IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 R.C.Rev..No. 155 of 2011 -------------------------------------- RCA.1/2008 of DISTRICT COURT, THRISSUR RCP.31/2005 of MUNSIFF COURT,CHAVAKKAD .................... REVN.PETITIONER/2ND APPELLANT/2ND RESPONDENT: JOSE, AGED 55, S/O. EDAKALATHUR JACOB, THAIKKAD AMSOM DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENTS : RESPONDENTS AND APPELLANTS 3-5/ORIGINAL PETITIONER AND LEGAL HEIRS OF THE ORIGINAL FIRST RESPONDENT: 1. SHERIF, S/O. RAYAMMARAKKAR VEETIL MUHAMMED, THAIKKAD AMSOM, CHAVAKKAD DESOM, CHAVAKKAD TALUK-680 506. 2. ARIFF, S/O. RAYAMMARAKKAR VEETTIL MUHAMMED, THAIKKAD AMSOM, CHAVAKKAD DESOM, CHAVAKKAD TALUK-680 506. 3. BASHEER, S/O. RAYAMMARAKKAR VEETTIL MUHAMMED, THAIKKAD AMSOM, CHAVAKKAD DESOM, CHAVAKKAD TALUK-680 506. 4. SHAJAHAN, S/O. RAYAMMARAKKAR VEETTIL MUHAMMED, THAIKKAD AMSOM, CHAVAKKAD DESOM, CHAVAKKAD TALUK-680 506. 5. BERNADEETHA, D/O. EDAKALATHUR JACOB, THAIKKAD AMSOM DESOM, CHAVAKKAD TALUK-680 506. 6. MERCY, D/O. EDAKALATHUR JACOB, THAIKKAD AMSOM DESOM, CHAVAKKAD TALUK-680 506. 7. BRIJITHA, D/O. EDAKALATHUR JACOB, THAIKKAD AMSOM DESOM, CHAVAKKAD TALUK-680 506. ADV. SRI.RAJIT FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.155 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April 2011 ORDER Basheer, J. Petitioner is respondent No.2, the alleged sub lessee, in an eviction proceeding initiated by respondents 1 to 4 herein. Respondent Nos.5 to 7 are the sisters of the petitioner. 2. Eviction was sought by the landlords under Sections 11(2)(b), 11(3) and 11 (4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court ordered eviction under Sections 11(2)(b) and 11(3) of the Act; but held that the landlords did not succeed to establish that the tenant had sublet the building to the petitioner herein. Therefore, the prayer for eviction under Section 11(4)(i) of the Act was turned down. 3. The order of eviction under Sections 11(2)(b) and 11(3) of the Act was challenged by the petitioner herein and the legal representatives of the deceased tenant, who is none other than the father of the Revision Petitioner. But the appellate authority dismissed the appeal confirming the order passed by the Rent Control Court. Hence, this revision petition by the petitioner/second respondent. 4. The case of the landlords in brief was that PW1, who is respondent No.2 herein, wanted to start a business in the petition scheduled building in hardware and paints. He was earlier employed in the Middle East and now he has come back to the home country. He had no other building of his own in his possession for the said purpose, and no employment also. It was further contended by the landlords that other suitable buildings were available in the locality, if the tenant wanted to shift his business. It was further contended that the tenant was not depending on the income R.C.R.No.155 OF 2011 :: 2 :: that he was allegedly earning from the business that he was carrying on in the petition scheduled building. It was the further case of the landlords that the rent of the building had been kept in arrears willfully and that the tenant (respondent No.1 in the eviction petition) had subleased the building to respondent No.2 (revision petitioner). 5. PWs 1 and 2 were examined on the side of the landlords and Exts.A1 to A8 were marked. Revision petitioner was examined as RW1 and Exts.B1 to B9 were marked on the side of the tenant. The Rent Control Court found that the claim for eviction was bonafide and that no other building was available in the possession of the landlords to enable PW1 to start a business in hardware and paints. It was further found that the tenant had totally failed in proving that no other suitable building was available in the locality to shift his business or that he had been depending mainly on the income that he was deriving from the business that was being carried on in the petition scheduled building. As regards the first proviso to Section 11(3) also, the Rent Control Court found in favour of the landlords as indicated already. 6. The appellate authority reconsidered the entire matter in the light of the evidence available on record and concurred with the view taken by the Rent Control Court. 7. We have been taken through the materials available on record and the two orders impugned in this revision petition. Having done so, we do not find any reason to interfere with the concurrent order of eviction passed by the two authorities below. 8. It is vehemently contended by learned counsel for the petitioner that PW1, R.C.R.No.155 OF 2011 :: 3 :: in the course of his examination, had tacitly admitted that he had got another tenant evicted from R.V.Tower and that the said building had been let out to another tenant on higher rent. Learned counsel points out that this admission made by PW1 is fatal to the case set up by the landlords. 9. But it has to be noticed that nothing had been brought on record to show as to when the tenant in R.V.Tower was evicted and what was the enhanced rent for which it was let out by the landlords after getting vacant possession. Even assuming the building in R.V.Tower had been let out for higher rent by the landlords, it may only help the tenants to highlight the fact that there was no bonafide in the claim now made by the landlords for eviction. But the revision petitioner/tenant did not adduce any further evidence in this regard. Therefore, it cannot be assumed even for a moment that the claim made by the landlords for eviction is malafide. Similarly, it cannot be said that any other building was available with the landlord to accommodate the business of PW1. 10. As has been noticed already no evidence was adduced to show that the landlords had got any other vacant building in their possession. The two authorities below further noticed that the tenant had totally failed to establish that he was entitled to get the benefit of the second proviso to Section 11(3) of the Act. Significantly, the tenant had not adduced any evidence to show that he had been totally dependent on the income that he was getting from the business in the petition scheduled property. Similarly, he did not adduce any evidence to show that no other suitable building was available in the locality to shift his business. The two authorities below, in our view, were totally justified in ordering eviction under Section 11(3) of the Act. As far as arrears of rent is concerned, the two authorities R.C.R.No.155 OF 2011 :: 4 :: have concurrently found that the tenant had kept the rent in arrears. 11. Having perused the impugned orders, we do not find any reason to interfere with the concurrent order passed by the authorities below. Therefore, the petition is liable to be dismissed. 12. At this stage, Sri.Sreekumar, learned counsel for the petitioner submits that it may cause great hardship and injury to the petitioner, if he is thrown out of the building immediately. He points out that the business being carried out by the petitioner is of small magnitude and the petitioner may require some time to find an alternative accommodation. 13. Keeping in view the entire facts and circumstances of the case, we are satisfied that the petitioner can be granted time to vacate the premises till November 30, 2011. However, petitioner shall file an affidavit before the Rent Control Court within two weeks from the date of receipt of a copy of this order undertaking to give vacant possession of the building to the landlord, on or before November 30, 2011. He shall also deposit the entire arrears of rent along with the affidavit of undertaking and continue to deposit the monthly rent on or before 5th of every succeeding month. If the petitioner fails to file the undertaking and deposit the entire arrears of rent as directed above, the revision petition shall stand dismissed. Revision petition is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes