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 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 RCRev..No. 59 of 2010() ----------------------- RCA.96/2003 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.16/2002 of RENT CONTROL COURT, THALIPARAMBA .................... PETITIONER/APPELLANT/RESPONDENT --------------------------------------------------- PARAPRATH MOOPANTAKATH MAMMED, S/O. MUHAMMED, BUSINESS, AGED 62 YEARS, PALAD ROAD, TALIPARAMBA AMSOM DESOM, TALIPARAMBA (P.O), KANNUR DISTRICT. BY ADV. SRI.P.BABU RESPONDENT(S): PETITIONER ------------------------- KUTTUKANTAKATH FOUSIOYA, D/O. KUTTUKANTAKATH SAFIA, 37 YEARS, TALIPARAMBA AMSOM, DESOM, KANNUR DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 59 OF 2010 ------------------------ Dated this the 23rd day of February, 2010 O R D E R Abdul Rehim, J. The respondent/tenant in R.C.P.16/2002 on the files of the Rent Control Court, Taliparamba, is in revision aggrieved by the concurrent orders of eviction issued under Section 11 (3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the 'Act'). The need urged under Section 11(3) is that the petition schedule building is required for bona fide own occupation of the landlady for the purpose of starting stationary business for her brother who is dependent on her for the same. It is also contended that the tenant is having other suitable rooms in his possession which he acquired possession even prior to and after taking the petition schedule room on rent and hence liable to be evicted under Section 11(4)(iii). The tenant resisted the petition contending that the need projected is not genuine and that the income derived from the business conducted in the petition schedule room is the main source of livelihood for his family and that suitable vacant RCR.No.59/2010 2 buildings are not available in the locality. The allegation that the tenant had acquired possession of other suitable buildings was also denied. 2. Evidence in the case consisted of oral testimony of PW1, brother of the landlady for whom the need is claimed and RW1, the tenant. Exts.A1 to A10 documents were marked on behalf of the landlady and Ext.B1 document was marked on behalf of the tenant. On appreciating the entire evidence on record, the Rent Control Court found that the need projected by the landlady is genuine and bona fide. On the facts it is found that, PW1 intends to start a stationary business in the petition schedule room and that he is dependent on the landlady for the said purpose. Even though the respondent raised a contention that the landlady is in possession of other rooms suitable for accomplishing the need, on an elaborate consideration of the evidence the Rent Control Court found that the revision petitioner was not successful in proving the same through any convincing evidence. 3. With respect to the second proviso to Section 11(3) the Rent Control Court found that apart from the oral assertions RCR.No.59/2010 3 the tenant had not produced any evidence to show that income derived from the business conducted in the petition schedule room is the main source of livelihood for himself and his family. Regarding availability of other suitable rooms in the locality, the Rent Control Court found that there is evidence to the effect that suitable other buildings are available in the locality and especially the landlady was successful in proving that the tenant himself has got other rooms in his possession. The Appellate Authority after elaborate reappraisal of the entire evidence on record, concurred with the findings rendered by the Rent Control Court and the eviction order under Section 11 (3) and 11 (4)(iii) was confirmed. 4. Heard Sri.P.Babu, learned counsel for the revision petitioner/tenant. It is pointed out that there is discrepancy in the pleadings and evidence before the Rent Control Court regarding the exact nature of business intended to be started by PW1 in the petition schedule room. It is pointed out that in a particular portion of the Rent Control Petition, the need projected is for starting 'grocery' business. But evidence adduced is to the effect that PW 1 is intending to start a 'stationery' business. RCR.No.59/2010 4 But as observed by the Rent Control Court, on a perusal of the Rent Control Petition, we notice that eventhough in one paragraph it is stated as grocery business, there is averment in the petition itself that schedule room is required for starting stationery business. However, PW1, who is none other than the person for whom the need is urged, had deposed in unequivocal terms that the schedule room is required for starting stationery business. Therefore, we find no merit in the contention that there is discrepancy with respect to the need projected. 5. Learned counsel for the revision petitioner vehemently contended that non examination of the landlady is fatal to the proof regarding genuineness of the need projected. We could not agree with, in view of the fact that PW1 was examined on behalf of the landlady. PW1 is the person for whom the need is claimed and he is the best person to spoke about genuineness and bonafides of the need . 6. With respect to the ground under Section 11 (4)(iii), it is noticed that both the courts concurrently observed that the landlady was successful in proving the ingredients. But the RCR.No.59/2010 5 Revision Petitioner argued that there is total misappreciation of evidence in this regard and that the rooms pointed out by the landlady are in the possession of tenants. Ext.A9 series are extracts of Building Tax Assessment Registers pertaining to Room Nos. 23/48, 49 and 50 which showed that the Rooms are occupied by tenants. But the tenant while examined as RW1 had deposed that room Nos.23/48 & 49 were occupied by one Sri.Subran and that he had vacated the said rooms. Eventhough it is stated that those rooms are now occupied by new tenants namely Balan and Narasimhan on executing 'kychits', the tenant had failed to produce those 'kychits' and not proved through any convincing evidence that those rooms are in actual occupation of tenants. Further, inspite of the contention that those rooms are not suitable for relocating the business conducted in the schedule room, no evidence with respect to suitability of those rooms was adduced by the tenant. 7. Sri.Babu, learned counsel for the revision petitioner, contended that Exts.A9 and A10 docuemtns were produced by the landlady only at the fag end of the trial and that the tenant could not adduce evidence through a commission inspection to RCR.No.59/2010 6 bring out unsuitability of the buildings pointed out therein. It is noticed that the landlady has taken specific contentions in the Rent Control Petition itself that the tenant had acquired possession of rooms in the very same locality. It was the burden of the tenant to establish that there exists special reasons for non-occupation of buildings, if any in his possession, for shifting of the business conducted in the scheduled premises. Since the tenant has not adduced any convincing evidence in this regard, we do not find cogent reason for reversing the findings under Section 11(4)(iii). 8. The findings of the courts below on the aspect of the 2nd proviso to Section 11(3) was strongly assailed by the Revision Petitioner contending that the availability of other buildings, proved in evidence through Ext.P8 extract of building tax assessment register has no relevance, because those buildings are situated in a different ward of the very same Municipality. We are in perfect agreement with the Rent Control Court's findings that the requirement is only to prove that there is availability of suitable buildings in the locality, no matter whether it is in a different ward or not. The statute does not RCR.No.59/2010 7 contemplates by using the word 'locality' in the 2nd proviso to section 11 (3) that it should be in the same Ward itself. Hence we do not find any infirmity with respect to the findings in this regard. 9. Under the above mentioned circumstances, we do not find any illegality, irregularity or impropriety with the finding arrived by the courts below, warranting interference under the contours of our revisional jurisdiction. Hence, the revision petition deserves no merits and the same is liable to be dismissed. 10. Sri.Babu, learned counsel for the revision petitioner, lastly sought indulgence of this court in granting one year's time to surrender vacant possession of the petition schedule building on the ground that the business conducted could not be stopped abruptly. Having considered facts and circumstances of the case, we are inclined to grant time till 31/8/2010 for the tenant to vacate the schedule premises, subject to the conditions enumerated below. 11. In the result, the Rent Control Revision is disposed of in the following terms; RCR.No.59/2010 8 i). While dismissing the Rent Control Revision, we grant time till 31/8/2010 to the revision petitioner/tenant to handover vacant and peaceful possession of the schedule building to the respondent/landlady, on condition of the revision petitioner filing an affidavit before the Execution Court undertaking to surrender vacant and peaceful possession on or before 31/8/2010 and also undertaking to pay arrears of rent if any due, within a period of one month from today. The tenant shall further undertake to pay occupational charges at the rate of the monthly rent prevailing, for the period till surrender of the schedule building. ii). The affidavit as directed above shall be filed within a period of one month from today. Iii). The Execution Court is directed to put off delivery of the schedule building till 1/9/2010, on noticing filing of the affidavit as well as payment of arrears of rent and occupational charges as directed above. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk