IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH NOVEMBER 2008 / 8TH KARTHIKA 1930 RCRev..No. 270 of 2008() ------------------------ RCA NO.25/05 OF RENT CONTROL APPELLATE AUTHORITY, TRICHUR. RCP NO.27/02 OF RENT CONTROL COURT, THRISSUR. (S)PETITIONER: APPELLANT/RESPONDENT ----------------------------- T.K. RAJAN, S/O. THINDIYIL KRISHNAN, KAINOOR VILLAGE, DESOM, THRISSUR TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) RESPONDENT(S): RESPONDENTS/PETITIONERS --------------- 1. SARASWATHY, 59 YEARS, W/O. PUZHANKARA RADHAKRISHNA MENON, KOLAZHI VILLAGE, DESOM, THRISSUR TALUK. 2. RAVI NARAYANAN, 40 YEARS, S/O. PUZHANKARA RADHAKRISHNA MENON, KOLAZHI VILLAGE, DESOM, THRISSUR TALUK. 3. HARINARAYANAN, AGED 30 YEARS, S/O. PUZHANKARA RADHAKRISHNA MENON, KOLAZHI VILLAGE, DESOM, THRISSUR TALUK. (NOW RESIDING AT HARINARAYANAN.R, WHISKY UNIT, C/O. 12F, BSU CLO.56 APO) 4. R. DEVI, 27 YEARS, D/O. PUZHANKARA RADHAKRISHNA MENON, KOLAZHI VILLAGE, DESOM, THRISSUR TALUK. (PRESENT ADDRESS:DEVI BASIEN,HARMON HOUSE, P.O.BOX NO. 53643, DUBAI, U.A.E, RESP 3RD & 4TH REP.BY THEIR MUKTHAYAR AGENT SARASWATHY. ADV. SRI.M.V.THAMBAN & V.K. SATHYANATHAN FOR R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON 19/11/2008 PASSED THE FOLLOWING: ORDER IN IA 2535/08 DISMISSED. 19/11/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.270 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2008. O R D E R Ramachandran Nair, J. The defeated tenant in a petition for eviction is the petitioner in this revision petition. The landlords sought eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The specific purpose shown in the petition for eviction was that they want the building for residential purpose as they are residing in a rented house at a place 'Kolazhi' now. The Rent Controller found that the bonafide need stands proved and accordingly ordered eviction. This was confirmed by the Appellate Authority against which the present revision petition is filed by the petitioner. 2. Heard learned Senior counsel Shri S.V. Balakrishna Iyer, for the petitioner and Shri V.K. Sathyanathan, who appeared for the respondents on caveat. 3. It was mainly contended by the learned Senior counsel for the petitioner that the tenant is conducting a diamond polishing business in the schedule building. Sixty workers are employed there and the order of RCR 270/2008 -2- eviction, in such circumstances, will cause acute hardship to them. He further contended that the first floor consists of a portion wherein a hotel is also being conducted and at any rate, it cannot be said that the landlady and her children genuinely want the building for their own occupation. It was pointed out that in the second floor there is sufficient space and if at all they require any space they can start residing there. Alternatively, it is contended that the tenant may be allowed to continue his business in the second floor, so that no harm will be done to his business. 4. Learned counsel for the respondents submitted that the landlady and her children actually requires the building for their residential purposes as they are residing now in a rented building. One of the sons who is working in Navy, is retiring immediately and is coming back with the family, to reside along with them and the married children usually come on different occasions during a year to visit the mother and the need projected is therefore a genuine one. It is pointed out that the second floor is having only asbestos roofing and that cannot be used for residential purposes. Further, some of the employees of the hotel which is being run in the first floor, are using the same for residential purposes and it is not vacant. Relying upon the evidence adduced in the case, it is pointed out that the tenant is not continuously doing any business in the building and no RCR 270/2008 -3- documents regarding the actual business that is being conducted, have been produced in evidence. 5. We have gone through the orders passed by the Rent Control Court and the Appellate Authority. All the relevant points have been considered in detail by the two authorities. The building is a three storied one having a total area of 6000 sq. ft. which was originally owned by the husband of the first respondent herein. The petition schedule portion is having an area of 1000 sq. ft. forming part of the first floor of the building. The evidence show that the said area consists of five rooms and that portion is having a bathroom and latrine and there is another room which can be used as a kitchen. The report of the Commissioner, Ext.C1 which was prepared after giving notice to both parties, gives various details of the building itself. It shows that the second floor is having asbestos roofing. Going by the evidence of P.W.1, she is a retired College Professor and prior to the letting of the building, they had actually been residing there. That the landlady is now residing in a rented building, is not disputed by the tenant also. It is clear from the evidence that the ground floor is occupied as a show room and in the second floor some employees of the hotel are residing. RCR 270/2008 -4- 6. Even though the tenant contended that other vacant rooms/buildings are in the possession of the landlady, the tenant could not prove the said contention. Therefore, the first proviso to Section 11(3) of the Act is not applicable to the facts of this case. It was pointed out before the Appellate Authority that the younger son who is employed in Navy, will be reaching the native place within a short period after retirement. 7. The authorities below have considered the above evidence to find that the bonafide need pleaded is genuine. We are of the view that it cannot be said to be as a perverse one. The landlady, if wants to shift along with other family members from the rented building to their own building for residence, it cannot be described as a mere wish or desire. The tenant could not succeed in the plea that they are having other vacant rooms/buildings in their possession. 8. Then the other question is regarding the benefit of the second proviso to Section 11(3) of the Act. This is a case where the tenant has not proved by any cogent documentary evidence, the details of the business being run, the income that is derived therefrom, the number of employees and the like. There was no evidence to show that he is mainly depending upon the income from the business conducted in the petition schedule building for his livelihood. Therefore, it was found that he is not entitled to RCR 270/2008 -5- the benefit of the said limb of the second proviso to Section 11(3) of the Act. Regarding alternate building available in the locality, the landlady in her evidence, has pointed out that various buildings are available. The evidence of the tenant as R.W.1 showed that he has not conducted any earnest enquiry regarding the availability of suitable building in the locality for shifting the present business. Thus, it was found that he is not entitled to the benefit of the second proviso to Section 11(3) of the Act. We find no reason to differ from the above view. 9. Even though learned Senior counsel for the petitioner offered that the tenant will pay higher rent if the second floor is rented out to him, it was pointed out by the learned counsel for the respondents that it is being used for residence by the employees of the hotel 'Nalanda' which is being conducted in a portion of the first floor. Further, this court cannot compel the landlady to occupy the second floor or to allow the tenant to occupy it for getting the first floor vacated. It is entirely for the landlady to show the preference in that regard. 10. Even though great stress was laid on the fact that if eviction is allowed, the employees will suffer, in the absence of clear evidence regarding the details of the business, the number of employees, income, etc., this court will not be justified in going into such questions, especially in RCR 270/2008 -6- this revision petition. Learned counsel for the landlady rightly pointed out that there is no evidence to show the details of the business that is being done in the petition schedule building. The actual income is also not proved. For all these reasons, we dismiss the revision petition confirming the orders passed by the authorities below. In the circumstances, we grant three months' time from today to the tenant to vacate the premises on the following conditions: i) That the entire arrears of rent, if any, shall be deposited before the Execution Court within a period of one month from today and the petitioners shall also file an affidavit within the said time undertaking to give vacant possession of the tenanted premises on or before the expiry of the period of three months from today, i.e. on or before 19.2.2009. ii) that the tenants shall not induct any third party into the premises; iii) that an amount equivalent to the rent towards use and occupation of the building shall be regularly paid by the tenants until vacant possession is given; and RCR 270/2008 -7- iv) that if for any reason the tenants fail to comply with any of the aforesaid conditions, the order of eviction passed by the court below will forthwith become enforceable. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/