IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 RCRev..No. 81 of 2008() ----------------------- RCA.21/2007 of III ADDL. DISTRICT COURT/R.C.A.A.,, KOLLAM RCOP.10/2005 of MUNSIFF COURT/R.C.C., KARUNAGAPPALLY .................... REVISION PETITIONER/APPELLANT/1ST RESPONDENT : ----------------- BASHEER, AGED 51 YEARS, S/O.LATE MOHAMMED KUNJU, KALLUMKANDATHIL VEEDU, KOLLAKA MURI, VADAKKUMTHALA VILLAGE, NOW PROPRIETOR HABEEB METALS,, PANMANA ROAD, EDAPPALLYCOTTA. (1ST RESPONDENT BEFORE THE RENT CONTROL COURT) BY ADV. SRI.BIMAL K.NATH SRI.S.JAMAL SRI.E.M.SUNIL KUMAR SMT.SMITHA DIVAKARAN RESPONDENTS/RESPONDENTS/ PETITIONER & 2ND RESPONDENT: ------------- 1. ABDUL SALAM, S/O.IBRAHIMKUTTY, ARATTUPUZHA VEEDU, MIDAPPALLY MURI, PANMANA VILLAGE, KOLLAM DIST. (PETITIONER BEFORE THE RENT CONTROL COURT) 2. ASOKAN, THODILETHU VEEDU, KESAVAPURAM MURI, AYANIVELIKULANGARA VILLAGE, NOW PROPRIETOR V.J.ELECTRONICS, PANMANA ROAD, EDAPPALLYCOTTA, KOLLAM DIST. (2ND RESPONDENT BEFORE THE RENT CONTROL COURT) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 25/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- R.C.R. NO. 81 OF 2008 ----------------------------------------- Dated 25th March, 2008. ORDER Balakrishnan Nair, J. The tenant is the revision petitioner. The landlord is the 1st respondent. The 2nd respondent was another tenant. He was occupying the adjacent room. The landlord sought eviction of both the rooms under Section 11(3) of the Kerala Building (Lease and Rent Control) Act (hereinafter referred to as the “Act”), by filing a common Rent Control Petition. The petitioner herein was running a business in the name and style “Habeeb Metals” and the 2nd respondent was running another business in the name and style “V.J.Electronics”. The landlord, who was employed in Bangalore, has come down to his native place. He has got married also. Therefore, he wanted to start a Computer Centre there. For that he requires the petition schedule shop rooms. Based on the above ground, eviction of the rooms were sought under Section 11(3) of the Act. The landlord also contended that the tenants do not depend upon the income derived from the RCR 81/2008 2 tenanted premises for their livelihood. There are other buildings available in the locality lying vacant to shift their business. 2. The tenants resisted the application, contending that the landlord is permanently settled in Bangalore and he is employed in a Pharmaceutical Company. The need urged is only a pretext to evict them. He has no knowledge of Computer Technology. They are mainly depending on the income from the tenanted premises. There are no other suitable buildings in the locality to shift their business. Before the Rent Control Court, Pws 1 and 2 were examined and Exts.A1 to A3 were marked from the side of the landlord. From the side of the tenants, Rws 1 to 4 were examined and Exts.B1 to B4 were marked. The Rent Controller allowed the application. It was found that the need urged by the landlord was bona fide. It was also held that the tenants are not entitled to get the protection of the second proviso to Section 11(3), though the finding on the first limb of the said proviso was in favour of the tenants. 3. The 2nd respondent did not file any appeal. The petitioner herein filed R.C.A.No.21/2007 before the appellate authority, challenging the order of eviction. Before the appellate authority, it was contended that the single R.C.P against two tenants was not maintainable. But, the appellate authority held that since the other tenant did not file any appeal challenging RCR 81/2008 3 his eviction, the said ground is no longer available. Other findings of the Rent Controller under Section 11(3) and the second proviso thereof were also affirmed by the appellate authority. Hence this revision. 4. The learned counsel for the revision petitioner submitted that the single petition filed to evict two tenants was not maintainable and therefore, the R.C.P should have been dismissed. We notice that by the filing of the single petition no prejudice has been caused to the revision petitioner. Further, the appellate authority found that since the other tenant did not file any appeal, what remains is only the challenge from the side of the revision petitioner. Therefore, no conflict of interests arises while prosecuting the appeal. On that ground the contention regarding the maintainability of the single R.C.P was rejected. We notice that since no prejudice has been caused to the petitioner, the technical contention has been rightly rejected by the appellate authority. 5. Secondly, it was contended by the petitioner that the finding on the second limb of the second proviso to Section 11(3) is unsustainable. The room stated to be available was not suitable for shifting his business. The case of the revision petitioner was that no room was available in the locality. But, the landlord examined the Secretary of the local Grama Panchayat and proved through him that a room is available in the Panchayat RCR 81/2008 4 Shopping Complex at Edappallycotta. The learned counsel for the revision petitioner submitted that the said room is not suitable for shifting the petitioner's business. It is a point, which should have been proved by the revision petitioner tenant. But, no evidence has been let in on this aspect. Apparently, it was for the reason that according to the tenant no room was available in the Panchayat Shopping Complex. Therefore, the above contention of the learned counsel for the revision petitioner cannot be accepted. In the result, the R.C.R. Fails and it is dismissed. 6. The learned counsel for the revision petitioner prayed for some time to vacate the premises. Having regard to the facts of the case, the revision petitioner is granted six months' time from today to vacate the premises, on condition that he files an unconditional undertaking in the form of an affidavit before the execution court, undertaking to vacate the premises within six months from today. The undertaking in this regard shall be filed within three weeks from today. He shall also pay the arrears of rent, if any, within one month from today. The rent due from time to time shall RCR 81/2008 5 also be paid till the room is vacated. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/