IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 RCRev..No. 227 of 2011() ------------------------ RCA.19/2006 of DISTRICT COURT, KASARAGOD RCP No.8/2002 OF RENT CONTROL COURT, HOSDRUG .................... PETITIONERS/APPELLANTS/RESPONDENTS (TENANTS) : -------------------- 1. M/S.CHEMNAD ENTERPRISES KASARAGOD KASBA, REP BY ITS MANAGING PARTNER, T.H.ABDULLA, PULIKUNNU,KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, P.O.KASARAGODI. 2. A.MOHAMMED KUNHI, S/O. A.B.AHAMMED CHEMMAD ENTERPRISES, KOTTACHERRY, BALLA VILLAGE, HOSDURG TALUK,P.O.KANHANGAD. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S)/RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3 IN RCP: --------------- 1. SAHANA P.V, D/O. VISHWESHWARA BHAT AND W/O. DR. SATHYANARAYANA, RESIDING AT KOTTACHERRY BELLA VILLAGE, HOSDRUG TALUK,P.O.KANHANGAD 671315. 2. L.ABDULLA, S/O. MUHAMMED KUNHI MARCHANT, ROOM NO. 1202,WARD NO.1, KANHANGAD MUNICIPALITY, BELLA VILLAGE, HOSDRUG TALUK,P.O.KANHANGAD 671315. 3. KUNHAMMAD, S/O. ANDUMAYI, OF DO..DO... THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 227 OF 2011 ------------------------ Dated this the 22nd day of June, 2011 O R D E R Balakrishnan, J. The tenants are in revision. The order of eviction passed concurrently under Section 11(3) of the Act is challenged. The landlady contended that the petition schedule building is bona fide required for accommodating her husband, who is a doctor, for starting a clinic. It was contended that at present he is using a shed like room attached to the southern side of his residential house and that he has no suitable vacant room for starting the clinic. 2. The claim was opposed by the tenants contending that the it is only a pretext for eviction. The Rent Control Court on evaluating the evidence found that the need projected by the landlady is bona fide. The Appellate Authority concurred with the view taken by the Rent Control Court. 3. Sri.M.Gopikrishnan Nambiar, learned counsel appearing for the tenants /petitioners submitted that during the pendency RCR.No.227/2011 2 of the proceedings, a room upstairs fell vacant. In another portion of the upstair portion, the landlady is conducting clinical laboratory and so, other portion, which fell vacant situated in the very same floor, is most suitable for the landlady to accommodate her husband for conducting a clinic. It is also submitted by the learned counsel that, in fact there is a shift in the stand taken by the landlady regarding the need projected by her. In the rent control petition it was stated that the need is actually for starting a nursing home. But, that was given up at the time of enquiry and stated that petition schedule building is need for starting a clinic. Apparently there may be a difference in the need projected. But on proper analysis of the evidence, it can be seen that actually the need of the landlady is to provide her husband the petition schedule building for starting a clinic. The learned Appellate Authority has rightly pointed out that there is no difference in the need projected nor is there any shift in the stand taken by the landlady regarding the need so as to doubt the need projected . 4. It was also vehemently argued by Mr.Gopikrishnan Nambiar that up stair portion is very much suitable for the RCR.No.227/2011 3 doctor to start the clinic and to prove that aspect a commission petition was filed, but that was dismissed by the Rent Controller. Therefore, it is submitted that the revision petitioners were actually denied the opportunity to bring that fact to the notice of the court which according to the learned counsel would have helped the tenants to prove that in view of the first proviso to Section 11 (3) the claim should be disallowed. 5. Both the authorities accepted the evidence given by the landlady(PW1) and PW2, the doctor for whose need the tenants were sought to be evicted. It was found that there is only a narrow staircase and so it will be very difficult for the patients to climb the staircase to reach the upstair portion. That explanation was worth convincing. It was rightly accepted by the courts below. The tenants even went on to dictate the landlady that PW2 the doctor, should conduct his clinic in a godown having no road frontage. The courts below rejected that contention giving sound and valid reasons. We find no reason to hold otherwise. We find nothing unreasonable about the view taken by the courts below with regard to the special reason stated by the landlady. Accepting the evidence given by PWs1 RCR.No.227/2011 4 and 2, the courts below found that the need projected is bona fide. We find no illegality, irregularity or impropriety in the finding so entered by the authorities below. 6. The claim for protection under the second proviso was very much pressed into service. The tenants were having so many other business of their own. There is no acceptable evidence to prove the two limbs of the second proviso. Hence the claim for protection under the second proviso was also rejected. We find no reason to upset the order of eviction concurrently passed by the authorities below. 7. The result therefore is that the revision petition fails and the same is dismissed. 8. The learned counsel for the revision petitioners would now make a fervent request that at least one year's time may be granted to the tenants to surrender possession of the petition schedule building. Though this request was strongly opposed by the learned counsel for the landlady, we are inclined to grant one year's time to the revision petitioners to surrender possession of the petition schedule building on the following conditions; The revision petitioners shall file affidavits before the RCR.No.227/2011 5 Execution Court or the Rent Control Court as the case may be within three weeks from today undertaking to give peaceful surrender of the petition schedule building within one year from today and undertaking further through the same affidavit that arrears of rent if any will be discharged within one month from today and occupation charges at the existing rent rate will be paid till they surrender the building. We make it clear that the revision petitioners will get benefit of time granted as above only if they file affidavits on time and honour the undertakings therein without fail. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk