VISWANATHAN Vs. CHERIYA PATHA @ FATHIMA

JUDGEMENT

(1.) The concurrent findings in a rent control petition under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity 'the Act' only) is under challenge in the captioned revision petition. In fact, the said Rent Control Petition was filed on the grounds under Section 11(2)(b) and 11(3) of the Act. The revision petitioner herein was the respondent therein. There is no dispute regarding the tenancy. The Rent Control Court on evaluating the evidence and appreciating the rival contentions, allowed the Rent Control Petition under Section 11(3) of the Act and at the same time, repelled the contentions under Section 11(2)(b). Feeling aggrieved by the said order, the revision petitioner herein preferred R.C.A.No.46/2016. The appellate authority dismissed the appeal and confirmed the order passed by the Rent Control Court. It is in the said circumstances that the captioned revision petition has been filed.

(2.) The learned counsel appearing for the revision petitioner submitted that before the Rent Control Court, the revision petitioner could not produce the books of accounts to establish that he was mainly depending on the income deriving from the business being carried out in the tenanted premises for eking his livelihood and though along with I.A.No.2658/2016, books of accounts have been produced before the appellate authority and the appellate authority did not consider the same. In short, the contention is that it is the non-consideration of the said document produced along with the above captioned interlocutory application that resulted in confirmation of the order passed by the Rent Control Court. A perusal of the grounds raised in the revision petition would reveal that there is no serious dispute regarding the finding of the Rent Control Court, which was confirmed by the Appellate Authority that the respondent herein/the landlord had succeeded in establishing the bona fide need projected under Section 11(3). When that be the position, it is only upon establishing that the tenant is entitled to the benefit either under the first proviso or the second proviso to Section 11(3), that an order to put the landlord in possession could be declined. In the case on hand, evidently, the revision petitioner herein raised the contention that he is entitled to get the benefit of the second proviso to Section 11(3) of the Act. A bare perusal of second proviso to Section 11(3) of the Act would reveal that in order to obtain the protection under the proviso, two conditions must be satisfied. Firstly, the tenant is depending for his livelihood mainly on the income derived from a trade or business carried out in the tenanted building. Secondly, there is no other suitable building available in the locality for such person to carry on such trade or business. From the contentions raised hereinbefore, it is evident that the grievance of the revision petitioner is that he attempted to adduce evidence to establish that he is depending for his livelihood mainly on the income derived from the business carried out in the petition schedule building and the appellate authority did not consider the same. Essentially, the contention is that when an application is filed under Order 41, Rule 27 of the Code of Civil Procedure( for short 'the C.P.C.'), the appellate court is bound to consider the same in accordance with law and it is the non-consideration of the said interlocutory application that culminated in rejection of his claim for the benefit under the second Proviso. True that when an application is filed under Order 41, Rule 27 of the C.P.C., the appellate court is bound to consider the same in accordance with law and a bare perusal of the said provision would reveal that to admit additional evidence, it is incumbent on the appellate court to assign specific reasons therefor. That apart, the person seeking to adduce additional evidence must also assign sustainable explanation or reason for its non-production before the Court of first instance. As noticed hereinbefore, to earn the protection under the second proviso, the revision petitioner was also bound to adduce evidence to show that there is no other suitable buildings or rooms available in the same locality, for him to carry on the trade or business which he has been carrying in the tenanted premises. Admittedly, in that regard, he had taken out a commission. It is specifically stated in the impugned orders that the Commissioner, after inspection, reported regarding the availability of rooms in the locality. The Rent Control Court found from Ext.C1 series as also from the evidence of PW1 that a number of buildings/rooms are available in the locality to which the revision petitioner could shift his business. This was affirmed by the appellate authority. However, on going through the grounds raised in the revision petition, we do not find any contention challenging its correctness. In other words, evidently, there is no challenge against the said finding. In such circumstances, even if the matter is remanded with a direction to the appellate court to consider the aforementioned interlocutory application filed for receiving additional evidence, it would be nothing but a futile exercise as in view of the total absence of evidence on the part of the revision petitioner to establish that no other suitable building was available in the locality to enable him to carry out the trade or business in the locality. As noticed hereinbefore, the evidence which is available on record would go to show that suitable building is available. Nonconsideration of the said application would be of no consequence in the said circumstances and the revision petitioner could not be heard to say that it would cause or it caused, prejudice to him. Shortly stated, we do not find any merit in this revision petition and it is liable to fail.

(3.) The learned counsel appearing for the petitioner, at this juncture, submitted that some reasonable time may be granted to the revision petitioner to surrender the vacant possession of the room in question to the landlord, the respondent herein. We heard the caveator/the respondent/the landlord. On such hearing, we are of the view that six months time from today can be granted in that regard. Accordingly, it is granted subject to the following conditions:- The revision petitioner shall file an affidavit carrying an undertaking to the effect that he would surrender vacant possession of the petition schedule shop room to the respondent/landlord on the expiry of the said period. This shall be filed within a period of two weeks from the date of receipt of a copy of this judgment. The revision petitioner shall deposit/pay arrears of rent, if any, and shall also continue to pay rent at the admitted rate. Two consecutive defaults in payment of rent would entail automatic recalling of this benefit extended to the revision petitioner. Subject to the above, this revision petition is dismissed. There will be no order as to costs.