IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 RCRev..No. 302 of 2009(A) ------------------------------ RCA.93/2005 of DISTRICT COURT, THALASSERY RCP.155/2004 of PRL.M.C./RENT CONTROL COURT, KANNUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT ------------------------------------------------------- MOOTHETH VEERAMTHOTTATHIL ABDUL RAHIMAN, S/O.MAMMED, AGED 51 YEARS, M/S.SUBAIDA MEDICALS, NEAR PAPPINISSERI RAILWAY GATE, PAPPINISSERI, THROUGH HIS P.A.HOLDER UMP MOHAMMED JASEEL, S/O.B.P.MUHAMMED KUNHI, AGED 28 YEARS, RESIDING AT UMP HOUSE, CHUNGAM, PAPPINISSERI, KANNUR DT. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S)/RESPONDENT/PETITIONER ------------------------------------------------- P.T.P.HAMZAKUTTY HAJI, AGED 97 YEARS, S/O.HAMEED, PAPPINISSERI AMSOM DESOM, P.O.PAPPINISSERI, KANNUR DT. ADV. SRI.C.KHALID THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------ R. C. R. No.302 of 2009 ------------------------------------------------ Dated this the 22nd day of November, 2010 ORDER Surendra Mohan, J The tenant is in revision against orders of eviction passed by the Rent Control Court and confirmed by the Rent Control Appellate Authority. 2. Brief facts of the case are the following:- The respondent/landlord filed the Rent Control Petition, R.C.P No.155/04 before the Rent Control Court, Kannur seeking eviction of the revision petitioner/tenant on grounds under Section 11(2)(a) & (b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the “Act” for R. C. R. No.302 of 2009 -2- short). During the course of the proceedings, the entire arrears of rent was discharged and therefore, the said ground was not pressed. The revision petitioner/tenant contested the Rent Control Petition challenging the need that was put forth by the landlord. According to the landlord, he needed the petition schedule building for the purpose of his son who wanted to shift his tube setting business from a rented premises. The landlord of the said rented premises wanted the petitioner's son to vacate the said premises. The need of the landlord was seriously disputed by the tenant who contended that the same was only a ruse for evicting him. After trial, the Rent Control Court allowed the petition and granted an order of eviction. The tenant challenged the order of R. C. R. No.302 of 2009 -3- eviction before the Rent Control Appellate Authority, Thalassery in RCA 93/05. The Appellate Authority on a re-appraisal of the entire evidence, confirmed the order of eviction passed by the Rent Controller as per judgment dated 03/03/08. The tenant challenged the said judgment before this Court in RCR.194/08. In the said revision, an Advocate Commissioner was appointed by this Court, to make a local inspection of another shop room that was alleged to be in the vacant possession of the landlord. Accordingly, the Advocate Commissioner inspected the premises and submitted a report to this Court. On the basis of the said report, the matter was remanded for fresh consideration by the Rent Control Appellate Authority on the question as to whether special R. C. R. No.302 of 2009 -4- reasons were available under the first proviso to Section 11(3) of the Act to justify the grant of an order of eviction to the landlord. 3. After remand, the landlord took out a fresh commission for the purpose of ascertaining and reporting to the court, the details regarding the vacant room that was alleged to be in his possession. The said report and plan have been marked as Exts.C2 and C3 respectively. Report of the Advocate Commissioner deputed by this Court has been marked as Ext.C1. On a consideration of the evidence and the contentions of the rival parties, the Appellate Authority found that the need of the landlord was bona fide and that he had made out special reasons for not occupying the room that was in his possession. Accordingly, R. C. R. No.302 of 2009 -5- the order of eviction passed by the Rent Control Court has been confirmed. This revision is filed challenging the said judgment of the Rent Control Appellate Authority. 4. We have heard Advocate Sri.A.Mohammed Mustaque who appears for the revision petitioner as well as Sri.T.P.Sajid who appears for the respondent. We have anxiously considered the rival contentions urged before us. 5. According to Sri.Mohammed Mustaque, there is no mention of the shop room having Door No.VIII/831 belonging to the landlord that was under his possession, in his Rent Control Petition. The non-disclosure of the existence of a vacant room in his possession casts serious doubt on the bona fides of the need put forth by the landlord. R. C. R. No.302 of 2009 -6- Therefore, it is contended that when it was pointed out that such a room was available in the possession of the landlord, the need of the landlord should have been disallowed by the authorities below. It is further contended that another shop room bearing Door No.13/499 that had fallen vacant during the course of the proceedings had been given on rent to one Sri.V.K.Mammu. If the need of the landlord had been bona fide it is contended that the landlord would have certainly occupied the room that had fallen vacant. 6. The contentions advanced on behalf of the tenant are met by Advocate Sri.T.P.Sajid by pointing out that Room No.VIII/831 was a much smaller room compared to the tenanted shop R. C. R. No.302 of 2009 -7- room and that the same was not suitable for satisfying the need of the landlord's son. Further, Room No.13/499 was also a small room on the ground floor with no upper floor available and was unsuitable for the business of the petitioner's son. It is further pointed out that the said room was about 1 kilometre away from the residence of the landlord whereas the tenanted shop room was close by. Therefore, it is contended that there are special reasons for not occupying the room that was pointed by the tenant. 7. Ext.C1 report submitted by the Advocate Commissioner who had inspected the premises on the orders of this Court was not able to report the measurements of the said room because the same was found locked. Therefore, a fresh Commission R. C. R. No.302 of 2009 -8- was taken out on the orders of the Appellate Authority and the said report is Ext.C2. The dimensions of the room that is alleged as reported in Ext.C2 show that the said room is smaller than the tenanted shop room. According to the landlord, the said shop room is unsuitable for satisfying the need of his son, which is to shift his business that is being conducted in another rented premises. There is no contra evidence to disapprove the above assertions of the landlord. The landlord who was examined as PW1 has been believed by the Rent Control Court. We do not find any reason to disbelieve the testimony of PW1. In fact, on the question of bona fides of the need that was put forth by the landlord there was not much of a dispute, the only dispute being that, R. C. R. No.302 of 2009 -9- the omission of the landlord to disclose the existence of such a vacant room should be regarded as fatal, demolishing the bona fides of the need that was put forth. In view of the fact that the question of bona fides has been concurrently found by the Rent Control Court and the Appellate Authority, we do not find any reason to upset the said findings. The explanation of the landlord for not having occupied the vacant room in his possession and the room that has fallen vacant during the course of these proceedings has been accepted by the Appellate Authority. We do not find any reason to take a different view. 8. For the foregoing reasons, we confirm the orders of eviction passed by the Rent Control Court and the Rent Control Appellate Authority. As R. C. R. No.302 of 2009 -10- a last plea, the counsel for the revision petitioner sought for some time to surrender vacant possession of the shop room. In the facts and circumstances of the case, we feel that the revision petitioner can be granted time up to 30/06/11 to vacate the premises, subject, of course, to appropriate conditions. 9. In the light of the above discussion, the Rent Control Revision fails and is accordingly, dismissed. The revision petitioner/tenant is granted time up to 30/06/11 to surrender vacant possession of the premises to the landlord on condition that he files an affidavit before the execution court unconditionally undertaking to surrender the vacant possession of the tenanted shop room to the landlord on or before 30/06/11 R. C. R. No.302 of 2009 -11- and further undertaking to pay all arrears of rent payable and to continue to pay the rent in respect of the premises regularly and without default till the premises are surrendered to the landlord. Affidavit as indicated above shall be filed before the execution court within a period of one month from the date of receipt of a copy of this judgment failing which the time granted shall not be available to the tenant. PIUS C. KURIAKOSE JUDGE K. SURENDRA MOHAN JUDGE kns/-