R.C.R. No.33 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939** **RCRev..No. 33 of 2018** **AGAINST THE ORDER IN RCA 11/2017 OF III RENT CONTROL APPELLATE AUTHORITY, THRISSUR, DATED 01.12.2017** **AGAINST THE ORDER IN RCP 38/2011 OF THE MUNSIFF COURT, CHAVAKKAD DATED 07-10-2016** **REVISION PETITIONER(S)/APPELLANT/RESPONDENT:** **-------------------------------------------** **ANIL @ APPU, AGED 42, S/O.MANI, PANAKKAL HOUSE, KANIPPAYYUR VILLAGE, DESAM, THALAPPILLY TALUK.** **BY ADV.SRI.RAJIT** ## **RESPONDENT(S)/RESPONDENT/PETITIONER:** **-----------------------------------** **THAMPI, AGED 67, S/O.IPPURU, PANAKKAL HOUSE, KUNNAMKUKINI VILLAGE, DESAM, THALAPPILLY TALUK, THRISSUR DISTRICT-680 301.** **BY ADV. SRI.G.SREEKUMAR (CHELUR) BY ADV. SRI.K.R.ARUN KRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 26-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SKK/190518** ## C.T. RAVIKUMAR & MARY JOSEPH, JJ. ## ========================= ## R.C.R. No.33 of 2018 ========================= Dated this the 26[th] day of February, 2018 ## O R D E R ## C. T. Ravikumar, J. The captioned revision petition is filed on being aggrieved by the concurrent findings on a Rent Control Petition filed under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act' only). The revision petitioner herein was the respondent in RCP No.38/2011 filed by the respondent herein-the landlord seeking ejectment of the former from the petitions schedule room under the aforesaid sections. The said Rent Control Petition was allowed and the revision petitioner herein was directed to surrender vacant possession of the tenanted shop room as per order dated 07.10.2016. Feeling aggrieved by the same he preferred RCA No.11/2017. However, the Appellate Authority dismissed the appeal and confirmed the order passed by the Rent Control Court as per judgment dated 01.12.2017. It is, in R.C.R. No.33 of 2018 2 the said circumstances, that the captioned revision petition has been filed. 2. We have heard the learned counsel appearing for the revision petitioner. Obviously, there is no dispute regarding the tenancy. The revision petitioner herein, the tenant is conducting a fruits and juice shop in tenanted room. The respondent herein-the landlord filed the Rent Control Petition on the ground of his bonafide need for the purpose of starting an automobile and spare parts shop for his son under Section 11(3) of the Act and also on the ground of arrears of rent. Before the Rent Control Court, the landlord was examined as PW1 and his son for whose purpose the tenant was sought to be evicted, was examined as PW2. On the side of the revision petitioner/the tenant he was examined as RW1. On the side of the landlord, the respondent herein Exts.A1 to A4 were got marked and no documentary evidence was produced by the revision petitioner/the tenant. It is essentially on evaluation of the evidence on record and appreciating the rival contentions that the Rent Control Court allowed the petition and order of eviction was passed R.C.R. No.33 of 2018 3 both under Sections 11(2)(b) and 11(3) of the Act. As noticed hereinbefore the said order passed by the Rent Control Court was confirmed by the Rent Control Appellate Authority as per the impugned judgment. 3. The facts stated above would reveal that there is concurrent finding by the court below both under Sections 11(2)(b) and 11(3) of the Act. In such circumstances, we are of the view that it is only worthwhile to consider the scope of interference in exercise of revisional jurisdiction. The said issue was elaborately considered by a Constitutional Bench of the Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh [2014 (4) KLT 182 (SC)]. The permissible ground upon which such concurrent finding could be interfered with by High Courts in exercise of revisional jurisdiction has been specifically mentioned thereunder. To entertain a revision in such circumstances such a finding the court/authority below must have passed the order/judgment on a misreading of the evidence on records or against the weight of evidence and such other grounds specified therein. Merely because R.C.R. No.33 of 2018 4 another view is also possible on the evidence on record the power under Section 20 of the Act could not be exercised. In the light of the decision we will have to consider whether any such interference is called for, at the instance of the revision petitioner/the tenant. 4. We have carefully gone through the grounds raised in this revision petition. We do not find any reason to hold that the courts below arrived at a conclusion and consequently passed the order of eviction under Section 11(2) (b) and also 11(3) on a misreading of the evidence on record or it could not be said that the findings were based on no evidence. Essentially, the contention of the revision petitioner/the tenant is to the effect that in view of the admitted fact that there occurred an acquisition for the purpose of widening of the National Highway the extent of the tenanted shop room was reduced. It had a total area of 23.985Sq.m. and out of the same 9 Sq.m. on the front side of the tenanted premises was acquired. In short, according to the revision petitioner/the tenant, owing to the land acquisition the extent of the shop room was reduced to 14.985Sq.m. and therefore, it is not suitable for conducting the R.C.R. No.33 of 2018 5 proposed business. But, at the same time, the landlord is of the view that the space now available in the tenanted premises is sufficient for him to conduct the proposed business for his son. They have deposed in tune with their pleadings in the petition while being examined as PWs1 and 2. When they are of the view that the extent presently available is sufficient for them to conduct the proposed business, we are of the view that it is not for the revision petitioner/the tenant to advice him regarding the suitability or otherwise of the room for starting the business. We do not find any reason to uphold the said contention of the revision petitioner. Essentially, the choice must be that of the landlord. 5. As noticed hereinbefore, order of eviction is passed against the revision petitioner under Section 12(b) of the Act. The petitioner did not have a case that the arrears of rent for the period in question was paid or deposited. There is order of eviction under Section 11(3) of the Act, as well. Evidently, the revision petitioner had not adduced any evidence to establish that he is entitled to get the benefits of the first and/or the second proviso to Section 11(3) of R.C.R. No.33 of 2018 6 the Act though being the tenant it was his burden to establish the same. In such circumstances, on going through the order passed by the Rent Control Court which got confirmance as per the impugned judgment passed by the Rent Control Appellate Authority and also scanning the same in the light of the decision of the Apex Court in Dilbahar Singh 's case (supra), we do not find any reason at all to interfere with the concurrent finding entered into by the Rent Control Court and the Rent Control Appellate Authority. 6. The upshot of the discussion is that this revision petition must fail. When we are about to part with the judgment, the learned counsel submitted that some reasonable time may be granted to the petitioner/the tenant to give vacant possession of the tenanted shop room. 7. We heard the learned counsel appearing for the respondent/the landlord also. After hearing both sides we are of the view that 8 months' time can be granted in that regard. In such circumstances, the revision petitioner/the tenant shall file an affidavit carrying an undertaking to the effect that he would R.C.R. No.33 of 2018 7 give vacant possession of the tenanted shop rooms to the landlord the respondent herein on the expiry of the aforesaid extended period itself. It shall be done within a period of two weeks from the date of receipt of a copy of this judgment. Needless to say that during such continuance, the revision petitioner/the tenant shall pay the rent at the admitted rate. If there is any arrears of rent, that shall also be deposited. Any two consecutive failure to pay the rent at the admitted rate would result in automatic recalling of the order granted in his favour for continuance for the aforesaid period. Subject to the above, this revision petition stands dismissed. There will be no cost as to the order. Sd/- C.T. RAVIKUMAR, JUDGE Sd/MARY JOSEPH, JUDGE //TRUE COPY// P.A. TO JUDGE Skk/