Parayikkandy Ashokan v. Cheruvalath Puthusseri Padmanabhan

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 RCRev..No. 23 of 2010() ----------------------RCA.141/2002 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.8/2000 of RENT CONTROL COURT, KUTHUPARAMBA .................... REVISION PETITIONER/APPELLANT/RESPONDENT NO.2 PARAYIKKANDY ASHOKAN, S/O.KUMARAN, 42 YEARS, BUSINESS, RESIDING AT KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O.KUTHUPARAMBA. BY ADV. SRI.K.P.HAREENDRAN RESPONDENT(S): RESPONDENT NO.1/PETITIONER CHERUVALATH PUTHUSSERI PADMANABHAN, S/O.GOVINDAN 62 YEARS, PENSIONER,RESIDING AT PATTIAM AMSOM DESOM,P.O.POOKODE, THALASSERY TALUK. ADV.SRI.R.SURENDRAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------R.C.R.No. 23 OF 2010 ------------------------** Dated this the 3[rd] day of February, 2010 ## **O R D E R** Pius C.Kuriakose, J. The tenant is in revision. He was sought to be evicted on the ground of cessation of occupation as well as bona fide need for own occupation. Sri.R.Surendran, learned counsel who has lodged a caveat on behalf of the respondent/landlord, submitted that this court need be seriously concerned in this revision only with the correctness of the order of eviction passed under sub section (3) of Section 11 concurrently by the Rent Control Court and the Appellate Authority. We are, therefore, examining this case only in the context of ground under sub section (3) of Section 11. 2. The parties will be referred to as the 'landlord' and the tenant'. The need projected by the landlord was that he has retired from the service of Life Insurance Corporation and that he needs to conduct business in Footwear & Suitcases in the petition schedule building, which is situated in a commercially RCR.No.23/2010 2 important area of the Kuthuparamba town. Bona fides of the need was disputed and it was contended that the landlord is having vacant possession of another commercial building at Pookode purchased by the landlord himself in the name of his wife and therefore, the rent control petition is liable to fail by virtue of the first proviso to sub section (3) of Section 11. The tenant also claimed the protection of the second proviso to sub section (3) of Section 11. The Rent Control Court enquired into the matter and the evidence at trial consisted of Exts.A1 to A3, Ext.X1, the third party's affidavit, Ext.C1 commission report and the oral evidence of the parties as PW1 and RW1 respectively. The Rent Control Court was inspired by the evidence of PW1 and on appreciating the entire evidence came to the conclusion that the need projected by the landlord was bona fide. As regards the building at Pookode, it was held that the building does not belong to the landlord and hence the first proviso to sub section (3) of Section 11 cannot have any application. That court also accepted the explanation of the landlord that Pookode is an interior area and the commercial potentialities of the building at Pookode are not so much as that of the petition schedule RCR.No.23/2010 3 building. The Rent Control Court also found that the tenant had not succeeded in establishing that he satisfies either of the ingredients of the second proviso to sub section (3) of Section 11. Accordingly, the court ordered eviction on the ground under sub section (3) of Section 11. 3. The Appellate Authority reappraised the evidence and concurred with all the conclusion of the Rent Control Court and dismissed the appeal to the extent it pertains to the ground under sub section 3 of Section 11. 4. In this revision under Section 20, the tenant has raised various grounds assailing the judgment of the Rent Control Appellate Authority and Sri. K.P.Hareendran, learned counsel for the revision petitioner addressed us on the basis of all those grounds. Sri.Hareendran submitted that though the availability of the building at Pookode may not attract the first proviso to sub section (3) of Section 11, since the said building stands in the name of the landlord's wife, the circumstance that the landlord did not occupy that building for accomplishing the projected need is fatal to the bona fides of the claim. According to Sri.Hareendran, Pookode is commercially as important as RCR.No.23/2010 4 Kuthuparamba town itself. The learned counsel drew our attention to the evidence of PW1 and RW1 especially to the extent the same pertains to the tenant's eligibility for protection of the second proviso to sub section (3) of Section 11. The learned counsel drew our attention also to Ext.C1 report and submitted that the findings that the tenant is not entitled to the protection of the second proviso of sub section (3) of Section 11 and that the tenant has not established either of the ingredients of that proviso, are erroneous being contrary to the evidence on record. As a last request, the learned counsel sought for one year's time to surrender the premises. 5. Sri.R.Surendran, learned counsel for the respondent would resist all the submissions of Sri.Hareendran. He would support the judgment of the Appellate Authority on the reason stated in that judgment. He reminded us of the contours of the revisional jurisdiction under Section 20 and submitted that there is absolutely no warrant for invocation of the above jurisdiction. The learned counsel would vehemently oppose the request for grant of time. According to him, though two elder sons of the landlord are settled in life, the third son is a mentally retarded RCR.No.23/2010 5 boy and it is absolutely necessary that the landlord must do business and gain income for meeting the expenses for the said son. 6. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court. Having considered the case and the submissions through the perspective of the scope of the revisional jurisdiction under Section 20 as explained by various judicial precedents, we do not find any warrant for interference. Since the building at Pookode does not belong to the landlord, the first proviso to sub section (3) will not strictly applied. However, if that building was as suitable as the petition schedule building, perhaps the circumstance that the landlord is not occupying that building purchased by him in the name of his own wife could have had some bearing on the bona fides of the need. But, it is in evidence that though offer was made to the tenant to shift his business to the building at Pookode, the tenant was not willing to accept the offer. Hence, we are of the view that the authorities below were perfectly justified in accepting the landlord's version that in RCR.No.23/2010 6 comparison with the petition schedule building, the building at Pookoode is not suitable for conducting the business proposed by the landlord. It is trite by the judgment of the Full Bench of this court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230 (FB) that the burden to establish that the tenant satisfies both the ingredients of the second proviso to sub section (3) of Section 11 is on the tenant himself. 7. Having gone through the order of the Rent Control Court and the judgment of the Appellate Authority, we find that the findings entered concurrently by them against the tenant in the context of the second proviso to sub section (3) of Section 11 are founded on evidence, which was available on record. On the side of the tenant, there was only Ext.X1 affidavit sworn to by the Accommodation Controller. But as against that, there were Ext.A3 series of Property Tax Assessment Registers enjoying presumptions under Section 26 of Act 2 of 1965 regarding the correctness of what is recorded therein. These Assessment Registers were to the effect that vacant buildings are available in the locality. In the teeth of such Assessment Registers, it was obligatory for the tenant to have cited the owners of the RCR.No.23/2010 7 building shown in the Assessment Registers and examined them as witness on this side. The tenant did not do so and we do not find any reason for disturbing the finding of the authorities below that the tenant has not succeeded in proving that other suitable buildings are not available in the locality. Both the ingredients of the second proviso to sub section (3) of the Section 11 are in the conjunctive. Once the tenant is unable to establish one of the ingredients, he becomes dis entitled for the benefit of the second proviso to sub section (3) of Section 11. That being so, the finding of the Rent Control Appellate Authority is liable to be approved. We confirm the decision of the Appellate Authority and dismiss the RCR. However, considering the last request of the learned counsel for the revision petitioner, we direct the Execution Court not to order and effect delivery of the petition schedule building till 2/11/2010 provided the followings conditions are satisfied by the tenant; The tenant shall file an affidavit before the Execution Court within Ten days from today undertaking to give peaceful surrender of the petition schedule building to the RCR.No.23/2010 8 respondent landlord on or before 1/11/2010 and undertaking further through the same affidavit that arrears of rent, if any, will be discharged within one month and that he will continue to pay occupational charges at the rent rate of Rs.300/- per month till such time as he gives peaceful surrender as undertaken. We make it clear that the tenant will get the benefit of time granted under this judgment, if only if affidavit is filed on time. ## **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM , JUDGE** dpk