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2003 Supreme(Ker) 78

Judges : S.SANKARASUBBAN,K.K.DENESAN
Unni Vacco - Appellant
Versus
Thankamma Gregory - Respondent
Case No : CRP.No.2544 of 2002
Decided On : 02/03/2003
Advocates Appeared :
For the Petitioner: S.Sreekumar, Advocate. For the Respondent : R1 & R2 C.K.Aravindakasha Menon, Advocate. Basil Mathew, Sojo T.Kallidukkil, Advocates.

Headnote:

Kerala Buildings Act 1965 – Section 11(4)(iii) – Tenant – Alleged - According to petitioners building has been subleased in favour of respondents - It is further stated that second petitioner needs building for his own occupation - Other grounds urged are that tenant has got another building in his possession – Held, below that building is required for bona fide use of second petitioner is not correct - Present building in which he is residing does not belong to him absolutely. Hence, contention that he has to stay there cannot be said to be without any basis - So far as claim under S.11(4 Act is concerned couirt agree with courts below in ordering eviction - On whole court find that Appellate Authority's order is not liable to be interfered with – Petition dismiised

Judgment :-

Sankarasubban, J.

Petitioner is the tenant. Revision is filed against the judgment in R.C.A No.19 of 2002 of the District Court Ernakulam. The District Court confirmed the order of eviction under section 11(3), 11(4)(i) and 11(4)(iii) of the Kerala buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The order of eviction passed by the rent Control court under Section 11(4)(vi) was set aside. It is against that the present revision is filed.

2. We shall refer to the array of parties as in Rent Control petition. The first petitioner is the mother of the second petitioner. The second petitioner is of unsound mind and is represented by guardian, his wife. The Rent Control Petition was filed for evicting the first respondent, who took the building on rent. According to the petitioners, the building as been subleased in favour of respondent 2, 3 and 4. It is further stated that second petitioner needs the building for his own occupation. The other grounds urged are that the tenant as got another building in his possession.

3. The main case submitted by the petitioners is that the second petitioner is unsound mind. In the present building, he is staying along with his brother, who is also of unsound mind. The present building is not convenient for the continued residence of the petitioners. It has become dilapidated. Further, all the family members are not able to pull together. So far as sublease is concerned, what is urges is that portion of the building had been subleased by the tenant in favour of respondents 2, 3 and 4. Second respondent is conducting a restaurant called "Copper Chimney Restaurant". Third respondent is conducting an office of the Ernakulam District Head Load and Workers Union (C.I.T.U) and the fourth respondent is conducting a 'C' class shop. Another contention raised was that the first respondent has ceased to occupy the building for more than six months and hence he is entitled to be evicted under Section 11(4)(v) of the Act.

4. The tenant denied the contentions raised and submitted that there was no need for the second petitioner to shift the present house. He also denied subleased. So far as Section 11(4)(iii) of the Act is concerned, it is submitted that the building is not suitable for him.

5. With these pleadings, the parties went to evidence. On behalf of the petitioners, second petitioners wife was examined as PW1 and two other witnesses where examined as PW2 and 3. On behalf of the respondents, first respondent was examined as RW1 and two other witness where examined as RW2 and 3. Ext.A1 to A8 were marked on the side of the petitioners and Ext.B1 to B7 where marked on the side of the respondents.

6. We heard learned counsel for the petitioner Sri.S.Sreekumar and learned counsel for the respondents Sri. C.K. Aravindaksha Menon.

7. The main ground urged by the learned counsel for the petitioner is that the Appellate Authority has not appreciated the evidence adduced in the case. It has merely upheld the findings of the Rent Control Court. The main ground urged is that the matter should be remanded to the Appellate Authority. This was submitted because, according to the petitioner what this court should do under section 20 of the Act is to find out whether appreciation of evidence of the Authorities below is reasonable or not. It was further submitted that the ground on which eviction is ordered does not exists. According to us, the ground urged by the learned counsel for the petitioner cannot be accepted. What the Appellate Authority has done is that after going through the evidence it says that it agree with the findings of the trial court. We are of the view that in these circumstances, it is not correct to say that the Appellate court has not gone into the records. What it says is that the finding arrived at by the trial court is correct. We wish to further state that under Section 20 of the Act, we have got power to go through the evidence. Hence we went through th




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