IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 RCRev..No. 322 of 2010 --------------------------- RCA.59/2008 of II ADDL. RENT CONTROL APPELLATE AUTHORITY/ II ADDL.DISTRICT COURT,KOZHIKODE RCP.89/2006 OF ADDL. MUNSIFF/RENT CONTROLLER, KOZHIKODE .................... REVISION PETITIONER/1ST RESPONDENT IN RCA/1ST RESPONDENT IN RCP ------------------------------------------------------------------------------------ K.P.BHUVANENDRAN, AGED 52 YEARS, S/O.GOPALAN, KEERAMPALLI, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.N.M.MOHAMMED AYUB SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S)/APPELLANT AND SECOND RESPONDENT IN RCA/PETITIONER AND SECOND RESPONDENT IN RCP: -------------------------------------------------------------------------------------- 1. BILAVINAKATH SAHIDABI, AGED ABOUT 65 YEARS, W/O.KUNHAHAMED KOYA, "BAITHUL HAMD", PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK-670679. 2. PUSHPAVALLY, AGED 44 YEARS, D/O.APPUNNI NAIR, CHEMPAKKOOTTU, 22/117, 22/118, BEYPORE AMSOM, DESOM, KOZHIKODE TALUK-673015. ADV. SRI.KALEESWARAM RAJ FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/02/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.322 of 2010 ------------------------------------------------ Dated this the 17th day of February, 2011 ORDER Balakrishnan, J This revision is filed by the tenant challenging the order of eviction passed against him under Section 11(3) of the Act. The case pleaded by the landlady can be stated thus:- 2. The petition schedule building is situated in the ground floor of the building. Her daughter Sajida is residing in the upstair portion of the building. Sajida's husband has almost deserted her. In order to enable her to eke out her livelihood, Sajida intends to start tailoring work in the petition schedule building. Hence, to accommodate Sajida who is a dependant on the landlady, she (the landlady) bona fide needs the petition schedule building. R. C. R. No.322 of 2010 -2- 3. The claim for eviction was resisted by the tenant contending that the need urged by the landlady is not bona fide. It was inter alia contended that the landlady is in possession of another building (shop room) situated adjacent to the petition schedule room and that room is reasonably sufficient for the landlady to accommodate Sajida to conduct the tailoring work, if she actually intends to start a tailoring shop. 4. After analysing the evidence adduced by the parties, the learned Rent Controller found that the landlady is having in her possession a room bearing Door No.22/115 and as such, the claim put forward by the landlady is unsustainable in view of the first proviso to Section 11(3). Hence, the RCP was dismissed. 5. The learned Appellate Authority on a re-appraisal of the evidence found that the room bearing No.22/115 was not lying vacant, but was in the possession of the landlady's R. C. R. No.322 of 2010 -3- son Munuver Ahammed who was conducting 'fast food' business in the name and style “Mannus Hotel”. It was thus found that the first proviso to Section 11(3) has not been established by the tenant so as to dis-entitle PW1, the landlady to get eviction under Section 11(3) of the Act. It was held that the tenant is not entitled to the protection under the second proviso to Section 11(3) as it was found that the tenant is conducting business in another building also. The two ingredients required for getting protection under the second proviso could not be established by the tenant. Since the bona fide need urged by the landlady was found to be genuine and honest, eviction was ordered under Section 11(3). 6. Sri.N.M.Mohammed Ayub, the learned counsel for the revision petitioner/tenant submits that it was the consistent case put forward by the revision petitioner even in the reply notice that the room bearing No.22/115 was R. C. R. No.322 of 2010 -4- lying vacant and so in view of the first proviso to Section 11 (3) the claim for eviction under Section 11(3) cannot be sustained. Sri.Mohammed Ayub has also relied very much on the alleged admission made by PW1 to the effect that her son Munuver Ahammed used to be in the business premises of Mr.Abdul Majeed situated at another place. But Sri.Kaleeswaram Raj, the learned counsel appearing for the landlady would submit that there is no admission to the effect that Munuver Ahammed is conducting any business in the building belonging to Majeed. If at all the admission is only to the effect that Munuver Ahammed used to be seen in the shop of Majeed, but that is no admission to the effect that Munuver Ahammed was actually seen conducting business therein exclusively so as to hold that Munuver Ahammed was not conducting business in “Mannus Hotel”. 7. A direction was issued by this Court on 01/02/11 enabling both sides to get the certified extracts of the R. C. R. No.322 of 2010 -5- licence issue register (D & O Register) maintained by the Secretary, Kozhikode Corporation in respect of the building bearing No.22/115 for the period from 31/03/06 till 01/04/07. Pursuant to the direction so issued, the learned counsel for R1 landlady has produced before this Court the extract of the licence register and also the licence fee receipts for the relevant period. These documents would prove that Munuver Ahammed mentioned earlier is conducting business in fast food in Mannus Hotel. Since all these receipts and extracts of the register would show that Munuver Ahammed was conducting business in fast food in the building bearing No.22/115 it is idle for the tenant to contend that Munuver Ahammed was not conducting any business in “Mannus Hotel” bearing No.22/115. That will demolish the case of the tenant that building bearing No.22/115 was lying vacant at the time of filing of the RCP and even thereafter. It is also pointed out by R. C. R. No.322 of 2010 -6- Sri.Kaleeswaram Raj that though in the objection statement it was contended by the revision petitioner that room bearing No.22/115 was lying vacant, no commission was taken out to show that the building was lying vacant. That also is an added circumstance to negative the plea raised by the revision petitioner that the said building was lying vacant. 8. Since Sajida who is a dependant on PW1 has testified before court that she intends to start tailoring business for eking out her livelihood and since PW1 the landlady has supported that evidence, both the authorities came to the conclusion that the need put forward by the landlady is bona fide. As stated earlier, the revision petitioner could not prove that he is entitled to the protection under the second proviso to Section 11(3). As such, the order of eviction passed by the learned Appellate Authority under Section 11(3) is to be confirmed. Therefore, R. C. R. No.322 of 2010 -7- the revision petition is dismissed. 9. In the course of the argument it was submitted by Sri.Mohammed Ayub, the learned counsel for the revision petitioner that Munuver Ahammed is actually working abroad and that the landlady has to be directed to file an affidavit to the effect that Munuver Ahammed is actually doing business here in order to ensure that the building bearing Door No.22/115 is actually occupied by Munuver Ahammed and that it is not lying vacant. The landlady can be directed to file affidavit before the execution court before ordering delivery of the petition schedule building. 10. Sri.Mohammed Ayub has also made a fervent request to grant the tenant at least one year time to vacate the petition schedule building. Considering all the aspects we are inclined to grant one year time to the revision petitioner/tenant to vacate the petition schedule building but on the following conditions:- R. C. R. No.322 of 2010 -8- 11. The revision petitioner shall file an affidavit within three weeks from today before the execution court or Rent Control Court, as the case may be, undertaking to surrender the petition schedule building peacefully to the landlady within one year from today and undertaking further that arrears of rent, if any, due as on date will be discharged within one month and further that he will continue to pay occupation charges at the current rate till the date of actual surrender of the building. We make it clear that the revision petitioner/tenant will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. The execution court will ensure that the landlady files an affidavit as mentioned in para-9 of this order before ordering delivery of the building. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.322 of 2010 -9-