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Judgment
Pius C. Kuriakose, J.—The tenants are the revision petitioners. They challenge in this revision u/s 20, the judgment of the Rent Control Appellate Authority confirming the order of eviction which was passed against them on the ground of arrears of rent and also on the ground of bona fide need for own occupation. In the Rent Control Petition it was alleged by the landlady that the rent was in arrears from 28/11/01 and that in spite of issuance of a statutory intimation notice under the proviso to Section 11(2)(b) the arrears of rent was not discharged. The revision petitioners through their statement of objections denied the allegation and contended that the arrears of rent as alleged were discharged. The need projected by the landlady was that she who was technically qualified wants to have her own DTP centre and a centre for job works in the petition schedule building so that she can augment the income of the family which presently is the meagre salary of her husband who was a Class IV employee in Government Service. The bona fides of the claim was disputed and it was contended that the real intention was to evict the tenants so that the building can be let out to others on much higher rent. The revision petitioners also claimed that they are entitled for the protection of the second proviso to sub Section 3 of Section 11. The Rent Control Court conducted a detailed enquiry in which the evidence consisted of Exts.A1 to A4(a), B1, C1 and C1(a), X1, PW1 and CPW1. The Commissioner was also examined as CW1. The Rent Control Court on evaluating the evidence held that the eviction grounds u/s 11(2) (b) as well as u/s 11(3) stood established. It was also held that the tenant failed to prove that they are entitled for the protection of the second proviso to sub Section 3 of Section 11. Accordingly, order of eviction was passed both under Sections 11(2)(b) and 11(3) of the Act. Even though the revision petitioners preferred an appeal before the Rent Control Appellate Authority and the learned Appellate Authority made a re-appraisal of the evidence that Authority would confirm the findings of the Rent Control Court and dismiss the RCA. In this revision u/s 20 various grounds have been raised challenging the findings entered by the Rent Control Court and the Appellate Authority. It is urged that the eviction orders passed both u/s 11(2)(b) and 11(3) are unsustainable and the findings are contrary.
Sri. B. Krishna Mani, the learned counsel for the revision petitioners addressed us extensively on the basis of the grounds raised in the memorandum of appeal. The learned counsel would submit in the context of the ground u/s 11(2)(b) that Ext.A2 notice under the proviso to Section 11(2)(b) demanding arrears of rent was issued way back in 11/06/04 and the Rent Control Petition was instituted only in 2009. The learned counsel submitted that the statutory authorities under the order/judgment passed by them have found that the rent was in arrears up to the date of institution of the Rent Control Petition. The arrears of rent contemplated for passing an eviction order u/s 11(2)(b) is the arrears of rent demanded in the statutory intimation notice. The finding that rent is in arrears up to the date of institution of the RCP is a finding which takes in rent which fell due subsequent to Ext.A2. This finding is illegal and contrary to binding judicial precedents including those rendered by the Supreme Court. The learned counsel also submitted that a substantial portion of the rent found by the statutory authorities to be in arrears has become time barred. The revision petitioners have no liability to pay time barred rent. The impugned judgment will compel the revision petitioners to pay the time barred rent also, so submitted Sri.Krishna Mani.
Sri.Krishna Mani was more emphatic in his submissions challenging the finding by the two authorities on the ground under sub Section 3 of Section 11. Sri.Krishna Mani submitted that even in Ext.A2 issued in 2004 the need of the landlady to occupy the subject building which is being used by the revision petitioners for conducting watch repair for the purposes of starting DTP Centre, job works etc. was projected. It is five years thereafter that the present RCP is instituted. The long delay in approaching the Rent Control Court itself is indicative of absence of bona fides in the matter. During this interregnum another building belonging to the landlady fell vacant and the same was let out by the landlady to another tenant. If as a matter of fact the need projected in this RCP is bona fide the landlady would have accomplished that need by occupying that room. The fact that the landlady did not do so is indicative of absence of bona fides in the claim presently projected. Sri.Mani also submitted that concurrent though they may be the findings entered against the revision petitioner in the context of the second proviso is also erroneous as the same is contrary to the evidence which came on record.
We have given our anxious consideration to the rival submissions addressed at the Bar. The revision petitioners had a case that the arrears of rent demanded in Ext.A2 was discharged by them. But they could not adduce any evidence except their own ipse dixit to prove the above case. The two authorities appreciating the evidence adduced by the parties came to the conclusion that the arrears of rent which was demanded in Ext.A2 remained undischarged even at the time of filing the Rent Control Petition. It is an eviction order u/s 11(2)(b) which has been passed by the Rent Control Court and the Appellate Authority. Eviction orders passed u/s 11(2)(b) are in a way tentative and are always liable to be got vacated at the instance of the tenant if he invokes Section 11(2)(c). The sufficiency of the amounts to be deposited for invocation of Section 11(2)(c) is a matter to be decided by the Rent Control Court when Section 11(2)(c) is invoked. We leave it to the Rent Control Court to decide on the sufficiency of the amount paid or deposited by the Rent Control Court for getting the eviction order passed u/s 11(2)(b) vacated.
Coming to the substantial ground of bona fide need for own occupation, it is true that there was considerable delay after the issuance of Ext.A2 on the part of the landlady in moving the Rent Control Court for eviction. But the two fact finding authorities under the statutes who had occasion to appreciate/re-appreciate the evidence adduced by the parties which included the oral evidence given by the landlady herself have come to the conclusion that the landlady had justifiable reasons for approaching the Rent Control Court only in 2009. The findings entered by the two authorities in the above context in our opinion are reasonable findings which are founded on evidence. When we were reminded ourselves of the well delineated contours of our revisional jurisdiction u/s 20, we are sure that we will not be justified in upseting those findings by venturing upon a re-appraisal of the evidence. The same is the position as regards the tenants eligibility for the protection of the second proviso. Going by the lease deed the husband as well as the wife both are tenants. The husband admittedly is a Government employee. They are living cordially and they share the same mess. When it is shown that the tenants have more source than one it is for them to produce acceptable legal evidence and show that the income which they derive from the petition schedule premises where they are conducting watch repairing is the main income and they depend mainly on that income for their livelihood. The two statutory authorities on appreciating the evidence found in our opinion rightly that the tenant failed to establish that they are depending mainly on the income from the petition schedule building for their livelihood. The building is situated within the limits of Kollam municipal Corporation. Even though the revision petitioners facilitated the production of the vacancy register and examined the Accommodation Register the two fact finding authorities were not impressed. Even otherwise it is a matter of common knowledge that only very few vacancies are reported to the Accommodation Controller and vacancy register is quite often maintained not very seriously. At any rate as the two limbs are conjunctive and as the tenants failed in showing that they satisfy the first ingredient the finding concurrently entered that they are not entitled for the protection of the second proviso is not liable to be interfered with. The revision necessarily has to fail and the same will stand dismissed.
When we made our decision known to Sri.Krishna Mani the learned counsel requested that at least one and a half year''s time be granted to the revision petitioner as it is very difficult for the petitioners to surrender the building as it will be extremely difficult to obtain a similar building in Kollam now. We do not find that we will be justified in granting so much time to the revision petitioners without notice to the respondent landlady. Hence even as we confirm the eviction order and dismiss the RCR we direct to issue urgent notice by speed post to the respondent to determine the duration of time to be given to the revision petitioners for surrendering the premises. Interim stay for three months.