IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 RCRev..No. 402 of 2006() ------------------------ RCA.146/2005 of RENT CONTROL APPELLATE AUTHORIYT ,KOZHIKODE RCP.136/2003 of ADDL.M.C.,KOZHIKODE-I .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------------------------- AYIROLI HAMEED, S/O.KUNHAMED, AGED 55 YEARS, BARBER, KONGANNUR PO, AATHOLY, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): PETITIONER/PEITIONER ----------------------------------- KOYYAPURATH KUNIYIL BHASKARAN, S/O.SAMI, AGED 67 YEARS, P.O.THALAKULATHUR, KOZHIKODE. ADV. SRI.A.K.SRINIVASAN FOR R1 SRI.A.S.BENOY FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No.402 OF 2006 ------------------------ Dated this the 7th day of February, 2011 O R D E R Balakrishnan, J. The order of eviction passed under Section 11(3) of Act 2 of 1965 is challenged in this revision. The need projected by the landlord is that he bona fide needs the petition schedule building to accommodate his son PW2, who was aged about 42 years to start business in sale of eggs. The landlord contended that PW2 is not having any job or avocation and as such he has to be accommodated in the petition schedule building for conducting the proposed business. 2. The plea raised by the landlord was resisted by the tenant contending that the need projected is only a ruse for eviction and that the landlord is having so many buildings and other properties and that his son PW2 is also doing business and as such there is no necessity for PW2 to start business as alleged in the petition. 3. The Rent Control Court found that the need urged by RCR.No.402/2006 2 the landlord is not true and hence claim was rejected. In appeal, the learned Appellate Authority reappraised the evidence and found that PW2, for whose need the petition schedule building is required, is not having any job or other business. The contention that the landlord is having another building where he can accommodate PW2 was found against. The learned Appellate Authority found that the tenant, who was examined as RW1, is depending mainly on the income derived from the business. However, it was found that the tenant could not prove the second limb of the second proviso to Section 11 (3) of the Act. Thus, order of eviction was passed by the learned Appellate Authority finding that the need urged by the landlord is genuine and honest. 4. Sri.K.M.Firoz, learned counsel for the revision petitioner assails the finding of the learned Appellate Authority contending that the evidence given by PW1 himself would show that there was a coconut husk mill which was stated to have been originally used by PW1. But, later it was closed down. According to the tenant/revision petitioner, the coconut husk mill is actually being conducted by PW2 and so he is not a person RCR.No.402/2006 3 having job or avocation. The alleged innconsistency in the evidence given by PW1 with regard to the conduct of business in the name of 'Bhas' bankers has been pointed out. According to the landlord, this business is being run by Sajeev another son of PW1. The fact that PW1 and PW2 could not state in whose name the licence of Bhas bankers stands will not in any way run counter to the case put forward by the landlord regarding the need projected in this case. So many questions were asked regarding other landed properties which belonged to PW1. Though there may be evidence to show that PW1 is having other landed properties, there is no evidence to show that PW1 is having any other vacant building of his own in the same town or village so as to accommodate PW2. 5. The only other ground that has been projected by the tenant is that PW1 has stated that coconut husk mill is closed down. There is no cogent evidence regarding that effect. The tenant did not produce any document to show that coconut husk mill is actually being run by PW1. That is a point which the tenant could have established by producing documents regarding the same from the local authority/panchayat. No attempt was RCR.No.402/2006 4 made with regard to the same by the tenant. The landlord could not be asked to prove a negative thing that the business is not being conducted by PW2. If as a matter of fact, any such business was conducted by PW2, that could have been easily proved by the tenant. Therefore, it cannot be said that adverse inference can be drawn with regard to the same. 6. Sri.A.K.Srinivasan, learned counsel for the landlord also pointed out the fact that the evidence would show that the coconut husk mill is situated about 1 K.M. away from the petition schedule building. There is no case for the tenant that the coconut husk mill is situated in the very same town or village or is having road access. The learned counsel Sri.Srinivasan has also pointed out that coconut husk mill would naturally be situated by the side of the river or back waters and not in the town. The need put forward herein is to conduct business in eggs. It is too much for the tenant to dictate the landlord that his son should conduct such a business, at a place where the coconut husk mill is situated. There is no evidence to show that PW2 is having any other job or avocation for seeking out his livelihood. Hence it would be the honest desire of the father to RCR.No.402/2006 5 see that his son is provided with facilities to start a business. The learned Appellate Authority has analysed the evidence in the correct perspective. We do not find any reason to upset that finding. In short, the bona fide need urged by the landlord is true. The tenant could not prove that there are no other buildings available in the locality. Since the second limb of the second proviso to section 11(3) also is to be proved by the tenant and as he failed to do so, the order of eviction passed under Section 11(3) is only to be upheld. We do so. 7. Sri.Firoz, learned counsel for the tenant made a fervent request to grant one year's time to the tenant to vacate the petition schedule building. We also notice that the rent presently paid is only Rs. 42.50. It is seen to be too low. At any rate, if the petition schedule building is let out today, the same will fetch Rs.150/- per month. 8. The result therefore is as follows; i). The revision petition is dismissed. ii). The revision petitioner is granted time till 30/9/2011 to vacate the premises on condition that he files an affidavit before the Rent Control Court/Executing Court within three weeks RCR.No.402/2006 6 from today undertaking that he will surrender peaceful possession of the petition schedule building on or before 30/9/2011 from today and undertaking that the entire arrears of rent if any is also deposited in the court below within one month from today and undertaking further through the same affidavit that occupation charges at the Rate of Rs.150/- per mensem with effect from 1-3-2011 will be paid as and when the same falls due. We clarify that the tenant will get the benefit of time allowed as above, only if affidavit as directed above is filed and the undertakings therein are complied with. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk