IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 RCRev..No. 369 of 2007() ------------------------ RCA.1/2006 of D.C. & SESSIONS COURT,KOLLAM RCOP.1/2005 OF THE RENT CONTROL COURT, KOLLAM .................... APPELLANT/APPELLANT/RESPONDENT : ------------------------------------------ SHAMJADH, AGED 32 YEARS, S/O.SHAMSUDEEN, NAVAZ MANZIL, VADAKKEVILA VILLAGE, MANAKKADU CHERRY, KOLLAM. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR RESPONDENT/RESPONDENT/PETITIONER : --------------------------------------------- FAISAL, AGED 46 YEARS, S/O.YOUNNISKUNJU, ARAYALEMMOODU PURAYIDOM, MUKKATHU CHERRY, KOLLAM EAST VILLAGE, KOLLAM. BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 01/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ R.C.R.NO: 369 OF 2007 ------------------------------ Dated this the 1st January,2008. O R D E R Balakrishnan Nair, J. The tenant is the revision petitioner. Land lord is the respondent. Eviction was sought under Sections 11 (2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the 'Act'. The rent controller allowed the application on all the above grounds. In the Rent Control Appeal, the petitioner mainly canvassed the correctness of the findings under Sections 11(3) and 11(4)(ii) of the Act. The appellate authority also affirmed the findings of the rent controller on those points and dismissed the appeal. Hence this revision. 2. The petition scheduled consists of two rooms. It was taken on rent by the petitioner under Ext.A1 rent deed dated 10.2.1999 for a period of one year. The tenant was conducting business in scrap in the scheduled premises. He was purchasing scrap copper, iron and also other metals. As a result of the conduct of the business the floors of the tenanted premises have been damaged and cracks have developed in the walls. Therefore the utility of the RCR 369/07 2 building has been substantially reduced. So, eviction was sought under Section 11(4)(ii) of the Act. The landlord is unemployed. He wanted to start a business in furnitures. Sometime back he was running a business in furnitures which failed. Later he attempted to run a tea shop. The same was also closed down. Now he wants to re-start the furniture business in the tenanted premises. The rooms are ideal for the same. So, the ground under Section 11(3) was also raised for eviction. The tenant resisted the application contending that the rooms were constructed by receiving an advance from him to the tune of Rs.2 lakhs. He advanced the said amount subject to the condition that the rooms will be let out to him and another Rs.15,000/- was also paid to the landlord. So a total amount of Rs.2,15,000/- is deposited with the landlord by the tenant. The landlord is affluent, he is receiving at least Rs.10,000/- as rent and therefore it is unnecessary for him to start any business. He has earlier attempted to do the business in furnitures and also tried to run a tea shop. Those businesses failed. He tried to evict the petitioner by use of force. So he moved the civil court and obtained an injunction against forcible eviction. Thereafter the RCP was filed. The requirement is not bonafide and it is only a ruse to evict him. Further there are rooms in the RCR 369/07 3 possession of the landlord in which he can run the business. There is a large hall in the upstairs of the building. He can start the business there. The tenant is mainly depending on the income from the tenanted premises for his livelihood. There are no other suitable rooms in the locality. Therefore tenant prayed for dismissal of the application. Before the rent controller, from the side of the landlord P.Ws 1 to 3 were examined and on the side of the petitioner herein, R.Ws 1 to 5 were examined. Exts. A1 to A5 and B1 to B5 are marked on the side of the landlord and tenant respectively. Apart from those, Exts.C1 to C3 and X1 to X4 were also got marked. Rent Controller found that the need urged by the tenant is bonafide. It was also held that the tenant is not entitled to get protection of the provisos under Section 11. Based on the said finding the RCP was allowed. The tenant appealed. The appeal was dismissed. So this revision is filed challenging the appellate order. 3. Learned counsel for the petitioner submitted that the finding regarding bonafide requirement of the landlord is untenable in law. But we notice that the appellate authority found that the landlord is unemployed. Even if the business run earlier by him failed, the same does not stand in the way of his starting another business in the RCR 369/07 4 very same field. Therefore the requirement urged that he wants the scheduled premises to start a business in furnitures was held to be bonafide. We find nothing illegal or improper or irregular with the said finding, which warrants interference under this revisional jurisidiction. 4. The defence set up by the tenant under the first proviso was repelled by both the authorities. The room on the side of the staircase was not suitable for running furniture business. The space available in the first floor was found to be in the possession of a tenant. Further relying on the commissioner's report it was held that the two rooms in the possession of the tenant were suitable for starting furniture business. The said finding is a finding of fact and therefore the denial of protection under the first proviso cannot be disturbed by this Court. 5. Both the authorities found that petitioner herein did not prove what is his income from the scrap business. If it is meagre, he has other sources of income for his sustenance. Since the petitioner failed to prove what is his income from business run in the tenanted premises, his case that he is mainly depending for his livelihood on the said income was not accepted by the courts below. This being a plausible view on facts we cannot disturb the same. RCR 369/07 5 6. Regarding the second proviso also the authorities below held that the petitioner failed to discharge his burden which is primarily on him. The said finding also cannot be disturbed by us. In the result R.C.P fails. 7. Regarding the damage caused to the tenanted premises the authorities below found relying on the commissioner's report that the floor of the rooms were damaged and cracks have occurred. Though the tenant contended that those cracks developed for want of timely maintenance the authorities disbelieved the said version and upheld the contentions of the landlord that those cracks were developed owing to the user of the rooms by the scrap business. The said finding has been entered as well as in the commissioner's report. It is essentially a finding of fact which we cannot discharge under Section 20 of the Act. In the result the writ petition fails and is dismissed. Learned counsel for the revision petitioner prays sometime to vacate the premises. Having regard to the facts of the case the petitioner is granted six month's time from today on condition that he files an unconditional undertaking in the form of an affidavit before the executing court undertaking to vacate the premises within six months from today. This undertaking shall be filed within three weeks from today. The arrears of rent if any RCR 369/07 6 remaining unpaid shall also be deposited before the executing court within one month from today. The monthly rent due from time to time shall also be paid till the room is vacated by the petitioner. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: