Kerala High Court
Challissery Mathew vs Kalathintavida Haris on 16 August, 2012
Author: A.V.Ramakrishna Pillai
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
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
THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934
RCRev..No. 92 of 2012 ()
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IN RCA.8/2011 of RENT CONTROL APPELLATE AUTHORITY,THALASSERY
IN RCP.43/1998 of RENT CONTROL COURT, THALIPARAMBA
REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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CHALLISSERY MATHEW
S/O.KUNHUVAREED, FRIENDS FOOTWEAR, TMC VII 608, COURT ROAD,
TALIPARAMBA, RESIDING AT CHALISSERY HOUSE P.O. KUTTIYERI TALIPARAMBA
BY ADVS.SRI.T.SETHUMADHAVAN
SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANKUMAR
SMT.VANDANA MENON
RESPONDENT(S)/RESPONDENT/PETITIONER):
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KALATHINTAVIDA HARIS
S/O.MAMMU HAJI, TALIPARAMBA AMSOM DESOM 670 141
BY ADV. SRI.P.NARAYANAN
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 16-
08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI JJ.
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RCR . NO. 92 OF 2012
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Dated this the 16th day of August, 2012
O R D E R
Pius C.Kuriakose,J The tenant is the revision petitioner. He is conducting a Footwear Shop in the subject shop room. The landlord sought to evict him on the grounds of arrears of rent and bona fide need for own occupation. The Rent Control Court in the first instance allowed the eviction petition. The appellate authority, however, considering the appeal preferred by the tenant set aside the above eviction order holding that the landlord was in possession of a vacant room at the time when he filed the eviction petition. Against the judgment of the appellate authority, the landlord filed RCR No.240/2005 before this court. This court allowed the above RCR and remanded the matter to the Rent Control Court directing the Rent Control Court to reconsider the availability of vacant room having door number 942. The Rent Control Court RCR No. 92 /2012 2 after holding enquiries, would come to the conclusion that the so called vacant room having door No.942 was already in possession of the tenant by name Muhammed Ashraf. Accordingly, the rent control court ordered eviction. The tenant preferred an appeal before the Rent Control Appellate Authority. In the appeal, he filed I.As. No.1673/2011 and 1711/2011 producing the daily book register maintained by the stamp vendor with reference to 6/6/1998. The appellate authority allowed both the applications. However, the appeal was dismissed confirming the decision of the Rent Control Court. In this revision filed by the tenant he challenges the above judgment of the appellate authority.
2. We have heard the submissions of Sri. T.Sethumadhavan learned counsel for the revision petitioner and those of Sri. P.Narayanan learned counsel for the respondent/landlord.
3. Mr.Sethumadhavan would address extensive submissions before us. The learned counsel would submit that Ext.A4(b) document, the rent kaichit put in evidence by the landlord to show that the building having door number 942 is in RCR No. 92 /2012 3 the possession of a tenant by name Mohammed Ashraf, was a fraudulent document. The learned counsel submitted on the basis of the daily book register maintained by the stamp vendor that stamp paper Nos.8304 and 8305 upon which ExtA4(B) is written are not sold by the vendor in favour of Sri.Mohammed Ashraf. Mr.Setehumadhavan submitted that Ext.B1 property tax assessment register shows that the building was vacant during the period 1997 - 1998 to 2001 - 2002. According to him, Section 26 of Act 2 of 1965 arouses a presumption that what is recorded in such document is correct. The learned counsel submitted that while it may be difficult to challenge Ext.A4 (a), which is a registered rent chit, Ext.A4(b) has to be found to be a fraudulent document. Ext.A4(a) is seen executed on stamp paper issued in favour of Sri.Moahmmed Ashraf whereas Ext.A4
(b) is issued in favoaur of Sri.Kakkottakath Puthiyapurayil Muhammed Ashraf. The register maintained by the stamp vendor will show that the stamp papers are not issued in the name of PW5. As Ext.A4(b) document is a fraudulent document, the landlord should not have been given relief, so argued Mr.Sethumadhavan.
RCR No. 92 /2012 4
4. All the arguments of Mr.Sethumadhavan were resisted by the learned counsel for the landlord Sri.P.Narayanan. According to him, there is absolutely no scope for interference in this case where the two fact finding authorities under the statute viz. the rent control court and the appellate authority have appreciated the evidence and entered reasonable fidnings.
5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully read through the order of this court in RCR No.240/2005, by which this court remanded the matter to the Rent Control Court, and the order of the rent control court and the judgment of the appellate authority are passed pursuant to the above remand order. This court by order in RCR No.240/2005 itself clarified that the finding that the landlord's need is bona fide and the further finding that the tenant is not entitled to the protection of the second proviso to sub section (3) of Section 11 have been finally decided in favour of the landlord. The only issue, which was remanded, was whether by virtue of the first proviso to sub section (3) of Section 11 , the rent control petition will fail. It was with reference to the building having door number 942 that RCR No. 92 /2012 5 the tenant contended that the rent control petition shall fail by virtue of the first proviso to sub section (3) of Section 11. The landlord's defence was that the landlord was not in possession of building having door number 942 and that at all material times, that building was in the possession of a tenant by name Mohammed Ashraf. Ext.A4(a) dated 1/8/1996 is a registered rent kai chit executed in favour of the landlord by Kakkoottakath Puthiyapurayil Muhammed Ashraf. The above document is irrefutable evidence to show that the building in question was let out to the above Ashraf. The challenge is about Ext.A4 (b) dated 6/6/1998 executed in favour of the present landlord by above Mr.Ashraf. The argument based on the entries in the stamp vendor register was that Ext.A4(b) is not issued in favour of the tenant Ashraf. According to us as it is irrefutable that room No. 942 was at all relevant times ( at the time when the rent control petition was instituted) in the possession of Ashraf as a tenant, the anomaly as regards Ext.A4(b) will not be of consequence. We are not impressed by the anomalies highlighted by Mr.Sethumadhavan in respect of Ext.A4(b). Oral evidence given by PW5 herself is convincing to the effect that RCR No. 92 /2012 6 he never surrendered the building back to the landlord and he took the building under Ext.A4 (b) register kaichit, which is disputed before us by the learned counsel for the revision petitioner. The finding entered by the Rent Control Court and the appellate authority concurrently that the building having door number 942 is in possession of the tenant Ashraf is in our opinion a reasonable finding founded upon the legal evidence available on record. We cannot in revision under Section 20 upset that finding.
6. The revision fails and will stand dismissed. However, considering the fervent appeal made by the learned counsel for the revision petitioner that one and half year's time be given to the revision petitioner to surrender the premises, we grant to the revision petitioner 15 months time from today i.e. till 15th November 2013 subject to the following conditions;
The revision petitioner shall file an affidavit before the Execution Court within one month from today and to give peaceful surrender of the building to the respondent on or before 15th November 2013. It shall be undertaken through the same affidavit that arrears of rent, if any, will be discharged within one RCR No. 92 /2012 7 month and that charges for use and occupation of the building at the existing rent rate will also be paid without fail till actual surrender is given.
We make it clear that the revision petitioner will get benefit of time as allowed above only if he files the affidavit and honours the undertakings therein.
Sd/-
PIUS C.KURIAKOSE, JUDGE Sd/-
A.V.RAMAKRISHNA PILLAI, JUDGE.
dpk /True copy/ P.A to Judge.
RCR No. 92 /2012 8