IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 RCRev..No. 92 of 2008() ----------------------- RCA.2/2006 of DISTRICT COURT, KASARAGOD RCP.3/2004 of MUNSIFF COURT, HOSDRUG .................... REV.PETITIONERS/APPELLANTS/RESPONDENTS. -------------------------------------------------------- 1. K.P.AFSATH HAJJUMMA, W/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. 2. K.P.ABDUL KHADER, S/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. 3. K.P.SHARAFUDDIN, S/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. 4. K.P.JAMEELA, D/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. 5. K.P.LAILA, D/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. 6. K.P.RAZEENA, D/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. 7. K.P.FAZEELA, D/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. 8. K.P.SHAJIDA, D/O. LATE K.HAMEED HAJI, RESIDING AT PALLIKKARA, NILESHWAR VILLAGE, HOSDURG TALUK, POST-NILESHWAR. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: RESPONDENTS/PETITIONERS. ------------------------------------- 1. T.C.AYISHA HAJJUMMA, W/O. LATE E.ABDUL RAHIMAN HAJI, RESIDING AT THALAKKALA HOUSE, KOTTAPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.NILESHWAR. 2. IBRAHIMKUTTY HAJI, S/O. LATE E.ABDUL RAHIMAN HAJI, RESIDING AT PADNEKKAD IN KANHANGAD VILLAGE OF HOSDURG TALUK, P.O.PADNEKKAD. 3. MUHAMMED SHAFI, S/O. LATE E.ABDUL RAHIMAN HAJI, RESIDING AT VALAPATTANAM, VALAPATTANAM VILLAGE, KANNUR TALUK, P.O.VALAPATTANAM. 4. ABDUL LATHEEF, DOCTOR, S/O. LATE E.ABDUL RAHIMAN HAJI, RESIDING AT THALAKKALA HOUSE, KOTTAPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.NILESHWAR. 5. ABDUL SHUCKOOR, S/O. LATE E.ABDUL TAHIMAN HAJI, RESIDING AT THALAKKALA HOUSE, KOTTAPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.NILESHWAR. 6. T.C.JAMEELA, D/O. LATE E.ABDUL RAHIMAN HAJI, RESIDING AT THALAKKALA HOUSE, KOTTAPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.NILESHWAR. 7. T.C.SAFIYA, D/O. LATE E.ABDUL RAHIMAN HAJI, RESIDING AT THALAKKALA HOUSE, KOTTAPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.NILESHWAR. 8. T.C.KUNHABDULLA, S/O. LATE E.ABDUL RAHIMAN HAJI, RESIDING AT THALAKKALA HOUSE, KOTTAPURAM, NILESHWAR VILLAGE, HOSDURG TALUK, P.O.NILESHWAR. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.92 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of May, 2008. O R D E R Ramachandran Nair, J. This revision petition is filed by the tenants in a rent control proceedings, aggrieved by the order of eviction passed by the Rent Control Court which stands confirmed by the Rent Control Appellate Authority. 2. The respondents herein are the landlords who sought eviction of the petitioners who are the legal heirs of the original tenant, late Shri Hameed Haji. Eviction was sought under Sections 11(2), 11(3) and 11(4) (v) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'). The Rent Control Court ordered eviction under Sections 11(2) and 11(3) of the Act. The prayer for eviction under Section 11(4)(v) of the Act was rejected. In appeal filed by the tenants, the Appellate Authority concurred with the above order of eviction passed by the Rent Control Court. 3. Learned counsel for the petitioners contended that the orders passed by the authorities below are totally perverse warranting interference by this court. It was argued that even though petitioners herein had specifically pleaded that the landlord is not entitled to get eviction in view RCR 92/2008 -2- of the first proviso to Section 11(3) of the Act, the said aspect was not considered by the Appellate Authority and by the Rent Control Court. It was contended that the landlord was already in possession of a room sufficient for his purpose at the time of filing the eviction petition and in the absence of any special reasons, going by the first proviso to Section 11(3) of the Act, the same will disentitle him from evicting the petitioners from the schedule room. 4. We have examined the above argument in the light of the facts pleaded and the evidence adduced by the parties. The petition schedule room belongs absolutely to the husband of the first respondent herein and the father of other respondents. The bonafide need alleged is for conduct of business by the second petitioner in the Rent Control Petition. It was specifically contended that he was conducting hill produce business in a room owned by another person and as demanded by the owner of the said room, he had surrendered the said room on 21.9.2002. Hence, he bonafide needs the petition schedule building for conducting hill produce business. The landlords also contended that the tenants have their own independent business in other places and they are not conducting any business in the petition schedule room after the death of the original tenant. 5. The tenants in their objections, contended that the second petitioner is in possession of a room where he is conducting his own business and he is also in possession of other rooms which are used for his RCR 92/2008 -3- business purposes. The tenants also pleaded that they are depending mainly on the income from the business in the schedule room for their livelihood. 6. A reading of the order passed by the Rent Control Court shows that the evidence adduced by the parties have been analysed in detail. It was found that the second petitioner in the eviction petition has already vacated the room in which he was conducting the business; that the evidence of P.W.1 shows that he has no other rooms in his possession and no specific suggestion was put to him regarding any other rooms in his possession. Therefore, in para 10 of the order, the Rent Control Court entered a clear finding that the petitioners/landlords are not in possession of any vacant room for starting the business by P.W.1. 7. A reading of the judgment of the Appellate Authority shows that the petitioners herein have not raised any specific contentions concerning the above aspect before it. It is clear that the said question was not specifically raised or argued before the Appellate Authority. Therefore, learned counsel for the petitioners was not right in finding fault with the Appellate Authority for not considering the above aspect. Apart from that, in the light of the clear finding rendered by the Rent Control Court in this regard, which is a finding of fact, we find that the said argument has no substance at all. We find that the petitioners did not put any specific suggestion to P.W.1 when he was examined and no independent evidence RCR 92/2008 -4- was adduced in support of the plea that the landlords are in possession of other rooms. Hence, the argument raised relying on the 1st proviso to Section 11(3) of the Act has no merit. 8. As regards the bonafide need alleged by the landlords , the evidence clearly established that P.W.1 for whose purpose the building was sought to be evicted, was conducting the business in hill produce in another room. He had to surrender that room on 21.9.2002 and thus had to close his business. The said aspect was admitted by R.W.1 in his deposition also. Therefore, there is nothing wrong in the bonafide need put forth by the landlords in seeking eviction of the tenants. We find, on a reading of the orders passed by the authorities below, that the entire aspects have been considered in detail and the view taken is perfectly justified on the pleadings and evidence adduced by the parties in this case. It requires no interference in this revision. 9. The next aspect is only regarding the benefit available to the tenants under the second proviso to Section 11(3) of the Act. The Rent Control Court, after analysing the oral and documentary evidence, has rendered a clear finding that some of the respondents (tenants) have got several rooms in their ownership and some of them have been let out the rooms and they have therefore alternate source of income for them by way of rent. They did not adduce any evidence to show that the quantum of rent they are getting is insufficient for their livelihood also. It was also observed RCR 92/2008 -5- by the Rent Control Court that the ownership of various buildings indicate the financial position of the tenants and accordingly the contention that they are mainly depending on the income from the petition schedule building for their livelihood, was rejected. The evidence of RW.1 also shows that in the year 2003-04 he had a turnover of Rs.2,15,00,000/- whereas his turnover in the petition schedule room as admitted by him, is between Rs.50,000/- to Rs.75,000/- per month. This aspect was also considered by the Rent Control Court to reject the contentions raised by the tenants. Further, RW.1 had been conducting an independent business in the name of S.K. Traders even before the death of his father and he further admits of having a business in hollow bricks and all these were considered by the Rent Control Court to reject the contentions raised by the tenants, rightly. Regarding the second limb of the second proviso to Section 11(3) of the Act also, it was found that some of the buildings occupied by the tenants are lying vacant and there was no proof also to the effect that there are no buildings available in the locality for them to shift the business. It was found that the tenants have not discharged the burden of proof regarding this aspect. 10. All the arguments raised have been properly considered by the Appellate Authority and the finding rendered by that Authority is also against the tenants. There are no grounds to interfere with the above findings also. RCR 92/2008 -6- Hence, the revision petition is dismissed. We grant three months time from today to the petitioners to vacate the premises on condition that they file an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of three months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. If any of the conditions aforesaid is violated, then the order of eviction will become enforceable at once. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/