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 8TH MARCH 2011 / 17TH PHALGUNA 1932 RCRev..No. 105 of 2011() ------------------------ RCA.9/2004 of DISTRICT COURT, KASARAGOD RCP.28/2011 of MUNSIFF COURT, HOSDRUG .................... REVISION PETITIONER/APPELLANT/RESPONDENT: P.KUNHIRAMAN, AGED 70 YEARS, S/O APPA ACHARY, SREEVINAYAKA ARCADE, KOTTACHERY, BELLA VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENTS/RESPONDENTS/PETITIONERS: 1. KALLIANIKUTTY AMMA,AGED 80 YEARS, W/O KODOTH NARAYANAN NAIR, KUTTIKOLE, KUTTIKOLE VILLAGE, KASARGOD DISTRICT- 671121. 2. PRABHAVATHY AMMA, D/O KODOTH NARAYANAN NAIR, KUTTIKOLE, KUTTIKOLE VILLAGE, KASARGOD DISTRICT- 671121. 3. RADHAKRISHNAN NAIR, S/O KODOTH NARAYANAN NAIR, KUTTIKOLE, KUTTIKOLE VILLAGE, KASARGOD DISTRICT- 671121. 4. DR.V.RAJAGOPALAN NAIR, S/O KODOTH NARAYANAN NAIR, KUTTIKOLE, KUTTIKOLE VILLAGE, KASARGOD DISTRICT- 671121. 5. DR.C.SARASWATHY, D/O KODOTH NARAYANAN NAIR, KUTTIKOLE, KUTTIKOLE VILLAGE, KASARGOD DISTRICT- 671121. 6. A.V.RAJESWARY, D/O C.MOHAN KUMAR, KUTTIKOLE, KUTTIKOLE VILLAGE, KASARGOD DISTRICT. ALL REP. BY POWER OF ATTORNEY HOLDER C.MOHAN KUMAR, S/O KODOTH NARAYANAN NAIR, KUTTIKOLE KUTTIKILE VILLAGE AND POST, KASARGOD DIST. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.105 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March 2011 ORDER Basheer, J. The tenant of a commercial building who is sought to be evicted under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 has filed this revision petition impugning the concurrent orders of eviction passed by the two authorities below. 2. Admittedly, petitioner was put in possession of the tenanted premises on a monthly rent of Rs.1300/- in the year 1993. Eviction proceedings were initiated by the landlords, since the petitioner/tenant had kept the rent in arrears and also for the bonafide own occupation of respondent No.6 herein who at that time was pursuing her studies for B.D.S. in a college at Mangalore. The specific case of the landlords was that respondent No.6 wanted to set up her Dental Clinic in the tenanted premises and that there was no other suitable building available with them to accommodate her. It was further pointed out that petitioner/tenant was not depending on the income from the tenanted premises and that other suitable buildings were available in the locality, if he wanted to continue his activity. It is on record that even after receipt of the statutory notice from the landlords, petitioner/tenant refused to remit the arrears of rent. He did not even send a reply to the statutory notice. 3. Before the Rent Control Court respondent No.6 was examined as PW2 and one of the landlords was examined as PW1. Exts.A1 to A8 were marked on the side of the landlords. Petitioner gave evidence as RW1 and one witness was examined on his side as RW2. Exts.x1 to x3 were also marked in the case. R.C.R.No.105 OF 2011 :: 2 :: 4. The Rent Control Court, after careful evaluation of the materials available on record, held that petitioner had kept the rent in arrears and also that the landlords had succeeded in proving the bona fide need. The Rent Control Court further held that the petitioner was not entitled to get the benefit of the second proviso to Section 11(3) as well. 5. The above order was challenged by the petitioner/tenant before the Rent Control Appellate Authority. But the appellate authority upheld the order passed by the Rent Control Court and dismissed the appeal. Hence this revision petition. 6. It is contended by Sri.Suresh Kumar Kodoth, who appears for the petitioner/tenant, that the two authorities below have committed serious illegality in failing to appreciate the oral and documentary evidence in their proper perspective. He submits that the authorities below had cast the entire burden on the petitioner on the first and second proviso. Similarly, the fact that the landlords had refused to accept the rent was not at all considered properly. 7. We have carefully gone through the impugned orders passed by the two authorities below and perused the materials available on record. Though the petitioner has vaguely contended that respondent No.6 was not undergoing any course in B.D.S. as alleged by her, it had come on record that she was in the 3rd year of her course of study when the petition for eviction was instituted. More importantly, respondent No.6 when examined before the court had asserted that she was about to finish her course. It is true that by the time the appeal was taken up before the appellate authority, she had completed her course and gone abroad to pursue higher studies after her marriage. But still the appellate authority held that it was not a reason to disallow the claim of the landlords. The authorities below have also considered the protection that is available to the tenant under the R.C.R.No.105 OF 2011 :: 3 :: second proviso to Section 11(3). Similarly, the authorities below also found that the petitioner had never bothered to remit the arrears of rent at any stage of the proceedings. 8. Having considered the entire materials available on record, we are totally satisfied that the impugned orders do not warrant any interference. In our view, the two authorities below have rightly held that the petitioner is liable to be evicted under Section 11(2)(b) and 11(3) of the Act. 9. At this stage, learned counsel for the petitioner submits that the petitioner is prepared to give vacant possession of the building, if he is given some reasonable time. 10. Having regard to the peculiar facts and circumstances of the case, we are of the view that the petitioner can be granted six months' time to vacate the premises on the following conditions: (1) Petitioner shall file an affidavit before the Rent Control Court undertaking to give vacant possession of the building unconditionally on or before September 10, 2011. The affidavit shall be filed before the Rent Control Court on or before April 4, 2011. (2) Petitioner shall remit the entire arrears of rent before the Rent Control Court with interest on or before April 4, 2011 and shall continue to pay the monthly rent on or before 5th of the ensuing months till vacant possession is handed over to the respondents. If the petitioner fails to comply with the above directions, the revision petition shall stand dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes