Kallingeel Fatima v. Kakoprath Krishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 RCRev..No. 256 of 2005() -----------------------RCA.200/1997 OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.265/1996 OF RENT CONTROL COURT, KANNUR .................... ## REVISION PETITIONER-RESPONDENT-PETITIONER -------------------------------------------------------- KALLINGEEL FATHIMA, D/O.MUSTHAFA HAJI, AGED 50 YEARS, RESIDING AT DILSHAD, MUZHATADAM P.O., THANA, KANNUR-12. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH ## RESPONDENT:APPELLANT/RESPONDENT ---------------------------------------------- KAKOPRATH KRISHNAN, S/O.KUNHAMBU NAMBIAR, AGED 56 YEARS, KANNUR AMSOM, THAVAKKARA DESOM, KANNUR-2. ADV. SRI.M.RAMESH CHANDER FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/08/2009, ALONG WITH RCR NO. 257 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ.** ----------------------------------------------RCR. Nos. 256 & 257 of 2005 ----------------------------------------------Dated this the 6th day of August, 2009 ## **O R D E R** ## **Barkath Ali, J.** Landlady is the revision petitioner in both these rent control revisions. RCR. No.256 of 2005 is directed against the judgment of the Appellate Authority (Addl. District Judge) Thalassery in RCA. No. 200 of 1997 dated 29-6-2004 reversing the order of the Rent Control Court (Principal Munsiff) Kannur in RCP. No. 265 of 1996 dated 27-8-1997 and dismissing the rent control petition. RCR No. 257 of 2005 is directed against the judgment of the said Appellate Authority in RCA. No. 209 of 1997 dated 29-6-2004 reversing the order of the Rent Controller, Kannur dated 278-1997 in RCP. No. 254 of 1996 and dismissing the rent control petition. 2. The landlady filed RCP. No. 265 of 1996 before the Rent Control Court seeking eviction under Section 11 (3) RCR. Nos. 256 & 257 of 2005 -2- and 11(4)(v) of the Act alleging that the landlady bona fide requires the petition schedule shop room for her son to conduct a computer shop and also that the revision respondent has closed the shop continuously for a period of six months prior to the filing of the rent control petition. The revision respondent tenant in this case contested the claim contending that the son of the landlady has no experience to conduct a computer shop, that the landlady is having another vacant buildings of her own, that the revision respondent is depending for his livelihood on the income derived from the business carried on by him in the petition schedule building and also that there is no other vacant building available in the locality for him to do the business. 3. In RCP. No. 254 of 1996 also the landlady claimed eviction on the same grounds and the tenant therein who is the revision respondent in RCR No. 257 of 2005 raised the RCR. Nos. 256 & 257 of 2005 -3- similar contentions. As the landlady is the same in both these petitions and as the landlady has claimed eviction of both these rooms for the bona fide need of her son the Rent Control Court disposed of both these rent control petitions by a common order. Before the Rent Control Court, on the side of the landlady PWs. 1 to 3 were examined and Exts. A1 to A5 were marked. The tenants in both these rent control petitions were examined as Rws. 1 and 2. Commissioner's report was marked as Ext.C1. The Rent Control Court on an appreciation of evidence found the bona fide need put forward by the landlady is genuine and allowed the petition under Section 11(3) of the Act. The claim for eviction under Section 11(4)(v) of the Act was declined by the Rent Control Court. On an appeal by the tenants the Appellate Authority by a common judgment reversed the said findings of the Rent Control Court and dismissed the rent control petitions. Now the landlady has RCR. Nos. 256 & 257 of 2005 -4- come up in revision. 4. The main question which arises for consideration in both these revisions is whether the judgment of the Appellate Authority finding that the bona fide need put forward by the landlady is not genuine and consequently dismissing the rent control petitions can be sustained. For several reasons we feel that the above finding of the Appellate Authority cannot be sustained. 5. The counsel for the revision respondent/tenant argued that this court as a revisional court under Section 20 of the Act cannot re-appreciate the evidence. We are unable to agree. A Division Bench of this court in Pakran v. Kunhiraman Nambiar (2004(1) KLT 824) has held that revisional jurisdiction under Section 20 of the Act is wider than the revisional jurisdiction under Section 115 of C.P.C. and that in appropriate cases this court can examine the correctness of finding of fact also. The nature and scope of RCR. Nos. 256 & 257 of 2005 **==> picture [15 x 9] intentionally omitted <==** powers of revision under Section 20 has been considered by the apex court in Nalakath Sainuddin v. Koorikadan Sulaiman (2002 (6) SCC 1). Relying on the above decision and referring to various other decisions a Division Bench of this Court in Simon v. Rappai (2008(3) KLT 121) held that the revisional court can examine whether the findings rendered by the Appellate Authority are plausible and to consider that aspect, revisional court can refer to the pleadings and evidence adduced by the parties. 6. In the light of the principles laid down in the above decisions, the above argument advanced by the counsel for tenant is liable to be rejected. Thus in the present case as we feel that the findings entered by the Appellate Authority cannot be sustained on the evidence on record, we are inclined to re-appreciate the evidence adduced by the parties. 7. Before the Rent Control Court eviction was sought RCR. Nos. 256 & 257 of 2005 -6- under Section 11(3) and 11(4)(v) of the Act. PW-1 to PW-3 were examined and Exts. A1 to A4 were marked on the side of the landlord and RW-1 and 2 were examined on the side of the tenant before the lower court. The report of the Commissioner was marked as Ext.C1. The case of the landlady as testified by her as PW-1 was that her son PW-3 is a graduate and has obtained necessary qualification in Computer Science and that he intends to start a Computer Training Institute in the upstair portion of the building which is the petition schedule building in RCP. No. 254 of 1996 (RCR. No. 257 of 2005) and a Computer Service Centre in the ground floor, i.e., petition schedule building in RCP. No. 265 of 1996 ( RCR. No. 256 of 2005). The tenants as RW-1 and RW-2 would say that PW-3 is employed in Bangalore and that the bona fide need put forward by the landlady is not genuine. The landlady produced Ext.A4, which is a certificate issued from Jetking, RCR. Nos. 256 & 257 of 2005 -7- School of Electronic Technology in favour of PW-3 to show that PW-3 is a diploma holder in Computer Hardware and Lan Engineering. Ext.A5 is the certificate issued from Caliber Company which shows that PW-3 has worked in that Company and got knowledge in System Maintenance etc. The Rent Control Court accepted the case of the landlady and found that she bona fide requires the petition schedule shop rooms for her dependent son PW-3 to conduct a Computer Teaching Institute. The Rent Control Court also found that the landlady is not in possession of any other vacant building in her possession and that the tenants are not entitled to the protection of first and second provisos of subsection (3) of Section 11 of the Act and ordered eviction under Section 11(3) of the Act. 8. As regards claim of eviction under Section 11(4)(v) of the Act on the ground that the tenant in RCP. No. 254 of 1996 who is revision petitioner in RCR. No. 257 of 2005 has RCR. Nos. 256 & 257 of 2005 -8- ceased to occupy the building continuously for a period of 6 months immediately prior to the filing of the RCP, the Rent Control Court rejected that claim as not proved. The said finding has not been challenged either in appeal or in this revision and therefore does not survive for consideration. 9. The Appellate Authority on a re-appreciation of evidence found that the bona fide need put forward by the landlady is not genuine. Appellate Authority doubted the genuineness of Exts. A4 and A5 certificates. PW-3 when cross-examined stated that the Institute Jetking is in Bangalore while Ext.A4 is seen issued by an Institute in Bombay. Ext.A5 is a certificate issued to the effect that PW3 has been working in that Company from December 1995 to July 1996. PW-1 when cross-examined was not able to say anything about that Company. Rent control petitions have been filed on 19-8-1996 and 3-9-1996 respectively. Ext.A5 is seen issued on 3-8-1996. Therefore according to RCR. Nos. 256 & 257 of 2005 -9- the Appellate Authority these certificates have been obtained just for the purpose of making a ground for evicting the tenants. Landlady did not produce the degree certificate of PW-3. It was on the above grounds the Appellate Authority rejected Exts.A4 and A5. 10. We have perused Exts. A4 and A5. Those certificates do not appear to be false certificates. That apart, RW-2 admitted in cross-examination that PW-3 is employed in Bangalore as a Computer Engineer. Therefore we find no ground to suspect the genuineness of Exts.A4 and A5. It follows that PW-3 has the necessary knowledge and experience to start a Computer Institute. Therefore, we are of the view that the landlady has proved that she bona fide requires the petition schedule shop rooms for her son PW-3 to conduct a Computer Institute. The fact that the tenants are not entitled to the benefits of first and second provisos to subsection (3) of Section 11 of the Act is not RCR. Nos. 256 & 257 of 2005 -10- seriously challenged in these revisions. That being so, the findings of the Appellate Authority that the bona fide need put forward by the landlady is not genuine cannot be sustained and has to be set aside. 11. In the result, both the rent control revision petitions are allowed. The judgments of the Appellate Authority dismissing the rent control petitions in both the rent control appeals are set aside and the orders of the Rent Control Court in both the rent control petitions ordering eviction under Section 11(3) of the Act are restored. 12. The counsel for the revision respondent in RCR No. 256 of 2005 submitted that at least one year time may be granted for the tenant to vacate the premises. This is opposed by Sri. Mohammed Mustaque, counsel for the revision petitioner. Taking into consideration the fact that the tenant is conducting business in the petition schedule room we feel that time till 31-12-2009 can be granted to the RCR. Nos. 256 & 257 of 2005 **==> picture [21 x 9] intentionally omitted <==** revision respondent in RCR. No. 256 of 2005 to vacate the premises on the following conditions: i) The revision respondent in RCR No. 256 of 2005 shall file an affidavit before the Rent Control Court within one month from this date undertaking to surrender possession of the petition schedule building on or before 31-12-2009. On receipt of such affidavit the Rent Control Court or the executing court, as the case may be, defer delivery till 1-12010. ii) The revision respondent in RCR. No. 256 of 2005 shall pay the arrears of rent, if any, due as on this date within one month from this date and future rent as and when the same falls due. If the tenant fails to file affidavit or fails to pay the rent he will not be entitled to the benefit of time granted by this order. The counsel for the revision respondent in RCR. No. 256 of 2005 submitted that the real intention of the landlady RCR. Nos. 256 & 257 of 2005 **==> picture [21 x 9] intentionally omitted <==** is to demolish the building so that tenants will not be able to occupy the same if PW-3 does not start any business there. Sri.Mohamed Mustaque, counsel for the landlady stoutly denied the above allegation and undertook that the landlady will not demolish the building or sell the site for a period of three years from this date. We record the above undertaking. The tenants are entitled to the benefit of subsection (12) of Section 11 of the Act. Both the revision petitions are allowed with the above directions. No order as to cost. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(P.Q.BARKATH ALI, JUDGE)** ksv/-