------------- 1. P.M.ABDUL RASHEED - S/O. LATE MAHAMOOD NATIVE OF KANNUR AMSOM, NAGARAM, KANNUR-3, REPRESENTED BY POWER OF ATTORNEY P.M.ABDUL SATHAR S/O. LATE P.M.MAHAMOOD RESIDING AT KANNUR-1, AMSOM, NAGARAM, DESOM, KANNUR-3. 2. P.M.ABDUL SATHAR, - S/O. LATE P.MAHAMOOD SALES MAN, KANNUR-1, AMSOM, NAGARAM, DESOM, KANNUR-3. ADV. SRI.A.MOHAMED MUSTAQUE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR.379/04 ## ORDER ON I.A.3478 OF 2004 IN RCR.379 OF 2004 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 21.1.2010 _okb_ /True copy/ P.A. to Judge ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------** ## **R.C.R.No.379 of 2004** ## **----------------------------------** Dated this the 21[st] day of January, 2010 ## **O R D E R ---------------** ## **Pius C.Kuriakose,J.** The tenant is in the revision. He challenges judgment of the Rent Control Appellate Authority ordering eviction on the ground of need for own occupation in reversal of the order of the Rent Control Court dismissing the Rent Control Petition. Parties will be referred to hereinafter as tenant and landlord. Landlord sought to evict the tenant on the ground under sub-section 3 of Section 11. Need projected by the landlord was that landlord No.2 who is presently employed in a textile shop as salesman, bonafide needs to occupy the building so that he can start his own textile shop therein. It was averred that he has a large family consisting of his 3 mentally retarded children to support and that he does not have money enough from his job and other sources for support. The bonafides of the needs was disputed by the tenant who also contended that he is entitled to protection of second proviso to Section 11(3). At trial the evidence **RCR.379/04** **2** consisted of Ext.A1 to A8, B1 to B6, C1 & C2, X1 & X2 and the oral evidence of PW1, landlord No.2 and RW1 the tenant. The Rent Control Court on evaluating the evidence came to the conclusion that the landlord had stated falsehood before the court for the purpose of persuading the court for passing an order in his favour. He had not disclosed the fact that he is having rental income also. It was found that he had falsely stated that the tenant is not carrying out any business in the petition schedule building whereas actually the tenant is using the building as godown for his main business conducted in a nearby building. It was also found that the landlord who has given details regarding his monetary requirements in evidence has not chosen to state about those requirements in the Rent Control Petition and according to the Rent Control Court result prejudice has been caused to the tenant because of this. Coming to the question whether the tenant is entitled to protection of second proviso to subsection 3 of Section 11 the Rent Control Court practically found that the tenant satisfies both ingredients to the proviso. However specific finding was not entered regarding the proviso on the reason that the finding is already entered that the need is not bonafide. In the result the Rent Control **RCR.379/04** **3** Court dismissed the petition. The judgment impugned in this revision reverses the findings of the Rent Control Court both in the context of the bonafides of the need projected and also in the context of tenant's eligibility for protection of second proviso to sub-section 3. In this revision filed under Section 20 various grounds are raised by the tenant assailing the judgment of the Rent Control appellate authority and Sri. Martin Jose, learned counsel for the revision petitioner, addressed us very strenuously on all those grounds. All those submissions are stiffly resisted by Sri.Mohamed Mustaque, who supported the judgment of the Rent Control appellate authority on the various reasons stated therein. According to Mr. Martin Jose, there is no warrant for interference with the order of the Rent Control Court. He further submitted that the Rent Control Court, being a court of equity, was justified in declining relief to PW1, who uttered falsehood on material aspects. Mr.Mustaque per contra would submit that the reasoning of the learned appellate authority is quite sound and since the findings have been entered by the appellate authority on appreciating the evidence which is available on record, there is no warrant for interference under the present jurisdiction which is **RCR.379/04** **4** revisional in nature. 2. We have anxiously considered the rival contentions. We have made a quick survey of the evidence on record to the extent necessary for appreciating the arguments addressed before us. Under the statutory scheme the final court of facts is the Rent Control appellate authority and this court interferes with the findings entered by that authority only when it is shown that the findings are illegal, irregular and improper. We notice on a reading of the appellate authority’s judgment that the findings of that authority that the need is bonafide has been entered on a proper appreciation of PW1's evidence. It was noticed that PW1 the landlord No.2 had spent a long period of 26 years as salesman in a textile shop drawing a petty salary. It was also noticed that PW1 had a large family to support consisting of 3 mentally retarded children. Sound reasons have been stated by the learned Appellate Authority to arrive at the conclusion that in circumstances spoken to by PW1 it was quite natural that PW1, harboured a need in his mind that he started a textile shop, the one line in which he is considerably experienced having been a salesman for a period of 26 years. We do not find any infirmity about the **RCR.379/04** **5** findings. Equally so is the findings of the Appellate Authority regarding tenant’s eligibility for protection of second proviso to sub-section 3. It is trite by the judgment of the Full Bench decision of this court in **Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (F.B)** that the burden to show that tenant satisfies both the ingredients of the second proviso to sub-section 3 of Section 11 is on the tenant himself. When the guidelines laid down by the Full Bench are followed, it will be seen that the finding of the rent control appellate authority that the tenant is not entitled to protection of the second proviso to sub-section 3 of Section 11 (findings entered on evidence) is unassailable. As a last request Mr.Martin Jose sought for one year’s time to surrender the premises. The request is opposed by Mr.Mustaque pointing out that Rent Control Revision is pending before this court for about 6 years. We notice that the Rent Control Petition was filed back in 1994. However we feel that the revision petitioner can be allowed time till Onam so that he can close down his business and surrender the premises. 3. In the result the Rent Control Revision is dismissed. The executing court is directed not to order delivery of the petition schedule building to the respondents **RCR.379/04** **6** ## till 31.8.2010 subject to the following conditions:- Revision petitioner shall file an affidavit before the execution court or Rent Control Court as the case may be within one month from today undertaking to give peaceful surrender of the building in question to the 2[nd] respondent on or before 31.8.2010 and through the same affidavit the petitioner shall also make an undertaking that arrears of rent if any will be discharged by him within one month and that occupational charges at the current rent rate will also be paid by him promptly till they give actual surrender. It is made clear that the revision petitioner will get benefit of the time granted by this judgment only if he files the affidavit in time. ## **PIUS C.KURIAKOSE, JUDGE.** ## **C.K.ABDUL REHIM, JUDGE.** okb