IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 RCRev..No.143 of 2008 --------------------------- RCA.13/2004 of ADDL. DISTRICT COURT (ADHOC)-III, THALASSERY RCP.62/2002 of MUNSIF COURT/RENT CONTROLLER, KUTHUPARAMBA .................... REVISION PETITIONER/APPELLANT/RESPONDENT NO.1 ------------------------------------------------------------- P.K.MAYAN, S/O.KUTTIAH HAJI, AGED 51 YEARS, BUSINESS, GREEN'S HOME, P.O.NIRMALAGIRI, KUTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.T.POULOSE (KORATTY) RESPONDENT(S): RESPONDENTS/PETITIONER AND 2ND RESPONDENT ------------------------------------------------------------------------------ 1. PADAYAMPOIL @/ K.P.KHADEEJA, W/O.ISMAIL, AGED 35 YEARS, K.P.HOUSE, KUTHUPARAMBA, P.O.KUTHUPARAMBA, KANNUR DISTRICT. 2. PARAKKANDY KONTHOTH NAZIR, S/O.ASSU, AGED 40 YEARS, BUSINES, KONTHOTH HOUSE, KUTHUPARAMBA AMSOM, AMBILAD DESOM, P.O.KUTHUPARAMBA, KANNUR DISTRICT. ADV. SRI.A.SUDHI VASUDEVAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.143 of 2008 ------------------------------------------------ Dated this the 11th day of February, 2011 ORDER Balakrishnan, J Order of eviction passed concurrently by the two statutory authorities on the ground of bona fide need is assailed by the revision petitioner/tenant in this revision. Even though, other grounds were also put forward by the landlady, those grounds do not now survive for consideration. 2. The landlady contended that her husband who came back from Malaysia in October, 2001 is not having any job or avocation and so in order to enable her husband to start a business she bona fide needed the petition schedule building. The tenant resisted the petition contending that this petition is only a ruse for eviction. The further R. C. R. No.143 of 2008 -2- contention raised by the tenant is that the landlady has sent a letter demanding Rs.3,000/- as monthly rent and only because the tenant did not accede to the demand so made by the landlady, Rent Control Petition was filed. It was also contended by the tenant that he is entitled to the protection under the second proviso to Section 11(3) of the Act. 3. Before the Rent Control Court, the landlady's husband for whose need the building was sought to be evicted was examined as PW1 and Exts.A1 to A16(c) were marked. The tenant got himself examined as RW1 and Exts.B1 to B3 were marked. Besides Ext.X1, the affidavit filed by the Tahsildar & Accommodation Controller was also marked. On considering the oral and documentary evidence the Rent Control Court came to the conclusion that the bona fide need urged by the landlady is true. It was also found that the landlady is not having any other building of her own so as to accommodate her husband to start the intended R. C. R. No.143 of 2008 -3- business. It was further found that the tenant has failed to prove that he is depending mainly on the income derived from the business conducted in the petition schedule building. It was also found that there is no acceptable evidence to show that there are no other vacant building available in the locality. Hence, the claim for protection under the second proviso was turned down and ultimately order of eviction was passed under Section 11(3) of the Act. The learned Appellate Authority, the final fact finding authority after re-appraising the evidence also concurred with the decision taken by the learned Rent Controller and thus, the RCA was dismissed. 4. The learned Counsel for the revision petitioner submits that the authorities below failed to appreciate the evidence in the correct perspective and came to an erroneous conclusion. It is mainly contended that PW1 is not a dependent on the landlady and that he is conducting R. C. R. No.143 of 2008 -4- business at Bangalore. It is also argued by the learned counsel that in fact Ext.B1 letter would show that a demand was made by the landlady to the tenant to pay Rs.3,000/- as monthly rent. It is submitted by the learned counsel for the tenant that the monthly rent was enhanced periodically and the present rate of rent is only Rs.1,500/-. 5. It has come out in evidence that PW1, the husband of the landlady came from Malaysia in October, 2001. It was deposed by him that he was working in a Super Market in Malaysia and so he has got sufficient experience in conducting business. It was contended by the tenant that PW1 was actually conducting business at Bangalore. No reliable evidence could be adduced by the tenant. Even if PW1 for the time being is conducting any business at Bangalore that will not dis-entitle the landlady from claiming eviction under Section 11(3) of the Act. The need of the landlady is to see that her husband conducts business in the R. C. R. No.143 of 2008 -5- petition schedule building. That is the need projected through PW1 also. There is no evidence to show that the landlady is having any other building of her own so as to accommodate PW1 to start the business. Therefore, the authorities below rightly came to the conclusion that the need projected by the landlady is bona fide. 6. As regards the claim under the second proviso to Section 11(3), it has come out in evidence that the tenant's wife is also conducting a Bakery business. No document has been produced to show what actually is the income RW1 is getting by doing business in the petition schedule building. As such, it was found by the authorities below that the tenant could not establish that he mainly depends on the income from the petition schedule building for eking out his livelihood. On that score itself the claim for protection under the second proviso must fail. That apart the tenant also could not prove that there are no other buildings available in R. C. R. No.143 of 2008 -6- the locality for him to shift his business. Hence, the second limb of the second proviso also could not be established. Thus, we find no illegality, irregularity or impropriety in the orders passed by the two statutory authorities. Hence, this revision is dismissed. 7. Finally, the learned counsel for the revision petitioner submits that at least one year time may be granted to the tenant to vacate the petition schedule building. Considering all the aspects, we are of the view that the tenant can be granted nine months time from today to vacate the petition schedule building, but on the following conditions:- The revision petitioner shall file an affidavit within three weeks from today before the execution court or Rent Control Court, as the case may be, undertaking to surrender the building peacefully to the landlord within nine months' from today and undertaking further that arrears of rent, if R. C. R. No.143 of 2008 -7- any, due as on date will be discharged within one month from today and further that he will continue to pay occupation charges at the current rate till the date of actual surrender of the petition schedule building. We make it clear that the revision petitioner/tenant will get the benefit of time granted as above only if he files the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-