## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE &**
**THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN**
**WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933**
**RCRev..No. 136 of 2007()**
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**RCA.47/2001 OF RENT CONTROL APPELLATE AUTHORITY/ ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY RCP.214/1998 of RENT CONTROL COURT/ADDL.MUNSIFF COURT, KANNUR**
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**PETITIONERS/LANDLORDS/SUPPL.APPELLANTS 2 TO 5 INRCA/ LRS. OF DECEASED PETITIONER IN RCP.**
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**1. M.JANARDHANAN, S/O KANNAN, 72 YEARS, PUZHATHI AMSOM, DESOM, KANNUR.**
**2. SAJIL BABU, S/O LATE VANAJA, 42 YEARS, PUZHATHI AMSOM, DESOM, KANNUR.**
**3. SAJILA, D/O VANAJA (LATE), 37 YEARS, PUZHATHI AMSOM, DESOM, KANNUR.**
**4. SAHIL BABU, S/O LATE VANAJA, 32 YEARS, PUZHATHI AMSOM,DESOM, KANNUR.**
**BY ADV. SRI.B.KRISHNAN**
## **RESPONDENT/TENANT/RESPONDENT IN RCA/RESPONDENT IN RCP**
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**MANIKKOTH ACHUTHAN, S/O MANI, AGED 77 YEARS, PUZHATHI AMSOM, DESOM, KAKKAD, KANNUR.**
**BY ADVS. SRI.ABRAHAM K.JOHN**
**SRI.P.K.BALAKRISHNAN SMT.DIVYA K.NAIR**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 8.6.2011, THE COURT ON 08/06/2011 PASSED THE FOLLOWING:**
**VK**
## **PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------R.C.R.No.136 of 2007 ---------------------------------------------------Dated this the 8th day of June, 2011**
## **Order**
## **Pius C.Kuriakose, J.**
Under challenge in this revision filed by the landlords is the judgment of the Rent Control Appellate Authority confirming the order of the Rent Control Court dismissing the application for eviction on the ground of sub-section (3) of Section 11. The need projected by the original landlady was that the building is required for accommodating her elder son, P.W.2, so that he can conduct stationery business therein. The original landlady died during the pendency of the appeal and the needy son is before us as one of the revision petitioners. The bonafides of the need was very stiffly disputed by the tenant who also claimed the protection of the second proviso to sub-section (3) of Section 11. The Rent Control Court would hold that the need is not bonafide as it noticed from the evidence that the landlady had waited for 10 years after the need had arisen in her mind. It was also noticed by the Rent Control Court that even as the need to
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accommodate P.W.2, the elder son was there in the mind of the landlady, her younger son is already settled in business. According to the Rent Control Court, it is highly improbable that the elder son, P.W.2 remained unemployed for a period of 10 years and is equally improbable that in a situation where the elder son is without employment, the landlady will provide an accommodation to her younger son. Thus on appreciating evidence in the case, the Rent Control Court concluded that the need is not bonafide. In view of that finding, the Rent Control Petition was dismissed without examining the question of tenant's eligibility for protection of the second proviso.
2. The landlady preferred an appeal to the Appellate Authority. The Appellate Authority has confirmed the findings of the Rent Control Court without entering upon a denovo reappraisal of the evidence. The Appellate Authority accordingly dismissed the Rent Control Petition. In this revision various grounds are raised assailing the judgment of the Rent Control Appellate Authority. Mr.B.Krishnan, learned counsel for the revision petitioners submitted that concurrent, though they may be, the finding of the Rent Control Court and the Appellate
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Authority that the need is not bonafide is the result of totally erroneous appreciation of the evidence, oral and circumstantial. According to the learned counsel, there is no rule that parents will not provide their younger son with accommodation for conducting business unless the elder son is already settled in business. It was the bonafide of the need projected in the R.C.P. which the authorities were called upon to examine. The oral evidence given by P.Ws.1 and 2 to the extent it related to the bonafides of the need projected was quite convincing. According to the learned counsel, bonafide need does not mean a pressing necessity. It only a reasonable need involving elements of necessity. Once the need projected by the landlady is understood that way, it will have to be found that the need is a bonafide one. According to the learned counsel, it is not necessary to relegate the matter to the Rent Control Court for entering findings regarding the tenant's eligibility for the protection of the second proviso as it has come out in evidence even from the mouth of the tenant that other buildings are available in the locality. When the Commissioner came to the property for inspection, the tenant himself pointed out to the Commissioner that other buildings are
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available in the locality. This aspect was conceded by the tenant in his oral evidence also. When that is the situation, it is for the tenant to adduce cogent and convincing evidence to show that though buildings are available, they are not sufficient for the tenant's requirements. No evidence was adduced the tenant in that direction.
3. Learned counsel for the respondent would oppose all the submissions of Mr.Krishnan. He would remind us of the limits of our jurisdiction under Section 20. According to him, our jurisdiction will not permit us to make a reappraisal of the evidence for the purpose of substituting factual conclusions arrived at by the fact finding authorities, namely, the Rent Control Court and the Appellate Authority.
4. We have very anxiously considered the rival submissions addressed at the Bar. We feel that appreciation of evidence, oral and circumstantial, in the case by the Rent Control Court was not proper. We also feel that the Appellate Authority had virtually copied down the findings of the Rent Control Court without making a reappraisal of the evidence as was expected of an Appellate Authority under the statute.
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5. Having reappraised the evidence in detail, we feel that this is a case where the evidence will justify a finding that the landlady is successful in showing that the need projected is bonafide. Accordingly, we find that the need projected by the landlady is bonafide.
6. Now, we come to the question of tenant's eligibility for second proviso to sub-section (3) of Section 11. It is trite by the Full Bench judgment of this court in **Francis v. Sreedevi Varassiar** (2003(2) KLT 230) and the judgment of the Supreme Court in **Kunhamma v. Akkali Purushothaman** (2007 (3) KLT 599) that the burden to show that the tenants satisfy both the ingredients of the second proviso to sub-section (3) of Section 11 is on the tenant. On going through the evidence, we are convinced that the tenant failed to establish both the ingredients of the second proviso to sub-section (3) of Section 11. In fact, the evidence will reveal that other buildings were available in the locality. When that is the position, the burden is upon the tenant to prove that the available buildings are not suitable for his requirement. In the absence of such evidence, the two ingredients of the second proviso being conjunctive, it is to be
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held that the tenant is not entitled for the protection of the second proviso to sub-section (3) of Section 11. The irresistable conclusion from the above discussion is that reversing the judgment of the Rent Control Appellate Authority and the order of the Rent Control Court, an order of eviction is to be passed against the respondent under Sub-section (3) of Section 11. We order sub-section (3) of Section 11 against the respondent. The revision is allowed as above, however, without any order as to costs.
4. After we pronounced the order, learned counsel for the respondent requested us that at least one and half year's time be given to the tenant for surrendering the premises. We feel that there is justification on the facts of this case in allowing a reasonably long period of time, though not the time requested. Hence, we direct the execution court to keep in abeyance proceedings for delivery for a period of one year from today subject to the following conditions:
The respondent shall file an affidavit to the execution court or the rent control court, as the case may be, within one month from today undertaking peaceful surrender of the building to the
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revision petitioners on or before the expiry of one year from today and undertaking further to discharge the entire arrears of rent, if any, within one month and to pay occupation charges to the landlords at the rate of Rs.100/-per mensem without fail. We make it clear that the respondent will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings therein.
## **PIUS C.KURIAKOSE, JUDGE.**
## **N.K.BALAKRISHNAN, JUDGE.**
srd
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