Parakadavath Ayisha v. Narambreth Surendan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939** **RCRev..No. 77 of 2017 (A) -------------------------** **AGAINST THE JUDGMENT IN RCA.117/2006 of ADDL.DISTRICT COURT, THALASSERY DATED 23-07-2011** **AGAINST THE ORDER IN RCP.252/2005 of ADDL.MUNSIFF COURT, KANNUR DATED 28-06-2006** **REVISION PETITIONER/APPELLANT/RESPONDENT:** **-----------------------------------------** **PARAKADAVATH AYISHA, W/O.ABBAS, AGED 56 YEARS, HOUSE WIFE, THAVAKKAL HOUSE, VETTILAPPALLI ROAD, P.O.THANA, KANNUR-670012.** **BY ADV. SRI.V.RAMKUMAR NAMBIAR** **RESPONDENTS/RESPONDENTS/PETITIONERS:** **-----------------------------------** **1. NARAMBRETH SURENDRAN, S/O.LATE NARAMBRETH KUNHIRAMAN, AGED 64 YEARS, BUSINESS, RESIDING AT JANAKI VIHAR, V.H.ROAD, P.O.THANA, KANNUR-670009.** **2. KAKKATH USHA RAVINDRAN, W/O.LATE N.RAVINDRAN, AGED 64 YEARS, HOUSE WIFE, JANAKI VIHAR, V.H.ROAD, THANA, KANNUR-670009.** **3. FABINA RAVINDRAN, D/O.LATE N.RAVINDRAN, AGED 41 YEARS, HOUSE WIFE, JANAKI VIHAR, V.H.ROAD, P.O.THANA, KANNUR-670009.** **R2 BY ADVS.SRI.SHAJI THOMAS SRI.K.BABU** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _**OKB**_ K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. --------------------------R.C.R. No.77 of 2017 --------------------------Dated this the 3[rd] day of April, 2017 ## O R D E R ## Harilal, J. The revision petitioner is the tenant who is confronted with an order of eviction passed under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short “the Act”). Subsequently, the order of eviction passed under Section 11(2)(b) had been vacated under Section 11(2)(c) of the Act. 2. The parties are referred to as in the Rent Control Petition. According to the petitioners, the 1[st] petitioner requires petition schedule building for setting up a separate residence. It is also contended that the 1[st] petitioner is now working abroad and on his return he requires the building for his residence. His only daughter, the 3[rd] petitioner in the Rent Control Petition, is pursuing her studies in Bangalore. She has attained marriageable RCR.77/17 **:2:** age and she requires separate residence. According to the petitioners, alternative vacant buildings are available in the locality to shift the residence of the respondent from the petition schedule building. 3. The respondent entered appearance and contended that the bona fide need put forward in the petition is not a genuine one and alternative vacant buildings are not available in the locality to shift her residence from the petition schedule building. 4. On the rival pleadings, both parties adduced evidence consists of the oral testimony of P.Ws.1 and 2 and R.W.1 and Exts.A1 to A5. After considering the evidence on record the Rent Control Court allowed the petition finding that the need projected in the petition is a bona fide one and the respondent has failed to discharge her burden under the second proviso to Section 11(3) of the Act. Even though the respondent has preferred RCA No.117/2006 before the Appellate Authority, after re-appreciating the evidence on record, the Appellate Authority also concurred RCR.77/17 **:3:** with the findings of the Rent Control Court and dismissed the appeal. Thus, the concurrent findings are challenged in this Rent Control Revision. 5. Going by the impugned judgment, it is seen that the respondent has assailed the order of eviction passed by the Rent Control Court on the following three grounds: The dependent Febina Raveendran was not examined to prove the bona fides of her need. The need raised from the part of the petitioners is only a future need. It cannot be assumed that the petitioners and other members of their family would aspire to set up their residence in a run down building like the one scheduled in the petition. 6. On a perusal of the judgment passed by the Appellate Authority, it is seen that the Appellate Authority has rejected the first contention in view of the decision of this Court in **Koroth Ayadathil Musthafa Haji v. Koroth Umbichi [2004 (2) KLT 1110]** , wherein this Court held that non-examination of dependent is not fatal to the bona fide of the need and the examination of the landlord is RCR.77/17 **:4:** sufficient to discharge the initial burden of proof under Section 11(3) of the Act. 7. As regards the second point, the courts below relied on the decision of this Court in **Kunhamma and others v. Komath Usha [1991 (2) KLJ 709]** wherein this Court held that landlord can move the Rent Control Court foreseeing his future need. 8. As regards the third contention, P.W.1 the landlord gave evidence to the effect that he has no independent building in his possession and he requires the petition schedule building to stay there in the rest of his life and he deposed that he is satisfied with the facilities available in the petition schedule building and that the petition schedule building is sufficient for his requirements and that he is ready to reside there with all its fault, whatever it be. As rightly held by the Appellate Authority, on the basis of the series of decisions laid down by this Court, the landlord is the best person to decide on his need and tenant cannot have a dictatorial role in that assessment of RCR.77/17 **:5:** the landlord. In view of the decisions in **Krishnankunju Raveendran v. Sukumaran Pillai** [1999 (3) KLT 373] and **Venkitta Raman v. Rajamma** [2004 (3) KLT 930] the lower appellate court is justified in rejecting the third contention also. 9. Coming to the provisos under Section 11(3) of the Act, no positive attempt was made from the part of the petitioners to prove the ingredients constituting the provisos under Section 11(3) of the Act. If that be so, the respondent is not entitled to get protection under the twin proviso to Section 11(3) of the Act. 10. Having bestowed our anxious consideration to the concurrent findings of the courts below, we find that there is no reason to interfere with the concurrent findings of the courts below in the absence of any kind of illegality or impropriety in any of the findings of the courts below. Needless to say, re-appreciation of evidence on record and substitution of findings of the authorities below are not possible under revisional jurisdiction contemplated under RCR.77/17 **:6:** Section 20 of the Act. Consequently, this Rent Control Revision is dismissed. 11. The learned counsel for the revision petitioner sought for some time to vacate the petition schedule building and the learned counsel appearing for the respondents submits that a reasonable time alone can be given. 12. Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given time upto 31.12.2017 to vacate the petition schedule building, on the following conditions. - i) The revision petitioner shall file an affidavit before the Execution Court expressing an unconditional undertaking to surrender the petition schedule shop room on or before 31.12.2017 and the said affidavit must be filed within two months from the date of receipt of a copy of this order. - ii) The revision petitioner shall pay entire arrears of rent to the respondents or deposit the same before the Execution Court within two months from today and she shall continue to pay the rent without default. RCR.77/17 **:7:** iii) In the event of failure, the time granted to vacate the petition schedule shop room would stand automatically vacated and the respondents will be at liberty to proceed with the execution. **Sd/-** K.HARILAL, Judge. **Sd/-** RAJA VIJAYARAGHAVAN V., Judge. okb.