IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 RCRev..No. 100 of 2009() ------------------------ RCA.132/2007 of II ADDL. RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.143/2006 of RENT CONTROLLER/PRL.MUNSIFF COURT, KOZHIKODE-I .................... REV.PETITIONER/APPELLANT/RESPONDENT(TENANT) --------------------------------------------------------------- M.MALATHI, AGED 64 YEARS, W/O.BALAKRISHNAN NAIR, 29/564-566, MANGOTTU VAYAL, KOTTOOLY AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU SMT.A.SIMI RESPONDENT : RESPONDENT - PETITIONER(LANDLORD) ----------------------------------- V.K.RAMACHANDRAN, S/O.KELAPPAN @ KUMARAN VADAKKE KANNACHALIL HOUSE, KOTTOLY AMSOM DESOM, KOZHIKODE TALUK. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. --------------------------------------------- R.C.R. 100 of 2009 --------------------------------------------- Dated: MAY 27, 2009 ORDER Pius C. Kuriakose, J. A tenant against whom order of eviction has been concurrently passed by the Rent Control Court and the Appellate Authority on the ground of sub-sec.(3) of sec.11 is the revision petitioner. The need projected by the respondent/landlord in the rent control petition was that his eldest son has got married and that certain bickerings have arisen in the family and he needs to accommodate his son in the petition schedule building as well as the other buildings which form part of a line building of which the petition schedule building is a part. The bonafides of the need of the claim was resisted contending inter alia that the rent control petition is liable to fail in view of the first proviso to sub-sec.(3) of sec.11. The building pointed out as being in the vacant possession of the landlord was the portions of the larger building of which the petition schedule building is a part. The RCR 100/2009 2 answer of the landlord to this, was that considering the social and financial status of the landlord, his elder son is to be accommodated not in a building which is so small as the petition schedule building, but in a much more spacious apartment. It became evident that the building presently occupied by the landlord and his children is a spacious one. The Rent Control Court and the Appellate Authority have found that there was special reason for the landlord in insisting that the petition schedule building also should be vacated so that his elder son can be accommodated in the petition schedule building as well as in three other portions of the line building. Since those findings are based on evidence, we do not find any illegality or impropriety vitiating those findings. 2. Another aspect which was highlighted before us by Mr. Ranjith Narayanan, learned counsel for the revision petitioner, was that Sri Nandakumar, the elder son of the landlord for whom the building was sought to be evicted was not examined. It is not obligatory that in all cases for eviction under sub-sec.(3) of sec.11 for occupation of a dependent family member, that the dependent family member is examined. Having regard to the RCR 100/2009 3 facts of this case, we feel that the need projected was very much the need of the landlord father to accommodate his elder son for the purpose of avoiding bickerings in the family. Thus, the non-examination of Sri Nandakumar is not fatal. If the tenant has an apprehension that Sri Nandakumar will not come and occupy the petition schedule building after he is evicted, sub-sec. (12) of sec.11 of the Act will always come to his rescue. 3. It is seen that the revision petitioner/tenant had raised a contention that a sum of Rs.40,000/- was entrusted by him with the landlord at the time when he took the building on lease. The landlord too admitted having received Rs.40,000/-. But it was contended by the landlord that towards repair charges he expended substantial amounts and he is liable to adjust those amounts against the sum of Rs.40,000/- since the repairs were done at the request of the tenant. The above contention was repelled by the Rent Control Court which found that upon eviction the tenant is entitled to get back the sum of Rs.40,000/-. We were informed that the landlord did not prefer any appeal or memorandum of cross-objections against the above finding of the Rent Control Court. The Appellate Authority also in the RCR 100/2009 4 impugned judgment approved the Rent Control Court's finding that a sum of Rs.40,000/- has been paid and the tenant is entitled to get back the amount when he surrenders the building. We do not find any reason for interfering with the above finding of the courts below. Having regard to sec.20, we do not find anything warranting interference on the impugned judgment. 4. As his last submission Sri Ranjith Narayanan sought for nine months' time to vacate the premises. We are of the view that by way of indulgence six months' time can be granted in the circumstances of this case. 5. Accordingly, even as we confirm the impugned judgment and dismiss the RCR, there will be a direction to the Execution Court to adjourn the Execution Petition to 29th November, 2009 if it is noticed that the following conditions are complied with by the revision petitioner:- i) The revision petitioner/tenant will submit an undertaking to the Execution Court in the form of an affidavit stating that she will unconditionally and peacefully surrender the petition schedule building to the respondent/landlord on or before 28.11.2009 and further that she will discharge the RCR 100/2009 5 arrears of rent, if any, and will continue to pay the rent which falls due subsequently till she actually surrenders the building. ii) It is made clear that the order of delivery will not be issued by the Executing Court unless that court notices receipt against payment of Rs.40,000/- by the landlord to the revision petitioner. It is made clear that in case the son of the respondent/landlord does not occupy the building within one month of obtaining possession or vacates the building before the expiry of six months of occupying it, it is open to the revision petitioner to apply to the Rent Control Court under sub-sec.(12) of sec.11 to which case the Rent Control Court will pass effective orders ensuring that the remedy provided to tenants under sub-sec. (12) of sec.11 is meaningful. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-