RCR. No. 67 of 2010

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 MARCH 2010 / 12TH PHALGUNA 1931 RCRev..No. 67 of 2010() ----------------------RCA.23/2004 OF RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.34/2001 OF RENT CONTROL COURT, KOLLAM REV.PETITIONER/APPELLANT/RESPONDENT M.K.JOHN, PROPRIETOR, M/S.PAUL & SONS, RAJBHAVAN, KANNACHANTHODU RODE, AYYAPPANKAVU, BY ADV. SRI.JOY THATTIL ITTOOP RESPONDENT(S): RESPONDENT/PETITIONER SRI.S.J.RAJESH, FIELD VIEW, ULIYAKOVIL CHERY, KOLLAM EAST VILLAGE, THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ.** ------------------------------------------------------RCR. No. 67 of 2010 ------------------------------------------Dated this the 3rd day of March, 2010 ## **O R D E R** ## **Pius C. Kuriakose, J.** The tenant is in revision. He challenges order of eviction passed against him concurrently by the Rent Control Court and the Appellate Authority on the ground of bona fide need for own occupation. The building is a commercial building and the revision petitioner tenant is conducting furniture show room there. The need projected by the landlord was that the building is required bona fide for occupation of his wife who is a dependent family member, so that she can conduct a fashion designing show room. Apart from the landlord, his wife the de facto claimant also was examined before the Rent Control Court. The oral evidence adduced by them inspired that court. Apart from the oral evidence of PWs. 1 to 5, CPWs. 1 and 2, documents Exts.A1 to A16, B1 to B7, C1, C1(a) and C2 RCR.67/10 - 2 - constitute evidence before the Rent Control Court. That court appreciated the evidence and came to the conclusion that the need was bona fide and that the tenant was unsuccessful in proving that he satisfies either of the ingredients of the second proviso to sub-section (3) of Section 11. The Rent Control Appellate Authority considered the appeal preferred by the revision petitioner; reappraised the evidence and concurred with all the conclusions of the Rent Control Court. Accordingly, confirming the order of eviction the RCA was dismissed. 2. In this revision under Section 20 various grounds have been raised by the revision petitioner challenging the order of eviction. Sri.Joy Thattil Ittoop, learned counsel for the revision petitioner addressed us extensively on the basis of those grounds. Mr.Joy Thattil Ittoop highlighted before us that in this case, the Court below did not formulate a preliminary point as to whether the denial of the landlord's RCR.67/10 - 3 - title raised by the revision petitioner is a bona fide one. According to the learned counsel, the landlord was unsuccessful in proving not only title but also the existence of a landlord tenant relationship between him and the revision petitioner. When the attention of the learned counsel was drawn to his admission in pleadings regarding his status as a tenant, Mr.Joy Thattil Ittoop would submit that the above admission is only as regards the lease originally granted by Smt. Saraswathy Amma. That admission will not amount to an admission regarding the existence of a landlord tenant relationship between the revision petitioner and the respondent. The learned counsel would challenge the findings of the authorities below regarding bona fides of the need and the respondent's eligibility for protection of the second proviso. As a last plea, the learned counsel submitted that atleast one year's time be granted to surrender the premises. RCR.67/10 - 4 - 3. We have very anxiously considered the submissions of Mr.Joy Thattil Ittoop. We have carefully scanned the order of the Rent Control Court and the judgment of the Appellate Authority. We have also gone through the pleadings raised by the parties, copies of which were furnished to us by Mr. Joy Thattil Ittoop. We are not impressed by the submission of the learned counsel for the revision petitioner that the court below went wrong in concluding that a landlord tenant relationship exists between the parties to the proceeding. A perusal of the rent control petition shows that the landlord's plea was that he has come to have absolute ownership over the building by virtue of a partition deed in which Smt.Saraswathy Amma, the person who admittedly let out the building to the revision petitioner is also a party. The landlord also relies on a rental arrangement between him and the revision petitioner in continuation of the existing rental arrangement. RCR.67/10 - 5 - What we find from the statement of objection filed by the revision petitioner is that instead of specifically denying those averments of the landlord what he has contended is that “the above averments are to be proved by the landlord”. Such an averment will not in our opinion amount to a specific denial of the corresponding averments of the landlord. Even otherwise, we feel that the revision petitioner was not very serious in denying the landlord's title or the existence of a landlord tenant relationship between him and the respondent. If he was serious, he would have specifically requested the Rent Control Court for formulation of a preliminary point as envisaged by sub-section (1) of Section 11; got an enquiry held into the bona fides of his contention. The courts below have taken the view that there is no serious dispute regarding the existence of landlord tenant relationship. In view of the pleadings raised by the parties we have no difficulty to agree with the RCR.67/10 - 6 - authorities below. 4. As for the challenge of revision petitioner on the existence of the eviction ground under Section 11(3), we find that findings in the context of the bona fides of the need projected under Section 11(3) and the tenant's eligibility for protection of the second proviso to sub-section (3) of Section 11 are all findings entered on the basis of evidence on record. PW1, the landlord and PW2, his dependent wife and de facto claimant, both gave inspiring evidence before the Rent Control Court. We do not think that we will be justified within the contours of the revisional jurisdiction under Section 20 for re-appreciating their evidence and substituting conclusions arrived at by the fact finding authorities under the statute. Same is the position regarding the tenant's eligibility for protection of the second proviso to sub-section (3) of Section 11. It is trite by various decisions of this court including a Full Bench RCR.67/10 - 7 - judgment in Francis v. Sreedevi Varassier, 2003(2) KLT 230 that the burden to show that the tenant satisfies the ingredients of the second proviso to sub-section (3) of Section 11 is on him only. We notice that the finding that the tenant is not entitled for the protection of second proviso to sub-section (3) of Section 11 is again founded on evidence. The revision necessarily has to fail and is dismissed. However, considering the request of the learned counsel for the revision petitioner that time be granted, we are inclined to grant time till 30-9-2010 subject to the following condition. The revision petitioner shall file an affidavit before the execution court within three weeks from today undertaking to give peaceful surrender of the petition schedule premises to the respondent on or before 30-9-2010. It will also be undertaken through the same affidavit that arrears of rent if any will be discharged within one month and occupational RCR.67/10 - 8 - charges at the current rent rate of Rs.6000/- or Rs.5500/as the case may be, paid as and when the same falls due without fail. We make it clear that the revision petitioner will be entitled to the benefit of time granted as above only if he files affidavit on time. ## **PIUS C.KURIAKOSE, JUDGE** ## **C.K. ABDUL REHIM, JUDGE** **ksv/-**