IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 RCREV..NO. 25 OF 2009(B) ------------------------ RCA.64/2007 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.155/2005 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER/APPELLANT/RESPONDENT: ------------------------------------------------------------ M.V.MATHAI MUTHIRENTHY,S/O.VARKEY, AGED 60- YEARS, ADVOCATE,ROOM NO.40/1445,NEAR GENERAL HOSPITAL, ERNAKULAM. BY ADV. SRI.K.J.KURIACHAN RESPONDENT(S): RESPONDENT/PETITIONER: ------------------------------------ G.RAJESH, S/O.LATE K.G.GOPALAKRISHNAN, AGED ABOUT 35 YEARS, RESIDING AT 'ASHA' PADIVATTOM, KOCHI-24. BY ADV. SRI. JACOB VARGHESE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 8/06/2009, THE COURT ON 18/06/2009 PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ------------------------------ R.C.R. No.25 OF 2009 ------------------------------ Dated this the 18th day of June, 2009 O R D E R -------------- Abdul Rehim,J. 1. Tenant in RCP.No:155/2005 on the files of the Rent Control Court, Ernakulam is in revision against the order of eviction issued against him under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short the Act),which was confirmed in appeal. The building in question is a room having 360 Sq:Ft: situated in the ground floor of a two storied building, which belonged to the late father of the landlord. The tenant, who is a practicing lawyer, is using the building as his Advocate Office. The contention of the landlord is that after death of his father, he is residing along with his sister and he require the scheduled room as well as other rooms in the building for his residential accommodation. The landlord is intending to set up residential house in the said building after evicting all the tenants. It is specifically stated that the landlord will occupy the scheduled room when it is vacated and thereafter he will occupy other rooms also as and when those rooms are got vacated. RCR.25/09 2 2. The Rent Control Petition was resisted by the tenant contending that the petition by the present landlord is not maintainable without juncture of all legal heirs of the original landlord brought in as parties. Further contention is that the need projected is not genuine as the landlord is at present residing in a house of his own. It is also contended that the landlord has got other residential buildings of his own in the same city. The tenant also pleaded benefit of the second proviso to S.11(3), on the ground that the income derived from his profession is the sole business and there is no other suitable building available in the locality to shift his Advocate Office. 3. The evidence before the trial court consists of oral testimonies of the landlord as PW1 and the tenant as RW1. Exts.A1 to A4 were marked on behalf of the landlord. Ext.C1 is the commission report. The trial court found that the need urged by the landlord is genuine and bonafide and accordingly ordered eviction under S.11(3) of the Act. The appellate authority concurred with the findings, but allowed three months time for the tenant to vacate the scheduled premises. The revision is against the order of eviction, which is confirmed in appeal. 4. Eventhough the tenant raised a claim of denial of title on the allegation that without juncture of other legal heirs of the original tenant the Rent Control Petition is not maintainable. RCR.25/09 3 But it is conceded in the evidence of the tenant as PW1 that, after death of the original landlord the rent was being paid to the present landlord. The present landlord claims title on the building by virtue of a Will executed by his deceased father. Inspite of dispute raised against validity of the Will, the tenant is not disputing the fact that the petitioner is one among the legal heirs of the deceased original landlord. Therefore, even assuming that the Will is not valid, the present landlord being one among the co-owners, the tenant is not entitled to raise the dispute of title. Hence we find no merit in the arguments in this regard. 5. The further contention of the petitioner is that the building in question is having only 360 Sq: Ft: and it is not at all suitable for residential accommodation of the landlord. Referring to Ext.C1 commission report the courts below observed that the Advocate Commissioner has categorically reported that the room in question is suitable for residential accommodation of a single person. Further it is now settled position of law that the tenant is not entitled to dictate about any terms with respect to usage of the building. It is for the landlord to decide the suitability regarding his accommodation. The tenant is not entitled to advise him as to what he should do and what he should not do. Therefore the contention has no merit. 6. Yet another contention raised by the revision RCR.25/09 4 petitioner is that the specific need projected by the landlord is that he is intending to occupy the entire building for his residential purpose, and the pleadings are to the effect that after occupying the scheduled room the landlord is intending to occupy other rooms also. But there is no evidence to the effect that the landlord has initiated any steps for eviction of other tenants in the building. The counsel for the respondent on the contra, drawn our attention to the oral evidence of the landlord as PW1, wherein he has stated that Rent Control Petitions were already filed against other tenants also. Before this Court the counsel for the respondent submitted that Rent Control Petitions filed in this regard are RCP.Nos:150/05, 151,05 and 152/05. The counsel for the revision petitioner is not in a position to dispute the above fact. Further it is evident from the case number of the other Rent Control Petitions that, the landlord had filed all the four Rent Control Petitions almost simultaneously. Hence the contention in this regard does not deserve merit. 7. The tenant had seriously contended for the benefit under the second proviso to S.11(3) of the Act, before the Courts below. The concurrent findings in this regard is to the effect that the tenant had failed in proving that the income derived from the scheduled premises is the sole means of livelihood and he had also failed in proving the non-availability of suitable building for shifting his office. The learned counsel for the RCR.25/09 5 respondent, based on some settled legal precedence, contended that the benefit of second proviso to S.11(3) is not available to the revision petitioner, he being a professional and that he is not conducting any business activity in the premises. However, we do not find any reason to interfere with the findings concurrently arrived by the courts below on the basis of the benefit claimed under the second proviso to S.11(3). 8. On an anxious scanning of the orders of the courts below and on an active consideration of the evidence on record, we do not find any illegality, impropriety or irregularity to interfere with the findings in the orders of eviction concurrently passed by the courts below. The learned counsel Sri:K.J. Kuriachan appearing for the revision petitioner lastly made submissions seeking indulgence of this Court for granting at least six months time to vacate the premises. The above request was vehemently opposed by the senior counsel appearing on behalf of the respondent, Sri.Jacob Varghese. However, under the given facts and circumstances, we are inclined to allow four months time to the revision petitioner/tenant to vacate the premises. In the result, the revision petition is disposed of on the following terms: If the revision petitioner/tenant files affidavit before the execution court undertaking that he will handover peaceful RCR.25/09 6 and vacant position of the tenanted premises to the landlord within a period of four months from today, and if he makes payment of arrears of rent, if any, and continues to make payment of the rent falling due till such time, the execution court is directed to keep in abeyance eviction of the revision petitioner/tenant from the tenanted premises for a period of four months from today. The affidavit as stated above need be filed within two weeks from today. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb