T. K. Sasidharan v Govindan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 ------------------------------RCA.79/2005 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.20/2002 of MUNSIFF/RENT CONTROL COURT,CHAVAKKAD ## PETITIONER/APPELLANT/RESPONDENT T. K. SASIDHARAN, S/O KOCHAYAPPAN, THEKKE CHIRAYIL HOUSE, NENMENI, P.O. THAIKKAD, GURUVAYOOR, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN ## RESPONDENT(S)/RESPONDENT/PETITIONER: GOVINDAN NAIR, S/O LAKSHMI AMMA, MANNANGHAT HOUSE, P.O. THAIKKAD, CHAVAKKAD TALUK, THRISSUR DISTRICT. ADV. RAJIT FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------R. C. R. No.397 of 2010 -----------------------------------------------Dated this the 14[th] day of December, 2010 ## **ORDER** ## _Pius C. Kuriakose, J_ Under challenge in this revision filed by the tenant under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court against the revision petitioner on the ground under sub Section 3 of Section 11 of Act 2 of 1965. The landlord had invoked grounds of arrears of rent and cessation of occupation also to evict the revision petitioner. But the statutory authorities denied eviction on those grounds and the order declining eviction on those grounds have become final and in this Revision we need have to be concerned only with the R. C. R. No.397 of 2010 -2- correctness of the eviction order passed under Section 11 (3). 2. The need projected by the landlord is that he wants the building for the purpose of conducting a tea shop, the very business which the tenant is presently conducting in the petition schedule building. The bona fides of the need was disputed by the tenant who contended that the RCP is liable to be rejected by virtue of the first proviso to sub Section 3 of Section 11 as the landlord is in possession of other vacant buildings belonging to the landlord as parts of the very larger building another part of which is the petition schedule building. It was also contended that the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11. The Rent Control Court conducted an enquiry and the evidence consisted of the oral evidence R. C. R. No.397 of 2010 -3- of the landlord as PW1 and that of the tenant as RW1. Documentary evidence consisted of Exts.A1 and A2 series and Exts.B1 to B4. Exts.C1 and C2 were respectively commission report and sketch submitted by an Advocate Commissioner on the basis of a local inspection. On evaluating the evidence, the Rent Control Court came to the conclusion that the need was bona fide. It was also concluded that the RCP was not liable to be rejected by the first proviso to sub Section 3 of Section 11. It was further concluded that the tenant was totally unsuccessful in showing that he is entitled to the protection of the second proviso to sub Section 3 of Section 11. Accordingly, order of eviction was passed. The tenant preferred an appeal under Section 18 of the Rent Control Act before the Appellate Authority,Thrissur. The learned Appellate Authority made a R. C. R. No.397 of 2010 -4- thorough reappraisal of the pleadings and evidence in the case and would concur with all the findings of the Rent Control Court and accordingly, appeal was dismissed confirming the order of the Rent Control Court. 3. In this revision under Section 20, various grounds are raised assailing the judgment of the Appellate Authority. Sri.P.V.Chandramohan, the learned counsel for the revision petitioner addressed very strenuous arguments before us on the basis of the various grounds raised. All the submissions of Sri.Chandramohan were resisted by Sri.Rajit the learned counsel for the respondent who had lodged a caveat in anticipation of the RCA. Sri.Chandramohan highlighted before us that the respondent was an octogenarian and according to him, the idea of such a person thinking it in terms of commencing tea shop business in the evening R. C. R. No.397 of 2010 -5- period of his life is inherently improbable and without bona fides. He would further submitted that the RCP was liable to be rejected by virtue of the first proviso to sub Section 3 of Section 11. He drew our attention to the Advocate Commissioner's report and submitted that it has been reported by the Commissioner that one of the rooms in the larger building is occupied by one Ramesh Babu who is none other than son of the landlord. Sri.Ramesh Babu has now become a “Sanyasi” and in this context the learned counsel drew our attention to Ext.B4 which is a pamphlet under the caption “Guruvayoor Brahmasthanam” which describes Sri.Ramesh Babu as a “Swamy”. The learned counsel submitted that there was no response from the landlord to the application submitted by the revision petitioner for the production of the lease deed pertaining to the other rooms. R. C. R. No.397 of 2010 -6- Adverse inference should have been drawn against the landlord. Counsel further submitted that the finding regarding the tenant's eligibility for protection of the second proviso is erroneous. As already stated all the submissions of Sri.Chandramohan were resisted by the learned counsel for the respondent. We have very anxiously considered the submissions addressed at the Bar. We have gone through the judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court. The jurisdiction under Section 20 of Act 2 of 1965 is revisional in nature and in this jurisdiction we are not ordinarily expected to make a reappraisal of the evidence for the purpose of substituting factual findings arrived at by the statutory fact finding authorities especially when they are founded on evidence. On going through the judgment of the Appellate Authority, R. C. R. No.397 of 2010 -7- we find that all the findings entered therein are founded on legal evidence available on record. True, there was some indication in the evidence that the landlord or at least the landlord's son Ramesh Babu who is now engaged in spiritual matters was in vacant possession of one room in the larger building consisting of five rooms including the petition schedule building. But as rightly observed by the learned Appellate Authority, of all the five rooms in the larger building, the petition schedule building is the only room which has got a kitchen annexed to the same. Having regard to the nature of the business proposed, which is for conduct of a tea shop the learned Appellate Authority was perfectly justified in taking the view that the petition schedule building alone is ideally suited for the proposed business and that there was special reasons for the landlord insisting R. C. R. No.397 of 2010 -8- of getting possession of the petition schedule building itself. 4. As for the finding that the tenant is not entitled for the protection of the second proviso, we find that such a finding has been arrived at by the statutory authorities keeping in mind the statutory provisions as well as binding judicial precedents including the judgment of the Full Bench of this Court in _Francis v. Sreedevi Varassiar (2003(2) KLT 230)_ . In short, we do not find any illegality, irregularity or impropriety as envisaged by Section 20 about the judgment of the Appellate Authority. The revision necessarily has to fail and will stand dismissed. 5. Sri.P.V.Chandramohan made a fervent appeal for the grant of two years' time for the tenant to vacate the premises. This request was opposed tooth and nail by Sri.Rajit, the learned counsel for the respondent. However, R. C. R. No.397 of 2010 -9- having taken into account all the facts and circumstances attending on this case, we feel that there is justification for granting time till 31[st] September, 2011 to the revision petitioner subject to the following conditions. The result of the above discussion is therefore, as follows:- 6. The RCR is dismissed. The execution court is directed to keep in abeyance proceedings for delivery till 30/09/11 subject to the following conditions:- 7. The revision petitioner shall file an affidavit within three weeks from today undertaking to give peaceful surrender of the building to the respondent on or before 30/09/11 and undertaking further to discharge the arrears of rent within one month and to pay occupational charges at the current rent rate promptly and regularly as and when the same falls due till the date of actual surrender. It is R. C. R. No.397 of 2010 -10- made clear that the revision petitioner will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-