N.M. Vijayan and K.M. Kamalakshi vs Jameela, Aneesh and Anoop

Pius C. Kuriakose, J.—Under challenge in this revision filed u/s 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed against the revision petitioners on the ground under Sub-section (3) of Section 11. Even though the landlady had invoked the ground of arrears of rent, it was submitted by Smt. Shajna M., learned Counsel for the revision petitioners that, that ground no longer survives and we need be concerned with only with ground u/s 11(3). The need projected by the landlady was that she wants to conduct a ladies store and stationery business in the petition schedule building. The bona fides of the need was disputed. In fact a serious dispute was raised that it is not the first respondent in the RCP Dr. N.M. Vijayan who is the tenant. The contention was that the real tenant is Smt. K.M. Kamlakshi, Dr. Vijayan''s wife, who the second respondent in the RCP. It was further contended that the tenant is entitled to the protection of the second proviso to Sub-section (3) of Section 11. The Rent Control Court on appreciating the evidence adduced by the parties came to the conclusion that the revision petitioners were unsuccessful in proving that the real tenant was Smt. Kamalakshi and not Dr. Vijayan. Accepting the oral evidence of PW1, the landlady, the Court came to the conclusion that the need projected was bona fide. It was also held that the tenant was unsuccessful in proving that he is entitled to the protection of the second proviso to Sub-section (3) of Section 11.

The Appellate Authority made a reappraisal of the evidence and concurred with the conclusions of the Rent Control Court and confirmed the order of eviction.

In this revision u/s 20 various grounds are raised assailing the judgment of the Appellate Authority and Smt. M. Shajna, learned Counsel for the revision petitioners, addressed very persuasive arguments before us on the basis of those grounds. She submitted that the finding of the statutory authorities that, the first revision petitioner herein is the tenant, is contrary to the evidence on record. According to her, it was the father of the second petitioner, who had taken the building on lease for the benefit of the second revision petitioner''s sister one Padmini, who is a chronic epileptic. It is true that the second revision petitioner is occupying the building and doing the business. But such occupation and conduct of business was on behalf of the real tenant Padmini. The learned Counsel submitted that though the Rent Control Court considered the above contention, the consideration was not proper. The learned Counsel complained that the appellate authority did not even consider this issue. A proper finding regarding the identity of the tenant would have turned the tables against the landlord in the context of the second proviso to Sub-section (3) of Section 11 as the finding that the tenant is not entitled for the benefit of the second proviso, is mainly on the finding that the tenant is the first revision petitioner Dr. Vijayan.

We have considered the submissions of the learned Counsel for the revision petitioners. We have scanned the judgment of the Rent Control Appellate Authority as well as the Order of the Rent Control Court. We are unable to accept the submission of the learned Counsel for the revision petitioners that the statutory authorities have not properly considered the question as to who is the tenant of the building and the further question as to whether the tenant is entitled to the benefit of the second proviso to Sub-section (3) of Section 11. The contention that, the real tenant is Smt. Padmini, is raised on the foundation of certain facts. It was to prove such facts that RW5, a former tenant, was examined. The evidence of RW5 did not inspire the Rent Control Court, which had the advantage of seeing him and recording his evidence. The Court noticed that the contention that, Smt. Padmini is the tenant, is taken for the first time before the Court deviating from the stand taken in the reply notice. The Court also noticed some inconsistency between the pleaded case and the case that was pursued in evidence. According to us, findings of the Rent Control Court tendered in that regard is reasonable. The appellate authority reappraised the evidence before concurring with the Rent Control Court. The social relationship between the revision petitioners cannot be lost sight of. They are husband and wife. The first revision petitioner is a medical practitioner and it is medical shop business that is being conducted in the petition schedule building. The finding that the first revision petitioner is the tenant and not his wife the second revision petitioner is entered mainly relying on the entries in the Bank Passbook, which would show that the actual payment of rent is by the first revision petitioner. After all, under social conditions prevailing in this state the husband and the wife can be identified with each other for many things. According to us, the finding of the statutory authorities that the real tenant is the husband and that wife Smt. Kamalakshi is doing business on his behalf is quite reasonable. We do not find any warrant for interfering with the findings entered by the statutory authorities regarding the identity of the tenant. Once it is found that Dr. Vijayan is the tenant, there is evidence on the basis of which it can be held that income from the medical shop is not main source of income for Dr.Vijayan and his family. Dr.Vijayan is practising his profession in another building . When it becomes evident that the tenant has another source of income, the burden is on the tenant to show, by adducing documentary evidence, that the business in the tenanted building accounts for the main source of income. That burden has not been discharged. The revision petition necessarily has to fail confirming the order of eviction passed. Accordingly, confirming the judgment of the Appellate Authority, we dismiss this RCR. However, in view of the fervent submission of the learned Counsel for the revision petitioner that long time be granted for surrendering the premises, we are in inclined to direct the Execution Court not to order and effect delivery of the petition schedule building till 31/3/2011 subject to the following conditions;

i). The first revision petitioner on his behalf and behalf of the second revision petitioner files an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the respondent/landlady on or before 31/3/2011 and undertaking further through the same affidavit that arrears of rent if any will be discharged within two months and that occupational charges at the current rent rate will also be paid as and when the same falls due.

ii). The revision petitioners will get benefit of time granted as above, only if the affidavit as directed above is filed on time.