IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 CRP.No. 2628 of 2002() ---------------------- RCP.96/1996 of I ADDL.M.C.,ERNAKULAM RCA.108/1999 of II ADDL.DISTRICT COURT,ERNAKULAM .................... REVN. PETITIONER(S): APPLT BEFORE APPLT AUTH/LANDLORD PETR BEFORE R.C.C ----------------------------------------------------------------------- SHRI.T.K.SOMAN, AGED 49, S/O.KRISHNAN, THACHARUPARAMBIL NADAMA, TRIPUNITHURA, KANAYANNUR TALUK. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY RESPONDENT(S): SOLE RESPT BEFORE APPLT AUTH & 1ST RESPT/TENANT IN RCC -------------------------------------------------------------- SHRI.VINNI, AGED 42, S/O MANI KALAMBATTEL HOUSE, AVOLI PANCHAYATH VAZHAKULAM VILLAGE, MUVATTUPUZHA TALUK. ADV. SRI.P.O.JOSEPH SRI.JOSE THOMAS MANAVALAN THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - C.R.P.NO.2628 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 ORDER Barkath Ali, J. Revision petitioner is the landlord/petitioner in R.C.P.No.96/1996 on the file of Additional Munsiff of Rent Control, Ernakulam and appellant in R.C.A.No.108/1999 on the file of Rent Control Appellate Authority and Second Additional District Judge, Ernakulam. 2. Revision petitioner filed the rent control petition before the Rent Control Court seeking eviction under Section 11(2) (b) and 11(3) of the Kerala Buildings ( Lease and Rent Control) Act 1965 ( herein after referred to as the “Act”) on the ground of bonafide own occupation and also on the ground of arrears of rent. This Rent control petition was jointly tried along with R.C.P.No.107/1996 filed by the same landlord against another tenant in respect of the adjacent room. The Rent Control Court by a common order dated August 31, 1999 allowed the petition under Section 11(2)(b) alone and rejected the CRP.No.2628/2002 2 claim of the landlord for eviction under Section 11(3) of the Act. The landlord filed appeal against the said order and the Rent Control Appellate Authority confirmed the order of the Rent Control Court. The landlord has now come up in revision challenging the finding of both the courts below regarding his bonafide need. 3. Before the Rent Control Court, landlord was examined as PW1 and Exts.A1 to A10 series were marked on his side. On the side of the tenant, Rws 1 and 2 were examined and Exts.B1 and B2 were marked. 4. Heard the counsel for the revision petitioner. Though notice was served on the respondent/tenant, he did not choose to appear. 5. The following point arises for consideration : Whether the finding of the Rent Control Court as well as the Appellate Authority that the landlord has failed to prove his claim for eviction under Section 11(3) of the Act can be sustained ? 6. Counsel for the revision petitioner argued that the Rent Control Court as well as the Appellate Authority rejected the claim of CRP.No.2628/2002 3 the landlord for eviction on the ground of bonafide need on the ground that landlord has disposed of some of his rooms cannot be sustained in the light of the decision of the Division Bench of this court in Manu & Another v. Bhanumathy & Others ( 2004(1) KLJ 459). 7. The case of the landlord was that he bonafide requires the room for using it as a store room and office-cum-shop room for the concrete materials manufactured by him. The tenant/revision respondent contended that the revision petitioner obtained two rooms adjacent to the petition schedule room and he sold the above rooms by sale deed No.3090/1995 dated July 14, 1995, which is admitted by the landlord. As PW1 he would say that he sold the rooms to raise funds to complete his residential building and that the present need occurred to him after the sale of the above rooms. 8. The Division Bench of this court in Manu & Another v. Bhanumathy & Others ( 2004(1) KLJ 459) has held that the mere fact that the landlord sold one of the rooms fell vacant to the tenant does not mean that there is no bonafides in the plea for evicting the tenant. It has been further held therein that even if the landlord had constructed CRP.No.2628/2002 4 any building in the property owned by him and rented it out to another tenant by itself is not a ground to hold that there is no bonafides. 9. Relying on the principles laid down in the above decision, we are of the view that merely because the landlord sold two rooms adjacent to the petition schedule shop room about one year prior to the filing of the rent control petition is not a ground for holding that there is no bonafides in the plea of the landlord for evicting the tenant. Therefore, we set aside the said finding of the Rent Control Court which is confirmed by the Rent Control Appellate Authority and held that the petitioner is entitled to evict the tenant under Section 11(3) of the Act. 10. The next point to be considered is whether the tenant is entitled to the protection under the second proviso to Section 11(3) of the Act. The Rent Control Court as well as the Rent Control Appellate Authority has found that he is not entitled to the said protection. That apart, when this revision petition came up for hearing, counsel for the revision petitioner/landlord submitted that he has already obtained vacant possession of the said shop room. Therefore, we also hold that CRP.No.2628/2002 5 the tenant is not entitled to the protection under the second proviso to Section 11(3) of the Act. In the result, revision petition is allowed. The impugned order of the Rent Control Court as well as the Rent Control Appellate Authority rejecting the claim of the landlord for eviction under Section 11(3) of the Act is set aside. Rent Control Petition is allowed and eviction is ordered under Section 11(3) as well as Section 11(2)(b) of the Act. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. CRP.No.2628/2002 6