IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH SEPTEMBER, 2009 / 7TH ASWINA, 1931 R.C.Rev..No. 185 of 2009(B) (Judgment dtd.7.7.2009 of Addl.Rent Control Appellate Authority, Alappuzha from the order dtd.21.6.2007 in RCP No.14/06 of Rent Control Court, Alappuzha) REVISION PETITIONER/APPELLANT/COUNTER PETITIONER: -------------------------------------------------------------------------------------- K.ISMAIL KUNJU AGE 59 YEARS, KATTUNKAL VEEDU, THONDANKULANGARA WARD, AVALUKUNNU PO, ALAPPUZHA BY ADV. M/S.VARGHESE & JACOB RESPONDENT/RESPONDENT/PETITIONER: ------------------------------------------------------------ ANCY ROY, W/O. P.C.ROY, AGED 54 YEARS PALATHRA HOUSE, MULLACKAL VILLAGE, MULLACKAL WARD, ALAPPUZHA MUNICIPALITY, ALAPPUZHA. BY ADV.SRI.R.AZAD BABU. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON 29/09/2009 PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. --------------------------------------------- R.C.R.No. 185 of 2009- B with Caveat O.P.No.621/2009 --------------------------------------------- Dated this the 29th day of September, 2009 O R D E R Mohanan,J: This Rent Control Revision petition is preferred by the tenant who is the respondent in the Rent Control Petition (R.C.P) No.14 of 2006 before the Rent Control Court, Alappuzha preferred by the landlady, the respondent herein for own occupation under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). 2. After trial, the Rent Control Court had held that the petitioner therein is entitled to get an order of eviction under Section 11(3) of the Act, which finding and order of eviction was confirmed by the Additional Rent Control Appellate Authority, Alappuzha on an appeal R.C.R. NO.185 of 2009 :-2-: preferred by the petitioner herein. Hence, this Rent Control Revision petition. 3. We have heard Sri. Jacob Varghese, learned Senior Counsel appearing for the revision petitioner and also Sri.Azad Babu, counsel appearing for the respondent. 4. According to the landlady, the petitioner herein was in possession of petition schedule building as a tenant by executing an agreement dated 8.11.2004 for a monthly rent of Rs.300/-. Mr.Midhun Roy, the youngest son of the landlady is a dependent and he is conducting a business establishment viz., Palathara Communications Ltd. as a franchisee of M/s.Idea Mobile Communications Ltd. at Alappuzha in a rented building owned by one G.Jolly Lakshmy. According to the respondent/ landlady, the space available at the rented building is inadequate and M/s.Idea Mobile Communications R.C.R. NO.185 of 2009 :-3-: Ltd. asked the respondent's son to expand the business by moving into a more spacious room at a more important locality. There is also a case for the respondent-landlady that the landlord of the said building was also demanding vacant possession of that building as the period of tenancy was over. Thus, it is the specific case of the respondent that the petition schedule building is really required by the respondent-landlady to conduct the business of her son-Midhun Roy, who is dependent on her. It is also the case of the respondent that she is not in possession of any other vacant shop room. It is the further case of the respondent-landlady that her son is also in possession of three cents of property and two small rooms adjoining on the north of the property where the petition schedule building is situated. The petitioner herein did not vacate the premises in spite of notice dated 26.9.2005 and R.C.R. NO.185 of 2009 :-4-: hence, the respondent-landlady approached the Rent Control Court. 5. The revision petitioner/tenant challenged the gift deed relied on by the landlady and also contended that the landlady's son Sri.Midhun Roy is not her dependent and he is in possession of his own building. It is also contended that one of the rooms owned by the son of the landlady is used as service centre for mobile handsets and the landlady's father is in possession of another building on the eastern side. It is also contended that the room, where the service centre is being functioned, is sufficient for the business of the respondent's son. 6. In the trial court, evidences were adduced from both sides and four issues were framed by the Rent Control Court for its decision on the basis of the evidence and rival pleadings. After appreciation of evidence on record, the Rent Control Court had R.C.R. NO.185 of 2009 :-5-: found that the tenant has no case that the landlady is in possession of other suitable vacant building. It was also found that there is no evidence to show that either the landlady or her son is in possession of vacant shop building. The Rent Control Court had also found that it is for the tenant to prove that the need put forward by the landlady is not bona fide, that he is solely depending on the income from his business for his livelihood and that there is no suitable alternate accommodation available to shift his present business. According to the trial court, in this case, the tenant has not produced any evidence to prove that the income derived from the business being conducted in the petition schedule building is the only source of income. Thus, the Rent Control Court had specifically found that the tenant has failed to establish the ingredients of second proviso to Section 11(3) of the Act. The Rent Control Court R.C.R. NO.185 of 2009 :-6-: had specifically found that the landlady is entitled to get an order of eviction under Section 11(3) of the Act and accordingly, the Rent Control Petition was allowed directing the revision petitioner herein/tenant to put the respondent herein/landlady with vacant possession of the petition schedule building within one month from the date of the order failing which the respondent herein/landlady can enforce the order and get vacant possession of the building. 7. Though an appeal as R.C.A.No.2 of 2008 was preferred by the tenant before the Additional Rent Control Appellate Authority, Alappuzha by judgment dated 7.7.2009, the appeal was dismissed by the Appellate Authority confirming the finding of the Rent Control Court. The Rent Control Appellate Authority found that the son of the landlady is her dependent and the petition schedule building was R.C.R. NO.185 of 2009 :-7-: required for the business of her son. It was also found that the tenant has not shown that the business done by him is the only source of income for his livelihood. He had also failed to show that no suitable building is available in the locality. Thus, the Lower Appellate Authority has dismissed the appeal, confirming the factual finding of the Rent Control Court. 8. The learned Senior Counsel, vehemently, argued that the respondent is neither the landlady nor the owner of the petition schedule building and therefore, on that sole ground, the Rent Control Petition ought to have been dismissed. It is also the specific case of the counsel that all, who claim to be the landlord under Section 11(3) of the Act, are not entitled for claiming eviction for bona fide need for own occupation. So, according to the learned counsel, Section 11(3) of the Act is not attracted. R.C.R. NO.185 of 2009 :-8-: The learned Senior Counsel argued that the landlady has miserably failed to prove the bona fide need. It is also the case of the learned counsel that the respondent/landlady has miserably failed that her son is solely depending on her for the building. 9. We have carefully considered the contentions advanced by both counsel appearing in the Rent Control Revision Petition and all such contentions are based upon the facts involved in the case. 10. The courts below had concurrently found in favour of the respondent on facts, that too after appropriate appreciation of evidence and materials on record. We find no reason to interfere with the concurrent finding of courts below, on such factual finding and to take a different view. 11. Finally, the learned Senior Counsel for the revision petitioner submits that the petitioner is in R.C.R. NO.185 of 2009 :-9-: possession of the petition schedule building for several years and he is depending on the income derived from the provision shop conducted in the building for his livelihood and time may be granted to surrender the petition schedule building. Having regard to the facts and circumstances involved in the case, we grant time to the revision petitioner/tenant to surrender the vacant possession of the petition schedule building up to 31st January,2010. The revision petitioner is directed to execute a kaichit before the Rent Control Court that he will pay the rent till 31.1.2010 and put the landlady with vacant possession of the petition schedule building on 1.2.2010. The kaichit shall be executed within one month from today failing which respondent-landlady can enforce the order of the Rent Control Court and get vacant possession of the building. R.C.R. NO.185 of 2009 :-10-: This Rent Control Revision is disposed of as above. C.N.Ramachandran Nair, Judge. V.K.Mohanan, MBS/ Judge. R.C.R. NO.185 of 2009 :-11-: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. --------------------------------------------------- I.T.A.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -9-2009 R.C.R. NO.185 of 2009 :-12-: