ThaHa Koya A.R.Building v. K. Manjula Devi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE** **& THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JANUARY 2012/30TH POUSHA 1933** ## **RCR.No. 16 of 2012 ()** **--------------------RCA.11/2011 of DISTRICT COURT,KOLLAM RCP.10/2010 of PRL.MUNSIFF COURT, KOLLAM** **................** **REVN.PETITIONER/APPELLANT/COUNTER PETITIONER: ------------------------------------------------------------------** **THAHA KOYA A.R.BUILDING, MULANKADAKOM WARD, KOLLAM WEST VILLAGE KOLLAM TALUK.** ## **BY ADV. SRI.K.SUBASH CHANDRA BOSE** **RESPONDENT(S)/RESPONDENT/PETITIONER: ------------------------------------** ## **1 K.MANJULA DEVI** **W/O. ALWAR, BEACH NORTHWARD, VALIYAKADA CHERI KOLLAM WEST, NOW RESIDING AT KUMAR GARDENS NEAR KSRTC BUS STAND, HARIPAD, PALLIPAD VILLAGE KARTHIKAPPALLY TALUK, ALLEPPEY DISTRICT - 682 826.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ. =====================** R.C.R. NO. 16 OF 2012 **=====================** Dated this the 20[th] day of January 2012 ## ORDER ## **Pius C.Kuriakose,J.** Under challenge in this revision under Section 20 of the Kerala Buildings(Lease & Rent Control)Act, 1965 filed by the tenant is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court under Section 11(3) of the Kerala Buildings (Lease & Rent control) Act 2 of 1965. The need projected by the landlady who is conducting textile business in her home town Harippad is that she wants to conduct the same line of business in the petition schedule building which is situated within the limits of Kollam Corporation. The bona fides of the need was disputed by the Revision Petitioner who contended that the landlady is having RCR 16/2012 2 other buildings of her own in her possession in Kollam Town attracting the first proviso to sub-Section 3 of Section 11 of the Act. It is also contended that at any rate the tenant is entitled for the protection of the second proviso to Sub-section 3 of Section 11. The Rent Control Court has conducted an enquiry and in the enquiry the evidence consisted of Exts.A1 to A13 and the oral evidence of PW1, the landlady and the revision petitioner as RW1. On appreciating the evidence, the learned Rent Control Court came to the conclusion that the need projected by the landlady is a bona fide one. It is also concluded by the Rent control court that the Rent Control petition was not liable to fail by virtue of sub-section 3 of Section 11. It was further concluded that the tenant was unsuccessful in proving that he satisfies the eligibility of the protection of the second proviso to sub-section 3 of Section 11. Accordingly, the appeal filed by the revision petitioner was dismissed. RCR 16/2012 3 2. In this revision, several grounds are seen raised challenging the judgment of the Appellate Authority. Mr.K.Subhashchandra Bose, learned counsel for the revision petitioner addressed fervent submissions before us based on all grounds. Mr.Subhashchandra Bose submitted that the landlady is very successfully conducting large scale textile business at Harippad **.** It is highly improbable that she will give up that business and come all the way to Kollam Town, some 70 kilometres away for starting new business. Learned counsel submitted that in Kollam Town itself, the landlady has got other vacant buildings and those buildings are quite suitable for conducting business in the petition schedule building. The area of the petition schedule building, which is 12' x 8' size is not fit for conducting textile business. The building is in an area where other businesses relating to fishing and furniture are concentrated. Counsel also submitted that the findings concurrent though the same be that the tenant is not entitled for the protection of the second proviso is result of RCR 16/2012 4 erroneous appreciation of the evidence on record. Lastly, the learned counsel submitted that it would be very hard if the revision petitioner who has been conducting business in the petition schedule building for the past about 40 years is evicted. 3. We have given our anxious consideration to all the submissions of Mr.Subhashchandra Bose and we have carefully gone through the order of the Rent control court and also through the judgment of the Appellate Authority which is impugned in this revision. On going through the judgment of the appellate authority, we find that all the contentions which are pursued before us by the revision petitioner were actually considered by the appellate authority which under the statutory scheme is the final court on facts. 4. The findings entered by the Appellate Authority are actually findings entered on the basis of evidence oral, documentary and circumstantial which is actually available in the case. As rightly noticed by the appellate Authority RCR 16/2012 5 and the Rent control court just because the landlady is already in textile business in Harippad, there is no embargo for her in starting the same business at Kollam which is a much bigger town with more commercial potentialities. It is not absolutely necessary that the landlady herself should conduct business in Kollam or Harippapd. She can engage employees and Managers as rightly noticed by the statutory authorities. What is more important is that the oral evidence adduced by PW1, landlady was found very convincing by the two fact finding authorities, who have noticed that her credit was not shaken despite cross examination. We do not find any infirmity about the findings entered that the need projected by the landlady is a bona fide one. Coming to the contention that the landlady has other vacant buildings, it is found that the landlady evicted another tenant and perhaps that is the only building under the vacant possession of the landlady. Mr.Subhashchandra Bose was not able to tell us as to what was the ground on which the tenant of that building was RCR 16/2012 6 evicted. Even if that building has been evicted on the ground under sub-section (3) of Section 11 and if that building is not being utilized for accomplishing the need which has been projected in that case, it is open to the tenant in that case to invoke the provisions of Sub-Section (12) of Section 11. 5. Coming to the concurrent findings entered against the revision petitioner in the context of the second proviso to Sub-Section (3) of Section 11, we are of the view that in view of the burden of proof as settled by the Judgment of the Supreme Court in **Kunhamma v. Akkali Purushothaman [2007(3)K.L.T.99]** and the decision of the Full Bench of this Court in **Francis v. Sreedevi Varassiar[2003(2)K.L.T.230],** the findings concurrently entered by the two authorities in the context of the second proviso cannot be said to be faulty. Necessarily the revision will have to fail and the same will stand dismissed. 6. When our decision was made known to Mr.Subhashchandra Bose, the learned counsel for the RCR 16/2012 7 revision petitioner, requested that a minimum period of 18 months be granted to the revision petitioner for surrendering the premises. Even though we find justification for granting reasonable time, we are not inclined to grant the time sought for without issuing notice to the respondent/landlady. Hence, issue notice to the respondent to determine the extent of time to be given to the revision petitioner for surrendering the premises. Post after service of notice. **Sd/PIUS C.KURIAKOSE, JUDGE** **Sd/A.V. RAMAKRISHNA PILLAI, JUDGE** **ks.** **True copy** **P.S.to Judge**