IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 RCRev..No. 156 of 2008() ------------------------ RCA.12/2007 of D.C. & SESSIONS COURT,KOZHIKODE RCP.72/2005 of ADDL.M.C.,KOZHIKODE-II .................... : REV.PETITIONER/APPELLANT/RESPONDENT ---------------------------------------------------- M.A.MOIDEEN KOYA, S/O.K.T.ALI KOYA, AGED 58, BUSINESS, KUNNAMANGALAM AMSOM AND DESOM OF KOZHIKODE TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: RESPONDENTS/PETITIONERS ------------------------------------ 1. MARIYAKUTTY, W/O.C.K.MAMMU, AGED 44 2. V.P.JAMSHHER, AGED 28, S/O.C.K.MAMMU. 3. V.P.BABY JAMSHEENA, AGED 26, D/O.C.K.MAMMU, BUSINESS, ALL RESIDING AT KODAMPATTIL HOUSE, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK. KERALA STATE. BY ADV. SRI.N.SUBRAMANIAM FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.156 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of July, 2008. O R D E R Ramachandran Nair, J. The tenant is the revision petitioner. The landlord filed a petition for eviction under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court ordered eviction under Section 11(3) of the Act and the Appellate Authority has confirmed the said order. 2. In the petition for eviction the first respondent contended that the second respondent who is her son, is not having any job or avocation in life and the building is required to start a business in tyres and tubes. The tenant pleaded that the landlords are having other buildings in their possession and the need pleaded is not a genuine one. It was also contended that the second respondent is already having a business in transport. 3. P.W.1 was examined on the side of the landlords and Exts.A1 to A3 were marked. The tenant was examined as R.W.1 and Exts.B1 to B5 were marked. The Advocate Commissioner was examined as C.W.1 and Ext.C1 is the report. Ext.X1 was marked through court witness. RCR 156/2008 -2- 4. We heard Shri T. Krishnanunni, learned Senior Counsel who argued for the petitioner and and Shri N. Subramaniam, who appeared on caveat on the side of the landlords. Learned Senior counsel contended that the authorities below have not considered the contention raised by the tenant that at the time of entrustment of the room in question, an amount of Rs. 2 lakhs was paid as advance and as the same remains unpaid, the petition for eviction is premature, going by Section 11(9) of the Act. It is also contended that the findings rendered by the authorities below on the various grounds are also not supportable. 5. The plea raised by the petitioner that an amount of Rs.2 lakhs was paid as advance to the former owners of the building, is not at all supported by any evidence in this case. It is true that under Section 11(9) of the Act, where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply to the Rent Control Court before the expiry of such period. The contention that as the advance paid remains unpaid, the petition for eviction is hit by Section 11(9) of the Act, is not at all sustainable. The situation provided under the section is totally different. The plea now raised based on Section 11(9) of the Act has not been raised before the authorities below. Apart from that, as the tenant could not prove any such contention regarding the advance paid RCR 156/2008 -3- before the authorities below, we find that the plea now raised in the arguments regarding the non payment of Rs.2 lakhs cannot be accepted. 6. The main ground on which eviction is ordered, is under Section 11 (3) of the Act. The attack on the said ground is that the landlord's son was having other business and they are having other buildings also. But this contention was not carried to its logical conclusion either in the oral evidence adduced by the tenant or by way of any other independent evidence. Therefore, the Rent Control Court and the Appellate Authority found that the tenant has not succeeded in proving such a contention. The genuineness of the plea of bonafide need has been found accepting the evidence adduced by the respondents. The second respondent, aged 25 was not having any avocation and therefore there were no circumstances to doubt the genuineness of the bonafide need pleaded. We find no reason to differ from the said finding. 7. Then the other question is regarding the benefit of the second proviso to Section 11(3) of the Act. Regarding the said aspect also, both the authorities have found against the tenant. Learned counsel for the respondents submitted that the tenant is having business in other places also which fact stands admitted in the evidence. Therefore, the tenant had failed to adduce evidence that he is mainly depending on the income from RCR 156/2008 -4- the business conducted in the petition schedule building. He has also admitted having branches for the same business in other places, especially in Delhi. Thus, there is clear failure to adduce necessary evidence to attract the benefit of the second proviso to Section 11(3) of the Act. The tenant also failed to prove that there are no vacant buildings available in the locality for getting it on rent. 8. We find that the authorities below have approached the questions in the correct perspective. The contentions raised have been clearly repelled, on valid grounds. The order of eviction passed cannot be said to be erroneous for any reason. Therefore, we dismiss the revision petition. At this stage, the learned counsel for the petitioner sought for some time to vacate the premises. We grant five months time from today to the petitioner to vacate the premises on condition that he files an undertaking in the form of an affidavit before the Rent Control Court undertaking to vacate the premises unconditionally on or before the expiry of five months from today and also to pay the arrears of rent, if any, due and continue to pay the monthly rent till the premises are vacated. The affidavit shall be filed within three weeks from today. The petitioners shall deposit the entire arrears of rent, if any, within the aforesaid period of three weeks and shall continue to pay an amount equivalent to the rent payable, towards RCR 156/2008 -5- compensation for use and occupation, till possession is surrendered. If any of the conditions aforesaid is violated, then the order of eviction will become enforceable at once. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/