IN THE HIGH COURT OF KERALA AT ERNAKULAM 

The Hon'ble MR. Justice PIUS C.KURIAKOSE 

The Hon'ble MR. Justice N.K.BALAKRISHNAN 

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R. C. R. No.213 of 2008

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Dated this the 3rd day of January, 2011

1. K.IBRAHIM, S/O.K.ABDULRAHIM, R/AT.

... Petitioner

Vs

1. C.T.JAMEELA, W/O.C.M.KUNHAMU, R/AT.

... Respondent

2. YAKUB EMPLOYED IN MANGALORE FRUIT STALL 

For Petitioner :SRI.K.JAYAKUMAR

For Respondent :SRI.D.KRISHNA PRASAD

ORDER

Pius C. Kuriakose, J

The tenant is in revision challenging the order of eviction concurrently passed by the Rent Control Court and the Appellate Authority on the ground under sub Section 3 of Section 11. In fact, the landlord had invoked the grounds of subletting and arrears of rent also. However, it is conceded by both sides that the only eviction ground which survives for consideration now, is the ground under sub Section 3 of Section 11. Regarding that ground also it is conceded by both sides that in view of the order of this Court in CRP.627/01 and CRP.2819/01 the finding that the need is bona fide has attained finality. This Court by the order in the above two CRPs remanded the Rent Control . Petition to the Rent Control Court for considering the question whether the RCP is liable to fail by virtue of either the first proviso or the second proviso to sub Section 3 of Section 11. Pursuant to the above remand order, the landlord filed an application for amendment of the RCP for incorporating a pleading that the tenant has stopped business and has gone over to Dubai and taken up an employment there. The above contention did not find favour with the statutory authorities. However, on the basis of the evidence including the further evidence which was adduced by the parties, the Rent Control Court concluded that the tenant was unsuccessful in showing that the RCP was liable to fail by virtue of the first proviso. As regards the second proviso though the finding of the Rent Control Court regarding the first ingredient of the second proviso was in favour of the tenant, the finding regarding the second .ingredient of the second proviso was against the tenant. It was therefore, found that the tenant is not entitled for the protection of the second proviso. The learned Rent Control Appellate Authority considering the appeal preferred by the tenant made a re-appraisal of the entire evidence and would concur with the conclusions of the Rent Control Court except in the context of the first ingredient of the second proviso. As regards that ingredient, the learned Appellate Authority would conclude that the tenant was unsuccessful in showing that he satisfies the above ingredient of the second proviso. Ultimately, the Rent Control Appellate Authority confirmed the order of eviction and dismissed the RCA.

2. In this revision under Section 20, various grounds have been raised by the tenant assailing the eviction order and Sri.S.V.Balakrishna Iyer, the learned counsel for the revision petitioner addressed strenuous arguments before us .based on all those grounds. Sri.Balakrishna Iyer drew our attention to the evidence adduced by the parties in the context of the first and second provisos to sub Section 3 of Section 11. According to Sri.Balakrishna Iyer there was clinching evidence on the basis of which it could be held that the RCP is liable to fail by virtue of the first proviso to sub Section 3 of Section 11. He argued in a very persuasive fashion that there was evidence to show that during the pendency of the RCP at least four rooms which belonged to the landlord had fallen vacant and those rooms had been let out by the landlord to fresh tenants. These subsequent events according to the learned counsel would make the RCP liable to be rejected by virtue of the first proviso. The learned senior counsel was more emphatic in his challenge of the findings of the statutory authorities regarding the second proviso. The learned senior counsel submitted that as far as the first ingredient is concerned RW1 the tenant had adduced very inspiring evidence which was accepted by the Rent Control Court. It is a small time business that is being conducted by RW1 and he is not statutorily bound to keep any account. The Appellate Authority was not justified in vacating the finding entered by the Rent Control Court in favour of the tenant regarding the first ingredient of the second proviso on the reason that accounts are not produced. As regards the second ingredient, the learned counsel submitted that it is on the reason that even on the tenant's showing buildings belonging to the same landlord have fallen vacant, that decision has been taken against the tenant. The landlord had never offered those rooms to the tenant. It is too much on the part of the learned Appellate Authority to expect the landlord to let out those buildings to the tenant when the parties are pitched in a stiff legal battle for more than a decade.

3. Sri.Sachidananda Pai, the learned counsel for the respondents would oppose all the submissions of Sri.Balakrishna Iyer. According to Sri.Pai there is no warrant for invocation of the revisional jurisdiction of this Court under Section 20 of Act 2 of 1965. The learned counsel would support the impugned judgment on the various reasons stated therein.

4. We have very anxiously considered the rival submissions addressed at the Bar. We have gone through the judgment of the Appellate Authority and the order of the Rent Control Court. We have also analysed those items of evidence to which our attention is drawn by the learned counsel for the revision petitioner. The short question that arises for decision by us is whether the judgment of the Appellate Authority which under the statutory scheme is the . final court on facts is vitiated by any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965. The persuasiveness of the learned senior counsel notwithstanding, we are inclined to decide the question against the revision petitioner. The argument of the learned senior counsel that the first proviso to sub Section 3 of Section 11 will apply in view of the alleged subsequent events of buildings belonging to the landlord falling vacant during the pendency of the proceedings cannot be accepted at all. The subsequent event of other buildings belonging to the landlord falling vacant and the landlord not utilizing those buildings for the need projected in the RCP and letting out those buildings to other tenants can have some bearing on the bona fides of the need projected. But in this case where bona fides of the need is finally found by this Court, the subsequent event of other buildings falling vacant and the landlord letting out those buildings to other tenants even if it is true cannot have any implication in the context of the first proviso to sub Section 3 of Section 11. First proviso to sub Section 3 of Section 11 crops up only in a situation where the landlord is in possession of a vacant building belonging to him and that building can be utilised for the purpose of accomplishing the need projected in the RCP. That is not the situation here. Moreover, we notice that the RCP was instituted as early as in 1995. Due to several reasons, the proceedings have continued for about 15 years despite the statutory time limit under Section 24 which insists upon final disposal of the Rent Control Petition within four months. If every subsequent event is to be taken into account as an event which demolishes the need or having a bearing on the right of the landlord to obtain an eviction and the liability of the tenant to suffer an eviction, then the .same will render the legislative intentment underlying Section 24 meaningless.

5. Now coming to the question whether the tenant is entitled for the protection of the second proviso to sub Section 3 of Section 11, it is decided by various decisions including the Full Bench decision of this Court in Francis v. Sreedevi Varassiar (2003(2) KLT 230) that it is the tenant's duty to prove that he satisfies both the ingredients of the second proviso to sub Section 3 of Section 11. It is trite that both the ingredients are in the conjunctive. Unless both the ingredients are satisfied in favour of the tenant, he will not be entitled for the protection of the second proviso. On scanning the finding of the Rent Control Appellate Authority in the context of the binding juridicial precedents including the judgment of the Full Bench in Francis v. Sreedevi Varassiar (2003(2) KLT 230), we do not find any illegality, irregularity or impropriety about those findings.

6. The result of the above discussions, therefore, is as follows:-

The RCR is dismissed confirming the order of eviction. However, considering the very fervent appeal made by the learned counsel for the revision petitioner, we feel that there is justification on the facts and circumstances attending on this case for granting an unusually long period of time for the revision petitioner for surrendering the premises. Hence, we direct the execution court to keep in abeyance all proceedings for delivery till 31/12/11 subject to the following conditions:-

1) The revision petitioner will file an affidavit within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the respondents on or before 31/12/11. Through the same . affidavit the revision petitioner shall undertake that arrears of rent, if any, will be discharged within one month and that occupational charges at the current rent rate will also be paid without fail as and when the same falls due. We make it clear that the revision petitioner will get the benefit of time granted as above only if the affidavit as directed above is filed and the undertakings contained therein are honoured without fail.

PIUS C. KURIAKOSE

JUDGE

N. K. BALAKRISHNAN

JUDGE

kns/-