IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 RCRev..No. 41 of 2009() ----------------------- AGAINST THE ORDER IN RCP. 13//2004 OF RENT CONTROL COURT, CHERTHALA RCP.5/2006 OF ADDL. RENT CONTROL APPELLATE AUTHORITY, ALAPPUZHA) .................... PETITIONER/APPELLANT/COUNTER PETITIONER ----------------------------------------------------------- V.J.GEORGE KUTTY, LEE AYURVEDA PHARMACY, C.M.C. IV, ROOM NO.123, CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ HEMALATHA UNNIKRISHNAN, HEMALAYAM, C.M.C.WARD NO.IV, CHERTHALA NORTH MURI, CHERTHALA P.O. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.S.A.ANAND THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07/04/2009, ALONG WITH RCR NO. 57 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.Nos.41 & 57 /2009 ------------------------ Dated this the 7th day of April, 2009 ORDER C.K.Abdul Rehim, J. These revision petitions are filed by tenants in RCP Nos.13/2004 & 14/2004 on the files of the Rent Control Court, Cherthala against a common order of eviction issued under Section 11 (3) of the Kerala Buildings (Lease & Rent Control) Act 1965, which was confirmed in the common judgment of the Rent Control Appellate Authority, Alappuzha in RCP Nos.5/2006 and 8/2006. The landlady sought eviction of the revision petitioners from the scheduled premises on the ground of bona aide need for her own occupation. The need projected is explained as follows: Her husband was employed in Gulf Countries and after coming back he started business in home appliance in a neighbouring room in the very same building. But, due to severe heart decease, he could not continue the business and the said room was let out to another tenant. Subsequently, he underwent heart surgery and he also developed problems for eye R.C.R.Nos.41 & 57/2009 2 sight. At present she has no means for livelihood of her family and to meet the expenses for her husband's treatment. Therefore, the landlady is intending to start business in making of ready made garments and a tailoring unit in both the scheduled rooms. 2. The revision petitioners/tenants, resisted the Rent Control Petitions contending that the need projected by the landlady is not true and genuine. According to the revision petitioners, after sending the lawyer notice on 1/3/2004, another room bearing No.122 situated in the same building, which was occupied by a tenant viz. Sri. K.Satishkumar, came into her vacant possession on 3/3/2004. It is alleged that the landlady had let out the said room on the very next day, i.e. on 4/3/2004 itself, to a person named Sri. D.Shabimon. Therefore, the need put forward by the landlady is false and it is only a pretext to evict the tenants. 3. We heard Mr.J.Omprakash and Mr. R.Azad Babu, learned counsel appearing for the revision petitioners and R.C.R.Nos.41 & 57/2009 3 Mrs.N.Santha, learned counsel appearing for the respondent/landlady. The counsel for the revision petitioners vehemently argued that the fact brought out in evidence regrading the letting out of the 3rd room in the very same building, after causing the lawyer notice, ought to have been considered by the courts below to refuse eviction sought under Section 11 (3). According to them, the fact that the landlady has let out the said room to another person, without attempting to accomplish her need, will cut the root of her bonafides and genuineness of the need urged. 4. On an evaluation of the evidence, we notice that the landlady, when examined as PW-1 gave evidence that, Sri.Shybi Divakaran had started business in the above said room on 5/4/2004. According to her, the said room was occupied by a person doing lottery business and that he only arranged the lease with Sri.Shybi Divakaran. The deal was between the person, who conducted the lottery business and Sri.Shybi Divakaran is the deposition. She admitted that Shybi Divakaran had executed rent deed in favour of her. Sri.Shybi Divakaran was R.C.R.Nos.41 & 57/2009 4 examined as RW2 a witness on behalf of the tenants. He deposed that the room was taken on rent one month before the inauguration. According to him the arrangement was through a deal entered with Sri.Satheesan, who was conducting lottery business therein. He further stated that, the landlady was not having money to pay to Sri.Satheesan and therefore he paid the amounts due to Sri.Satheesan. 5. Based on the records, the revision petitioners pointed out that the Rent Control Court ordered production of the rent deed executed by the landlady with the above said Sri.Shybi Divakaran, through order in I.A.No.3970/2005. But instead of producing the same the landlady filed an affidavit stating that without consent of Sri.Shybi Divakaran, she is not in a position to produce the same. The revision petitioners contented that the courts below ought to have taken an adverse inference in this regard. The learned counsel for the respondent made the original of the said rent agreement available for our perusal. Recitals of the agreement shows that the room in question was let out to Sri.Shybi Divakaran on 4/3/2004. But the rent R.C.R.Nos.41 & 57/2009 5 agreement is silent with respect to the alleged deal between Sri.Shybi Divakaran and the former tenant Sri.Satheesan. 6. The fact that a third room in the building was let out by the landlady, after causing the lawyer notice and before filing of the Rent Control Petition is brought out in evidence. The question whether the said fact will enable the tenants to claim benefit under the first proviso under Section 11 (3) of the Act need be examined. There is no case for the tenants that as on the date of filing of the Rent Control Petition or as on the date of the order of eviction, the landlady was not in her possession of another building of her own. It is trite law through various precedents that in order to attract the first proviso, it should be proved that another building owned by the landlord/landlady should be in his/her possession as on the date of the order of eviction. Therefore, the eviction order in this case could not be assailed on the basis of the first proviso to Section 11(3). 7. The next question to be considered is whether the fact regarding alleged acquisition of possession of the third room, has any fundamental impact on the bonafides of the claim for own R.C.R.Nos.41 & 57/2009 6 occupation and on the genuineness of the need projected by the landlady. It is evident that the tenancy of the lottery business was determined on 3/3/2004 and the room was taken on rent by the new tenant on the next day itself. The said fact probabilize the case of the landlady that the subsequent tenancy was arranged only by the former tenant, and it was only a continuation of tenancy with change of the tenant. The reason for such an arrangement explained as the financial difficulty to pay off the liabilities due to the former tenant, seems to be more probable. It is common knowledge that in business parlance the existing tenants will find out new tenants to handover the premises, with knowledge and consent of the landlords, in order to facilitate immediate reimbursement of security deposit/advance rental due from the landlords. In such cases the transfer is effected directly between the former tenant and the new tenant, even though fresh rent chit/agreement is executed by the landlord with such new tenants. In such cases it could not be found that the premises had came into possession of the landlords, at their disposal. On an active consideration of the entire facts and evidence on record in this case we have to R.C.R.Nos.41 & 57/2009 7 conclude that letting out of the 3rd room had in no way be considered as an event having any fundamental impact to suspect the bonafides of the landlady for own occupation of the tenanted premises. 8. Yet another aspect to be considered is that, the consistent case of the landlady was that she need both the rooms scheduled in the RCPs for starting the avowed business. So even if one room was got vacant, she could not have started business therein because it is not sufficient to accomodate the business intended. Thus according to the landlady she had a special reason for not occupying room which became vacant after causing the notice. It is pertinent to note that, those reasoning are reiterated only by a witness examined on behalf of the tenants, who was not even declared hostile. Therefore, we are not in a position to arrive at any conclusion that because of the mere fact of letting out of the 3rd room to RW-2, the need projected by the landlady is not genuine or bona fide. In the attenuated jurisdiction of this court under Section 20 of the Rent Control Act, we are not proposing to interfere with the concurrent findings of facts arrived by the courts below in this R.C.R.Nos.41 & 57/2009 8 regard. Hence, we find no merits in the revision petitions and the same are dismissed. 9. The learned counsel appearing for the revision petitioners, lastly made an appeal for indulgence of this court for granting reasonable time for them to vacate the tenanted premises. The above request was opposed vehemently by the learned counsel appearing for the respondent. However, considering the overall facts and circumstances, we are inclined to grant a reasonable time for the tenants to handover vacant and possession of the tenanted premises. In the result, the revision petitions are disposed of with the following directions ; 10. The Execution Court is directed to adjourn eviction of the tenants from the scheduled buildings in R.C.P.Nos. 13/2004 and 14/2004, till 8/12/2009, provided the revision petitioners/tenants in both these cases files an affidavit before that court undertaking to handover peaceful and vacant possession of the plaint schedule rooms to the landlady on or before 7/12/2009, and if they continue to pay the monthly rent with respect to the tenanted premises, falling due till such time, regularly without any default. The affidavit as stated above R.C.R.Nos.41 & 57/2009 9 should be filed on or before 30/5/2009. The revision petitions are disposed of accordingly. PIUS.C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk