IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 RCRev..No. 253 of 2011() ------------------------ RCA.3/2009 of RENT CONTROL APPELLATE AUTHORITY I,MAVELIKKARA OPBRC.9/2006 of RENT CONTROL COURT,KAYAMKULAM .................... REVISION PETITIONER/APPELLANTS/RESPONDENTS -------------------------------------------------------------- 1. SHAJI, S/O.ABDUL KHADER KUNJU, CHAYAKKARANPARAMBIL, ERUVA MURI, PATHIYOOR VILLAGE. 2. RAJEENA, W/O.SHAJI, CHAYAKKARANPARAMBIL, ERUVA MURI, PATHIYOOR VILLAGE. BY ADV. SRI.K.HARILAL RESPONDENT(S):/RESPONDENTS PETITIONERS -------------------------- 1. JAMEELA BEEVI, W/O.ABDUL AZEEZ, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 2. SAIFUDEEN, S/O.ABDUL AZEEZ, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 3. SHEEJA, D/O.JAMEELA BEEVI, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 4. SAJIBAI, D/O.JAMEELA BEEVI, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 5. HASEENA BAI, D/O.JAMEELA BEEVI, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 6. BIJUMON, S/O.ABDUL AZEEZ, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 7. MIDUL RAJ ALIAS ANIMON, S/O.ABDUL AZEEZ, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 8. RASEENA, D/O.JAMEELA BEEVI, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE.690 502 9. RINCY, D/O.JAMEELA BEEVI, OODACKAL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE. 690 502 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ------------------------ R.C.R.No. 253 OF 2011 ------------------------ Dated this the 24th day of June, 2011 O R D E R Balakrishnan, J. The tenants are in revision. Orders of eviction were passed concurrently under Section 11 (2)(b) and 11 (3) of the Act. As regards the order of eviction passed under Section 11 (2)(b) of the Act. There is no request for reconsideration. The tenants can get that order vacated by making requisite deposits and by filing petition under Section 11 (2)(c) of the Act. 2. The landlords contended that they bona fide need the petition schedule building to start a vegetarian deluxe restaurant in the petition schedule building which has an area of 2000 sq.feet. It was also contended that they have no other suitable vacant building of their own to start the business as proposed and hence sought eviction under Section 11(3). 3. The tenants/revision petitioners resisted the petition contending that the landlords are having so many other buildings and that the need is only a pretext for eviction. It was also RCR.No.253/2011 2 contended that they are entitled to the protection under the second proviso to section 11 (3) of the Act. Before the Rent Control Court, on behalf of the landlords, PW1 to 4 were examined and Exts.A1 to A19 were marked. The Commissioner's report was marked as Ext.C1. No evidence was adduced on the side of the revision petitioners. The Rent Control Court after appreciating the evidence found that the need projected is bona fide. Since no satisfactory evidence was adduced by the revision petitioners, it was found that the tenants are not entitled to the benefit of the second proviso to section 11 (3). 4. The learned Appellate Authority after reappraisal of the evidence confirmed the order of eviction passed by the Rent Control Court. 5. Sri.K.Harilal learned counsel for the revision petitioners has argued at length on all the grounds raised in the revision petition. The prominent ground urged by the learned counsel is that the revision petitioners were not given sufficient opportunity to adduce contra evidence. It is stated that the first revision petitioner was hospitalised and was not in a position to give evidence. Though the case was adjourned to four or five days, RCR.No.253/2011 3 the learned counsel for the tenants could not intimate that fact and as such evidence could not be adduced on the side of the revision petitioners. On going through the judgment of the Appellate Authority, it is found that no such serious ground was raised before the learned Appellate Authority. Though in this revision petition as ground No.8 it was stated that the Rent Control Court should not have dismissed I.A. N.2970/2008 to issue summons to the witnesses, no such ground was raised before the learned Appellate Authority. The commission was taken out by the landlords to inspect the petition schedule building to find the suitability of that building for conducting the restaurant. The commissioner inspected the premises. But even at that point of time, the revision petitioners had no contention that the landlords were having in their possession vacant buildings suitable for starting restaurant. No document was also produced by the revision petitioners to show that there was any other suitable vacant building available with the landlords for starting the restaurant. Relying on the evidence given by PWs 1 to 5 including that of the advocate commissioner, it was found that the petition schedule building is ideally situated and that RCR.No.253/2011 4 the need projected by the landlords for starting the restaurant is a bona fide one. Since it is a concurrent finding, we do not find any reason to upset the same. 6. As regards the protection under the second proviso to section 11 (3), it is found that the revision petitioners are conducting jewellery business. No satisfactory evidence was adduced to show that they are mainly depending on the income derived from the business conducted in the petition schedule building or that there are no other suitable building available in the locality. As such, tenants are found to be not entitled to the protection under the second proviso to section 11 (3). We confirm that finding also. The result therefore is that the revision fails and will stand dismissed. PIUS C.KURIAKOSE,JUDGE N.K.BALAKRISHNAN, JUDGE dpk