IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 RCRev..No. 12 of 2008() ----------------------- RCA.104/2006 of I ADDL.DISTRICT COURT, ERNAKULAM RCP.136/2005 of III ADDL.M.C.EKM (RENT CONTROL) .................... REVISION PETITIONER:APPELLANT/RESPONDENT: ---------------------------------------------------------------------------- K.M.ABDUL LATHEEF, S/O.KUNNINAKATH MOHAMMED, AGED 48, KAMMIR KANZAL, PAREPARAMBU ROAD, KALOOR, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTICT. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENT: RESPONDENT/PETITIONER: ----------------------------------------------------------------- SMT.MARYKUTTY JOSEPH @ MARYKUTTY JOSY, AGED 57, W/O.CHIRAMEL JOSY CHIRAMMEL HOUSE, PERINGADU PARAMBU, PALLISSERY ROAD, PALARIVATTOM, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON 15/02/2008 PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.95/2008 IN R.C.R.NO.12/2008 DISMISSED 15/02/2008 SD/-K.BALAKRISHNAN NAIR,JUDGE SD/-P.N.RAVINDRAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.12 of 2008 ======================== Dated this the 15th day of February, 2008. ORDER Ravindran,J. The tenant in R.C.P.No.136 of 2005 on the file of the Rent Control Court is the petitioner. The respondent - land lady sought eviction under Sections 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as "the Act". The Rent Control Court ordered eviction under Section 11(3) of the Act and declined the prayer for eviction under Section 11(4)(iii) of the Act. The petitioner - tenant and the respondent - land lady filed appeals therefrom as R.C.A. No.104 of 2006 and R.C.A. No.118 of 2006 respectively in the Court of the Rent Control Appellate Authority, Ernakulam. By judgment delivered on 15.9.2007, both the appeals were dismissed, affirming the order of eviction passed by the Rent Control Court under Section 11(3) of the Act. The tenant has in this revision petition filed under Section 20 of the Act challenged RCR 12/08 -: 2 :- the order passed by the Rent Control Court, Ernakulam in R.C.P.No.136 of 2005 and the judgment of the Rent Control Appellate Authority, Ernakulam in R.C.A.No.104 of 2006. 2. The respondent - land lady instituted the petition for eviction under Sections 11(3) and 11(4)(iii) of the Act contending inter alia that she bonafide needs the petition schedule shop room for starting a business in ready made garments for ladies, that she does not have any other building in her possession or ownership, that her husband also does not have any other building in his possession, that she is without any avocation, that she and her husband have the financial ability and experience to start a business in ready made garments, that the tenant is in possession of a building at Kalathiparambu Road, Ernakulam, where he is running a business under the name and style "Ruby Books Emporium", that the tenant is in possession of yet another building at Broadway where he is running a business under the name and style "Ruby Leather and Rubber Corporation" and that the said buildings are reasonably sufficient for the tenant to accommodate the business being run by him in the petition schedule building. RCR 12/08 -: 3 :- 3. The petitioner - tenant resisted the petition for eviction contending inter alia that apart from the business being run by him in the petition schedule building under the name and Style "Ruby Shoes Centre" he has no other business, that he has no other building of his own, that the need urged by the land lady, who is a house wife aged 60 is without any bonafides, that the land lady's husband is conducting a business at Palarivattom, that the land lady owns various other shop rooms at Palarivattom, that the land lady has obtained vacant possession of buildings bearing Door Nos.31/1216 and 31/1217, and that if at all the land lady intends to start any business she can start the business in the said buildings in her possession, that he and his family are depending for their livelihood solely on the income derived from the business carried on by him in the petition schedule building, that no other suitable buildings are available in the locality to which he can shift his business, that he is not in possession of any building at Kalathiparambil Road and that the business at Broadway is one run by his father and brother. 4. In the Rent Control Court, on the side of the land lady, PWs 1 to 8 were examined and Ext.A1 was marked. On the side RCR 12/08 -: 4 :- of the tenant, he was examined as RW1. Ext.X1 was also summoned and marked through PW7. The Rent Control Court, on an analysis of the evidence oral and documentary available in the case, held that the need put forward by the land lady is bonafide and genuine. The Rent Control Court also held that the tenant is not entitled to the protection of the second proviso to Section 11(3) of the Act. As regards the claim for eviction under Section 11(4)(iii) of the Act, the Rent control Court held that the land lady has not made out a case under Section 11(4)(iii) of the Act and therefore she is not entitled to an order for eviction on that ground. Accordingly, the Rent Control Petition was allowed under Section 11(3) of the Act and the tenant was directed to give vacant possession of the petition schedule building within 30 days from the date of the order. The tenant filed R.C.A. No.104 of 2006 challenging the order of eviction passed under Section 11 (3) of the Act and the land lady filed R.C.A.No.118 of 2006 challenging the order passed by the Rent Control Court disallowing the claim for eviction under Section 11(4)(iii) of the Act. The Appellate Authority on a consideration of the pleadings and evidence in the case, affirmed the findings of the Rent RCR 12/08 -: 5 :- Control Court and dismissed both the appeals. 5. We heard Sri.S.Sreekumar, the learned counsel appearing for the petitioner - tenant and Sri.Varghese C.Kuriakose, the learned counsel appearing on notice for the respondent - land lady. The learned counsel for the petitioner - tenant contended, assailing the findings of the Rent Control Court and the Appellate Authority on the claim for eviction under Section 11(3) of the Act, that as the land lady is a house wife aged 60 years and has not been doing any business for the past several years, the need put forward, namely, to set up a business in ready made ladies garments cannot be said to be bonafide. The learned counsel for the petitioner contended that the land lady has no previous experience in running a business and that the Rent Control Court and the Appellate Authority while considering the bonafide need put forward by the land lady failed to take note of the said fact. The learned counsel further contended that the land lady had obtained vacant possession of two other buildings bearing Door Nos.32/1216 and 32/1217 of Cochin Corporation and that if at all she wants to start a business, it can very well be done in the said buildings. The RCR 12/08 -: 6 :- learned counsel for the tenant also submitted that the tenant is depending for his livelihood on the income derived from the business carried on by him in the petition schedule building and that no other suitable buildings are available in the locality. The learned counsel for the respondent - land lady, on the other hand contended that the bonafide need put forward by the land lady cannot be characterised as imaginary for the reason that she did not have previous experience in running a business or that she was not engaged in any avocation for the past several years. The learned counsel for the land lady submitted that the Rent Control Court and the Appellate Authority have concurrently held that the need put forward is bonafide and genuine and that this Court, exercising the revisional power under Section 20 of the Act, may not upset the said findings which are based on cogent evidence. The learned counsel for the respondent - land lady also submitted that the buildings bearing Door Nos.32/1216 and 32/1217 belong to the land lady's daughter and that the land lady's daughter had instituted R.C.P.No.22 of 2000 in the Rent Control Court, Ernakulam, which was ultimately disposed of by this Court in R.C.R.Nos.216 of 2004 and 222 of 2004. The learned counsel for RCR 12/08 -: 7 :- the respondent - land lady had pursuant to the order passed by us on 11.1.2008, when the matter was first heard at the stage of admission, produced a photostat copy of the settlement deed dated 17.3.1997 executed by the land lady in favour of her daughter - Bijina Josy whereby the shop rooms bearing Door Nos.32/1216 and 32/1217 were settled on her daughter along with another shop room bearing Door No.32/1222. The learned counsel for the respondent - land lady also produced a copy of the possession certificate dated 9.2.2005 issued by the Village Officer, Edappally Village, certifying that the land lady's daughter, Bijina Josy is in possession of the land described in the aforesaid settlement deed. The learned counsel has also produced a photostat copy of the licence issued by the Corporation of Kochi to Bijina Josy to run a fast food and cool bar in the building bearing Door No.32/1217. 6. We have considered the rival contentions. We also called for the files in R.C.R.Nos.216 of 2004 and 222 of 2004 on the file of this Court. Since the land lady has not challenged the rejection of her claim for eviction under Section 11(4)(iii) of the Act by filing a revision petition, we are only dealing with the claim RCR 12/08 -: 8 :- for eviction under Section 11(3) of the Act. The Rent Control Court and the Appellate Authority have, on an analysis of the evidence oral and documentary available in the case, concurrently held that the need put forward by the respondent - land lady is bonafide and genuine. Nothing prevents an inexperienced or old lady from starting a new business. The tenant cannot dictate on these aspects. So, the finding that her need is bonafide is a plausible finding of fact based on appreciation of the evidence on record and the same cannot be said to be perverse warranting interference under Section 20 of the Act. 7. The only other questions that survive for consideration are whether the land lady is disabled by the first proviso to Section 11(3) of the Act from seeking eviction of the petition schedule building and whether the tenant is entitled to the protection of the second proviso to Section 11(3) of the Act. The learned counsel for the petitioner - tenant contended that the land lady is in possession of two other buildings bearing Door Nos. 32/1216 and 31/1217 and that though the land lady examined as PW1 had deposed that a business was being run in RCR 12/08 -: 9 :- the buildings bearing Door Nos.32/1216 and 32/1217, when she was cross examined she conceded that presently, no business is being carried on in the said premises and hence, in the absence of special reasons, the land lady cannot seek eviction of the petition schedule building. The learned counsel for the respondent - land lady, on the other hand pointed out that PW1 had also deposed that the said buildings do not belong to her and they had been given to her daughter at the time of marriage. Though the document evidencing the transfer of the building bearing Door No.32/1217 to the land lady's daughter had not been produced before the Rent Control Court or the Appellate Authority, the respondent - land lady has filed a photostat copy of the same in this Court as directed by us on 11.1.2008 and notwithstanding the opportunity given to the petitioner, he has not chosen to file objections to the said document being received into evidence. When the case was taken up for hearing on 28.1.2008, the learned counsel for the petitioner - tenant submitted that he does not dispute the veracity or genuineness of the photostat copy of the document dated 17.3.1997 whereby the respondent - land lady had settled the aforesaid two shop RCR 12/08 -: 10 :- rooms on her daughter Bijina Josy. The learned counsel for the respondent - land lady also submitted that the settlement deed dated 17.3.1997 and the proceedings culminating R.C.R.Nos. 216 of 2004 and 222 of 2004 on the file of this Court conclusively prove that the land lady does not own the aforesaid buildings. On going through the settlement deed dated 17.3.1997 and the files in R.C.R.Nos.216 of 2004 and 222 of 2004 we are satisfied that the land lady ceased to be the owner of the said shop rooms with effect from 17.3.1997 and hence, we hold that the first proviso to Section 11(3) of the Act does not stand in the way of the land lady from seeking eviction of the petition schedule building. 8. The next point for consideration is whether the petitioner - tenant is entitled to the protection of the second proviso to Section 11(3) of the Act. In the Rent Control Court, the Sales Tax Officer attached to the Sales Tax Circle No.4, Ernakulam was examined as PW5 and the Sales Tax Officer attached to the Sales Tax Circle No.2, Ernakulam was examined as PW7. PW5 had deposed that the tenant is a partner of Ruby Boots Emporium. PW7 also likewise deposed that the tenant is a RCR 12/08 -: 11 :- partner of Ruby Leather and Rubber Corporation. The witnesses examined as PWs 6 and 8 had also deposed to the said effect. When cross examined, nothing was brought out by the tenant to discredit their testimony. In the light of the overwhelming evidence available in the case on hand, the Rent Control Court held that the respondent had other sources of income and that he has failed to prove that he is depending for his livelihood solely on the income derived by him from the business being carried on in the petition schedule building. Since the tenant had not succeeded in establishing the first limb of the second proviso to Section 11(3) of the Act, the Rent Control Court held that it was not necessary to examine in detail the clam of the tenant for the protection of the second limb of the second proviso to Section 11 (3) of the Act. The Appellate Authority after a detailed examination of the evidence oral and documentary available in the case concurred with the finding of the Rent Control Court that the tenant has failed to prove that he is solely depending for his livelihood on the income derived by him from the business carried on in the petition schedule building. The Appellate Authority has, in the light of Ext.C1 report submitted by the Advocate RCR 12/08 -: 12 :- Commissioner examined as PW4 to the effect that several buildings are available in the locality within a distance of 20 ft. from the petition schedule building and the testimony tendered by the land lady examined as PW1 that many shop rooms are available in the Madathi Parambil Shopping Complex, held that in the absence of any other evidence to the contra on the side of the petitioner, he is not entitled to the protection of the second limb of the second proviso to Section 11(3) of the Act. The said finding of the Appellate Authority cannot be said to be infirm or vitiated in the light of the evidence on record and the failure of the tenant to prove by acceptable evidence that no other suitable building is available in the locality. In the result, we find no reason to interfere with the decisions of the Rent Control Court and the Appellate Authority. The revision petition fails and it is dismissed. 10. In the course of the arguments, the learned counsel for the petitioner - tenant submitted that as he is running a business in the petition schedule building for the past several years, in the event of the revision petition being dismissed, he may be granted nine months time to surrender vacant possession of the RCR 12/08 -: 13 :- premises. We heard the learned counsel appearing for the respondent - land lady on the said question as well. Since the petitioner - tenant is admittedly running a business in the petition schedule building from 1985 onwards we grant him six months time from today to surrender vacant possession of the petition schedule building to the respondent - land lady, subject to the condition that he files an undertaking in the form of an affidavit before the Execution Court within three weeks from today undertaking to surrender vacant possession of the petition schedule building to the respondent - land lady within six months from today. The petitioner - tenant shall also undertake to pay the rent, if any in arrears and to continue to pay the rent from time to time till the date of surrender of the petition schedule building. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 4/1