Pulpra Nedungott Shyma v. Kakkat Kalleri Rukhiya

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 RCRev..No. 402 of 2011() -----------------------RCA.77/2007 of III ADDL. DISTRICT COURT, KOZHIKODE RCP.119/2006 of PRINCIPAL MUNSIFF -I, .KOZHIKODE. .................... ## REVISION PETITIONERS/APPELLANTS/RESPONDENTS(TENANTS) ---------------------------------------------------------------------- 1. PULPRA NEDUGOTT SHYMA, AGED 61 YEARS, W/O.LATE RADHAKRISHNAN,RESIDING AT PULPRA NEDUNGOTT HOUSE, CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 2. DR.P.N.RAJANISH, AGED 40 YEARS, S/O.LATE RADHAKRISHNAN,RESIDING AT PULPRA NEDUNGOTT HOUSE, CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3. P.N.JASBINDER NADTH, AGED 35 YEARS, S/O.LATE RADHAKRISHNAN,RESIDING AT PULPRA NEDUNGOTT HOUSE, CHEVAYUR AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. - BY ADV. SRI.A.RANJITH NARAYANAN - SRI.S.K.SAJU RESPONDENT(S): RESPSONDENT/LAND LORD/PETITIONER. ------------------------------------------------ KAKKAT KALLERI RUKHIYA, AGED 61 YEARS, D/O.KUNHALAN, AL FAJAR HOUSE, KACHERI AMSOM DESOM, KOZHIKODE - 673 006. ADV. SRI.M.P.MOHAMMED ASLAM THIS RENT CONTROL REVISION HAVE COME UP FOR ADMISSION ON 06/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & K. HARILAL,JJ.** .................................................................... R.C.R.NO.402 OF 2011 ................................................................... Dated this the 6[th] day of December, 2011. ## **O R D E R** ## **Pius C. Kuriakose, J.** Under challenge in this revision filed by the tenants is the judgment of the rent control appellate authority confirming the order of eviction passed against them by the rent control court in favour of the respondent under subsection (3) of Section 11. The need projected by the landlady was that she needs the building for accommodating his Son Raiz who is computer literate, so that Sri. Raiz can conduct a computer centre. The bonafide of the need was disputed and it was contended that the tenants are entitled for protection of the second proviso to subsection (3) of Section 11. The rent control court conducted an enquiry into that contention and in that enquiry, the evidence consisted of oral evidence of PW1- the landlady and that of RW1- the tenant. The documentary evidence consisted of Exts.A1 to A3 and B1 to B8. The rent control court on evaluating the evidence was very much inspired by the oral evidence given by PW1 and it was held that the need R.C.R.NO.402 OF 2011 : 2 : projected is a bonafide need. The tenants were unsuccessful in showing the two ingredients of the second proviso to subsection (3) of Section 11. Accordingly, the order of eviction was passed under subsection (3) of Section 11 and the tenants carried the matter in appeal to the rent control appellate authority. While the matter was pending before the appellate authority, the landlady’s son Raiz went over to a foreign country. The tenants preferred an application before the appellate authority stating that the landlady’s son has left the country for good for taking up a permanent job in foreign country. To the above application, the landlady filed a counter affidavit denying the allegation that her son had left the country. It was stated that it was on a visiting visa that the landlady’s son has gone and that at the moment of surrender of the building, Raiz will come back and occupy the building and conduct computer centre. Learned appellate authority made a reappraisal of the evidence and would concur with all the findings of fact entered by the rent control court. Accordingly the appeal preferred by the petitioner/landlady was dismissed. In this revision under R.C.R.NO.402 OF 2011 : 3 : Section 20 various grounds are raised challenging the judgment of the appellate authority. Apart from raising 26 grounds in the revision petition, the revision petitioners have formulated five questions of law for decision in this revision. 2. Sri.Ranjith Narayanan- learned counsel for the revision petitioners addressed at length not only on the grounds raised in the memorandum of revision but also on the questions of law formulated by the revision petitioners. The learned counsel submitted that it was the landlady’s case that her son was qualified in Computer Engineering. She had even stated that her son had obtained Diploma in Computer Engineering from JDTS Islam, Kozhikode but she never produced the Diploma certificate before court. Sri. Ranjith Narayanan, also submitted that even though the landlady could have demonstrated the truth of her contention that her son had gone to foreign country on visiting visa, she did not do so and this is a circumstance which would justify drawl of adverse inferences against the landlady. The learned counsel concluded his submission by submitting that as the R.C.R.NO.402 OF 2011 : 4 : need is bonafide, there is no warrant for interference. The learned counsel would assail the finding of the authorities that the tenants were unsuccessful in establishing that they satisfy the two ingredients of the second proviso. 3. All the submissions of Sri. Ranjith Narayanan were opposed by Sri. Aslam- the learned counsel for the respondent/landlady. Sri. Aslam submitted that the landlady’s son is an unemployed youth and he cannot sit idle till he secures possession of the building in question. It is only on temporary basis that he went over to the foreign country. The moment the building is obtained, he will come back and start computer centre. Coming to the question of non production of the Diploma Certificate, Sri. Aslam submitted that in the pleadings raised in the revision petition, the claim of the respondent/landlady that her son holds Diploma in Computer Engineering is not disputed. In the absence of such a contention, the landlady had no burden to prove that her son has computer diploma. Sri.Aslam reminded us of the contours of our jurisdiction under Section 20. 4. We have made our anxious consideration to the rival R.C.R.NO.402 OF 2011 : 5 : submissions addressed at the bar. We have carefully gone through the judgment of the appellate authority as well as the order of the rent control court. The question which we are called upon to decide is whether within the contours of our jurisdiction under Section 20, there is any warrant for interference with the judgment of the appellate authority which is the final court on facts. 5. The oral evidence given by PW1 to the effect that her son Raiz holds Diploma in Computer Engineering and genuinely needs the petition schedule building for starting a computer centre could not be shaken by the revision petitioners through cross examination. The above oral evidence inspired the two fact finding authorities under the scheme of the Rent Control Act particularly the learned appellate authority - the final fact finding court. The finding finally entered by the appellate authority that the need is bonafide is a finding founded on evidence which came on record in this case. The same is a reasonable finding having regard to the situation that Raiz is young, educated and unemployed. It was before the appellate R.C.R.NO.402 OF 2011 : 6 : authority that the revision petitioners attempted to cause serious dent into the correctness of the above finding. This was done by bringing it to the notice of the rent control appellate authority that Raiz had left India. True, the landlady in the counter affidavit which she filed to the application filed by the revision petitioners had expressed willingness to produce Raiz’s passport for showing that visit to a foreign country was on visiting visa and the passport was never produced. The apprehension of the petitioners appears to be that after evicting them, the building will be let out to somebody else and that Raiz will never come and occupy the building. 6. We are of the view that appropriate safeguards can be incorporated in this judgment for assuring the petitioners that once they are evicted, the building will be utilised by the landlady only for accomplishing the need which she had projected in the RCP. Coming to the challenge on the finding concurrently entered by the two authorities that the tenants were unsuccessful in proving that they satisfy the two ingredients of the 2[nd] proviso to subsection (3) of Section R.C.R.NO.402 OF 2011 : 7 : 11, we are of the view that having regard to the burden of proof as settled by the Full Bench of this Court in **Francis v. Sreedevi Varassiar** (2003(2) KLT 230) and also the Supreme Court in **Kunhamma v. Akkali Purushothaman** (2007 (3) KLT 599), we do not find any illegality, irregularity or impropriety about the above finding. In short that we do not find any warrant for interference with the judgment of the appellate authority. We dismiss the revision petition. However, there will be a direction to the execution court that delivery warrant shall be given to the Ameen for effecting delivery only after the landlady's son Raiz appears in person before the execution court and produces his passport for the purpose of showing that he has come back to his home town for good. ## **PIUS C. KURIAKOSE, JUDGE.** ## **K. HARILAL, JUDGE.** ## **cl**