IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 RCRev..No. 100 of 2003() ------------------------ RCA.25/2001 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT), MANJERI . RCP.4/2000 of RENT CONTROL COURT( MUNSIFF COURT), TIRUR .................... PETITIONER (RESPONDENT IN THE RCP-APPELLANT IN THE RCA) ------------------------------------------------------------------------------------------------ V.K.SAIDALAVI KOYA, S/O.ABDULKHADER HAJI, SOBHA TEXTILES, VALANCHERI, KATTIPARUTHI AMSOM AND DESOM, P.O.VALANCHERI, MALAPPURAM DISTRICT. BY ADV. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.JAYKAR.K.S. RESPONDENT(S): (PETITIONERS IN THE RCP-RESPONDENTS IN THE RCA) ----------------------------------------------------------------------------------------------------------- 1. ANWAR SADATH, S/O.PUTHANVEETTIL JAMALUDHEEN, KATTIPARUTHI AMSOM AND DESOM, P.O.VALANCHERI, MALAPPURAM DISTRICT. 2. RIYAZ, S/O.PUTHANVEETTIL JAMALUDHEEN, KATTIPARUTHI AMSOM AND DESOM, P.O.VALANCHERI, MALAPPURAM DISTRICT. 3. SHEMEERA, D/O.PUTHANVEETTIL JAMALUDHEEN, KATTIPARUTHI AMSOM AND DESOM, P.O.VALANCHERI, MALAPPURAM DISTRICT. 4. MUSTHAFA, S/O.PUTHANVEETTIL JAMALUDHEEN, KATTIPARUTHI AMSOM AND DESOM, P.O.VALANCHERI, MALAPPURAM DISTRICT. R.C.R. NO.100/2003 5. NAFEESA, WIDOW OF PUTHENVEETTIL JAMALUDHEEN, KATTIPARUTHI AMSOM AND DESOM, P.O.VALANCHERI, MALAPPURAM DISTRICT. 6. PATHUTTY UMMA, D/O.KALATHUMPADIKKAL ABDURAHIMAN, MOTHER OF PUTHANVEETTIL JAMALUDHEEN, KATTIPARUTHI AMSOM AND DESOM, P.O.VALANCHERI, MALAPPURAM DISTRICT. R1 BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10/09 /2009, THE COURT ON 17/05/2010 PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------- RCR No.100 of 2003 ------------------------------------------- Dated this the 17th day of May, 2010 ORDER SURENDRA MOHAN,J. The tenant, who has been ordered to surrender vacant possession of the petition schedule premises, upholding the need of the landlord under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act', for short), has filed this revision challenging the findings of the authorities below. 2. The brief facts of the case are as follows: The plaint schedule building originally belonged to late Jamaludheen, father of respondents 1 to 4, husband of the fifth respondent and son of the sixth respondent. After the death of Jamaludheen, the title to the plaint schedule property devolved on the RCR 100 of 2003 2 respondents. The petitioner is in occupation of the petition schedule premises as a tenant. The petitioner was sought to be evicted on the ground that the same was needed for the first respondent to start an STD Booth. The first respondent is alleged to be a handicapped person with no job or income. It is the further case of the first respondent that he is depending for his livelihood on respondents 2 to 6. The petition schedule building along with other properties have devolved on the legal heirs of Jamaludheen. The petition schedule premises was agreed to be allotted to the first respondent. However, the formal partition deed could not be executed because the fourth respondent was a minor. A formal partition deed would therefore be executed and registered immediately on the fourth respondent attaining majority. It is also stated in the RCR 100 of 2003 3 Rent Control Petition that there was another building that belonged to Jamaludheen, which was agreed to be allotted to respondents 2 to 4. In the Rent Control Petition, it is stated that the first respondent has applied for the allotment of an STD Booth in the special quota for handicapped persons. According to the respondents, the first respondent's intention was to start an STD Booth, footwear business and also a photostat business. According to the respondents, the other buildings which belonged to late Jamaludheen were situated in an unimportant locality in Valancherry Town. Therefore, there is a special reason for demanding vacant possession of the petition schedule room. There is also a further allegation that the tenant had demolished the partition wall separating the two rooms occupied by him and thereby, he had reduced the value and RCR 100 of 2003 4 utility of the building materially and permanently. It is also alleged that the tenant was having another room in his possession that was reasonably sufficient to shift the business, that is being carried on in the petition schedule premises. Therefore, eviction was sought on the grounds under Sections 11(3), 11(4)(ii) and Section 11(4)(iii) of the Act. 3. The petition was resisted by the tenant alleging that the need projected was absolutely without any bonafides whatsoever. According to the tenant, the petition schedule premises which is 'L' shaped, was taken on rent from Abubacker Kunhi and Jamaludheen. One portion of the room faces the road on the southern side and the other portion faces the road on the eastern side. The room was taken on rent for the purpose of conducting textile business and the said business was being conducted since RCR 100 of 2003 5 8.2.1998. According to the tenant, the petition schedule premises is only one part or a portion of the building that was entrusted to him and therefore, a Rent Control Petition for partial eviction was not maintainable. It was also contended that the petition, without impleading Abubacker Kunhi or his assignees was not maintainable. The tenant contended that Jamaludheen was the owner of another building consisting of four rooms that is owned and possessed by the respondents who succeeded to the same on his death. The respondents were also having a business in wholesale and retail groceries, which was being conducted by them under the name and style "Bismi Traders". They contended that four rooms owned by Jamaludheen were lying vacant. Therefore, they disputed the bonafides of the need that was put RCR 100 of 2003 6 forth. The grounds under Section 11(4)(ii) and 11(4) (iii) were also disputed by the tenant. 4. The parties went to trial on the above pleadings. The first respondent was examined as PW1 and the second respondent was examined as PW2. The tenant examined himself as RW1. Exts.A1 to A11 documents and Exts.C1 and C2 Commission Reports were marked in the case. 5. The Rent Control Court, after considering the contentions of the parties and in the light of the evidence on record, found that the grounds under Sections 11(4)(ii) and 11(4)(iii) of the Act were not made out. However, the Rent Control Court found that the respondents were entitled to get an order of eviction under Section 11(3) of the Act. The revision petitioner/tenant challenged the order of the Rent Control Court before the Rent Control Appellate RCR 100 of 2003 7 Authority, Manjeri in RCA No.25 of 2001. The Rent Control Appellate Authority considered the contentions of the parties and the evidence afresh and found that the order of eviction granted by the Rent Control Court under Section 11(3) of the Act was perfectly justified. Thus, the Appellate Authority confirmed the order of eviction passed by the Rent Control Court. The above revision is filed against the said concurrent findings of the authorities below. 6. The learned counsel for the revision petitioner/ tenant contended that the petition schedule premises was only part of a larger room of which one portion belonged to Abubacker Kunhi, while the other belonged to late Jamaludheen. Therefore, it is contended that partial eviction of the premises is not permissible. The contention is disputed by the counsel for the respondents pointing RCR 100 of 2003 8 out that the respective portions of the premises owned by Abubacker Kunhi and Jamaludheen were distinct and separate shop rooms, duly separated by a wall in between, which has been demolished by the tenant. However, it is pointed out that the rent in respect of both the rooms are paid separately by the tenant to the two different landlords. According to the counsel for the respondents, there is therefore no question of partial eviction in the present case. 7. It is further contended by the counsel for the revision petitioner that there are four vacant rooms in the possession of the landlords, which could be utilised for satisfying the alleged need of the first respondent. However, according to the counsel for the landlords, the said rooms are situate in a very unimportant locality at Valancherry, and were not suitable for the business that is proposed to be RCR 100 of 2003 9 started by the first respondent. It is the further contention of the revision petitioner that the first respondent was actually conducting the business of "Bismi Traders", which was a flourishing business and therefore the first respondent had no need to start any other business as alleged. 8. We have heard Sri.Sreekumar, the counsel for the revision petitioner and Senior Adv.Sri.Krishnanunni who appears for the respondents. We have anxiously considered the contentions of the parties. 9. Exts.A1 to A3 are the documents produced by the landlords to show that the first respondent had applied for the allotment of an STD Booth. Ext.A4 certificate issued by the Orthopedic Surgeon shows that the first respondent is a physically handicapped person. Ext.A2 shows that he is unemployed and RCR 100 of 2003 10 Ext.A3 is a direction to him to furnish security deposit for the allotment of an STD Booth. The Medical Certificate Ext.A4 further shows that the first respondent is physically handicapped to the extent of 80%. Exts.A1 to A3 clearly shows that all the preliminary works for getting an STD Booth sanctioned have been done by the first respondent. He has been examined as PW1 and his brother has been examined as PW2. The Rent Control Petition has been filed jointly by all the legal representatives of late Jamaludheen endorsing the need of first respondent. There is nothing wrong in the first respondent wanting to have a separate income of his own. The tenant has not been able to point out anything to show that the need was artificial or lacking in bonafides. Both the Rent Control Court as well as the Appellate Authority have found that the RCR 100 of 2003 11 need of the landlord is genuine. We do not find any reason to take a different view. 10. The counsel for the revision petitioner has strenuously contended before us that the first respondent was actively engaged in the business of "Bismi Traders" which was a flourishing business conducted by all the landlords, together. We are not persuaded to hold that participation in the family business would disentitle a landlord from successfully claiming vacant possession of a tenanted premises to start his own business. What is to be considered is whether the need put forward is genuine and bonafide. Since the need in the present case has been found to be bonafide, even if the first respondent was actively involving himself in the business of "Bismi Traders" that would not affect the bonafides of his need in any manner. RCR 100 of 2003 12 11. The learned counsel for the revision petitioner has taken strong exception to the findings of the authorities below on the question of granting protection of the first proviso to Section 11(3) of the Act to the tenant. According to the counsel, the landlords were in possession of four shop rooms by the side of Koppam Road. However, the allegation that the said rooms are vacant is seriously disputed by the counsel for the landlords. It is pointed out that Exts.A6 to A10 documents, extracts of the Building Tax Assessment Register maintained by the Valancherry Grama Panchayat, show that the said buildings are occupied by other tenants. It is also pointed out that the said rooms are at a less important location and that the said shop rooms are not suitable for the business that was proposed to be started by the first respondent. It is also contended RCR 100 of 2003 13 that the said rooms are allotted to other sharers in the family partition. 12. As found by the authorities below, Exts.A6 to A10 show that the buildings pointed out by the tenant are occupied. The special reason that is put forward by the landlord for not occupying the said rooms have also been found to be justified by the authorities below. The nature of the business to be started in the plaint schedule shop rooms being an STD Booth, location in an important locality of the Town is a vital factor. Therefore, we do not find any reason to differ from the views of the authorities below on this aspect also. The special reason that is put forth for not occupying the said shop rooms, has been pleaded and proved by the landlords as required by the proviso to Section 11(3) of the Act. In view of the above, we do not find any ground to RCR 100 of 2003 14 interfere with the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority. Therefore, we confirm the finding of the said authorities that the landlords are entitled to an order of eviction under Section 11(3) of the Act. In view of the above the Rent Control Revision fails and is dismissed. 13. As a last submission, the counsel for the revision petitioner/tenant requested for some time to vacate the tenanted premises. According to him, at least one year's time is required for him to find some other accommodation for him to shift. The grant of such a long period of time to vacate is opposed by the counsel for the landlords. Having considered the rival contentions of the counsel, we are of the opinion that time up to 30.6.2010 could be granted to the tenant to surrender vacant possession of the RCR 100 of 2003 15 premises, subject to appropriate conditions. 14. The Rent Control Revision is accordingly dismissed, however, the tenant is granted time subject to the following conditions: i. The tenant shall be granted time up to 30.6.2010 to surrender vacant possession of the tenanted premises to the landlord. The tenant shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within a period of one month from today unconditionally, undertaking to surrender vacant possession of the tenanted premises to the landlord on or before 30.6.2010. ii. The tenant shall pay all arrears of rent due in respect of the premises to the landlord and shall continue to pay the rent in RCR 100 of 2003 16 respect of the premises at the current rate regularly till he surrenders vacant possession of the premises. iii. The landlord shall be free to execute the order of eviction passed against the tenant, in the event of default of any of the above conditions. In the facts and circumstances of the case, there will be no order as to costs. PIUS C.KURIAKOSE, JUDGE K.SURENDRA MOHAN, JUDGE css/ RCR 100 of 2003 17